
    James Rutherford, v. Leopold Krause, Impleaded.
    
    (Supreme Court—Delaware Special Term,
    April, 1894.)
    A complaint charging the defendant with negligence in immoderately driving a team of horses on a public highway while intoxicated charges the defendant with the commission of two separate crimes, and, therefore, states facts authorizing the omission of a verification of the answer.
    Motioh to set aside judgment entered, as upon default, for want of verification of the answer.
    
      Robert T. Johnson, for plaintiff.
    
      W. <& G. W. Youmahs, for defendants.
    
      
       Received, too late for insertion in proper place.—[Reportes.
    
   Forbes, J.

The complaint is based upon an action for negligence for wrongfully and immoderately driving a team ■of horses upon the public highway while, it is claimed, the plaintiff was intoxicated or drunk. It is also claimed that the horses were injured by such driving and that the vehicle used was broken and destroyed.

The complaint is verified, and was served on the 21st day of June, 1893.

An answer in behalf of this defendant was interposed and served, without verification, about the 1st day of July, 1893. This answer was returned because it was not verified, and a. judgment was entered as upon a default.

A motion is now made to set aside the judgment upon the ground that the judgment was unauthorized, that the cause is at issue, and the plaintiff’s proceedings are irregular.

The single proposition presented is this: Does the complaint, upon its face, state facts sufficient to authorize the-omission of the verification of the answer by the defendant-answering %

A careful review of the authorities, I think, is sufficient to show that, if all of the facts alleged in the complaint are to betaken as true, and an answer admitting those facts were served, that answer could be used against this defendant as an admission, on his part, of the commission of a crime.

He is charged with being intoxicated in a public place.. This is a crime both by statute and by the decisions of the-courts. Laws 1892, chap. 401, § 35, which reads as follows : “ Any person who shall be intoxicated in a public place shall be guilty of disorderly conduct, and may be arrested without warrant while so intoxicated, and shall be punished by a fine not less than three nor more than ten dollars- or by imprisonment not exceeding six months.” Hill v. People, 20 N. Y. 363.

He is also charged with immoderate driving, which must be-construed as overdriving, and upon the facts of intoxication and immoderate driving is based the cause of action alleged in the complaint.

Overdriving is made a misdemeanor by section 655 of the Penal Code. This is defined by section 669 of the Penal Code as torture or cruelty to an animal, not a human being, which includes “ every act, omission or neglect whereby unjustifiable physical pain, suffering or death is caused or permitted.”

These facts appear upon the face of the complaint, and the punishment is provided for under the Code of Criminal Procedure, section 56, subdivision 27.

I think the real test is, whether any' part of the pleading would excuse a party from testifying, or if there is more than one party, any one would be privileged, verification may be omitted. The criterion is, whether, if called as a witness, the party would be excused from answering. Goff v. Star Printing Co., 21 Abb. N. C. 211.

Assuming this as a test, then, were the defendant called as a witness by the plaintiff, could he decline to answer upon the ground that his evidence would tend to convict him of a crime ?

Can there be any serious doubt about it, inasmuch as the complaint, in two particulars, charges him with a misdemeanor. Friess v. N. Y. C. & H. R. R. R. Co., 67 Hun, 205.

The fact of voluntary intoxication can be used in aggravation of damagés. Immoderate driving, thus making the offense of cruelty to animals, can also be used in aggravation of damages, and must be presumed to have been charged in the complaint for that purpose.

When a person does a wrongful act, which results in a particular injury to another, the latter has a remedy by action. Thomas v. Smith, 75 Hun, 573.

The omission to verify is given by the Code (Code Civ. Proc. § 523) “ where a party pleading would be privileged from testifying, as a witness, concerning an allegation, * * * in the pleading.” *

And this privilege may be claimed because it is given by the Code, notwithstanding the pleading cannot be used in a criminal prosecution against the party. He is not obliged to spread an admission of his crime upon the record; he need neither admit nor deny the criminality of the act, but may remain silent. Friess v. N. Y. C. & H. R. R. R. Co., 67 Hun, 205.

And where the complaint shows upon its face the crime charged, no affidavit need accompany the answer. Goff v. Star Printing Co., 21 Abb. N. C. 211, and eases there cited; Dehn v. Mandeville, 68 Hun, 335.

The judgment against this defendant must, therefore, be vacated and canceled of record, and the answer must be deemed to have been served in time, but without costs to either party.

Ordered accordingly.  