Rangler v. Hummel

Citation37 Pa. 130
PartiesRangler <I>versus</I> Hummel.
Decision Date17 October 1860
CourtUnited States State Supreme Court of Pennsylvania

3. The opinion of the witness as to whom Rangler meant when he spoke of "keeping a miss," was inadmissible. He might narrate facts, but the jury must draw all conclusions: Van Vechten v. Hopkins, 5 Johns. R. 211; Murrey v. Bethrons, 1 Wendell 196; Gibson v. Williams, 4 Wendell 320; Starkie on Evidence, Vol. 2, page 261.

4. The evidence in regard to the treatment of Mrs. Hummel by her husband was improperly admitted, as it raised a side issue between them, to the injury of the defendant in the action.

The court having admitted testimony in regard to Peter Hummel's conduct towards his wife, should have allowed defendant to show her conduct towards him.

P. Hummel, if willing to testify, was a competent witness, although a party on the record.

If the amendment was improperly allowed, the action, as brought, could not be sustained.

J. F. and J. M. Lewis, for defendant in error, contended:— 1. The wife was the real plaintiff; she was the injured party; and her husband, who was separated from her, had no right to discontinue the suit.

2. The amendment was proper under the statute, and the decisions of this court. The cases cited on this point, by the other side, do not apply. In all of them, an attempt was made to change the form of the action.

3. The narr. contained an averment and a colloquium, which, by settled law, the plaintiff was bound to prove. The witnesses previously examined, had proved that Mrs. Hummel had been spoken of; but the cross-examination of some of them had elicited the fact that there was a Miss Nagle, to whom the words, without explanation, might apply. The question objected to was necessary for ascertaining whom the defendant had spoken of: Commonwealth v. Buckingham, Thatcher's Criminal Cases 29; Hays v. Brierly, 4 Watts 395; Van Vechten v. Hopkins, 5 Johns. 225; Vanderlip v. Roe, 23 Pa. S. Rep. 34.

4. To enable a wife to sue alone, she must show a separation from her husband: Act of April 11th 1856; but the cause of this separation was immaterial, and the evidence as to her temper was improper.

5. The policy of the law prohibits husband and wife from testifying for or against each other: 3 Brown's Just. 432; Snyder v. Snyder, 6 Barr 488; Newlin v. Newlin, 1 S. & R. 278; Gamber v. Gamber, 12 Pa. S. Rep. 363. The witness was, therefore, properly rejected.

6. The last assignment of error depended on the first, and has been answered.

The opinion of the court was delivered, October 17th 1860, by THOMPSON, J.

The Court of Common Pleas permitted the plaintiff to strike out the name of Peter Hummel, her husband, in whose name, together with that of the plaintiff, his wife, the suit had been originally brought; and this constitutes one of the assignments of error in the case.

We have so often decided, under our several statutes of amendments, that parties might be stricken out, or added, whenever this was necessary to a trial on the merits of the case, that we do not deem it necessary to cite authorities on the subject. This is the plain requirement of the Act of 4th May 1852, as construed by the Act of 12th April 1858. Whenever the rights of a party are liable to be defeated by having joined too few or too many plaintiffs or defendants, these amendments may be made. In such circumstances the fact of mistake is hardly debateable: it will be presumed if without them the merits may not be fully tried. Under the circumstances disclosed, of desertion by the husband, and unwillingness by him to protect his wife's reputation, she might sustain an action for defamation without joining him, under the Act of 11th April 1856. The amendment allowed was, therefore, all right: Druckenmiller v. Young, 3 Casey 97; Wood v. Philadelphia, Id. 502; Everhard v. West Chester and Philadelphia Railroad Company, 4 Casey 339; Walthour v. Spangler, 7 Casey 523; Philadelphia v. Wood, Leg. Intel.,...

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15 cases
  • Julian v. Kansas City Star Co.
    • United States
    • United States State Supreme Court of Missouri
    • January 27, 1908
    ...4 Wend. 320; Wright v. Paige, 3 Key. 581, 583, 584; Snell v. Snow, 13 Metc. 278 (46 Am. Dec. 730); White v. Sayward, 33 Me. 322; Rangler v. Hummel, 37 Pa. 130; McCue Ferguson, 73 Pa. 333; Daines v. Hartley, 3 Exch. 200; and see opinion of Walworth, Ch., in Maynard v. Beardsley, 7 Wend. 560 ......
  • Julian v. Kansas City Star Co.
    • United States
    • United States State Supreme Court of Missouri
    • December 24, 1907
    ...Wright v. Paige, *42 N. Y. 581, 583, 584; Snell v. Snow, 13 Metc. (Mass.) 278, 46 Am. Dec. 730; White v. Sayward, 33 Me. 322; Rangler v. Hummel, 37 Pa. 130; McCue v. Ferguson, 73 Pa. 333; Daines v. Hartley, 3 Exch. 200. And see opinion of Walworth, Ch., in Maynard v. Beardsley, 7 Wend. (N. ......
  • Leland v. Firemen's Ins. Co. of Newark
    • United States
    • Superior Court of Pennsylvania
    • July 15, 1937
    ...contract declared on, and the cause of action was not changed nor the defendant injured thereby. See Hite v. Kier, 38 Pa. 72; Rangler v. Hummel, 37 Pa. 130, 132; Meason Kaine, 67 Pa. 126; Windsor Mfg. Co. v. Globe & Rutgers Ins. Co., 277 Pa. 374, 381, 121 A. 328, (Sadler, J.) where it was s......
  • Leland v. Firemen's Ins. Co. of Newark
    • United States
    • Superior Court of Pennsylvania
    • July 15, 1937
    ...declared on, and the cause of action was not changed nor the defendant injured thereby. See Hite v. Kier, 38 Pa. 72; Rangier v. Hummel, 37 Pa. 130, 132; Meason v. Kaine, 67 Pa. 126; Windsor Mfg. Co. v. Globe & Rutgers Ins. Co., 277 Pa. 374, 381, 121 A. 328, 330 (Sadler, J.), where it was sa......
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