SanDers v. Reister

Decision Date31 December 1875
Citation46 N.W. 680,1 Dak. 151
PartiesSanders et al. v. Reister.
CourtSouth Dakota Supreme Court


Appeal from district court, Yankton county.Moody & Cramer, for appellant. S. L. Spink and S. H. Gruber, for appellee.


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 propositions embraced in each separate instruction given and refused, and shall notice them only so far as they relate to, and bear upon, the points made in appellant's brief. This further appears as evidently sufficient from the consideration that the propositions discussed by counsel for appellant are primary and fundamental, and not merely technical in their character.

1. In examining the points in the order of their presentation, we are met at the threshold with the question as to the competency of husband and wife as witnesses in a cause wherein they are joined as coplaintiffs. 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 landmarks, 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, here 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.” If these provisions stood alone, there could be but little doubt as to their meaning or proper construction. Interest, of whatever nature or extent, would no longer render incompetent, not even excepting the close, intimate, and inseparable identity of interest existing between husband and wife; and all parties regardless of their relations to the suit, or to other parties thereto, could testify. But we find in the proviso that follows some very material modifications and limitations; and the one on which appellant grounds his objections is as follows: “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 construction of the first clause of this provision, which prohibits husband and wife from being witnesses for or against each other. 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 exceedinly 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 an 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 this question, I need cite but two cases. In Mousler v. Harding, 33 Ind. 176, an action brought by Harding against Mousler and wife for slanderous words spoken by the wife, the court say: “The statute excludes the husband and wife as witnesses ‘for or against each other,’ but does not prohibit each from testifying in his or her own behalf; and when they are united in the same action, the evidence of one of them cannot be considered in determining the issues for the other. In this case we all concur in the opinion that the wife was a competent witness in her own behalf, and three of the judges unite in the opinion that the husband was also a competent witness for himself.” In the case of Russ v. The War Eagle, 14 Iowa, 363, an action brought for damages for injuries sustained by the wife, the court, under a statute similar to that of Indiana, held that the husband was a competent witness, but that the wife could not testify, although joined with her husband, in any case where she would not be competent if he sued alone. Considering the inseparable nature of the interest of husband and wife in this suit, and the difficulty of drawing a dividing line, and confining the testimony of each to their separate issues,-for in actions of this character, and I might say in almost all actions sounding in tort, where the husband and wife are joined, the issues of one are the issues of the other, and the interest of one the interest of the other,-I should regard it as, generally, an impossibility to make practical the rule laid down in the Indiana case, supra, “that the evidence of one of them cannot be considered in determining the issues of the other.” 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 v. Cowgill, 48 Mo. 291;Mousler v. Harding, 33 Ind. 176;Bennifield v. Hypres, 38 Ind. 498;Birdsall v. Dunn, 16 Wis. 251;Fugate v. Pierce, 49 Mo. 441;Harriman v. Stowe, 57 Mo. 93. In the case of Maverick v. Railroad Co., 36 N. Y. 378, an action brought for the recovery of damages for injuries to the wife, Judge Scrugham, in delivering the opinion of the court, discusses this question in the following brief but clear and comprehensive manner: “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 affect 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 circumstance...

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