Bitner v. Boone , 128 Pa. 567 ( 1889 )

Opinion,

Me. Justice Clash;:

This action was brought by George S. Boone against John R. Bitner, executor of the last will and testament of James Boone, deceased, to recover for personal services rendered to the decedent in his lifetime. At the trial of the cause the plaintiff called his wife, Mrs. Annie Boone, who was permitted to testify to matters occurring in the lifetime of the decedent. Her competency having been objected to, and an exception taken, the defendant’s counsel has assigned this action of the court for error. The cause having been tried since the passage of the act of May 23, 1887, P. L. 158, the question of her competency must be determined upon a construction of that act.

It was a general rule at common law that when the wife was interested, the husband was not a competent witness to testify, either for or against her interest. The converse of this rule was equally true, and the wife was not competent to testify in her husband’s behalf; nor could she be called to testify against him: Pipher v. Lodge, 16 S. & R. 214; Pringle v. Pringle, 59 Pa. 283. By the first section of the act of 1869, however, it was provided that “ no interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding; provided, that this act shall not alter the law as now declared, etc., so as to allow husband and wife to testify against each other, ” etc. Whilst by this provision a wife remained incompetent as a witness to testify against her husband, she was rendered competent to testify for him: Yeager v. Weaver, 64 Pa. 425; Ballentine v. White, 77 Pa. 20. But by the same section it was further provided, that “ this act shall not apply to actions by or against executors, administrators, or guardians, nor where the assignor of the thing or contract in action may be dead, except, ” etc. By this second clause of the proviso, the competency of the wife to testify in favor of her husband was stricken down, in actions by or against executors, etc.; and in all that class of cases the law practically remained as if the act of 1869 had not been passed. The act, it would seem, was not so understood at first: Dellinger’s App., 71 Pa. 425; but this was the construction which was ultimately placed upon it: Taylor v. Kelly, 80 Pa. 95. It is plain, then, that under the act of 1869 the witness, Mrs. Boone, would have been incompetent for the purpose offered.

The act of May 23, 1887, provides that no liability for costs, nor right of compensation, nor any interest in the question, “ nor any other interest or policy of the law,” shall, in any civil proceeding, etc., render any person incompetent as a witness, except as provided in section five of the same act. Referring to section five we find at clause £5) that neither husband nor wife is competent to testify to confidential communications made to the other, unless the privilege is waived; and at clause (a) that neither is competent to testify against the other except in certain cases, which are specified. From this it is clear that the husband and wife may testify each in favor, but not against the other, as heretofore, excepting as stated in clause (5). In clause (e), however, it is provided that where any party to a thing or contract in action is dead, etc., and his right thereto or therein has passed, either by his own act or the act of the law, to a party on the record who represents his interest in the subject in controversy, the surviving or remaining party to such thing or contract shall not, nor shall any other person whose interest shall be adverse to the said right of said deceased, be a competent witness to any matter occurring before the death of the decedent unless, etc. Under this clause it is clear that George S. Boone himself would not be competent to testify to any matter occurring in the lifetime of James Boone, deceased. Fie is not only the surviving or remaining party to the thing or contract in action, but he is a person whose interest is adverse to the decedent’s right. His wife was not a party to the thing or contract in action, and was not rendered incompetent on that ground, but was she a person whose interest is adverse within the meaning of the act of 1887 ? Can she be considered a competent witness, when upon the ground of interest her husband is incompetent?

Mr. Greenleaf, in his Law of Evidence, § 334, says that the common law exclusion of husband and wife from being witnesses in any cause where the other is a party, is founded partly on the identity of their legal rights and interests, and partly on principles of a public policy affecting the marital relation. In Phillipps on Evidence, 78, it is said: “ The reason for excluding the husband and wife from giving evidence either for or against each other is founded partly on their identity of interest, and partly on a principle of public policy which deems it necessary to guard the security and confidence of private life, even at the risk of an occasional failure of justice. They cannot be witnesses for each other, because their interests are absolutely the same; they are not witnesses against each other, because this is inconsistent with the relation of marriage, and the admission of such evidence would lead to disunion and unhappiness and, possibly, to perjury.” This is quoted with approval in Hitner’s App., 54 Pa. 117. “ Prior to the enactment of this statute ” (1869), says Justice Mercur, in Taylor v. Kelly, 80 Pa. 97, “ both interest and policy excluded husband and wife from testifying for and against each other.” Notwithstanding the remark of Mr. Justice Sharswood, in Pringle v. Pringle, 59 Pa. 288, to the contrary, we think this rule of exclusion is founded upon the two-fold consideration of interest and policy. If the husband must be excluded on account of interest, so also must his wife be excluded on account of her unity of interest with him. Although each may not be said to have any direct interest during coverture, she has, nevertheless, an indirect interest derivative from her husband, and so presently joined with his, as at all periods in the history of the law placed her in the attitude of an interested person, in cases where her husband’s rights came into controversy. So closely connected in interest are they, that in equity, in controversies affecting the interests of either, the testimony of both is considered as the testimony of one person only: Sower v. Weaver, 78 Pa. 443. If the legislature had intended to change the law in this respect, against the theory of both the common and the statute law and the habits of centuries, it is reasonable to suppose that the change would not have rested upon any mere implication, but would have been expressed in plain words. We are of opinion that Mrs. Annie Boone was an incompetent witness, and upon this ground,

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