Foley v. Loughran

The opinion of the court was delivered by Lippincott, J. This brings up for review a judgment of the Hudson County Circuit Court. It is alleged .that certain — 471 — errors were committed in the trial of the action in the court below. The action was by Peter Loughran against Louis B. Foley, administrator of James T. Gibbons, deceased, and was brought to recover an alleged debt due the plaintiff for the value of the board and nursing of the four children of Gibbons during his lifetime and after the decease of his wife. After the death of Mrs. Gibbons, the mother of the children, who were all of tender age, they were taken into the household of the plaintiff, who was their grandfather, some for longer and some for shorter times, covering a period of three or four years altogether, and were there boarded, nursed and taken care of. After the death of Gibbons, the plaintiff brought this action. The trial resulted in a verdict for the plaintiff, upon which judgment was entered in the Circuit Court. The evidence shows that the engagements for the board, care and nursing of these children were made between the wife of the plaintiff, who was their grandmother, and the defendant. All of the arrangements appear to have been made between them. The wife of the plaintiff was not engaged in any business whatever, and was only acting in behalf of her husband as the head of the household. There is no contention in the case that this action was not rightly brought in the name of the husband. The facts in proof in this ease clearly demonstrate that the right of action, if any existed, was in the plaintiff as the head of his household. Some of the evidence tends to show that Gibbons, during his lifetime, madé some payment on account of the board and care of the children. Much evidence was admitted on the trial, without'objection, to show the circumstances under which the children were taken into the household of the plaintiff, and the character of the services rendered to theih. The first assignment of error arises upon the admission by the learned trial judge of the evidence of Mrs. Loughran, the wife of the plaintiff. She was a witness produced by the plaintiff, and, against objection and exception, testified to cer — 472 — tain conversations which she had with Gibbons, and certain transactions with him, in relation to the board and nursing of the children. The engagements were made by Gibbons with her, and it was as to these engagements with him that she was permitted to give evidence. Some of the conversations with Gibbons in relation to this matter were in the presence of her husband, others were with her alone. I think that a reference to the statutes on the subject will clearly establish her competency to testify to these transactions. The third section of the act entitled “An act concerning evidence” (Revision), approved March 27th, 1874 (Qen. Stat., p. 1377), provides “that no person shall be disqualified as a witness in any suit or proceeding at law or in equity by reason of his or her interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his or her credit; provided, nevertheless, that no party shall be sworn in any case when the opposite party is prohibited by any legal disability from being sworn as a witness, or either of the parties in a cause sue or are sued in a representative capacity, except as hereinafter provided.” The fourth section of the same act provides “ that a party to a suit in a representative capacity may be admitted as a witness therein, and if called as a witness in his own behalf and admitted, the opposite party may in like manner be admitted as a witness.” The fifth section provides “ that in any trial or inquiry in any suit, action or proceeding in any court, or before any person having by law or consent of parties authority to examine witnesses or hear evidence, the husband or wife of any person interested therein as a party or otherwise, shall be competent and compellable to give evidence the same as other witnesses, on behalf of any party to such suit, action or proceeding.” The proviso to this sectiofl only excepts from this statutory rule of evidence the husband or wife, in any criminal action or proceeding, or in actions for divorce on account of adultery, except to prove the fact of marriage, or in any action for criminal conversation, or to disclose confidential — 473 — communications made by one to the other during the marriage. In such excepted cases the husband and wife are not competent or compellable to give evidence for or against each other. By section 1 of a supplement to this act, approved February 25th, 1880 (Gen. Stat., p. 1407), it is provided “that in all civil actions in any court of law or equity of this state, any party thereto may be sworn and examined as a witness, notwithstanding any party thereto may sue or be sued in a representative capacity; provided, nevertheless, that this supplement shall not extend so as to permit testimony to be given as to any transaction with, or statement by, any testator or intestate represented in said action.” At common law neither the husband nor wife was admissible as a witness in a civil or criminal action when the other was a party, and this principle applied to all actions at law in a representative capacity or otherwise. The husband and wife were said to be identical in interest. Windham, v. Chetwynd, 1 Burr. 414; 1 Greenl. Evid., § 334. The main ground of exclusion appeared to be that of public policy in the maintenance of marital confidence and peace. Best Evid. (6th London ed.), § 176. Mr. Justice Magie, in Jackson v. Johnson, 22 Vroom, 457, 459, in view of the statutes of this state, indicated that no other reason than this supposed public policy existed for the exclusion of the wife. It is perhaps needless to inquire the reason for the exclusion of the evidence of the husband and wife, where either was a party to the action. With the statutory restrictions, the parties to the action are both competent and compellable as witnesses. By a supplement to the act entitled “An act to regulate the practice of the courts of law,” approved March 1st, 1849 (Pamph. L.,p. 264), a plaintiff or a defendant to an action was a compellable witness when called by the adverse party. By a supplement to the act entitled “An act concerning witnesses,” approved March 18th, 1859 (Pamph. L., p. 490), the disqualification was removed, and parties to the action were entitled to testify as witnesses. By this latter — 474 — act the wife of a party to the action was expressly excluded except when the suit or proceeding was between her and her husband, and the parties were also excluded when the opposite parties were prohibited by any legal disability from being sworu as witnesses, or either of the parties sued or were sued in a representative capacity. Handlong v. Barnes, 1 Vroom 69. This exclusion of the wife remained until the passage of the further supplement to the “Act concerning witnesses,” approved March 17th, 1870 (Pamph. L., p. 59), in which the disqualification