Noyes v. Marston

47 A. 592, 70 N.H. 7

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1899
• Status: Published

Opinion

Parsons, J.

“ Husband and wife are competent witnesses for or against each other in all cases civil and criminal, except that neither shall be allowed to testify as to any statement, conversation, letter, or other communication made to the other or to another person, nor as to any matter which in the opinion of the court would lead to a violation of marital confidence. ” P. S., c. 221, «. 20. The plaintiff’s husband was permitted to testify to conversations between the plaintiff and the deceased; but we do not understand it to be claimed that the testimony admitted involved any violation of marital confidence. The question, therefore, is whether the clause in relation to marital confidence, limiting the words “ any matter,” does or does not limit the preceding subjects of testimony, — statement, conversation, letter, or other oomnnmicatiou made to the other or any third person; whether testimony as to the subjects of testimony specially named is absolutely excluded, and other matters only when the subject-matter is such as to lead to a violation of marital confidence ; or whether the whole clause is an enumeration of subject-matters most likely to lead to such violation, for the purpose of calling particular attention thereto, followed by a general term including the matters named and all others.

This section is condensed from two sections in the General Laws ; and it is conceded the verbal change made no change in meaning, and that the same effect must be given to its language as to sections 20 and 21, chapter 228, of the General Laws, in which the general right to testify is given in the first section cited and the limitation expressed in the following section. The first section, by reason of intervening amendments enlarging the competency of husband and wife, as witnesses for or against each other, is materially different from the corresponding section in the General Statutes of 186T; but the limitation of the right which was given by that section is expressed in the same words in the General Statutes and in the General Laws. In other words, section 21, chapter 228, of the General Laws is identical with section 21, chapter 209, of the General Statutes. It is therefore evident that our inquiry must address itself to the question, what was the meaning of this section when enacted in the General Statutes ?

To understand the language used upon any occasion, no rule is more elementary than that we must put ourselves as far as may be in the situation of those using it. “ As the same word or series of words may convey very different meanings, according to the circumstances under which they are used or the subject-matter to which they apply, the situation of the parties, their general purpose in the transaction, and all apparent circumstances connected ■therewith, are competent evidence of the intention expressed by particular words and phrases in the contract. Nettleton v. Billings, 13 N. H. 446. Language, independent of the subject-matter or-the author’s general purpose, is usually meaningless and obscure. The inconvenience, hardship, or absurdity which one construction would lead to is often strong evidence in favor of another or different construction involving no objections of that character, because men in general do not enter freely into contracts winch are absurd or frivolous, and therefore the knowledge of the court on that subject is evidence of the intention of the parties. ” Kendall v. Green, 67 N. H. 557, 562, 563. The instrument to be interpreted, whatever may be its nature, should be read in the light of all the circumstances which may be supposed to have been present to the mind of its author when it was framed.

Previous to the enactment of the General Statutes in 1867, it was held in numerous cases that the act of 1857 (c. 1952) rendering witnesses competent regardless of their interest in the controversy did not affect the competency of husband and wife as .witnesses for or against each other. This was held upon the ground that such disqualification was based upon public policy as well as upon interest, and that, while the latter objection to their competency as witnesses was withdrawn by force of the statute, the former was unaffected. Kelly v. Proctor, 41 N. H. 139; Breed v. Gove, 41 N. H. 452. In Smith v. Railroad, 44 N. H. 325, 334, where the question again arose, Bellows, J., after referring with approval to the cases cited, said: “ The rule, then, is founded upon enlightened views of public policy, which regard as of vital importance the preservation of domestic peace and harmony, and the promotion of the unreserved confidence between the husband and wife which the sanctities of that relation require. . . . Without stopping, then, to inquire whether, in a given case, the admission of the husband or wife to testify would in fact be attended with the mischiefs described, such as the violation of conjugal confidence, the law has laid it down as a general principle, that they cannot testify for or against each other. ” In that case, a suit by husband and wife upon a cause of action accruing to the wife be-, fore marriage, the want of logic and the injustice of excluding the testimony of the wife because of possible “violation of conjugal confidence ” is especially apparent. Hence the court were careful to put the decision upon a rule applicable to all cases, which did not permit inquiry whether the reason for it existed in the particular case. Thus, despite the removal of the disqualification of interest, husband and wife were still refused as witnesses in any case to which the other was a party, even when it was clear their testimony would not tend to violate the mutual confidence attached'. to the marital relation, and its admission could not for that reason be said to be against public policy. This view was adhered to in Young v. Gilman, 46 N. H. 484 (1866). At the same time the' surviving wife was permitted to testify as to matters in which her deceased husband was interested, unless she acquired her knowledge of the facts through confidential communications from her husband. Jackson v. Barron, 37 N. H. 494; Ryan v. Follansbee, 47 N. H. 100. The objection to the testimony of husband or wife1 for or against each other was understood to rest upon the danger of the violation of conjugal confidence,— the disclosure of confidential communications from the one to the other. Although it was perceived that there were cases in which the reason for such exclusion was wanting, the rule itself was considered too well settled for judicial abrogation.

