By the Court,
Mullin, J.
If section 399 of the Code, as amended in I860, does not make husband and wife competent witnesses, the one for or against the other, the legislature has failed to accomplish what it designed. That it was the intention of the legislature to sweep away this only remaining guard which the court has thrown around the domestic fireside—the guard which made it safe for the' husband to intrust to his wife his most secret thoughts and actions, with the assurance that her lips were forever sealed, and that no power on earth could ever unseal them to his prejudice—that it was the intention to sweep this safeguard away—I have no doubt. The husband and the wife aré, for all legal purposes, no longer one person, with common interests, common sympathies and a common destiny, but they are two persons, with separate interests, separate destinies, and without any feel[374]*374ings in common, except such as may exist between members of a partnership.
Whether the gratification of the clamor for reform—■ whether the correction of the few and trifling abuses which the former law tolerated or produced—is a compensation for the destruction of domestic peace, by creating diverse interests in every family in the State, by sowing suspicion and distrust where there should be confidence and trust—remains to be seen. The whole system is, in my judgment, not only unwise but vicious—the most fatal stab at the peace and good order of the State that was ever inflicted.
That is a strange law for the protection of married women which leaves them entirely at the mercy of the violence or allurements of the husband, which gives the latter absolute control over their property, thus enabling the husband to waste and squander the whole, when the abuse the law was designed to correct was the power of the husband to take and dispose of his wife’s earnings, while her separate estate was or might be beyond his reach.
That law confers lasting blessings and benefits on the community that makes it unsafe for the husband to disclose to his wife that he has made a contract with a neighbor, or done him a wrong, lest his wife be made a witness, and his confession used against him.
But, whatever our estimate may be of the law, we must give it effect, and I am not disposed to divert one drop of blessing or benefit from the people of the State which the legislature can confer. I therefore held at the circuit, as I now hold, that the law of last winter was designed to make the husband and wife witnesses in all cases where they were parties to the suit.
It is argued that the judge erred in permitting to be given in evidence, the declaration of the agent of the company in charge of the gang of hands employed in relaying [375]*375the ties, that there was sufficient time to relay them before the arrival of the train.
■ The general rule is, that the declarations of an agent, made in reference to the subject matter of the agencyj while engaged in th§ business, bind the principal. (Story on Agency, 136.)
In Price v. Powell, (3 N. Y. 322,) the declaration of the master of a vessel was used against the owners, as to the manner damage occurred to property shipped by the plaintiff. In McCotter v. Hooker, (4 Seld. 497j) the declarations .of the defendant’s agent were received, which were made to the plaintiff’s agent, in relation to the detention of and injury to goods which had been shipped by the defendants, as carriers, but not delivered at their place of destination, but detained through the winter and returned, damaged, to the defendants in Hew York, when and where the agent’s declaration was made. See also McCormick v. Barnum, (10 Wend. 104;) Barclay v. Howell’s Lessees, (6 Peters, 498.)
Timé entered into and formed a material element in the proceedings at the time of relaying the. ties. Childs was the person in. charge; it was his duty to see, before removing the old ties, that there was ample time to complete the work before the time for the arrival of the train. He examined his watch and said there was time enough. It was a declaration made while performing the act of relaying the ties, in reference to it, and thus a part of the res gestae, and competent. Had the declaration been that there was not time, and yet Childs had persisted in the work, can there be a doubt that it would be competent ? I think the evidence was properly received.
The defendant’s counsel insists that Mrs. Matteson’s statements in regard "to her health and condition, should not have been received. The counsel, I think, must have overlooked the fact that the statements complained of were made to a physician called to prescribe for her after the [376]*376accident in question. The evidence was received to show the symptoms for which he prescribed, and the disease, if any, under which she was then laboring. If this evidence is not competent, then the evidence of physicians and surgeons as to treatment, which rests -on the declarations of the injured party, must be excluded, and the protection which such evidence gives against fraud and deception would be entirely lost. The jury had the right to know for what disease or symptoms of disease and injury the physicián prescribed, and for the evidence of which he relied necessarily on the patient’s, statements.
The objection seems to proceed on the idea that the declarations were received for the purpose of satisfying the jury that the condition of Mrs. Matteson was the result of the accident. That was not my view of the object of the evidence. It was to show that the opinion of the physician was founded on her statement of her condition at the time, and thereby to learn whether the symptoms were such as would result from the injuries complained of, or whether they arose from some other cause, and whether or not the effects were or were not temporary in their nature. But if the object and effect of. the evidence was to satisfy the jury as to her condition at the time the physician was called, it was competent to give her declarations for that purpose. (1 Greenl. Ev. § 102. Caldwell v. Murphy, 11 N. Y. 416.)
It is also objected that it was incompetent to prove by Dr. Budlong, at what period after the injury the plaintiff would be most likely to begin to- improve, if she was going to improve at all. It was competent for the plaintiff to show that the injuries were permanent—that she would not probably recover from the effects. The doctor had given her symptoms, and the cause which, in his opinion, had produced them. The brain and nervous system were severely involved. She had, for the .six months .before the trial, been growing worse. The ques[377]*377tian then was, is she to get well. He thought not. Why not ?■ Because, in his judgment, the disease was of that description which, if it were to be removed, would have begun to improve within the year, and with the change of season. This was in support and in confirmation of his opinion that she would not get well, and if opinion is competent, it is just as competent as to when the improvement would be manifested, as that it never would occur. It was not speculation, it was • his opinion, founded on his skill and experience, that was called for,' and that he gave. I have no Ndoubt of its competency.
Dr. Preston was asked what was his opinion as to the cause of the spinal difficulty he had testified Mrs. Matte-son was afflicted with.
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By the Court,
Mullin, J.
If section 399 of the Code, as amended in I860, does not make husband and wife competent witnesses, the one for or against the other, the legislature has failed to accomplish what it designed. That it was the intention of the legislature to sweep away this only remaining guard which the court has thrown around the domestic fireside—the guard which made it safe for the' husband to intrust to his wife his most secret thoughts and actions, with the assurance that her lips were forever sealed, and that no power on earth could ever unseal them to his prejudice—that it was the intention to sweep this safeguard away—I have no doubt. The husband and the wife aré, for all legal purposes, no longer one person, with common interests, common sympathies and a common destiny, but they are two persons, with separate interests, separate destinies, and without any feel[374]*374ings in common, except such as may exist between members of a partnership.
Whether the gratification of the clamor for reform—■ whether the correction of the few and trifling abuses which the former law tolerated or produced—is a compensation for the destruction of domestic peace, by creating diverse interests in every family in the State, by sowing suspicion and distrust where there should be confidence and trust—remains to be seen. The whole system is, in my judgment, not only unwise but vicious—the most fatal stab at the peace and good order of the State that was ever inflicted.
That is a strange law for the protection of married women which leaves them entirely at the mercy of the violence or allurements of the husband, which gives the latter absolute control over their property, thus enabling the husband to waste and squander the whole, when the abuse the law was designed to correct was the power of the husband to take and dispose of his wife’s earnings, while her separate estate was or might be beyond his reach.
That law confers lasting blessings and benefits on the community that makes it unsafe for the husband to disclose to his wife that he has made a contract with a neighbor, or done him a wrong, lest his wife be made a witness, and his confession used against him.
But, whatever our estimate may be of the law, we must give it effect, and I am not disposed to divert one drop of blessing or benefit from the people of the State which the legislature can confer. I therefore held at the circuit, as I now hold, that the law of last winter was designed to make the husband and wife witnesses in all cases where they were parties to the suit.
It is argued that the judge erred in permitting to be given in evidence, the declaration of the agent of the company in charge of the gang of hands employed in relaying [375]*375the ties, that there was sufficient time to relay them before the arrival of the train.
■ The general rule is, that the declarations of an agent, made in reference to the subject matter of the agencyj while engaged in th§ business, bind the principal. (Story on Agency, 136.)
