1 Dakota 151 | Supreme Court Of The Territory Of Dakota | 1875
Lead Opinion
— I cannot, without extending this opinion beyond all reasonable limits, be expected to examine in detail every objection raised by appellant on the trial below, that is brought up by the record; or the correctness of the legal
I. In examining the points in the order of their presentation, we are met at the threshhold with the question as to the competency of husband and wife as witnesses in a cause wherein they are joined as co-plaintiffs.
The difficulties involved in this question grow out of our rather crude legislative innovations upon the- common law; whereby we have attempted to sweep away a portion of the old land marks, and retain a portion, leaving our system in this respect, more or less imperfect, uncertain and contradictory.
The old rule — hoary with time, and the wisdom of which, it was supposed, had been proven by the experience of ages— that no party to a suit, and no one having a pecuniary interest in its result, could be a competent witness, has given away before modern legislation. But the legislative power has almost invariably attempted to shield the marital relations from the effect of these sweeping enactments; to what extent they have succeeded is, I confess, a vexed question of construction. This class of legislation, being comparatively recent, there are many questions arising out of it, for the solution of which, we find but few lights to guide us. Sections' 319 and 320 of our Code of Civil Procedure read as follows:
" No person offered as a witness shall be excluded by reason of his interest in the event of the suit.”
“ A party to an action or special proceeding, including proceedings in probate courts and proceedings for the summary recovery of the possession of land, may be examined as a witness on his own behalf, or in behalf of any other party, in the same manner, and subject to the same rules of examination, as any other witness,”
“ The husband can, in no case, be a witness for or against the wife, nor the wife for or against the husband, unless the contract or facts to be sworn to, are in the exclusive knowledge of such husband or wife, as agent or otherwise, in which' case but one can testify, and unless in a criminal proceeding for a crime committed by one against the other."
It does not appear, either from the record, or argument of counsel, that either the husband or wife, was introduced for the purpose of testifying, or that either of them did testify, to facts within his or her exclusive knowledge as agent or otherwise. But it is claimed by counsel for appellees, that husband and wife being joined, they should be permitted, as a matter of right, under the statute, to testify, generally, in their own behalf.
We are concerned then, as I understand, only with the con
This is an action in which the law requires that husband and wife shall be joined, the wife could not sue alone, neither could the husband, except to recover for the loss of his wife’s services, and the necessary expenses of her sickness, incurred by him. The wife is, therefore, the meritorious party; the injury was inflicted upon her person — damages must be awarded, if at all, for her pain and suffering, bodily and mental. The husband is interested, for in case of a recovery, he may collect and satisfy the judgment, appropriate and use the proceeds.
It is true his interest is contingent upon his marital relation. Should the wife die before judgment, the cause of action will not survive to the husband, but if the husband die before judgment the cause of action will survive to the wife.
So intimately connected is each plaintiff with the very subject-matter of the controversy, and so interwoven are all their respective interests in the result of the suit, that to my mind it would be exceedingly difficult to determine just wherein the husband might be testifying for the wife, or the wife for the husband, or wherein each for himself or for herself. Must they, therefore, both be excluded? The statute has made parties to an action competent witnesses, and the law compels husband and wife to be joined in actions of this kind; now can it be that so great ah act of injustice was intended, as to close their mouths, and permit their adversary to take the witness stand? But it may be said that one may be permitted to testify. Which one? The statute says “ a party,^ without any qualification as to the interest he may have in the suit, it may be a farthing, or it may be all the estate and reputation he has in the world. If we say the wife should testify, because she is the meritorious party, and to whom the cause of action would survive in the event of the husband’s death, may we not also say that the husband should because he may reap all the pecuniary benefit.
