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BOWDLE v. DETROIT STREET RAILROAD COMPANY.

(103 MICHIGAN, 272.) WITNESSES-MENTAL COMPETENCY.-If prellminary ob Jection is made that a witness is not mentally competent to testify, the court must examine him and hear such testimony as is proper in regard to his mental condition, and determine if he is competent to testify. If the court so decides, the weight of the testimony of the witness is for the jury to determine.

WITNESSES—MENTAL COMPETENCY.-If, after a witness has testified, evidence is introduced of his mental incompetency to testify, the jury must determine such competency, as well as the weight to be attached to the testimony of such witness.

WITNESSES-MENTAL COMPETENCY.-A person affected with insanity is competent as a witness, if he has sufficient understanding to comprehend the obligation of an oath, and is capable of giving a lucid account of such matters as are in dispute.

HUSBAND AND WIFE - DAMAGES FOR LOSS OF SERVICES.-A husband suing to recover for an injury sustained by his wife through negligence, and alleging that since the accident he has been deprived, and during the life of the wife will be deprived, of her fellowship, society, aid, comfort, and assistance in his domestic affairs, can recover only the value of such services as the wife would have been likely to render in the discharge of her domestic duties.

HUSBAND AND WIFE – LOSS OF SERVICES. -- The fact that a wife lives with her mother, and that her husband is not able to support her in her injured condition, does not prevent him from recovering for the loss of her services, caused by an injury to her through the negligence of a third person.

NEGLIGENCE - PROXIMATE CAUSE. – In an action to recover for personal injury sustained while alighting from a street-car, and alleged to have been caused by the negligence of the defendant in suddenly starting the car while the injured passenger was standing on the steps, and in permitting a hook to hang near the steps of the car, thereby catching and dragging such passenger, the de fendant can exonerate himself from liability only by proof of the absence of negligence on his part, and that the hook being recently displaced by another passenger was the sole and proximate cause of the accident.

Moore & Moore, for the appellant.
S. T. Miller and Brennan & Donnelly, for the appellee.

274 GRANT, J. 1. The principal question in this case arises upon the following instruction of the court to the jury: "I al. lowed this testimony to be introduced as to the mental condition of this woman for the purpose of showing you, or allowing you to judge, as to how long her husband might be deprived of her society, or of her labor as a wife, in the discharge of her domestic duties in the household, and for no other purpose. You are at liberty to investigate all the proof in this case that has been of.

fered to you as to whether this woman is sane or insane. I charge you that, if you shall find that now this woman is without sufficient mental capacity to understand what is going on, you are not at liberty then to consider her testimony in this case at all, for you are only at liberty to consider the testimony of a person who is compos mentis, or of sound mind; for a person who is without sound mind, capable of remembering or giving testimony in & case, is not to be allowed in a court of justice. One of the physicians here testified that she was insane now. If you shall come to that conclusion, then you are not at liberty to regard her testimony at all in this controversy; but if you shall have arrived at the conclusion that she is sane now, and capable 275 of knowing what she is doing and saying, and of remembering what transpired at the time this accident occurred or this injury happened, then you are to consider her testimony, and you are at liberty to consider it in connection with the permanent character of this injury, and also in weighing the testimony of the expert witnesses who have been produced in this case, who, there is some evidence to show, testified on a previous occasion that this woman would be permanently insane.”

No question was raised as to the competency of this witness at the time she was sworn, nor at any time during the giving of her testimony. One of the grounds upon which recovery was sought by the declaration is that she had become "completely and permanently insane." If such preliminary question had been raised, it would then have been the duty of the court to examine her, and such testimony as was proper in regard to her condition, and determine whether she was competent to be sworn. Some authorities have said that the preliminary question in such cases is, “Is the witness capable, when sworn, of understanding the nature of an oath?” To this some authorities add that he must be able to understand the subject with respect to which he is required to testify. When this preliminary question is passed, and the court has determined that the witness is competent to testify, the entire controversy is then transferred to the jury. The court may not say to the jury that the witness is or is not entitled to credence. The jury may reject the testimony entirely or may attach whatever weight to it they choose. We are cited to no authority which holds that it is incorrect to instruct the jury that, if they shall determine from the evidence that a witness is so insane as not to comprehend or be able to understand what she is doing and saying, and to remember what has transpired in regard to the subject about which she is testi

fying, they should reject her testimony altogether. Such holding, in 270 my judgment, would be a clear usurpation of the province of the jury. It would, in effect, be saying to them, “The witness is entitled to some credence, and it is for you to say how much." The preliminary decision of the court means nothing of the kind. The court simply decides that the witness is competent to testify, upon testimony not introduced for the consideration of the jury, but of the court. Afterward, as in this case, testimony is introduced as to her mental condition, and her own testimony and demeanor and appearance are before the jury, and the question of her competency must then be determined by them, when the evidence is conflicting.

It is entirely clear that one clause of the instruction, standing alone, would be error, viz: “One of the physicians here testified that she was insane now. If

you shall come to that conclusion, then you are not at liberty to regard her testimony at all in this controversy."

