
    *The Mad River and Lake Erie Railroad Company v. Cochran Fulton. 
    
    The owner of a trunk is a competent witness in a suit brought by him against a common carrier, for its loss, to prove the contents of the trunk, and their value, and for the same reason, the evidence of the wife of the owner is admissible to prove the same facts.
    The rule for the admission of such evidence, does not extend further than to the proof of such articles as are commonly carried in a traveling trunk. 
    
    Error to the court of common pleas of Seneca county.
    The action below was assumpsit brought by Fulton against the Mad River and Lake Erie Railroad Company, to recover the value of a traveling trunk and its contents. The declaration avers a contraction the part of the railroad company, as common carrier, to carry the wife of plaintiff below, and her traveling trunk and contents, from Tiffin to Springfield in the railroad cars of said company, and avers the loss of the trunk and contents by said company.
    The facts sufficiently appear in the opinion of the court.
    The court below overruled a motion for a new trial, made by defendants below, and the overruling of said motion, and the admission of evidence of the deposition of the wife of the plaintiff below, on the trial, are assigned for error.
    Lane, Stone & Lane, for plaintiff in error:
    This writ of error presents two questions :—
    I. Whether the owner of a trunk lost by a railroad company, is a competent witness to prove the contents and their value ?
    *11. Whether the wife of such owner is a competent witness for her husband in such a suit?
    I. The main point is one where we can add nothing to the former discussions and obvious reasoning. I have never met with any authority in any respectable book except Greenleafs Evidence. 
      His opinion, as a lawyer, has since been deliberately overruled by the Supremo Court of Massachusetts, where the authorities are collected and discussed. 12 Metc. 44. There is no case in the law, (Connecticut book-debt excepted), in which a party plaintiff is a competent witness for himself on the main issue.
    II. But if he were competent, his wife is not. His exclusion is on the ground of interest: her exclusion depends on a different rule—a rule of policy, to prevent any possible interference with the marital relation.
    
    If the wife be competent for the husband, she may be called by the other party to testify in chief, or may be even examined as to facts against him. She may be required to testify as to every point connected with the case. If she enumerate the contents of the trunk, she may be even examined as to the title, and required to relate all she may know, however it may affect her husband.
    We can not doubt the reversal of the judgment.
    W. H. Gibson, for defendant in error :
    On the trial in the common pleas, the present defendant in error, “ to prove the description and value of the contents of the trunk,” offered the deposition of his wife, which deposition was objected to by counsel for plaintiff in error; but the objection was overruled by the learned judge presiding, and the deposition was read. Did the court below err in permitting this deposition to be read ? This appears to be the only question for decision.'
    From necessity, a party must, in certain cases, be allowed to *give evidence in his own favor, to prevent “ a failure of justice.”
    But we insist that the rule adopted on the trial of this canse, in the court below, is at once a reasonable and necessary rule. When an individual contracts to be carried on a railroad, his baggage is taken into the care of the company. It is removed from the eye and control of the owner. The company has full power to protect the property thus committed to its exclusive care, by all necessary vigilance. Its failure to do so is not chargeable on the owner, as he has no power to control or prevent it. He is absolutely excluded from his baggage, and the latter is secured by the application of locks and guards, and placed beyond the observation of the owner.
    The company may, as a protection against bad faith and false swearing, shield itself: First. By a return of the property, to the owner, which, with ordinary care on the part of tho company, no combination of circumstances need prevent its doing. Second. Tho character of the party is open to assault. It may be discredited, if unworthy of belief. Would a respectablo witness, for a few dollars, perpetrate a foul crime? Not often. The statements given by him will generally be entitled to entire confidence. They will often be corroborated, (as in the present case), by tho testimony of others. Perjury practiced to injure the company, may be readily exposed and punished. It is a rule as ancient as truthful, that “ for every wrong there is a remedy.” If tho rule insisted upon by the plaintiff .in error be correct, the owner can do nothing more than prove the delivery of his trunk to the company —the payment of his fare to its agent, the size and external description of the trunk, and exhibit a check, admitting the receipt of it into the hands of the company.
    This proof he can easily make. But the number and value of tho lost articles contained in the trunk, it is often impossible, and always difficult, to prove. The number, description and value of articles in a lost trunk, can not often bo proved, except by th© oath of the person who placed them in charge of tho Company, and who is most nominally their owner. Experience and observation teach this.
    The necessity for a departure from the common law rule in this particular, is too evident to be overlooked by American courts. In the case cited in Massachusetts (12 Metcalf), tho court refused to depart from the common-law rule. Our courts should respect tho decisions of tho courts of other states, but are not bound by them. A rule that is unsupported by reason, should not be adopted. The authority cited is not founded in reason or justice, and should not influence this court.
    We have demonstrated tho justice of the rule we claim, and now assume that it is sanctioned by respectable authority. Tho case of John Romand v. Arthur McGill et al., recently decided in Pennsylvania, is a case directly in point. In that case, suit was brought to recover the value of two trunks and their contents, and tried in the District Court of Allegheny county. Tho plaintiff’s counsel offered in evidence the deposition of plaintiff and his wife, to prove the articles lost, and the value of each. Among the items were valuable articles of jewelry. The depositions wore objected to, but the court permitted them to be read to the jury. The case was taken to the Supreme Court, on writ of error, and one of the errors assigned was, “ that the court erred in admitting the testimony of the plaintiff and his wife, as to the value of the articles in the trunk.” Rodgers, J., in delivering the opinion of the court, appears to recognize it as an established rule, that a party may, under certain circumstances, prove, by his own oath, the contents of a box or trunk, and says the rule “applies, with as much, if not greater force, to the wife, as to the husband.” To reject her as incompetent, the court says, “ will amount almost to a repeal of the rule, and in most cases to a denial of justice. This cace is precisely analogous to the case at bar. And the rule laid down by the learned judge, is necessary and reasonable, and we think entitled to great weight. See 3 Barr (Pa.), 451.
    *Prof. Greenleaf, of Massachusetts, a man whose legal attainments are surpassed by few in the United States, in his, treatise upon the Law of Evidence, vol. 1, p. 416, and notes, affirms the rule laid down in the case cited in Barr—the rule which we insist upon in this case.
    Story on Bailments, 3 ed. 454; Herman v. Drinkwater, 1 Greenl. (Me.) 27; Clark v. Spencer, 10 Watts (Pa.), 335; Dugham v. Rogers, 6 Watts & Serg. (Pa.) 500, and Crane v. Whitesell, 8 Watts & Serg. (Pa.) 369. These cases recognized and established the rule laid down in McGill et al. v. Rowland, and give us a clear advantage in the weight of authority. Our authorities, we think, are at least “ respectable,” notwithstanding counsel say they have never met with any “ respectable ” authority laying down the rule that we claim. The decisions of the Supreme Courts of Pennsylvania and Maine are regarded by the profession as of great respectability.
    The learned counsel of plaintiff in error assume that if the party were competent as a witness, the wife is not. They say “ her exclusion depends on a different rule; a rule of policy to prevent any possible interference with the marital relation.” In Little-field v. Rice, 10 Metcalfs (Mass.) Reports, the wife who keeps her husband’s books was held to be competent as a witness “for him, in a suit upon his book-account, to testify that she made the entries by his direction and in his presence.”
    There are other cases in which the wife may be a witness for the husband. The cases just cited in Pennsylvania are conclusive, as to her competency in a ease like the one at bar.
    