To illustrate the doubt and confusion that gather around
It seems clear to my mind that only one of two positions can be tenable, either the husband and wife must both be excluded, or both admitted, to testify where they are joined. Although the question is not free from doubt, I hold that they should both be admitted, as being sustained- by the better reason, less liable to vexatious uncertainties and complications, in accord with the spirit of the statute, and supported by the more recent authorities. (Tingley et al. v. Cowgill et al, 48 Mo., 291; Monsler v. Harding, 33 Ind., 176; Bennifleld et ux. v. Hypress et ux, 38 Ind., 498; Burdsell v. Dunn, 16 Wis., 251;
“ The testimony of the plaintiff, Augustus Maverick, was properly received. The question is not whether he can be a witness for his wife, but whether, being a party, he must be' debarred from testifying in his own behalf, because his wife is also a party to the action. If the result of the action could only effect the wife or her separate property, and he was merely a nominal plaintiff, having no pecuniary interest whatever in the result, and he should be offered as a witness, the question as to his inadmissibility on account of his marital relations to the real plaintiff in interest would be presented. * '* * But in cases like this before us the husband has a direct pecuniary interest in the result. * * * As the law stood at the time of the injury on account of which this action was brought, and judgment rendered, the husband was entitled to the money which should be recovered in his life time for injuries to the person of his wife; and the necessity'for making the wife a party to such action arose from the fact that the damages- would survive to the wife, if the husband died before they were recovered. The interest of the husband was direct and immediate, while that of the wife was uncertain and contingent. He had the right as a real party in interest to be examined as a witness in his own behalf, and the circumstances that- his wife might be benefitted by his testimony if he should die before recovery, is merely incidental, and would not justify the exclusion of his testimony.”
It does not appear, from the reported case, that there was any objection raised as to the wife testifying.
The Supreme Court of Iowa, has reached the same position, but in a different manner. That court holds that the incompetency of either to testify for the other is a personal privilege, which, under their construction of a peculiar statute, may be waived by the one desiring the evidence of the ofher,
In the State of Ohio, under a statute providing that husband and wife should not be competent witnesses for or against each other, the Supreme Court excluded both when they were joined, while the opposite party could be a witness. (Robinson et al v. Chadwick,, 22 Ohio St., 527.) This very unjust and inequitable rule, called forth an amendment by the legislature, February 14, 1859, providing that “ in actions where the wife, were she a femme sole, would be plaintiff or defendant, either the husband or wife may testify, but not both.” And on this plain provision of the statute all subsequent decisions of that court, in which the question was involved, have rested.
The legislature of Massachusetts, relieved the courts of that state, from any trouble on the point, by enacting that where husband and wife were parties, they might testify for or against each other.
The case of Hasbrouck v. Vandervoort, 5 Seldon, 153, cited by counsel for appellant, was an action brought by the trustee of the wife, and not a case wherein husband and wife were joined, and was decided under the following statute:
No person offered as a witness shall be excluded by reason of his interest in the event of the action.”
“ The last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is piosecuted or defended, etc.”
The case of Stein v. Bowman, 13 Peters, 217, also cited by appellant’s counsel, was not an action in which husband and wife were joined, nor even where the wife was called to testify for the husband, but where she was called to discredit him; to prove in fact that he had committed perjury. And that high tribunal say: “ Gan the wife, under such circumstances, either voluntarily be permitted, or by force of authority be compelled to state facts in evidence which render infamous the character of her husband. We think most clearly that'she cannot be.” And I may say, that the reasoning in this case answers the objection that may be urged, that if husband and wife when joined are permitted to testify, the opposite party
An exception to a general statute, should be strictly construed, and when the statute provides that no person shall be incompetent as a witness on the ground of being a party to the suit or in interest, then such person must come clearly within the exception before he can be excluded. The statute plainly prohibits husband and wife from testifying for or against each other, but does not prevent each from testifying for himself or herself; and the circumstance that each might be benefited by the testimony of the other, in actions wherein they are joined, is no good reason for excluding their testimony.
