Teckenbrock v. McLaughlin

25 Mo. App. 524, 1887 Mo. App. LEXIS 346

• Court: Missouri Court of Appeals
• Decided: April 19, 1887
• Status: Published

Opinion

Thompson, J.,

delivered the opinion of the court,

The sole question which arises upon this record is, whether a married woman, who, prior 'to her marriage, was employed by one, who subsequently became her husband, to act as his agent in respect of a particular transaction, but who did not act as his agent generally, she being now his wife, is a competent witness, in his behalf, to prove the transaction in which she thus acted as his agent — the fact of her having so acted as his agent being proved by another, and competent, witness. The statute (Rev. Stat., sect. 4014) recites that “no mar-' ried woman shall be disqualified as a witness, in any civil suit or proceeding, prosecuted in the name of, or against, her husband, whether joined, or not, with her husband as a party, in the following cases, to-wit: * * * in all matters of business transactions, when the transaction was had and conducted by such married woman as the agent of her husband.” The circuit court followed the letter of the statute, and held that the fact of agency, which renders the married woman competent to testify, must be an agency subsisting while she is a married woman, and that it does not apply to a case where she was the agent of her husband prior to the marriage. This ruling drove the plaintiff to the necessity of taking a non-suit, with leave to move to set the same aside ; and, having made his motion, and the same having been overruled, he prosecutes this appeal.

We take the view that the statute applies to a case where the married woman has acted as the agent of her husband, either before, or during, the coverture. In our view, the case is not to be determined by following the literal reading of the statute, but the reason and purpose of the statute are to be taken into consideration. The exception created by the statute is founded in a principle of necessity. If such evidence were not admitted, justice would, in many cases, fail for the want of it. Upon this principle, it was long held, before the passage of statutes abrogating tbe disqualification of witnesses by reason of interest, that a witness who was so disqualified, but who had acted as tbe agent for a person in tbe transaction in controversy, ought to be allowed to testify, ex necessitate rei, in order to prevent a failure of justice. 1 Greenl. Evid., sect. 416; Adams v. Davis, 3 Esp. 48 ; Matthews v. Haydon, 2 Esp. 509 ; Bean v. Pearsoll, 12 Ala. 592; The Governor v. Ghee, 19 Ala. 199; Gayle v. Bishop, 14 Ala. 552. Upon tbe same principle, tbe rule of tbe common law, that neither tbe husband nor tbe wife was a competent witness for tbe other, bad this well recognized exception, that tbe wife might testify in tbe husband’s behalf, when employed as bis agent in any given transaction ; and, by parity of reasoning, it has been held, by our supreme ■court, that tbe husband is a competent witness for bis wife in respect of a matter in which be has acted for her as her agent. Chesley v. Chesley, 54 Mo. 347; Quade v. Fisher, 63 Mo. 325. Tbe reason of tbe rule which creates this exception applies with just as much force where tbe wife acted as agent for the husband, or tbe husband for tbe wife, prior to tbe coverture, as where he, or she, so acted during tbe coverture. Public policy, in tbe one case, as in tbe other, requires that an exception to tbe general rule should exist, in order to prevent failures of justice.

We are, therefore, of tbe opinion that tbe learned judge of tbe circuit court took too narrow a view of tbe statute, and, Rombauer, J., concurring, tbe judgment will be reversed, and tbe cause remanded.

Lewis, P. J., is absent.