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
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
Page 87 U. S. 541
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.
