Simkins v. Eddie

The opinion of the court was delivered by Rowell, J.

The charge on the subject of self-defence is substantially like the charge on that subject in Howland v. Day, ante, 318, in which the charge was sustained, and we refer to that, case for a statement of the law of the subject.

Defendant has no ground to complain of the court’s omission to charge as to provocation mitigating damages, as he testified that he did not strike because he was provoked, but in self-defence.

It was entirely competent to show Mrs. Simkins’ loss of memory as tending to show the nature and extent of her injury by the beating complained of.

The question as to the paternity of the child was properly excluded. Nothing appears to show that an answer thereto would have tended to prove the issue made by the notice, which was, that Mrs. Simkins was the lawful wife of Blunt and not or Simkins. No claim was made that she was the wife of any other person. The offer to show by a witness who had known Mrs. Simkins that he had hoard that she lived with Blunt a short time as his wife, was mere hearsay, and properly excluded. It. was not an offer to show general reputation as proof of marriage,, which is something more than mere hearsay. It involves and is made up of social conduct and recognition, giving character to an admitted and unconcealed cohabitation. It sums up a multitude of trivial details. It compacts into the brief phrase of a verdict the teaching of many incidents and the conduct of years. *615 It is the average intelligence drawing its conclusion: Badger v. Badger, 88 N. Y. 546; 1 Greenl. Ev. s. 107.

The testimony of Nichols was properly admitted. It was competent to show the fací that Mrs. Simkins lived a single life up to the time of her marriage with Simkins. It was not showing that she was reputed to be single.

The most difficult question is, whether Simkins was a competent witness; and it arises from what was probably an unintentional omission in the Revised Laws of 1880. The St. of 1863, No. 14, provided that “in all actions when both husband and wife are- properly joined either as plaintiffs or defendants, both husband and wife shall be competent witnesses.” The Revised Laws repeal the St', of 1863, and attempt to embody its provisions in s. 1005, but fail to embrace that part thereof that provided that the husband should be a competent witness when properly joined as a party witli his wife. The St. of 1852, re-enacted by s. 1001 of the Revised Laws, takes away the disqualification of interest however arising, but leaves all other causes of disqualification untouched, and the case is left to stand on this statute. The question, therefore, arises, Who is the substantial party plaintiff to this action, the husband or the wife ? If the former, he is a competent witness; if the latter, he is not.

For battery of the wife during coverture, the husbaud and wife must join if the action is for the personal suffering or injury of the wife, and in such case the declaration must eoncludé ad damnum ipsorum, and not to the damage of the husband alone, for the damages will survive to the wife if the husband dies before tliey are recovered : 1 Chit. Pl. 73; Bing. Inf. & Cov. 247, 248; Schoul. Husb. and Wife, s. 142. If she dies before judgment, the action dies witli her at the common law: Bac. Ab., Baron & Feme, (II). If they both survive, although the judgment must be that they both recover, yet the husband only is to have the damages according to Godb. 369, cited in Bac. Ab. supra. “ A feme covert- can have no damages.” Bac. Ab. supra. “ Damages allowed as compensation for the frauds and *616 injuries sustained by the wife go to the husband as well as the rest of her personal property if recovered during his lifetime:” Schoul. Husb. and Wife, s. 142. “ The damages recovered belong to the husband alone:” Cooley Torts, 227.

In Barton and wife v. Montpelier, 30 Vt. 650 , and again in Babcock and wife v. Guilford, 47 Vt. 519 , it was held that notice by the husband alone of personal injury to the wife on a highway and claim for damage therefor was sufficient, on the ground, as stated in the latter case, that the husband must if living join in the suit for recovery of the damages, and that, as he was the only person known to the law who could properly institute and prosecute the suit while the wife remained coyert, he was the person claiming damage within the meaning of the statute requiring the notice to be given “ by the person injured or claiming damage.” In the former case it is said, that although the case rested on personal injury to the wife, yet the claim was enforceable by suit only by procurement of the husband, on his responsibility and for his benefit; that the claim was his, though to answer the requirements of a purely technical rule, his wife had to be joined.

The damages in the case before us when recovered — the husband not having abandoned his wife — arc subject to his control. He can collect and discharge them. They are his absolutely if he chooses to make them so by reducing them to his possession, lie is, therefore, the substantial plaintiff, and in testifying, testifies for himself rather than for his wife, and so is a competent witness as the statute now is. f This question was ruled the same way in Kaime v. Omro Trustees, 49 Wis. 371 .

Judgment affirmed.

Noyce, O. J., was absent on account of illness.