In Price v. Powell, (3 N. Y. 322,) the declaration of the master of a vessel was used against the owners, as to the manner damage occurred to property shipped by the plaintiff. In McCotter v. Hooker, (4 Seld. 497j) the declarations .of the defendant’s agent were received, which were made to the plaintiff’s agent, in relation to the detention of and injury to goods which had been shipped by the defendants, as carriers, but not delivered at their place of destination, but detained through the winter and returned, damaged, to the defendants in Hew York, when and where the agent’s declaration was made. See also McCormick v. Barnum, (10 Wend. 104;) Barclay v. Howell’s Lessees, (6 Peters, 498.)
Timé entered into and formed a material element in the proceedings at the time of relaying the. ties. Childs was the person in. charge; it was his duty to see, before removing the old ties, that there was ample time to complete the work before the time for the arrival of the train. He examined his watch and said there was time enough. It was a declaration made while performing the act of relaying the ties, in reference to it, and thus a part of the res gestae, and competent. Had the declaration been that there was not time, and yet Childs had persisted in the work, can there be a doubt that it would be competent ? I think the evidence was properly received.
The defendant’s counsel insists that Mrs. Matteson’s statements in regard "to her health and condition, should not have been received. The counsel, I think, must have overlooked the fact that the statements complained of were made to a physician called to prescribe for her after the [376]*376accident in question. The evidence was received to show the symptoms for which he prescribed, and the disease, if any, under which she was then laboring. If this evidence is not competent, then the evidence of physicians and surgeons as to treatment, which rests -on the declarations of the injured party, must be excluded, and the protection which such evidence gives against fraud and deception would be entirely lost. The jury had the right to know for what disease or symptoms of disease and injury the physicián prescribed, and for the evidence of which he relied necessarily on the patient’s, statements.
The objection seems to proceed on the idea that the declarations were received for the purpose of satisfying the jury that the condition of Mrs. Matteson was the result of the accident. That was not my view of the object of the evidence. It was to show that the opinion of the physician was founded on her statement of her condition at the time, and thereby to learn whether the symptoms were such as would result from the injuries complained of, or whether they arose from some other cause, and whether or not the effects were or were not temporary in their nature. But if the object and effect of. the evidence was to satisfy the jury as to her condition at the time the physician was called, it was competent to give her declarations for that purpose. (1 Greenl. Ev. § 102. Caldwell v. Murphy, 11 N. Y. 416.)
It is also objected that it was incompetent to prove by Dr. Budlong, at what period after the injury the plaintiff would be most likely to begin to- improve, if she was going to improve at all. It was competent for the plaintiff to show that the injuries were permanent—that she would not probably recover from the effects. The doctor had given her symptoms, and the cause which, in his opinion, had produced them. The brain and nervous system were severely involved. She had, for the .six months .before the trial, been growing worse. The ques[377]*377tian then was, is she to get well. He thought not. Why not ?■ Because, in his judgment, the disease was of that description which, if it were to be removed, would have begun to improve within the year, and with the change of season. This was in support and in confirmation of his opinion that she would not get well, and if opinion is competent, it is just as competent as to when the improvement would be manifested, as that it never would occur. It was not speculation, it was • his opinion, founded on his skill and experience, that was called for,' and that he gave. I have no Ndoubt of its competency.
Dr. Preston was asked what was his opinion as to the cause of the spinal difficulty he had testified Mrs. Matte-son was afflicted with. This evidence was objected to as incompetent. And it is said that the rule is, that the physician was competent to state what might or would cause the difficulty he discovered, but not to give an opinion as to what did cause it in this particular case.
The rule of evidence is thus stated by Justice Sutherland, in The Jefferson Ins. Co. v. Cotheal, (7 Wend. 78.) A physician, in many cases, cannot explain to a jury the cause of the death or other serious injury to an individual, so as to make the jury distinctly perceive the connection between the cause and the effect. He may, therefore, express an opinion that the wound given, or the poison administered, produced the death of the deceased, but in such a case the physician must state the facts on which his opinion is founded. (1 Oowen & Hill’s Notes, 761 to 763.)
