Packet Company v. Clough

ERROR to the Circuit Court for the Eastern District of Wisconsin.

In January, 1870, Carlos Clough and Sarah, his wife, in right of the wife, sued the Union Packet Company, in an action on the case to recover damages for personal injuries sustained by the wife in consequence of alleged negligence of the company's servants. The declaration was in the regular common-law form: Plea: The general issue.

The company, at the time of the injury, was owner of a steamboat employed by it in carrying passengers and freight on the Mississippi River, between St. Paul, in the State of Minnesota, and St. Louis, in the State of Missouri. During the passage downward, the boat arrived at Read's Landing, in Minnesota, at about two o'clock on the afternoon of September 30th, 1869, where she stopped to receive passengers. At that place Mrs. Clough (who was about to go to Davenport, in Iowa, at which place the boat was in the habit of touching), in attempting to go on board, fell from the gangway provided for entrance to the boat, and received the injury for which the suit was brought. Whether the company was guilty of negligence in having failed to provide a proper gangway, or in having failed to keep it in position, was, of course, an important question in the case, and on the trial the deposition of Mrs. Clough was admitted in support of her claim. Exception was taken to its admission.

Whether this exception could be sustained depended upon certain statutes of the United States and of Wisconsin.

Thus, an act of Congress of July 6th, 1862, enacts that—

'The laws of the State in which the court shall be held shall be the rules of decision as to the competency of witnesses in the courts of the United States, in trials at common law, in equity, and admiralty.'And a statute of Wisconsin, passed in 1863, enacts that—

'A party to a civil action or proceeding may be examined as a witness in his or her behalf, on the trial, except in actions in which the opposite party sues, or defends as administrator, or legal representative of any deceased person. And in case of an action for damages for personal injury to a married woman this section shall be so construed as to allow such married woman to be a witness on her own behalf, in the same manner as if she were not married.'

Another statute, also passed in 1868, enacts that—

'A party to any civil action or special proceeding in any and all courts, and before any and all tribunals, and before any and all officers acting judicially, may be examined as a witness in 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.'

After direct testimony had been given by Mrs. Clough that the plaintiffs were married on the 24th day of December, 1845, the defendants proposed to prove by other witnesses that the plaintiffs had not lived together and cohabited as husband and wife since December, 1869; that it was commonly reputed that they had not so lived together, and that there was a common reputation that Carlos Clough was living and cohabiting with another woman. This proof was offered, as alleged, for two purposes,-one, to disprove the fact alleged in the declaration, that the plaintiffs were husband and wife, and the other in mitigation of damages. The court refused to receive it for either purpose, asserting, in regard to the first alleged purpose, that the question of the plaintiffs' relation to each other was not in issue by the pleadings; and, in regard to the second, that the evidence was not admissible in mitigation of damages: that the marriage of the plaintiffs had been proved without objection, and was not controverted by the defendant.

It appeared by the statements of Mrs. Clough that she went to Davenport, arriving there in the evening; that she was on the boat two days and a half; that on account of the injury received by her she had been unwilling to pay fare, that the captain demanded none of her, and that she thanked him for the free passage.

In the course of the trial the plaintiffs' counsel asked Mrs. Clough this question:

'What conversation, if any, did you have with the captain after the accident, on her trip down to Davenport?'

The question was objected to by the defendant's counsel, but the court overruled the objection, and the answer to the objection was read as follows:

'He said it was through the carelessness of the hands in putting out the plank that I fell; that they did not put out the regular plank, but loose planks. It was in the evening, before we got into Davenport, that I had the conversation with the captain.'

The defendant then offered in evidence the ex parte deposition of one Turner, taken in Memphis, Tennessee, under the thirtieth section of the Judiciary Act.

The court rejected the deposition because it conceived it not to be properly certified by the magistrate taking it. This rejection made another exception. Neither the bill of exceptions nor anything else contained the deposition, nor any statement of what it tended to prove.

The twenty-first rule of this court, in that part of it relating to 'briefs' and 'specifications of error,' says:

'When error alleged is to the admission or rejection of evidence, the specification shall quote the full substance of the evidence offered, or copy the offer as stated in the bill of exceptions; any alleged error not in accordance with these rules will be disregarded.'

The judge charged—

'That the consent of the captain not to charge any fare, as testified to by Mrs. Clough, was not a settlement or release of Mrs. Clough's right of action in this case, and would not prevent a recovery unless she so understood it and so agreed at the time.'To which charge the defendant excepted.

