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

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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

ERROR TO THE CIRCUIT COURT FOR

THE EASTERN DISTRICT OF WISCONSIN

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. "

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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

MR. JUSTICE STRONG delivered the opinion of the Court.

In considering the first assignment of error -- that is to say, the question whether on the trial the deposition of Mrs. Clough was rightly admitted in support of her claim, it is unnecessary to inquire whose will be the damages, if any, which may be recovered -- whether they will belong to the husband or to the wife. The competency of the witness, or her incompetency, must be determined by the statutes of Wisconsin, where the case was tried. The act of Congress

Page 87 U. S. 538

of July 6, 1862, has enacted 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 the statutes of Wisconsin [Footnote 5] very plainly declare that the wife is a competent witness for herself in such a case as this. The first assignment of error cannot, therefore, be sustained.

The second, third, and fourth assignments present substantially the same question, and they may be considered together. 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 and cohabited together 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 the court refused to receive. It was offered for two avowed purposes -- one in mitigation of damages, and the other to disprove the fact alleged in the declaration that the plaintiffs were husband and wife. But how, if received, it could have tended to mitigate damages has not been made plain to us. The suit, as the case shows, was for an injury inflicted upon the wife. Surely the injury was the same whether the husband lived with her or not. And the evidence was inadmissible for the other purpose for which it was offered. It is true, ordinarily, the general issue in an action of trespass on the case imposes upon the plaintiff the necessity of proving all the material facts averred in the declaration, but the ability of the plaintiffs to sue is not a fact directly averred, and, therefore, it cannot be disproved under a plea of not guilty. In fact it is not put in issue by such a plea. The defense that the plaintiffs suing as husband and wife are not married goes to the form of the writ, rather than to the

Page 87 U. S. 539

cause of action, and it should therefore be pleaded in abatement, and not in bar. Thus, in Chitty's Pleadings [Footnote 6] it is laid down as a proper plea in abatement to the form of the writ that the plaintiffs or defendants suing, or being sued, as husband and wife, are not married. And in Stephens on Pleading [Footnote 7] it is said

"the plea of not guilty in trespass on the case operates as a denial of the breach of duty, or wrongful act alleged to have been committed by the defendant. . . . But not guilty will apply to no other defense than a denial of the wrongful act."

The general issue at length is that the defendant is not guilty of the grievances laid to his charge, in manner and form as the said plaintiff hath above thereof complained against him, and of this he puts himself upon the country &c. [Footnote 8] While since the time of Lord Mansfield the scope of this issue has been much enlarged, it has not been supposed to extend to a denial of the ability of the plaintiff to sue. In Combs v. Williams [Footnote 9] it was ruled that in the trial of an action upon a promise to a feme sole, brought by her husband and herself after marriage, it is not competent for the defendant under the general issue to prove the illegality of the marriage, such matter being wholly in abatement. True, this was in an action of assumpsit, but the general issue is as broad in such a case as it is in case for a tort. And if this were not so, even if in the state of the pleadings the defendants were at liberty to prove that the plaintiffs were not husband and wife, they could not prove it by such evidence as that which they offered. Cohabitation as husband and wife may tend to prove marriage, but noncohabitation has not been accepted as disproving the existence of the marital relation in face of uncontradicted evidence that a marriage in fact had taken place.

The fifth assignment of error is without any foundation. It would be very extraordinary were we to hold that the plaintiff had settled and discharged her claim upon the defendants

Page 87 U. S. 540

without any intention or understanding on her part to give it up.

The next assignment is more important. The accident by which the plaintiff was injured occurred at Read's Landing, in Minnesota, on the 30th day of September, 1869, about two o'clock in the afternoon. Two days afterwards, as the boat approached Davenport, in the State of Iowa, Mrs. Clough, the witness, had a conversation with the captain in which he made some statements respecting the accident, and these statements the court allowed to be given in evidence against the defendants. In this we think there was error. Declarations of an agent are doubtless in some cases admissible against his principal, but only so far as he had authority to make them, and authority to make them is not necessarily to be inferred from power given to do certain acts. A captain of a passenger steamer is empowered to receive passengers on board, but it is not necessary to this power that he be authorized to admit that either his principal, or any servant of his principal, has been guilty of negligence in receiving passengers. There is no necessary connection between the admission and the act. It is not needful the captain should have such power to enable him to conduct the business entrusted to him, to-wit, the reception of passengers, and hence his possession of the power to make such admissions affecting his principals is not to be inferred from his employment. [Footnote 10] It is true that whatever the agent does in the lawful prosecution of the business entrusted to him, is the Act of the principal, and the rule is well stated by Mr. Justice Story [Footnote 11] that

"where the acts of the agent will bind the principal, there his representations, declarations, and admissions respecting the subject matter will also bind him, if made at the same time, and constituting part of the res gestae."

A close attention to this rule, which is of universal acceptance, will solve almost every difficulty. But an act done by an agent cannot be varied, qualified, or

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explained, either by his declarations, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done at a later period. [Footnote 12] The reason is that the agent to do the act is not authorized to narrate what he had done or how he had done it, and his declaration is no part of the "res gestae."

Applying this rule to the present case, how does it stand? The thing of which the plaintiffs complain was negligence, on the 30th of September -- a fault in providing for Mrs. Clough's embarkation on the steamer. That and that alone caused the injury she sustained. That and nothing else was the "res gestae." What the captain of the boat said of the transaction two days afterwards was therefore but a narrative of a past occurrence, and for that reason it could not affect his principals. It had no tendency to determine the nature, quality, or character of the act done or left undone, and it is not, therefore, within the rule stated by Judge Story. That rule has been recognized "in totidem verbis" in Wisconsin by Chief Justice Dixon in delivering the opinion of the court in Milwaukee & Mississippi Railroad Company v. Finney. [Footnote 13] And there is nothing in any of the decisions cited by the defendants in error inconsistent with such a rule. The case of The Enterprise, cited from 2d Curtis, was a suit in admiralty for subtraction of wages, and the declarations of the master respecting the contract with the seamen were admitted, though not a part of the res gestae. But the decision was rested upon the ground that the admiralty rule is different from the rule at common law. The case of Burnside v. Grand Trunk Railroad Company, cited from 47 N.H., simply decides that the statements of the general freight agent as to the condition of goods delivered to him for transportation made while the goods are still in transit, or while the duty of the carrier continues, are admissible in evidence against the company. This was a case of contract not executed, and, while it remained unexecuted, the agent had power to vary it; had, in fact, complete

Page 87 U. S. 542

control over it. The transaction was still depending, and the agent was still in the execution of an act which was within the scope of his authority. But in the present case the declarations admitted were not made in the transaction of which the plaintiffs complain, or while it was pending. They refer to nothing present. They are only a history of the past.

It is argued they were made before the voyage upon which Mrs. Clough entered was completed. True, they were, but they were not the less mere narration. The accident was past. The injury to Mrs. Clough was complete. The only wrong she sustained, if any, had been consummated two days before. We cannot think the fact that she had not arrived at her port of destination is at all material. If she had left the steamer before the declarations were made, it is not claimed, as certainly it could not be, that they were admissible. Now suppose two persons were injured by the negligence which the plaintiffs assert, and one of them had left the boat before the captain's declarations were made, clearly they would have been inadmissible in favor of the person whose voyage had been completed. This is not denied. Yet the connection between them and the accident would be as close in that case as in this. Can they be admissible in the one case and not in the other? Assuredly not. We must hold, therefore, that there was error in admitting in evidence the statement of the captain of the steamboat made two days after the wrong was done of which the plaintiffs complain.

The last assignment of error is the rejection of the deposition of Turner. Of this it is sufficient to say that we have not before us either the deposition or any statement of what it tended to prove. We cannot know, therefore, that it was of any importance or that, if it had been admitted, it could have had any influence upon the verdict. A party who complains of the rejection of evidence must show that he was injured by the rejection. His bill of exceptions must make it appear that if it had been admitted it might have led the

Page 87 U. S. 543

jury to a different verdict. This must be understood as the practice in this Court, and such is the requirement of our twenty-first rule. By that rule it is ordered that when the error assigned 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. This is to enable the court to see whether the evidence offered was material, for it would be idle to reverse a judgment for the admission or rejection of evidence, that could have had no effect upon the verdict.

But for the reception of the statement made by the captain shortly before the arrival of the boat at Davenport the judgment must be reversed.

Judgment reversed and a venire de novo awarded.

[Footnote 1]

12 Stat. at Large 588.

[Footnote 2]

Taylor's Statutes, 1599, § 73.

[Footnote 3]

id., 1600, § 74.

[Footnote 4]

The trial was had in April, 1872.

[Footnote 5]

See statutes of 1863 and 1868, quoted supra -- REP.

[Footnote 6]

Vol. i, page 392.

[Footnote 7]

Page 160.

[Footnote 8]

1 Chitty's Pleading 432.

[Footnote 9]

15 Mass. 243.

[Footnote 10]

1 Taylor on Evidence § 541.

[Footnote 11]

Story on Agency § 134.

[Footnote 12]

1 Taylor on Evidence § 526.

[Footnote 13]

10 Wis. 388.

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