From the very silence of our statute on the subject of husband and wife testifying when they are co-plaintiffs or co-
II. It is insisted by appellant that there.was error in admitting evidence of the complaints and declarations of plaintiff, Anna Sanders, made to the witnesses, as to her injuries and sickness. The argument of counsel is based upon the propo sition, that there is no longer a necessity for the rule, under which this evidence was admitted, and it being based wholly upon necessity — that being the reason of the rule — and the reason failing the rule should cease. The necessity, it is claimed, grew out of the rule of evidence prohibiting a party to a suit, or in interest, from testifying in his own behalf; but this disability being removed by the statute, there is no longer a necessity for giving in evidence the declarations of a party, and therefore the reason of the rule ceases.
The fallacy of this position consists in the alleged reason for the rule. In one sense, all evidence is received as a. matter of necessity, there being no other means by which courts and juries can determine the issues in controversy. But it is claimed that this is hearsay and secondary, and it was only admitted because it was the best in degree that could be produced. I do not so read or understand the authorities. In the case of The Ins. Co. v. Masley, 8 Wallace, 397, the Court say: “ Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent, explanatory or corroborative evidence, it is often indispensable to the due administration of justice. Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue! Now after stating the law in these strong and unmistakable terms, what can that court mean by saying, “ such evidence
Prom an examination of these cases I am unable to find where the court, in either case, rests the reason of the rule on the ground that there was no other method of proving the fact, in the sense in which Judge Allen uses that expression, unless it is to be inferred from the phrase — “ from the necessity of the case,” a form of expression which seems to have been frequently used by courts in a very indefinite manner, and it is not always easy to determine just what meaning they intended to convey. I certainly think we are not warranted in concluding they meant by it a necessity arising from the incompetency of the plaintiff to testify. It would seem at least, the court in the case of Wesley v. Persons, supra, could not have used it in that sense; for at the time that case was decided (1863) parties were, and had been for
After a review of the authorities, I incline to the opinion, that all that the courts can mean by the use of the phrase under consideration, is, that necessity growing out of the inherent difficulties connected with an inquiry into, and the very nature of the proof required to show, the mental and physical condition of an individual. From the nature of the case, that condition can only be known as it finds expression in external symptoms, and in the common .complaints of pain and distress, which are the natural concomitants of illness and physical injury.
But if this class of testimony is original and not hearsay, and does not fall within the rule which excludes the declaration of a party in his own favor, (and it is so held in Cadwell v. Murphy and Wesley v. Persons, supra,) then it seems clear that the reason of the rule insisted upon by counsel for appellant, is not correct. “ In a prosecution for conspiring to assemble a large meeting, for the purpose of exciting terror in the community, the complaints of terror made by persons professing to be alarmed, were permitted to be proved by a witness, who heard them, without calling the persons themselves.” (Regina v. Vincent et al, 9 C. & P., 275.)
The only authority cited by appellant in support of his position, is the case of Reed v. N. Y. Cent. R. R. Co., supra, and in that case the opinion on this point was concurred in by a minority of the court.
The general doctrine is clearly laid down by both Phillips (Vol. 1, 182) and Greenleaf (Vol. 1, § 102) “ that when it is material to inquire as to the bodily or mental feelings of a party, the usual expressions of such feelings, made at the time in question are in the nature of original evidence.” A rule that has long been imbedded in the law of evidence, followed, not doubtingly, as Judge Allen says, but firmly; questions have doubtless frequently arisen as to its application, but seldom as to its wisdom or correctness, and I fail to see any
III. The third point to be noticed in appellant’s brief, relates to the question of trespass, as presented in the instructions, by him asked, and refused by the court.
The theory of the case, on which the instructions given by the court, rest, seem to exclude from the jury the consideration of this question, and I think properly so. The allegation in the complaint is that this excavation was deep and dangerous, and in close and dangerous proximity to the street and alley, and that the plaintiff, Anna Sanders, without fault or negligence on her part, in passing along said street, wholly unaware of danger, fell into said excavation and was injured. The court instructed that it was incumbent on plaintiffs to prove, “1st, the existence of the hole or cellar on said lot; 2d, that it was deep and dangerous; 3d, that it was so near a public street or alley as to be dangerous under ordinary circumstances to persons passing upon the street or alley, and using ordinary care to keep upon the proper path.”
