Gee v. Scott

Moore, Associate Justice. The material question presented for our consideration in this case, is whether, since the-enactment of the statute of May 19,1871, declaring that in the courts of this State there shall be no exclusion of any witness in civil actions because he or she may be a party to, or-interested in, the issue to be tried, the husband or .wife of one of the parties is disqualified from testifying, on behalf of such party, as to matters of which the witness can speak from general knowledge, as contradistinguished from facts or information derived from confidential intercourse during the-marital relation. Unquestionably, by the common law, neither the husband-nor wife could testify for or against the other, or in a suit to-which the other was a party, or had a direct or immediate interest, except in a few exceptional cases, in which their testimony is held admissible on the ground of necessity. As, for example, in prosecutions for violence committed by the husband upon the wife; or in an action by the husband against a carrier for the contents of a lost trunk; or to prove the original entries of an account, where the wife kept the.husband’s books, &c. To determine the effect of the statute referred to on the514 common-law rule, that neither the husband nor wife' could testify for or against the other, it is necessary to ascertain upon what ground the rule is based, and why they were held incompetent. For, evidently, if they were excluded solely upon the ground of interest resulting from the personal unity of husband and wife, as the statute declares in plain and positive terms that interest shall be no ground for the exclusion of any witness, the common-law rule is abrogated, and they cannot be excluded from testifying. If, on the other hand, there is some other ground upon which, by the common law, the husband and wife are held to be incompetent to testify, ;as to matters of general knowledge, for or against the other, the statute does not reach or repeal it, and the courts must still enforce the common-law rule, until still further modified "by the Legislature. Was interest, then, the sole ground for the exclusion at common law of the husband and wife as witnesses, in cases to which the other was a party or had an interest ? Unquestionably it is not, when the proposed evidence of the husband or wife relates to, or touches upon, matters of confidential intercourse during the marital relations. Testimony of this character, beyond doubt, is inadmissible at common law, upon the ground of public policy, aside from all consideration of identity of interest of the husband and wife in the issue tried, or of the fact that one of them is a party to the record. And hence it is universally held, whenever the question has been presented, that matters of this character cannot be testified to by the husband or wife, notwithstanding the fact that the common-law rule, that interest disqualifies a witness, has been abrogated. But it is maintained, by those who insist upon the admissibility of the husband and wife to testify in respect to matters of their general knowledge, that while the husband and wife are precluded from testifying against each other by the common law, upon grounds of public policy, the only ground upon which then’ testimony in favor of each other was excluded, was that of mutuality or identity of interest. [515] And certainly the language of some of the text-books on the law of evidence, of the highest authority, seems to- support this conclusion. Thus says Starkie: “The husband and wife cannot be witnesses for each other, for their interest is identical; nor against each other, on grounds of public policy.” (2 Stark. Ev., 706.) And in Buller, N. P., 286, it is stated, “That husband and wife cannot be admitted to be witnesses for each other, because their interest is absolutely the same; nor against each other, because contrary to the legal policy of marriage.” (See, also, 1 Phill. Ev., 76.) And the courts of some of the States having analogous statutes to ours, entertaining this view of the common law, have held the husband and wife rendered by the statute competent to testify for, if not against, each other. (Merriam v. Hartford and New Haven R. R. Co., 20 Conn., 354.) But elementary writers of equal authority, and probably the larger number of well-considered eases, put the common-law rule, excluding the testimony of husband and wife in favor of as well as against the other, upon the broader and, as it seems to us, more satisfactory ground of public policy, as well as interest. Says Mr. Greenleaf: “This exclusion is founded partly on the identity of their legal rights and interest, and partly on principles of public policy, which lie at the basis of civil society.” (1 Greenl. Ev., sec. 334.) And says Judge Kent: “ The husband and wife cannot be witnesses for or against each other. This is a settled principle of law, and is founded as well on the interest of the parties being the same as on public policy.” In the case of Davis v. Dinwoody, 4 T. R., 678, when the remarks quoted from Buller’s Hisi-Prius were relied upon to support the competency of the witness, Lord Kenyon said: “ Independently of the question of interest, husbands and wives are not admitted as witnesses for or against each "other. From their being so nearly connected, they are supposed to have such a bias upon their minds that they are not to be permitted to give evidence [516] either for or against each other.” And Buller, J., adds: “ It is now considered as a settled principle, that husband and wife cannot, in any case, be admitted as witnesses for or against each other.” Many other cases might be easily cited, in which it is decided that such testimony is inadmissible at common law, upon the ground of public policy, as well as because of interest ; and this principle has been frequently applied by the courts of other States having statutes similar to ours, as will be seen in the following cases, in which it is held that the common-law rule is still in force, and that husband and wife cannot testify the one for the other, notwithstanding them mutuality of interest is no longer a ground for their exclusion: Cram v. Gram, 33 Vt., 15; Mitchinson v. Cross, 58 Ill., 366; Dunlap v. Hearn, 37 Miss., 471; (overruling Lockhart v. Luker, 36 Miss., 68;) Lucas v. Brooks, 18 Wall., 436; Kelley v. Proctor, 41 N. H., 139; Breed v. Gove, Id., 452; Hasbrouck v. Vandervoort, 5 Seld., 153; Alcock v. Alcock, 12 Eng. L. and Eq., 354; Stapleton v. Crofts, 18 Ad. & Ellis, N. S., 367; 16 Jur. Rep., 408. It may be, the reasons which led to the enactment of the statute modifying the common-law rule, that parties to the record or interested in the issue to be tried are incompetent to testify, are just as applicable to the one ground for the exclusion of such testimony as the other. But if so, this is a matter that addresses itself to the Legislature, and not to the judiciary. Until such change is made by the proper department of the government having the power to do this, it is our duty to declare and administer the law as it has been “ from the time whereof the memory of man runneth not to the contrary.” To do so, we must hold that the court erred in admitting the husband of appellee to testify as a witness in the case. And for this error, the judgment must be reversed. There are other interesting and important questions presented in the record; but as they may not arise upon another trial, and have not been presented by counsel so as to aid [517] the court in reaching a proper conclusion upon them, we do not feel called upon to undertake their investigation and determination at this time. As a general rule, we are not inclined, and do not regard it as our duty, while there is so much more business pressing upon us than we can possibly dispose of, to take the time to investigate questions, unless absolutely essential for the disposal of cases, when not aided, by an examination and reference to the decisions bearing upon them, by counsel. The judgment is reversed and the cause remanded. Reversed and remanded.