      
       See Levi Sams v. Stewart & McKibben, reported in this vol. on p. 69; 7 West. Law Journal, 448.
    
    
      
       See State of Ohio for use Monroe Tp. v. Geo. Williams, et al. 13 Ohio, 495.
    
   Caldwell, J.

In the court below, the proceeding was an action of assumpsit, brought by Cochran Fulton against the railroad company, to recover the value of a trunk and contents. The plaintiff in the court below proved, on the trial, that on February 10, 1850, his wife took passage in the defendant’s cars at Tiffin, for Springfield, having a trunk worth from six dollars to ten dollars, which contained her clothing. One witness testified that he saw one lady’s dress, and some other ^articles of clothing put into the trunk. The company delivered its check to Mrs. Fulton at Tiffin, for the trunk, and it was admitted that the trunk was not afterward delivered to her, but was lost or stolen somewhere on the way between Tiffin and Springfield. Mrs. Fulton having passed through from Tiffin on the cars, at Springfield presented her check, and demanded the trunk.

The plaintiff below having proved the above facts by other witnesses, then offered the deposition of his wife, to prove the description and value of the contents of the trunk. To the introduction of this evidence the defendant below objected ; the court overruled the objection, and permitted the evidence to be offered, to which the defendant excepted. The court gave judgment for the plaintiff for the value of the trunk, and also for the value of the contents. The contents of the trunk, as thus proved, consisted principally of wearing apparel, with the addition of a few other articles, such as are frequently carried in a person’s traveling trunk.

The only question arising in the case is, whether the wife of the plaintiff was a competent witness to prove the articles contained in the trunk, and also their value. Upon this point the decisions in the different states are somewhat conflicting.

In Massachusetts, the rule has been established excluding such evidence. In the case of Snow v. The Eastern Railroad Company, which, like the present, was a suit brought against the company for the price of a trunk and contents, the court of common pleas permitted the plaintiff to testify to the articles contained in the trunk, and also to their value. The Supreme Court of Massachusetts, on writ of. error, to the ruling of the common pleas, hold that the evidence was inadmissible, and on that ground reversed tho judgment. In Pennsylvania, there have been numerous decisions the other way. The cases of Whitesell v. Crane, 8 Watts & Serg. 369, and McGill et al. v. Rowland, are both cases against stage eompanies, for lost trunks, and in both instances the *court held that the plaintiffs were competent to prove the contents of the trunks, and the value of the articles.

