Kilgore's Adm'r v. Hanley.

• Decision Date: 19 January 1886
• Citation: 27 W.Va. 451
• Court: West Virginia Supreme Court
• Parties: Kilgore's Adm'r v. Hanley.

27 W.Va. 451

Kilgore's Adm'r

v.Hanley.

Supreme Court of Appeals of West Virginia.

Submitted January 19, 1886

Decided February 13, 1886.

In an action by the administrator of a deceased person the wife of the defendant is not a competent witness to give evidence against the plain till in regard to any transaction or communication had personally between the wife or her husband and such deceased person. In such ease and as to such transactions or communications the statute see. 22, ch. 160, Acts of 1882 does not change the common law rule of evidence.

Simms ft Endow tor plaintiff in error.

W, T. Thompson for defendant in error.

Snyder, Judge:

On October 16, 1880, L. M. Hanley and T. G. Turner executed their joint note to Thomas W. Kilgore tor $400.00, payable one day after date. Subsequently $316.00 was paid on the note and credited thereon August 7, 1881. Kilgore and Turner having died, the administrators ot the former, on November 19, 1883, brought this action of debt in the circuit court of Cabell county against said Hanley upon said note. The defendant demurred to the declaration and pleaded nil debit and payment and filed an account of sets-off: issue having been joined on the pleas, the case was tried by jury and a verdict found for the plaintiff for $124.95. The defendant moved the court to set aside the verdict, which motion being overruled, the defendant excepted and the court on December 9, 1884, rendered judgment for the plaintiff. The defendant obtained the writ of error to this Court.

The record does not show any action of the court on the demurrer to the declaration; but as a judgment for the plaintiff is equivalent to a positive overruling of the demurrer we must treat it as having been overruled. Hood, v. Maxwell, 1 W. Va. 219.

It is objected that the declaration is in the debet and the detinet when it should be in the latter only. This is such a mere matter of form that it was disregarded on demurrer at common law. It is now under our statute no ground ot demurrer. Sec. 9, ch. 125, Code.

The only other objection made to the declaration is, that while it states that the defendant did not, nor did the said Turner whilst in life, pay the said debt, it is claimed to be demurrable because it does not also state," nor did either of them pay." This object is too untenable for discussion. I think the declaration, while not entirely formal, is plainly sufficient.

The account of sets-off filed by the defendant is made up of items for interest paid, cash loaned, and bacon, hay and wheat furnished to the plaintiff by the defendant amounting in the aggregate to $89.25. During the trial the defendant offered his wife as a witness, and after she was sworn his counsel asked her the following question:" Take the account here handed you, which is the sets-off filed by the de- fen dan t, and state if you ever delivered to Thomas W. Kilgore in his lifetime for the defendant and of his goods, any of the items mentioned in this account so shown you? If so, when, what quantity and at what price?"

The counsel for the plaintiffs objected to the question because it called for transactions had with a deceased person and the witness was at the time and still is the wife of the defendant and incompetent to testify in his behalf. The court sustained the objection and the defendant excepted.

It is now claimed by the plaintiff in error, that under sec. 22 of ch. 130 of the Code, as amended by ch. 160, of Acts 1882, his wife was made a competent witness for him, and that therefore the court erred in refusing to permit her to answer said question.

According to the common law all contracts made directly between husband and wife are void, on the ground that by that law the husband and wife are regarded as one person, and that the coverture takes from the wife the freedom of will essential in every contract. Kelly on Mar. Women 131; 2 Kent Com. 129.

Likewise, by the common law, the husband and wife were not only regarded as one person, but the interest of the husband is treated as the interest of the wife; therefore, under the rules of that law, which deny any one the right to be a witness for himself, the courts uniformly held that the husband and wife, whose interests are thus united, are incompetent to give evidence in behalf of each other, or any other person whose interests are the same; and for reasons of public policy it also prevents them from giving evidence against each other. Baring v. Reeder, 1 H. & M. 154, 169; Dwelly v. Dwelly, 46 Me. 377; 1 Whart. L. Ev., sec. 422.

uThe 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. This exclusion is founded partly on the identity of their legalrights and, interests, and partly on principles ot public policy, which lie at the basis ot civil society." 1 Greenl. Ev., sec. 334.

In Robin v. King, 2 Leigh 141, Carr, judge, in delivering the opinion of the court, says; "It iswell settled, that bus- band and wife can not be witnesses for each other, because their interests are identical, nor against each other on grounds of public policy."

It thus appears that the incompetency ot the wife to testify in behalf or against her husband does not rest upon public policy alone, but also upon the identity ol her interest with that of her husband. Or to state the common law rule more accurately, the principal, it not the only, ground upon which the husband and wife are excluded from testifying for each other, is the community and identity of their interests. While the husband is, in law, the owner of the common property, still the wife has a beneficial interest in such property equal to that of the husband. The beneficial interest resides in each and...