of the husband and wife, when either was a party to the action, was removed and they were by such statute made competent and compellable witnesses for or against each other the same as other witnesses, except in criminal actions or in proceedings for divorce on account of adultery, or in any case of bigamy except to prove the fact of marriage, or in any action or proceeding for or on account of criminal conversation, or as to any confidential communication made by one to the other during marriage; save in the excepted cases under this statute the wife became a competent witness in actions at law in which her husband was a party. Jackson v. Johnson, supra. The Revision of 1874 is substantially the act of 1870, its verbiage being only slightly changed, and except as- to> the restrictions therein contained, in clear and express terms, places the husband and wife, so far as actions in which either are parties or interested, on the same plane as other witnesses. The language of the act is general, and the proviso containing the restrictions cannot be made to disqualify any farther than its provisions go. The disqualification by reason of the identity of interest is expressly and entirely removed, and no construction leading to a different result can be permitted against the plain intent of the statute. The qualification of the husband or wife is nowise restricted by the existence of a legal disability of the adverse party when the other is either plaintiff or defendant or otherwise interested. They are made to stand apart as other witnesses. The party, being either husband or wife, under the third section of the act, — 475 — remains under the disability as a witness when the opposite party is prohibited as a witness by reason of legal disability, or when either sues or is sued in a representative capacity, yet the other stands, so far as being a witness in that section, in the category of other witnesses. The restriction in the act of 1880 {Pamph. L., p. 52; Gen. Stat., p. 1407) can only apply to the party to the action. This statute only deals with the party to the action in whatever character he or she may sue or be sued, and by it the party, whilst competent as a witness, as he was under the act of 1870 as revised, is restricted from giving evidence as to transactións with, or statements by, any testator or intestate represented in the action. The exclusion of this character of evidence, by the terms of the act, can only apply to the party to- the action, and this also clearly appears when the other statutes on this subject are taken into consideration. The separation of the husband and wife a's witnesses for or against each other has been dealt with by other statutes and legislatively determined upon, and the public policy changed to meet new conditions. The disability of the wife or husband to be a witness in an action where the other is a party has been specifically removed by the statute except in those cases mentioned in the restrictive proviso, and as to all other cases she is a competent and compellable witness. The only exclusion of the statute of 1880 is the party to the action, and the proviso cannot be enlarged by judicial construction to embrace the disqualification of competent witnesses by other legislative enactments. The restrictive provision, by all rules of construction, must be confined to the party to the action and to his inGompetency, which is the only subject-matter dealt with by the proviso. In McCartin v. McCartin, 18 Stew. Eq. 265, 267, in this court, it was held that “the language of the proviso that this supplement shall not extend so as to permit testimony to be given as to any transaction with or statement by any testator or intestate represented in said action ” is a limitation only upon the operation of the act of 1880. It simply circumscribes — 476 — the extent to which the testimony may be given under that act. New Jersey Trust Company v. Camden Safe Deposit Company, 29 Vroom 196; Woolverton v. Van Syckel, Executor, &c., 28 Id. 393. The conclusion reached is that the wife of the plaintiff was a competent and compellable witness in this action, to the transactions with and statements made by the intestate. The other assignments of error can be considered together. Their substance is that the court, by its instructions to the jury, took away from its consideration the question whether there existed an express contract between the plaintiff and the intestate for compensation for the board and nursing of the children, and also the question whether the circumstances under which the services were rendered were such as exhibited a reasonable and proper expectation that there would be compensation, and also the question whether the remuneration had been paid by the estate, and also the question of the reasonable value or price of the services rendered. The contention of the defendant was that, under the instructions, the trial judge determined these questions of fact in favor of the plaintiff. It is unnecessary to discuss the charge of the trial court in detail. An examination of the instructions shows that, with certain comments upon the evidence and its weight, the court distinctly submitted to the jury to determine from the evidence whether an express or implied contract for compensation or remuneration for the board and care of the children existed between the plaintiff and the intestate. Disbrow v. Durand, Administrator, &c., 25 Vroom 343, and cases cited. The jury was instructed that if no express contract existed, the mere fact that the services were rendered by the plaintiff to the children, they all being members of the same household, would give rise to no implication to pay for such services, and that in order to sustain a recovery the jury must find that- the evidence and the circumstances must be such as to exhibit to the jury a reasonable expectation on the one side to pay and on the other side to — 477 — receive compensation for the services rendered. It was submitted to the jury whether, upon any ground, there should be a recovery, and, if a recovery, for what amount, including a submission to the jury to determine, if a debt was established, the question whether any part of it had been paid. We do not find that the comments upon the evidence of the trial court either misled or influenced the jury as to the matters of fact submitted to their determination. The rule is that a trial judge has the undoubted right to make such comments upon the testimony as he thinks necessary or proper for the direction of the jury. He may intimate an opinion as to the weight of evidence, or call the attention of the jury to any matter in the cause affecting the credibility of a witness, whenever he may think it is required or necessary for the promotion of justice, so long as he leaves the jury to determine the facts and draw their own conclusions. This rule was not in any respect violated by the trial judge. Bruch v. Carter, 3 Vroom 554, 565; Castner v. Sliker, 4 Id. 507, 512. The judgment must be affirmed, with costs.