Packet Company v. Clough
87 U.S. 528

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U.S. Supreme Court

Packet Company v. Clough, 87 U.S. 20 Wall. 528 528 (1874)

Packet Company v. Clough

87 U.S. (20 Wall.) 528

Syllabus

1. Under the Act of Congress of July 6, 1862, enacting that "The laws of the state in which the court shall be held shall be the rule of decision as to the competency of witnesses in the courts of the United States," and under the acts of the Legislature of Wisconsin, passed in 1863 and 1868, one of which says that

"A party to a civil action . . . may be examined as a witness in his or her behalf on the trial, . . . 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 was single,"

and another of which says that "A party to any civil action . . . may be examined as a witness in his own behalf or in behalf of any other party," a married woman may in the Circuit Court for Wisconsin, in an action on the case by her husband and herself for injuries done to her person, be examined as a witness for the plaintiffs. It is unimportant whose will be the damages -- whether the husband's or wife's -- if recovered. The competency of the witness must be determined by the statutes.

2. In an action on the case by a husband and wife, with the regular common law declaration, for injuries done to the wife's person and a plea of the general issue, after direct proof has been given of the marriage, the defendants cannot prove either by way of disproving the fact of marriage alleged in the declaration or in mitigation of damages, that the plaintiffs had not lived together and cohabited as husband and wife since a time named (many years before); that it was commonly reputed that they bad not lived together, and that there was a common reputation that the alleged husband was living and cohabiting with another woman.

3. When a woman has been severely injured in getting aboard a steamer by the alleged carelessness of the servants of the boat in putting out an improper sort of gang-plank, the fact that she is unwilling to pay fare for her passage and that the captain makes no demand of fare from her is no release of her right of action against the owners of the boat for the injuries done to her unless she at the time understands it to be so and consents that it shall be so. This is true even though the passage be one two days and a half long.

4. The conversations of a captain of a steamer with a party injured in getting on his boat, made two days and a half after the accident occurred, in which he attributed the accident to the carelessness of the servants of the boat in putting out the plank, is not evidence to charge the owners of the boat with fault, and this though made while the boat was still on its voyage and before the voyage upon which the injured party had entered was completed.

5. A party who complains of the rejection of evidence must make it appear by his bill of exceptions that if the evidence had been admitted, it might

Page 87 U. S. 529

have led the jury to a different result, and that accordingly he has been injured by the rejection. He must therefore have properly before this Court the evidence rejected or some statement of what it tended to prove.

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 30, 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 6, 1862, [Footnote 1] 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. "

Page 87 U. S. 530

And a statute of Wisconsin, passed in 1863, [Footnote 2] 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, [Footnote 3] 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; [Footnote 4] 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

Page 87 U. S. 531

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. "

Page 87 U. S. 532

To which charge the defendant excepted.

Verdict and judgment having been given for the plaintiffs in $6,000, 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.

Page 87 U. S. 537

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