Snell v. Inhabitants of Westport

75 Mass. 321

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

Dewey, J.

This case having been tried before the St. of 1857, c. 305, went into operation, the right of Mrs. Snell, the wife, to testify, must depend upon the construction given to St. 1856, c. 188. The provisions of this act are general, authorizing “ parties in all civil actions to testify in their own favor.”

We have already decided that in an action commenced by the husband solely in his own right, and when the wife could not have been joined' as a party, the wife was not by force of this statute made a competent witness for her husband. Upon what had heretofore been considered as satisfactory reasons for such exclusion, and finding no new provisions in the act enlarging the rule as it existed at common law, as to her competency, she was held to be properly excluded, when offered to support an action instituted solely by the husband. Barber v. Goddard, ante, 71.

But the case before us differs materially from the case alluded to. In the present case the wife is one of the parties to the suit. It being brought to recover damages for her personal sufferings, the action could only be brought in her name and her husband’s as plaintiffs. So too the cause of action is one that would survive to her in case of her husband’s death before judgment in the action. She is therefore really a party to the suit, in every sense required to bring her within the provisions of the St. of 1856, c. 188, and to make her a competent witness in the case. • Exceptions overruled.