Keep v. Griggs
| Decision Date | 31 October 1882 |
| Citation | 12 Ill.App. 511,12 Bradw. 511 |
| Parties | WILLIAM B. KEEP ET AL.v.ANDREW J. GRIGGS. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding. Opinion filed January 30, 1883.
This was an action on the case for malicious prosecution, brought by appellee against appellants, for causing a search warrant to be sued out, under and by virtue of which appellee's dwelling house at South Chicago was searched for certain goods and chattels which were alleged to be the property of the Chicago Match Company; and which were charged to have been stolen or embezzled by appellee.
Upon the trial in the court below, the wife of appellee was called by him and allowed to testify in his behalf against appellant's objection on the ground of her incompetency to testify in a suit in which her husband was a party, and directly interested in the event of the suit. Exceptions to the ruling of the court were duly preserved.
The case was tried by a jury upon plea of not guilty by all the defendants. The evidence was conflicting, both upon the question of malice, and want of probable cause.
The jury found the defendants guilty, and assessed the plaintiff's damages at $1,000, for which he had judgment; and the defendants' motion for a new trial being overruled, they appealed to this court.
Mr. WILLIAM W. GURLEY and Messrs. R. P. & J. C. DAVIDSON, for appellants; as to when a wife is not a competent witness in husband's behalf, cited Hayes v. Parmalee, 79 Ill. 563; Trepp v. Baker, 78 Ill. 146; Mitchison v. Cross, 58 Ill. 366; Anderson v. Friend, 71 Ill. 475; Hawver v. Hawver, 78 Ill. 412; R. S. 1877, Ch. 51, § 5.
The burden of proof was upon appellee to establish by a clear preponderance of evidence that appellants acted with malice and without probable cause: Davie v. Wisher, 72 Ill. 262; Ames v. Snider, 69 Ill. 376; Brown v. Smith, 83 Ill. 291; Thaule v. Kiekler, 84 N. Y. 429.
As to probable cause: Harpham v. Whitney, 77 Ill. 32; Palmer v. Richardson, 70 Ill. 544; Davie v. Wisher, 72 Ill. 262; Ames v. Snider, 69 Ill. 376; Collins v. Hayte, 50 Ill. 337; Lister v. Perryman, 4 L. R. (Eng. & I.) 521; Bacon v. Towne, 4 Cush. 217; Barron v. Mason, 31 Vt. 189; Hicks v. Faulkner, 51 L. J. R. N. S. part 5, 268; McBean v. Ritchie, 18 Ill. 114.
Independent of probable cause, good faith on the part of the prosecutor is a good defense: Palmer v. Richardson, 70 Ill. 544; Collins v. Hayte, 50 Ill. 353; Angelo v. Faul, 85 Ill. 106; Harpham v. Whitney, 77 Ill. 32.
The fact that appellant Keep was not guilty was not sufficient to justify a verdict in his favor, the question of his guilt or innocence not being an issue in the case: Angelo v. Faul, 85 Ill. 106; Ames v. Snider, 69 Ill. 376; Harpham v. Whitney, 77 Ill. 32; Anderson v. Friend, 85 Ill. 135.
Where verdict is against the evidence, the judgment will be reversed: Puterbaugh v. Crittenden, 55 Ill. 485; Waggeman v. Lombard, 56 Ill. 42; Smith v. Slocum, 62 Ill. 354; Hibbard v. Malloy, 63 Ill. 471; C. R. I. & P. R. R. Co. v. Herring, 57 Ill. 59; Davenport v. Springer, 63 Ill. 276.
Instructions should be concise and briefly state the law of the case: Merritt v. Merritt, 20 Ill. 65; Roe v. Taylor, 45 Ill. 485; Thompson v. Force, 65 Ill. 370; Keeler v. Stuppe, 86 Ill. 309; Rockford Ins. Co. v. Nelson, 75 Ill. 548; C. & A. R. R. Co. v. Utley, 38 Ill. 410.
Messrs. DENT & BLACK, for appellee.
Did the court err in allowing the plaintiff's wife to testify as a witness for him against the objection of the defendants?
In the absence of a statute the general rule is that a husband or wife is not a competent witness for or against the other in a suit to which the other is a party. Mr. Greenleaf says: “The rule by which parties are excluded from being witnesses for themselves, applies to the case of husband and wife; neither of them being admissible as a witness in a cause, civil or criminal, in which the other is a party.” 1 Greenleaf on Evidence, § 334.
So, too, where the husband or wife is not a party to the record, but yet has an interest directly involved in the suit, and is therefore incompetent to testify, the other is also incompetent. Id. 341.
To this general rule of exclusion there are some exceptions, which are allowed from the necessity of the case, partly for the protection of the wife in her life and liberty, and partly for the sake of public justice. Thus she is a competent witness against him for an assault and battery upon her; she may exhibit articles of the peace against him, and in general, in all cases of personal injuries committed by the husband and wife against each other, the injured party is an admissible witness against the other.
In collateral proceedings, not immediately affecting their mutual interests, they not being parties to the suit, their evidence is receivable, though it may tend to criminate or subject the other to a legal demand. Fitch v. Hill, 11 Mass. 286; Griffin v. Brown, 2 Pick. 308; 1 Greenl. on Ev. § 342.
In the present case the wife was admitted as a witness for her husband, who was the party plaintiff in the suit. She was therefore inadmissible, unless she comes within some one of the exceptions of our statutes.
The statute is as follows:
“No husband or wife shall by virtue of section 1 of this act, be rendered competent to testify for or against each other as to any transaction or conversation occurring during the marriage, or after its dissolution, except in case where the wife would, if unmarried, be plaintiff or defendant, or where the cause of action grows out of a personal wrong or injury done by one to the other, or grows out of the neglect of the husband to furnish the wife with a suitable support; and in cases where the litigation shall be concerning the separate property of the wife and suits for divorce, * * * or in all matters of business transactions, where the transaction was had and conducted by such married woman as the agent of her husband, in all which cases the husband and wife may testify,” etc.
It is obvious that the case falls within neither of these exceptions.
1. The wife, if unmarried, could be neither plaintiff nor defendant, as the suit is for a wrong done to the husband alone.
2. The cause of action does not grow out of a personal wrong or injury done by the husband to the wife, nor by the wife to the husband.
3. The cause of action does not grow out of the neglect of the husband to support the wife.
4. The litigation is not concerning the separate property of the wife, but it is for an alleged wrong done to the husband by appellants, and
5. It is not a case where the wife was transacting business for her husband as his agent.
Thus the case is covered by none of the exceptions specified...
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