In this situation, in 1866 a husband and wife were, by legislative action (Laws 1866, c. 4268), made competent witnesses for or against each other, whether joined as parties or not, in three classes-of cases: First, in actions upon policies of insurance so far as relates to the amount and value of the property insured; second, in actions against carriers so far as relates to the loss, arnoimt, or1 value of property which is subject to the suit; third, in actions in which the subject-matter of the controversy happened or accrued before marriage. Section 2 of the act provided that “ nothing in this act contained shall be so construed as to render competent the testimony of a husband and wife for or against each other, as to any statements, conversations, letters, or other communications between them, or between either of them and any third person.” The case of Smith v. Railroad, 44 N. H. 325, before cited, was-covered by two of the classes named, as it was for goods alleged to have been lost by a common carrier and was upon a cause of action accruing to the wife before marriage. This fact, with the’ apparent purpose of the second section to prevent violation of what had been assigned as the reason of the rule of public policy,, establishes that the legislative action was taken in view of and’ with direct reference to the course of judicial decision upon the question.

This act was reported in the legislature by a member of the' commission which had already been appointed under the act of 1865 to prepare the revision known as the General Statutes.This action resulted from the passage of a resolution by the house: of representatives, directing the judiciary committee to inquire into5 the expediency of amending the laws relating to the admissibility' of parties as witnesses so as to allow husband and wife to testify for or against each other. House Journal, 1866, p. 222. The act" of 1866 was approved July 7, and went into effect upon- its pas- sage. It was not made applicable to pending suits, and, in the natural course of events, could not have been extensively applied in practice, if at all, before the report of the commission upon the General Statutes was filed in April, 1867. Rich v. Flanders, 39 N. H. 304; Glines v. Smith, 48 N. H. 259, 272. Iielice it must be that the changes winch were made by the commission were not amendments, the necessity of which had been shown by the practical working of the act, but were in the nature of a redraft, upon mature consideration, to. express more clearly the original purpose. The original act was an attempt to cure the difficulty; but though it confined the injustice of the rule within narrower limits, the act was nearly as illogical as the ruling of the court. The cases enumerated are not all the actions in which husband and wife might testify without violation of conjugal confidence, nor is it true that testimony as to statements, etc., between each other and a third person would of necessity encroach upon the sanctity of the marital relation. The wrong intended to be cured was the exclusion of competent testimony for a reason that did not exist hr the particular case. The logical solution of the trouble would seem to have been to provide for the exclusion of the testimony hr cases where the reason urged against it did in fact exist, and its admission in other cases. The act of 1866 was a tentative effort at a remedy; but upon consideration it is evident, and it must have so appealed to the commission, that the exclusion of statements, etc., was both too broad and too narrow. A married person might testify to statements of the character described without violation of marital confidence. Such is the character of the testimony in the present case. It was so understood in Ryan v. Follansbee, 47 N. H. 100 (1866). Since testimony as to such statements does not necessarily, and testimony as to other matters may, violate marital confidence, the original act was clearly imperfect. In this situation the commission reported the first section of the act of 1866 as section 20, chapter 209, of the General Statutes, without material change so far as the present question is concerned. They materially changed section 2 of the act of 1866, which is section 21, chapter 209, of the General Statutes, and added a new section, — section 22. These sections are as follows: “Sect. 21. The preceding section shall not be so construed as to render competent the testimony of a husband or wife for or against each other as to any statement, conversation, letter, or other communication made by either of them to the other or to any other person; nor as to other matters when it appears to the court that the examination of either as a witness in relation thereto would lead to a violation of marital confidence. Sect. 22. The wife may testify for the husband or the husband for the wife in any case, when it appears to the court that their examination as witnesses upon the points to which their testimony is offered, would not lead to such violation of confidence.” While the punctuation found in the printed volume supports the view that the limiting clause in section 21 applies only to the last subject referred to, “ other matters,” and does not affect the previous subjects, “ statements,” etc., it is not conclusive as to the meaning of the section. The two sections (21 and 22), taken together, indicate that the disclosure of marital confidence was understood to be the point to be guarded against in the admission of husband and wife to