The language following, however, restricts the above, and clearly conveys the meaning of the learned circuit judge, viz., that if she was then capable of knowing what she was doing and saying, and remembering what transpired at the time of the accident, then the jury were to consider her testimony. In determining the question, the jury were further very properly told that they must consider all the testimony in the case, and, if they found that she was capable of understanding, they should give her testimony due weight; if they found, on the contrary, that she was not, then they should reject it. I think this states the true rule.

In Regina v. Hill, Eng. L. & Eq. 547, speaking upon this precise question, the court said: "If his evidence had, in the course of the trial, been so tainted with insanity as to be unworthy of credit, it 277 was the proper function of the jury to disregard it and not to act upon it.”

This is quoted in Coleman v. Commonwealth, 25 Gratt. 876, 18 Am. Rep. 711, and is recognized as the sound and reasonable rule. This is the rule to be deduced from the language of the court in Regina v. Hill, 6 Cox C. C. 259. In that case Lord Campbell, C. J., says: “The lunatic may be examined himself, that his state of mind may be discovered, and witnesses may be adduced to show in what state of sanity or insanity he actually is; still, if he can stand the test proposed, the jury must determine all the rest." To the same effect are Mayor of Gainesville v. Caldwell, 81 Ga. 76, and Worthington v. Mencer, 96 Ala. 310.

The case of Mead v. Harris, 101 Mich. 585, is not in conflict with this rule. In that case, the preliminary question was raised before the witness was sworn, and the court said that he would instruct the jury that, if they found that the witness was mentally incompetent, they should consider her testimony of no value; and the decision went no further than to hold that it was the duty of the court to determine, in the first instance, whether the witness was competent to testify, before the question could be submitted to the jury. I do not wish to be understood as holding that it is competent to introduce testimony of insanity to impeach the credibility of a witness. That question is not involved. I find no error in this instruction of the court.

2. Two grounds of negligence were alleged: 1. That the car was negligently started while plaintiff's wife was standing on the last step; 2. That the chain with a hook at the end was negligently permitted to hang from the platform near the steps.

278 The court instructed the jury that, if the hook was in the proper place when the car left the city hall, and was displaced by Mrs. Bowdle or some other passenger, and by hanging caught Mrs. Bowdle's dress, then she could not recover. This charge would have been proper, if the court had further instructed the jury that the defendant would not be liable if the hook was the sole or proximate cause of the accident. But the instruction left out the other negligent act, viz., the starting of the car while she was still standing on the steps. Possibly the hook might not have caught her dress if she had alighted upon the street before the car started. If the starting of the car was the cause of her falling and of her being caught by the hook, it would be no de fense to the action that the defendant was not responsible for the position of the hook and chain.

Upon the other questions involved we agree with the chief justice.

For this error the judgment must be reversed, and a new trial ordered

Long and Montgomery, JJ., concurred with Grant, J.
Hooker, J., concurred in the result.

MCGRATH, C. J. A husband sues for loss of his wife's services, by reason of an injury received April 1, 1891, while alighting from one of defendant's cars, and for expenses incurred by him in her treatment and care. In his declaration, he avers that, solely because of the injuries received by his said wife as afore said, he has continually, since said accident up to the present

AN, ST. Rep., VOL 1 - 24

time, been deprived, and will for all future time during the life of his said wife be deprived, of the comfort, felluwship, society, aid, and assistance of his said wife in his domestic affairs, which he, said plaintiff, during all that time ought to have had, and ought to have, and otherwise might have had and should have.

279 The wife testified upon the trial that, after the street-car had stopped, she attempted to alight, when the car started suddenly, throwing her to the ground, and that the hook of the chain used to cut off access to the car, and which hung from the dashboard, caught in her clothing and she was dragged some distance. The fact that the hook caught in her clothing, and that she was dragged some distance, was not disputed. There was, however, testimony tending to show that the car was not started until she had alighted, and that the hook caught in her clothing after she had reached the ground. The wife was the only witness who testified to the sudden starting of the car while she was in the act of alighting. Her physicians testified that a miscarrige followed the injury, and that she was deranged at times during her illness; and one of plaintiff's witnesses who had testified that he had several times, within a few months after the accident, examined her with reference to her mental condition, and had found her de ranged, on cross-examination testified as follows:

“Q. Did you see her on the stand this morning? A. I saw her about three minutes.

“Q. Did you think that she was insane this morning? A. I did, most certainly.

"Q. You would not believe her testimony? A. I would mot.”

Complaint is made of that portion of the charge to the jury wherein the court said: “You are at liberty to consider the permanent character of this injury or its lack of permanency. I allowed this testimony to be introduced as to the mental condition of this woman for the purpose of showing you, or allowing you to judge, as to how long her husband might be deprived of her society, or of her labor as a wife, in the discharge of her domestic duties in the household, and for no other purpose. You are at liberty to investigate all the proof in this case that has been offered to you as to whether 280 this woman is sane or insane. I charge you that, if you shall find that now this woman is without Bufficient mental capacity to understand what is going on, you are not at liberty then to consider her testimony in this case at all, for you are only at liberty to consider the testimony of a person who is compos mentis, or of sound mind; for a person who is

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