The Supreme Court of Maine, Herman v. Drinkwater, 1 Greenl. 27, decided that when a captain of a vessel had converted the goods, contained in a box, which he had undertaken to ship from Liverpool to New York, in a suit against him, by the owner of the goods, that the owner was a competent witness to prove the contents of the box. The question has never been decided in this court, and the decisions in other states being conflicting, we feel at liberty to adopt such rule as to us apj>ears best calculated to promote the ends of justice.

The common-law rule, that a man shall not give evidence in his own case, is no doubt one that has its foundation in reason, and that could not, as a general rule, be departed from without being attended with pernicious results. The rule is established, not because it will tend to the promotion of j ustice, in all cases, that such a rule should exist. It can not be denied, that in many instances, a party to a suit would give the true state of facts in the case— would be able to give testimony that would be necessary to a correct decision of the matter in controversy. And if such would, generally, be the character of that kind of evidence, it would tend, in the general result, to the promotion of justice, and no rule for its exclusion could, with propriety be established. But on account of the strong temptation that selfishness and prejudice present to a party, when testifying in his own behalf, to misstate the facts, it has been thought best calculated to subserve the objects of judicial investigation, as a general rule, to exclude such evidence altogether. There are cases, however, where from the peculiar circumstances of the thing about which the evidence is to be given, rendering the testimony of the party necessary; and where, from some cause, the danger to be apprehended, from a party to a suit being a witness, being somewhat removed, exceptions have been made. As where a party to the suit, having first proved the existence of a paper, is permitted to *prove its loss, for the purpose of introducing secondary evidence of its contents. Here the property is of that kind that the loss of it would not be likely to be known to any one but the owner, and therefore the necessity of his testimony. The fact that the existence of the paper has first to be proved by other evidence, does away with much of the danger that is ordinarily to be apprehended from a party’s inclination to swear falsely for his own benefit.

Another similar example is the departure that has, almost everywhere, been made from the rule, by permitting a party to testify to his book-account of the salo and delivery of goods, performance of labor, etc. Here the convenience of business is supposed to create a necessity for a departure from the rule ; and the general notoriety of the transaction is considered a sufficient guaranty against the false claim that a party, under other circumstances, might be able, by his own oath, to prove.

In the first place, then, does the necessity exist for the evidence of the party, in a case like the present? In many cases no person but the owner will be able to give a detailed account of the contents of a traveling trunk, containing his ordinary apparel and such other articles as may be necessary to his comfort whilst performing his journey. If he is a married man, his wife, as in the present instance, will be the only other person besides himself that will be likely to know what his trunk contains, and she is excluded by the general rule, The traveler has delivered his trunk to the common carrier, who has obligated himself to redeliver it to him; but although he is able to prove, by other evidence, the delivery of the trunk, and the failure of the carrier to redeliver it> yet because he is unable to prove the contents, his remedy is merely nominal—it amounts to nothing—and that in a case too where public policy requires in a peculiar manner that this remedy should be complete. But it is said that a person should have his trunk examined before he starts on his journey, by some one who would be a competent witness. This, however, is requiring more than the most careful will perform. A person starting on *a journey docs not calculate as a thing likely to happen that he will lose his trunk; and when ho has delivered it over to be transported, it is only by the delinquency of the carrier that he does lose it. It is said, however, that if a party be pormitted to testify to the value of his own property, companies like the plaintiff in error, whose business it is to carry passengers, will be subjected to great imposition. We think this objection is imaginary rather than real. If the person be known in the community where the suit is brought, it will not be difficult to rebut any exorbitant claim that he might set up for the value of his wardrobe. The character of an individual’s wardrobe is generally about as well known among his acquaintances as that of any other part of his property. And if the party should be a stranger, a great deal of evidence could, in most cases, be obtained, that would enable a sensible jury, from their knowledge of men and things, to detect any attempted extortion. Cases might occur where a person, by his own oath, would recover more than he was entitled to; but we think that this evil is much less to be apprehended than the entire failure of justice that would necessarily arise from the'exclusion of his testimony. It is contended, however, on the part of plaintiff in error, that even if the plaintiff below in this ease, would be a competent witness to prove the contents of the trunk, his wife would not, and that the court erred in admitting her evidence. We do not see why the same rule that would admit the owner, in such a case, to testify, would not permit his wife. The same reasons would apply in the one case as in the other.

In the case in 3 Barr to which we have before referred, this question was directly presented, and the court there held that the same reasons that would authorize the husband to testify, would apply to the wife, and that her evidence was admissible. No exception has been taken, in this instance, to the character of the articles proved to have been in the trunk. We would merely remark, however, that we do not intend to carry the principle further than to such articles as are ordinarily carried in a traveling trunk.

*A majority of the court are of opinion that the evidence complained of was competent, and that the court of common pleas ruled correctly in admitting it.

The judgment of the court of common pleas will therefore he affirmed.

Hitchcock, C. J., dissented.  