testify. The legislature understood that testimony which did not have that effect should be admitted. Rejecting the punctuation, the natural and ordinary inference to be drawn from section 21 is that the limiting clause as to violation of marital confidence applies to each variety of testimony before enumerated,— a view which is strengthened by the fact that, so read, the addition made by the commission is a logical and reasonable correction of a well-understood existing evil. Where the exception in the act of 1866 was too broad it is corrected, as well as wherein it was too narrow. The admission and rejection of the testimony is put upon the real ground and upon the same ground as in the following section, wherein it is provided that the testimony of either for the other may be admitted in all cases. But it is said that when the clause excluding statements, etc., first appeared in the statute in 1866, it was without limitation of any kind; that the added clause purports to be a limitation and not an extension ; that testimony as to conversations, etc., was finally disposed of by the provision that it should not be admitted; and that a subsequent provision, that any testimony that violated a certain rule should be excluded, falls far short of a provision that all testimony that does not violate such rule is admissible. There is great force to this contention as an abstract proposition. We do not think, however, that it can determine the question of legislative intent, in view of the history of judicial decision upon the admissibility of such testimony, and the purpose and object of the change made by the acts of 1866 and 1867, which are, in effect, one effort to draft a statute to meet the situation. This argument gives no weight to section 22, which, as part of the same law, should aid in ascertaining the legislative purpose. It is true that upon the view that the limiting clause of section 20 was understood to apply to all the subjects of testimony enumerated, the early part of the section might have been omitted. But it is equally true that upon the adoption of section 22 all of sections 20 and 21 relating to the testimony of husband and wife for each other might have been stricken out. The form adopted is not unusual — an enumeration of particulars followed by a general clause embracing the whole. Conversations were suspected as likely to provoke testimony leading to a violation of marital confidence, and from excess, of caution the' words were left to call attention to that possibility. The opposite construction is contradicted by the following section. If section 21 must be read to mean that the husband or-wife cannot testify for each other in the four kinds of actions, enumerated in section 20, as to any conversation, statement, etc., whether a violation of marital confidence is involved or not, then such provision is directly opposed by section 22, which provides, that they may testify for each other in any case when it appears, that such testimony would not lead to a violation of marital confidence. It is not to be presumed that the legislature intended contradictory provisions in two consecutive sections. The application of the limiting clause in section 21 to all that precedes is the only construction that can be given to the two sections that will render them harmonious with each other. If this had not been understood to have been the meaning, so much of section 20 as relates to the. testimony of the husband or wife for each other would have been stricken out, and the section left solely to the definition of the. cases in which they were competent witnesses against each other.. While if this had been done the law as to the testimony of either for the other would not have been affected, the fact that it was not. done is evidence of great weight that it was understood no conflict existed. The conclusion reached in the light of the history of.' judicial decision, the recognized wrong to be remedied, and the situation when the law was passed, is fairly deducible from the language used. We can reach no other result except by the application of a narrow construction which we are not at liberty to apply to a remedial statute. We conclude, therefore, that in 1867 the limitation of a violation of marital confidence applied to “ statements, conversations,” etc., as well as to “ other matters.” Testimony upon all the subjects enumerated was admissible if it did not tend to such violation, — inadmissible if it did. If this view is-sound, the testimony objected to in tins case is competent under the similar language in the Public Statutes.

Whatever view is taken of the meaning of sections 20 and 21„ chapter 228, of the General Laws, it must be admitted that the testimony of the husband for the wife which we are today asked to exclude was beyond question competent in 1867, under section 22, chapter 209, of the General Statutes. It is conceded that. the. general direction has been onward; that the door for the admission, of truth has been opened wider year by year. But we are now asked to go backward thirty-two years against the tide of progress, in the law of evidence for the last forty years and adopt an illogical rule, utterly unsupported by reason, upon the ground that. the meaning of the language used in the General Laws (c. 228, ■ss. 20, 21) is so clear that no other meaning can be attributed to the words used, despite the fact that it does not appear that during all the time since 1878 any person ever attributed such meaning to the language.