Verdict and judgment having been given for the plaintiffs in $6000, the company brought the case here, assigning for error—

1st. The admission of the deposition of Mrs. Clough.

2d. The rejection of the evidence to prove that plaintiffs did not live and cohabit together.

3d. The holding that the marriage of the plaintiff was not in issue under the pleadings.

4th. The holding, because Mrs. Clough had testified that the plaintiffs were married, that the defendant could not disprove the fact by such testimony as was offered.

5th. The charging that the demand of Mrs. Clough, that she should not pay fare in consequence of the injury received in going on to the boat, and the assent thereto of the captain, did not amount to a settlement of her claim for the injury done to her unless she so understood it.

6th. The allowing Mrs. Clough to state, as she did, what the captain had said to her after the accident, and on the trip down to Davenport and just before arriving at that place, in regard to the cause of the injury.

7th. The rejection of the deposition of Turner.

Mr. J. W. Cary, for the plaintiff in error:

1. The court erred in admitting the deposition of Mrs. Clough, if she was the wife of Carlos Clough.

The judgment in this action, when recovered, would belong to Carlos Clough. The wife, in such cases, is joined as a formal party, but the husband would be entitled to the judgment. The case, therefore, presents the question, can a wife be a witness for her husband? The question is not whether she is interested in the event, the suit, but as to the policy of the law. If she can be a witness for her husband, she must be competent as a witness against him, and in that case a wife may be called in a suit against the husband and compelled to disclose all the domestic and marital secrets of the household. We acknowledge the force of the statutes relied on, but these results are so alarming as perhaps to control their interpretation.

2. The court erred in rejecting the evidence to prove that the plaintiffs did not live and cohabit together as husband and wife.

(a) It was competent evidence, tending to show that such relation did not at the time of the injury or trial exist between the parties. The fact that two persons live and cohabit together as husband and wife is some proof that such relation exists between them. On the other hand, the fact that two persons do not live and cohabit together as husband and wife is some evidence that the relation does not exist. The only evidence in this case that this relation did or ever had existed between the plaintiffs was by one of the plaintiffs. She produced no certificate or record evidence of marriage, but simply her verbal statement that they had been married many years previously. The defendants offered proof by persons who had known them, that they did not and had not lived or cohabited together as husband and wife since they had known them. This tended to prove the absence of a marriage.

(b) It was competent evidence to mitigate the damages. As already said this prosecution was for the sole benefit of Carlos Clough. He alone was entitled to the judgment and to the money sought to be collected. The loss and damage which he sustained by the injury was what the jury were to find in that case. Would not this loss be much greater to him if she was a wife with whom he was living and cohabiting, one whom he loved and cherished, than it would be if she was one with whom he had no intercourse or society?

3 and 4. The court erred in holding that the marriage of plaintiffs was not in issue by the pleadings; and that the defendant could not disprove the fact by such testimony as was offered.

Their right to join in this action depended wholly upon the question as to whether they were husband and wife. It was necessary for them to allege that fact, otherwise their declaration would have been demurrable. The defendant pleaded the general issue, which was a denial of every material fact in the declaration; therefore this question was in issue by the pleadings, and was necessary to be proved. If necessary to be proved it was competent for the defendant to adduce evidence to disprove it. It was, therefore, error to hold that it was a fact not in issue.

5. The court erred in charging the jury that the demand of Mrs. Clough, that she should not pay fare in consequence of the injury, and the assent thereto of the captain, did not amount to a settlement of the claim now set up unless she so understood it.

Mrs. Clough paid no fare. When called upon for fare she was unwilling to pay, because she met with an accident in coming on board the boat; and her view was assented to. On what principle? Simply as a settlement of her claim for the injury against the company. She used that claim against the company to excuse herself from paying the fare which the captain of the boat had a right to collect. He yielded to her claim and received the consideration claimed. Is she not estopped further to assert it?

6. The conversation testified to by Mrs. Clough with the captain should have been excluded.

On this exception we rely confidently.

The accident occurred on the 30th of September, 1869, at about two o'clock P.M. Two and a half days afterwards, just as the boat was nearing Davenport, the alleged conversation with the captain in regard to the accident took place. In the Milwaukee and Mississippi Railroad Company v. Finney, a suit against a railroad company, the court below allowed the plaintiff to give in evidence the declarations of the defendant's ticket agent, made after the transaction of selling the ticket was closed. The court held it clearly erroneous, and reversed the judgment, and Dixon, C.J., in disposing of it, quotes Story, J., as follows: