White v. Chaney
| Decision Date | 25 January 1886 |
| Citation | 20 Mo.App. 389 |
| Parties | MARY E. WHITE ET AL., Respondents, v. C. M. A. CHANEY ET AL., Appellants. |
| Court | Kansas Court of Appeals |
APPEAL from Pettis Circuit Court, HON. JOHN P. STROTHER, Judge.
Reversed and remanded.
Statement of case by the court.
This is an action in trespass, for the wrongful taking of goods alleged to be the property of the plaintiff, Mary E. White whose husband, Everett White, is joined as co-plaintiff, as a formal party. The facts as disclosed at the trial are substantially as follows: The plaintiffs were married in the state of Kentucky in 1874, and continued to live there until 1882, when they came to Sedalia, Mo. During the coverture and while living in Kentucky, the wife inherited considerable money from her father's estate, and some land from her mother's estate. This land was sold, and the notes for the purchase money were taken in the name of Mary E. White. The money arising from these notes, or a part of them together with other money so coming as aforesaid to said Mary, was turned over to the husband in Kentucky, with a part of which he bought exchange in his name. On arriving at Sedalia he placed this money and exchange to his credit in bank there, and drew the same out on his checks, and bought the goods in question, and embarked in mercantile business in Sedalia in the name of M. E. White. Mrs. White testified that she so placed the money in her husband's hands, to be so invested for her use and benefit, as her agent. The husband, over the objection of defendants, was permitted to testify as a witness. He stated the facts as to how his wife inherited this property, and how he received it, and that he so invested it for her use as her agent, and that he was conducting said mercantile business as the agent of his wife.
The defendant, Chaney, as a creditor of said Everett White, sued out an attachment against him, under which the sheriff seized said goods as the property of said Everett. Thereupon, this action was instituted against said Chaney, the sureties on his attachment bond, and the sheriff.
The answer tendered the general issue. Trial before a jury; verdict and judgment for plaintiff, Mary White, for the sum of $1695.00. Defendants have appealed.
JNO. A. LACY and G. W. BARNETT, for the appellants.
I. The petition does not state facts sufficient to constitute a cause of action. A married woman's separate property can only be protected by a suit in equity. Holthaus v. Hornbostle, 60 Mo. 439; Withers v. Shropshire, 15 Mo. 631; Rev. Stat., sect. 3296.
II. The husband of plaintiff was not competent to testify as a witness for his wife, because the suit is not based upon, does not grow out of, neither is it connected with any matter of business where the transaction was had with, or conducted by, said witness, as the agent of his wife. Rev. Stat., sect. 4014; Joyce v. Bronson, 73 Mo. 28; Manufacturing Co. v. Tinsley, 75 Mo. 458; Williams v. Williams, 67 Mo. 661; Haerle v. Kreihn, 65 Mo. 202.
III. The court erred in refusing instruction in nature of a demurrer to the evidence offered by defendants at close of plaintiff's evidence; and erred in refusing second and third instructions asked by defendant, as plaintiffs offered no evidence as to the laws of Kentucky, where the property was acquired, and the presumption is that the common law was in force there, under which the property in question would belong to the husband, and not to the wife. Meyer v. McCabe, 73 Mo. 236; Kidwell v. Kirkpatrick, 70 Mo. 215; Woodford v. Stephens et al., 51 Mo. 440. The evidence showed that the husband converted the property to his own use in Kentucky, with the consent of his wife.
IV. There was nothing in the petition, or evidence, to justify the fourth instruction given for plaintiffs.
W. W. SNODDY and A. C. SCOTT, for the respondents.
I. A married woman's remedy for tort to her property, is at law, and not in equity. Pauley v. Vogel, 42 Mo. 291; Lang v. Cockrell, 55 Mo. 93.
II. The husband was a competent witness, as the agent of his wife, and the suit was based upon, and grew out of business conducted by him as the agent of his wife. Rev. Stat., sect. 4014; Haerle v. Kreihn, 65 Mo. 202; Quade v. Fisher, 63 Mo. 325.
III. In the absence of evidence as to the laws of Kentucky, the presumption of law was that the law of Kentucky were the same as the laws of Missouri on the same subject, and not the common law of England. Legg v. Legg, 8 Mass. 99. In the absence of proof to the contrary, the statute law of a sister state will be presumed to be the same as our own. Selking v. Hebel, 1 Mo.App. 340; Warren v. Lusk, 16 Mo. 102; Meyer v. McCabe, 73 Mo. 236.
IV. Under all the evidence the property was the separate property of the wife, even under the common law. The money arose from the sale of the wife's real estate, and never came to the hands of the husband, except as agent. The draft from the Bank of Kentucky was a chose in action, and was converted into money in Missouri. 1 Burrill's Law Dict. 288; Tillman v. Tillman, 50 Mo. 40.
V. In action of trespass qu-cl, damages naturally arise from the trespass itself, and depriving the owner of use of premises. Field on Damages, sect. 7815.
VI. A general denial, in trespass, admits the title, but denies the trespass; a denial of title in the trespass must be a special plea. Addison on Torts, sect. 424; Ruggles v. Lesure, 24 Pick. (Mass.) 187.
VII. The verdict of the jury was not excessive.
Counsel have discussed on this appeal various questions; but we shall consider such of them only as, in our opinion, are material and important.
I. Was the husband a competent witness in this action? He was joined merely as a formal party under the statute. He claims no interest in the subject-matter of litigation. The wife is the real party in interest, and the recovery sought was to enure to her sole benefit. That, at common law, the husband could not testify under such circumstances, is not controverted. If competent, it must be by reason of some enabling legislative act. The only innovation, in this respect, upon the common law rule, is found in section 4014, Revised Statutes of 1879, which is as follows: " * * * no married man shall be disqualified as a witness in any such civil suit or proceeding prosecuted in the name of, or against his wife, whether he be joined with her or not as a party, when such suit, or proceeding, is based upon, grows out of, or is connected with, any matter of business, or business transaction, where the transaction, or business, was had with, or was conducted by, such married man, as the agent of his wife."
There does not appear to have been any ruling by the supreme court directly on this clause of said section of the statute, presumably because of the fact that the enactment is of comparatively recent date. But that portion of the section, immediately preceding, enlarging the qualification of married women as witnesses, has frequently been before the supreme court. The two qualifying clauses are so similar in their provisions as to make the ruling on the one quite applicable to the other. It is among the recognized canons for the interpretation of statutes that " the occasion and necessity of the law, the mischief felt, and the object and remedy in view, are to be considered." In the Matter of Bomino's Estate, 83 Mo. 441.
Under the clause qualifying the wife to testify in behalf of the husband, it is held that " her competency depends solely upon the fact that the matter about which she is called to testify was conducted by her as agent." She cannot testify except where the matter in suit grows out of some business transaction conducted by her as agent for her husband. Wheeler, etc., v. Tinsley, 75 Mo. 459.
After the enlargement to this extent of the privilege of the wife as a witness, it became a recognized and felt injustice and inequality not to place the husband on the same footing, where the wife's interests were involved in a matter conducted by him as her agent. So, in the revision, the legislature added the clause respecting the qualification of the husband. The obvious purpose was to place them upon an equality in the given particular. If anything, the legislature was more guarded in the language employed touching the husband's qualification. It was supposed by the legislature, that in view of the fact that the wife and husband, when acting for each other in transacting and conducting business for the other, from their immediate connection therewith, would acquire and possess a special information essential to the protection of the rights of the principal, and, therefore, they should be permitted to speak as to such fact, when involved as the basis of the controversy, as if they were the parties in interest.
But it must never be forgotten, in the...
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