The court charged the jury that it was a question of fact to be decided by them, whether the defendant was in duty bound to furnish its agents accurate time-pieces, and not having done so, whether it was not guilty of such negligence as rendered it liable. .This is objected to as errroneous. It is not denied but that all questions of negligence properly belonged to- the jury, and it was the [378]*378duty of the court to submit all such questions to them. And it was the province of the jury to say what acts or omissions of the company constituted negligence. The repairs of the track were attempted to be made without interfering with the passing of the trains. The time of the passage of the trains was properly understood. And it only remained, to insure safety, that the men should have an accurate- time-piece, so as to enable them to so conduct the work that the track should be in order on, the arrival of the train. A time-piece, then, was absolutely indispensible, and it was just as indispensible that it should be accurate. An inaccurate one was worse than useless; it was calculated to mislead—to prevent that great care and caution which men without a watch would be very likely to exercise. Whose duty was it to see" that the men employed in such labor as were those at the place where the accident in question occurred, were furnished with a proper time-piece ? Most surely the defendant’s. W as it done ? No. The evidence shows that the company’s officers paid no attention to this subject, but left the foreman to obtain and attend to the regulation of their own watches. On this evidence the jury had the right to ■ pass, and say whether it was or was not negligence in the defendant thus to conduct itself. But it is said that the evidence showed that Childs’ watch was reliable—had been in use several years and ,had not been found out of order before. This evidence the jury had before them in connection with that above referred to, and it was for them to say, 1st. Whether they believed Childs’ evidence on that or any other subject; and, 2d. Whether, if they did believe it, the defendant was not still guilty of neglect in omitting to give attention to so important a duty—one on which the safety of the lives 'of hundreds of human beings depended, daily.
I-am unable to discover wherein the charge in this respect was erroneous.
[379]*379That portion of the charge wherein thé judge instructed the jury to give damages for mental pain and anguish, past and prospective, is excepted to as erroneous. The ground of the counsel’s objection is, that inasmuch as Mrs, Matteson received no serious wound or bruise which would cause mental anguish as the result of physical suffering, she is not entitled to recover for it, any more than other persons on the same train could recover who were not physically injured. The counsel assumes, in palpable opposition to the proof, that Mrs. Matteson did not suffer any wound or bruise which would cause mental anguish from acute physical suffering. ■ Her limbs were partially paralyzed so that she could not use them.. Her brain was affected so as to impair her mind. This was some evidence of physical suffering. Whether mental anguish can only result from acute suffering I do not know. The question for the jury is, whether there was mental anguish resulting from her injuries, or not; and if there was, she was entitled to be compensated for it.
The question then is, was Mrs. Malteson entitled to compensation for mental anguish, past and prospective ? It was distinctly held in Ransom, v. N. Y. and Erie R. R. Co., (15 N. Y. 415,) that mental suffering is a legitimate element of damages in an action for injuries like this. And in Curtis v. The Rochester and Syracuse R. R. Co., (18 N. Y. 534,) it was held that the right of recovery is not limited to past bodily pain and suffering, but the party is entitled to compensation for such future suffering as the evidence renders it reasonably certain must necessarily result from the injury.
It is said that the charge permitted the jury to give damages for such speculative injuries, pain and suffering as might thereafter be 'endured by Mrs. Matteson. In this, I think, the counsel is mistaken. Ho such thing was said or intended in the charge to the jury. I have shown that by express adjudications of the Court of Appeals [380]*380Mrs. Matteson was entitled to damages for past pain and suffering, and also for that which she might endure necessarily resulting from the injury. The jury was instructed to give such damages as would compensate Mrs. Matteson for the bodily injury and mental anguish sustained, whether the injury has yet been developed or its. effects shall hereafter appear, and are to judge of its future results by the testimony given.
[Oswego General Term,
July 8, 1862.
Mullin, Morgan and Peckham, Justices.]
While the phraseology of the.last clause is notas happy as might have been used, to express the idea, yet it is sufficient to apprise the jury that they are to ascertain from the evidence whether injuries will be hereafter developed and mental pain and suffering endurecí. That conclusion is not speculative which is legitimately drawn from legal and competent evidence. The charge precludes the right of the jury to speculate, and requires them to be guided by the testimony in the case.
If the charge was substantially right, it was the duty of the counsel to call on the court to enlarge or modify it, so as to present the whole case fully and fairly to the jury.
I think the merits were fairly presented to the jury, and the judgment ought to be affirmed.
Judgment affirmed.