It is clear that only a sense of absolute certainty, a conviction that there is no possible ground for an opposite conclusion, alone could allow us as a court by judicial construction to declare that the legislature deliberately adopted such a rule. The policy of the legislature has been uniformly to remove restrictions placed by the common law upon the competency of witnesses and testimony. Page v. Whidden, 59 N. H. 507, 511; Peirce v. Burroughs, 59 N. H. 512, and authorities cited. The ancient disabilities pertaining to the marriage relation have also been removed from time to time, until now husband and wife stand upon an equality of right in respect to property, torts, and contracts, subject only to minor exceptions in favor of the wife. Laton v. Balcom, 6 4 N. H. 92, 95; Seaver v. Adams, 66 N. H. 142. It would be strange indeed if a legislature should set itself against the strong forces of civilization that have produced such changes, and restore disabilities of this character once removed. That there was an intent to do this in this instance cannot be credited, in the absence of language that is incapable of other construction. The liberty given by the General Statutes was still further extended by subsequent legislation (Laws 1870, c. 20; Laws 1871, c. 88, s. 2), so that prior to the General Laws husband and wife were competent witnesses for or against each other in all matters, both civil and criminal, where no violation of marital confidence was involved. Clements v. Marston, 52 N. H. 31. As already stated, in this revi0sion (1878) section 20, chapter 209, of the General Statutes, becomes section 20, chapter 228, of the General Laws, modified in consequence of legislation subsequent to the General Statutes by the addition of the words “in all cases both civil and criminal,” .and the omission of the enumeration of certain classes of actions in which, under the previous statute, husband and wife were made competent witnesses for or against each other. After the broad terms of section 20, chapter 228, of the General Laws, .amended by Laws 1870, chapter 20, follows the limiting section in the exact language used in the General Statutes. Whatever is the correct view as to the meaning of this language in 1867, the question is: what did the legislature mean by it in 1878? State v. Williams, 68 N. H. 449, 451. An important consideration tending to show that the legislature in 187 8 understood this section meant what it has been said it meant in 1867, whether the view taken of its meaning at that time is or is not correct, is found in the fact that, giving to this section the meaning already assigned, applying-the provision as to violation of marital confidence to “statements,” -etc., as well as to “ other matters,” the statute means exactly what the law had been made by the amending acts and declared by the court in Clements v. Marston, supra. Changes of phraseology made in a revision are not to be construed as changing the law previously settled by plain statutory provisions or •judicial decision, unless it is clear such was the intention. Cocheco Mfg. Co. v. Strafford, 51 N. H. 455, 471; Jewell v. Holderness, 41 N. H. 161, 163; Burnham v. Stevens, 33 N. H. 247, 256; Crowell v. Clough, 23 N. H. 207, 210; McDonald v. Hovey, 110 U. S. 619, 629. “So upon a revision of statutes a different interpretation is. not to be given to them without some substantial change of phrarseology — some change other than may have been necessary to abbreviate the form of the law.” Sedg. Con. Stat. 365; McDonald v. Hovey, supra; Mooers v. Bunker, 29 N. H. 420. The General Laws were intended to be a compilation merely and not a revision. Laws 1877, c. 33, s. 2; Ib., c. 74, s. 2; Ib., c. 115, s. 1. Com'rs’ Rep. G. L., p. 1. While the commission departed somewhat from the original intention, they state in their report that they have-marked radical changes “ new.” There is no indication by marginal reference or otherwise that any change was understood to-have been made uphn the point under consideration.

It is now twenty years since the adoption of the General Laws-During that time husband and wife have testified for and against each other before juries, referees, and judges almost daily, and no-limitation upon the right has ever before been suggested except-that of marital confidence. The question might well be disposed of as settled by general acquiescence. See Sargent v. Gilford, 66 N. H. 543, 544. Giving due weight to all the competent evidence tending to show the legislative understanding of the words used -— the legislative intent, and balancing that against the evidence furnished by a critical analysis of the words themselves, we think it more probable the legislature did not intend in enacting the General Laws to change the law as it had stood since 1870, but understood and intended that the only limitation upon the-competency of husband and wife as witnesses for or against each other should be the violation of marital confidence, and that such intent is fairly expressed by the language used, read in the light of all the facts competent for our consideration. So finding, it is our duty to so declare the legislative intent. A slavish adherence to the letter when the contrary meaning is obvious is not interpretation. True interpretation is “not of the letter, but of the spirit;, for the letter killeth while the spirit giveth life.”

Exception overruled.

Blodgett, C. J., did not sit: the others concurred.