Scherpf v. Szadeczky ( 1855 )

By the Court.

Ingraham, First J.

The exceptions taken on the trial of this cause to the rulings as to the admission of evidence have all, excepting one, been abandoned on this argument. The counsel have only submitted two grounds of appeal as to what took place on the trial, and.an objection to the damages awarded as being excessive.

The first point is, that the motion to dismiss the complaint should have been granted. This was upon the ground that direct proof of the marriage was not given; and the act for which the defendant was sued being a criminal act, actual marriage must be proven.

After the full examination given to this point by Judge Woodruff, I'deem it unnecessary to repeat what he has so well said in regard to it; but only necessary to add our concurrence with him in the opinion, that in civil actions, for this cause, actual proof of the marriage is unnecessary, and that the same may be proven by cohabitation, reputation and the acknowledgment of the parties.

In addition, however, to the proof in this case, there is the clear admission proven of the defendant, made in the hearing of the witness, Le Rob, that the defendant spoke of Mrs. Scherpf as married; that she was married to Mr. Scherpf, who, he s.aid, was in New York. Such an admission of marriage, in any other than a criminal prosecution, has been held sufficient evidence of marriage, even without proof of actual marriage.

Li Rigg v. Cuigenhaven, (2 Wilson, 399,) it was said, in an action for crim. con., that if it were proven that the defendant had seriously recognized that he knew the woman was the plaintiff’s wife, we think it would be evidence proper to be left to the jury, without proving the marriage; and. this has been held expressly to he sufficient in Forney v. Hallacher, 8 Serg. & Rawle, 159.

I think there can be no doubt that, under the evidence in this case, the motion to dismiss the complaint was properly denied.

The second objection is, that the wife, when offered as a witness for the defendant, was improperly excluded, and should have been received. When she was offered as a wit- ^ ness, the proof of marriage had been sufficiently established to go to the jury on that question. The judge so held on the trial, by refusing the motion to dismiss the complaint, and we think his ruling was proper. If the evidence was sufficient for that purpose, surely, in the absence of all proof to A the contrary, the proof was sufficient to establish the mar- -y riage, so far as to render the wife incompetent. The case shows, that the person called as Catharine Coombs was the alleged wife of the plaintiff, and the person referred to by the witnesses as his wife. This established the identity of the person offered as a witness with the person to whom the witnesses had referred, and to whom the defendant’s admissions related. I am at a loss to see upon what ground a wife can ever be excluded as a witness for or against her husband, if this evidence was not sufficient proof of that relation existing between them for that purpose.

It is said that she should be admitted, where it is to prove the invalidity of the marriage, or, in other words, that the wife, who in all cases is prohibited from being a witness, because the law preserves inviolate the confidential communications between husband and wife, is to be admitted as a witness only in one case, and that a case to prove the adultery of the husband and her own.

We have been referred to no case authorizing the admission of the wife in such a case as a witness. The authorities cited by the defendant do not decide any such point.

In principle and upon authority, as far as any can be found applicable, the rule is the other way. Cases may be found where a witness was not admitted to prove his previous marriage with a party to the suit. (Boughton v. Harpen, 2 Ld Ray. 752.) So, if a woman sues as a feme sole, a witness cannot be called to prove that she was his wife; (Bentley v. Cook, cited 2 Term Rep. 265;) and so in a case of settlement, where a marriage had been proved between two paupers, a witness to prove his former marriage with ope. of them was properly excluded. (Rex v. Inhabitants of Chicago, 2 T. R. 263.)

The ruling of the court was, I think, proper, and there was no ground for admitting the alleged wife as a witness.

The remaining objection applies to the amount of damages. It is alleged they are excessive. From the case, and all the evidence, it must be apparent that the parties are not in a situation warranting such a heavy verdict, and the recovery of any thing will probably be defeated by the large amount which the jury have given. Still the cause of action is one in which it is difficult to fix any limit to the amount—one which is peculiarly within the province of the jury; and the mere amount of the damages, without some other fact to establish it, would not justify us in saying that the jury were actuated by improper motives in settling it.

The judgment should be affirmed.

Judgment affirmed.