On the question of dangerous proximity the court instructed as follows: “ Persons have an undisputed right to be upon the street or alley and upon every part of them up to the very line, and where there is nothing to define the line, they are not held to an accurate knowledge of it. And an excavation made near to a street or alley, though not dangerous to one keeping strictly in the street or alley, yet. if so near that a person deviating a little therefrom, is in danger of falling in, it is in dangerous proximity. The location of the excavation and the probable danger of persons falling therein, either during the day or in the darkness of the night, are to be considered by you in determining this question.”
Now if under these’ instructions the jury found that the excavation was not in dangerous proximity to the street or alley, then plaintiffs could not recover; but if they found it
Sherman and Redfield in their work on negligence, section 38, lay down the same doctrine: “ The mere fact that the plaintiff, when he suffered the injury, was technically trespassing on the defendant’s land, does not deprive him of all remedy for the defendant’s negligence, if his trespass does not involve negligence on his own part, substantially contributing to his injury.”
In the case of Chapman v. Porlane, 3 S. D., 585, Hay 29, cited in a note to above section, “the defendant was proprietor of an unfinished house, in which there was a sunk flat, beneath the level of the street. On a dark night the plaintiff, while passing, stepped aside into the doorway or entry of the building for a necessary purpose, and there being no fence or barrier across it, fell into the sunk flat, and broke her thigh bone. Held, that the defendant was liable.”
In Loomis v. Terry, 17 Wend, 496, the plaintiff’s son, while trespassing in the defendant’s woods, in the day time, without any evil intention, was severely bitten by two ferocious dogs of the defendant, who was held liable for the damages. And in the case of Sawyer v. Jackson, 5 N. Y. Leg. Obs., 380, the defendant was held liable for an injury inflicted by his dog
Stress is laid upon the fact that appellant had a legal right to dig a cellar on his own premises. Certainly he had. So had the man the right to keep a dog, and make a sunk flat within the enclosure of his unfinished building, but he must take care of the one if ferocious, and guard the other if dangerous, so that harm may not come to others thereby.
I apprehend the particular character of the instruments or causes of injury is unimportant, in contemplation of law, except so far as it may affect the question of the degree of care and negligence with which they are used, kept or constructed. It would seem to me to be a strange rule of law that would permit the owner to sink deep and dangerous excavations on his uninclosed premises, near to a public highway, in a densely populated city, leave it without guard or protection, and hold him not liable in case a person, accidentally or unintentionally steps across the line, falls in, and is killed or injured, simply on the ground that the party injured was guilty of a technical trespass, and yet make the proprietor respond in damages who places spring guns in his inclosed vineyard, whereby a willful trespasser is shot and wounded.
If the owner may make his excavation five feet deep, why not five hundred? A fall into the one might fracture a limb; into the other would be more certain death than a discharge from the spring gun, and yet is not a man as much entitled to protection of limb as he is of life?
Under this view of the law, were the instructions given by the Court on this point correct? The rule is stated by Sherman and Redfield on Negl. § 505, that “the occupant of land is under no obligations to strangers to place guards around excavations made by him, unless such excavations are so near a public way as to be dangerous under ordinary circumstances to persons passing upon the way, and using ordinary care to keep upon the proper path, in which case he must take reasonable precautions to prevent injuries happening therefrom to such persons.” ‘And I think the doctrine well settled, both by English and American authorities, that the obstruc
Pollock, C. B., in the case of Hardcastle v. South Yorkshire Railway Co., 4 H. and N. 67, says: “When an excavation is made, adjoining to a public way, so that a person walking upon it, might, by making a false step, or being affected with sudden giddiness, or in the case of a horse or carriage way, might by the sudden starting of a horse, be thrown into the excavation, it is reasonable that the pers m making such excavation should be liable for the consequences.” And he lays down this rule: “We think that the true and proper test of legal liability is, whether the excavation is substantially adjoining the way.” In that case, the stone buttress, over which plaintiffs intestate walked into the reservoir and was drowned, was seven or ten yards from the public pathway, and it was held that it was not substantially adjoining. Wharton, in his work on negligence, § 885, says: “It is sufficient here to say, that while a person opening near a public highway a dangerous hole or ditch, is bound to fence it in, yet the dangerous place must be sufficiently near the public way to make it probable that persons traveling the public way might be hurt.” And he cites the case of Binks v. The South Yorkshire Railway Co., 3 Best and S. 244. Where the canal in which the person was drowned was twenty-one feet from the public foot path, defendant was held not liable.
