Cornelius v. Hambay , 150 Pa. 359 ( 1892 )

Opinion by

Mb. Chief Justice Paxson,

The decision of this case has been delayed for reasons not personal to the writer.

‘ The suit was brought by the plaintiff in the court below against the defendant to recover damages for debauching his (the plaintiff’s) wife. The jury found for the plaintiff in the sum of $2,000, which the court subsequently reduced to $500, and the verdict thus reduced was accepted by the plaintiff. This belongs to a class of cases in which the plaintiff has been allowed from time immemorial to recover punitive damages. Hence we cannot sustain the fifth specification in which it is alleged that the learned judge erred in applying this principle. In view of the fact that it is the settled rule of this state, and so understood by nearly every practitioner, we do not care to enter into a discussion of the controversy upon this subject which has recently arisen between some of our text-writers. Those who are curious in regard to it are referred to the second volume of Greenleaf on Evidence, and Sedgwick on Damages, where pretty much everything that can be said on either side may be found.

We find nothing to condemn in those portions of the charge embraced in the second and third specifications. If • the defendant and the plaintiff’s wife visited the Greenwood Hotel late at night, and remained there for two or three hours as testified to by some of the witnesses, it was a circumstance from which the jury would have the right to draw an unfavorable inference, and this was substantially what the learned judge said to them.

The fourth specification alleges that the learned judge erred in instructing the jury that: “ The defendant, of course, is interested in swearing, if there is any such thing as honor or moral right that would excuse falsehood, not only to that which would relieve himself, but will protect his paramour.”

While this instruction is not sugar-coated, we cannot say it was error. The learned judge below had the right to call the attention of the jury to the fact of the nature of the defendant’s interest. He had not only the pecuniary interest common to defendants in other cases, but he had also his own reputation and the reputation of the woman who was charged to have been his paramour at stake. When therefore the learned judge told the jury that he was not only interested in swearing to what would clear himself, but also the woman, he said nothing but the truth, and what all experience shows to be true. On the other hand the learned judge called the attention of the jury in equally vigorous language to the interest of the plaintiff as tending to affect his credibility. In view of the present condition of the law of evidence, it is entirely proper for the court to call the attention of the jury to the personal interest of a party to the record who goes upon the stand as a witness.

The first specification is more serious. The counsel for the defendant objected to the competency of the plaintiff as a witness. He was called to prove the criminal intercourse of his wife with the defendant; in other words, to prove her adultery. It is true, his wife was not a party to the record, but the object and effect of his testimony was to criminate her. I am not aware that any of our Acts of Assembly enlarging the competency of witnesses permits husband and wife to testify against each other except in the case of personal injuries inflicted by the one upon the other, and in certain cases in divorce. And the rule which excludes such testimony does not depend upon the party criminated being a party to the record. The principle of the rule which excludes husband and wife from testifying against each other, requires its application to all cases in which the interests of the other pairty are involved; and therefore the wife is not a competent witness against any co-defendant tried with the husband if the testimony concern the husband, though it be not directly given against him. Nor may she in such a suit between others, testify to any matter for which, if true, her husband may be indicted. 1 Greenleaf on Ev., 334 and 335; Pringle v. Pringle, 59 Pa. 281; Stewart v. Johnson, 18 N. J. L. 89; Stein v. Bowman, 13 Peters, 209; Kelly v. Drew, 12 Allen, 107. The fifth section of the Act of May 23, 1887, P. L. 159, provides : “ Nor shall husband and wife be competent or permitted to testify against each other, except in those proceedings for divorce in which personal service of the subpoena or of a rule to take depositions has been made upon the opposite party; or in which the opposite party appears and defends, in which case either may testify fully against the other, and except also that in any proceedings for divorce either party may be called merely to prove the fact of marriage.” The rule that husband aird wife shall not testify against each other, extends, as before observed, to testimony by the one which tends to criminate the other, although not a party to the suit. The reason for it is the disturbance of the marital relations which would result from the admission of such testimony. This is the settled rule of the common law, and it has not been changed by any Act of Assembly, or by any decision in this state.

We are of opinion that it was error to permit the husband to testify in this case. He was an incompetent witness. The issue, and the only issue, involved the adultery of his wife. It was not competent for him to forge a single link in the chain of circumstances pointing to his wife’s criminal conduct, and upon any other subject his testimony would have been irrelevant.

The judgment is reversed, and a venire facias de novo awarded.