The fact of the excavation being outside of the public highway was held to be immaterial, if it rendered travel on the highway unsafe. In the case of Stack v. Portsmouth, 52 New R., 221, the court say: “The instruction that the defendants were not liable unless the want of a railing on the street rendered the street unsuitable and unsafe for the public travel thereon, was sufficiently favorable to the defendants. * * * * The jury must find the street to be insecure, or the
This question was fairly left to the jury, and they must have found the excavation deep and dangerous, and in dangerous proximity to the public highway, thereby rendering it unsafe to the traveling public.
IY. Appellant excepts to the third instruction, given the jury by the court, which reads as follows:
“Defendant having been, as admitted by the answer, the owner and occupant of the lot at the time of the injuries complained of, the law presumes that whatever hole or cellar may have been dug on the lot, was dug by him, or by his direction, or remained there with his knowledge and consent.”
If there is error in this instruction, it is clearly error without prejudice. The digging of the cellar by defendant is substantially admitted in the answer, and shown by the evidence, while there is no offer on the part of defendant to show that it was not dug by him or by his permission, or remained there with his knowledge and consent, and nothing in the record even tending to prove it. So I may also say of the instruction on the measure of damages, in which the court below says that plaintiffs may recover for pecuniary loss, if any proven. The record does not disclose that there was any evidence introduced even tending to prove pecuniary loss, and we are not to presume the jury found what was not in the evidence.
V. It is claimed by appellant that the court erred in instructing the jury that “negligence on the part of plaintiff is a mere matter of defense, to be proved affirmatively by the defendant, of which you must be satisfied by a preponderance of the evidence, though it may of course be inferred from the
The decisions in the different states are very conflicting on this point, but so far as this court is concerned, it is effectually set at rest by the case of Railroad Company v. Gladman, 15 Wal., 401. In that case Mr. Justice Hunt, in delivering the unanimous opiuion of the court, says: “The plaintiff may establish the negligence of the defendant, his own injury in consequence thereof, and his case is made out. If there are circumstances which convict him of concurring negligence, the defendant must prove them, and thus defeat the action. Irrespective of statute law on the subject, the burden of proof, on that point, does not rest upon the plaintiff.’?
After a careful examination of all the authorities, the same rule is laid down as the better law by Sherman and Redfleld, § 44, and by Wharton, § 423, and I deem it unnecessary to elaborate the point further. Upon the case before us the judgment of the court below must be
AFFIRMED.
These provisions have been materially changed, by the revision of 1877, (Code of Civil Procedure, section 446) and now read as follows:
“ No person offered as a witness in any action or special proceeding, in any court, or before any officer or person having authority to examine witnesses or hear evidence, shall be excluded or excused, by reason of such person’s interest in the event of the action or special proceeding; or because such person is a party thereto, or because such person is the husband or wife of a party thereto, or of any person in whose behalf such action or special proceeding is brought, prosecuted, opposed or defended, except as hereinafter provided:
1. A husband cannot be examined for or against his wife without her consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this section does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other.” Reporter.
Dissenting Opinion
dissents from that portion relating to the admission of evidence of the declarations of the injured party as to the state of her health and injuries, and on all other points, concurs.