Alice Williams, et al., Appellants, vs. Jacksonville, Tampa and Key West Railway Company, Appellee, 26 Fla. 533

Raney, C. J.: The only error assigned is the ruling of the Circuit Judge excluding the wife as a witness. Treating this suit as one substantially in favor of the wife and to which the husband is but a formal, yet necessary party, in her right, the character claimed for it by counsel for plaintiff in error and not controverted by counsel for defendant in error, or even if we could concede to the husband a more substantial status, we are satisfied there was error in excludiug her as a witness.

Upon plaintiff’s theory of the case she was offered as a witness as to her own interests in her 'own behalf or in behalf of plaintiffs suing in her right, and the question is, did the fact that she was a party to or interested in the suit, or that she was the wife of the other plaintiff, or all such facts, disqualify her from testifying ? The act of February 4th, 1874, (Sec. 24, p. 518, McClellan’s Digest) removed from her the common law disqualification resulting from interest in and being a party to the cause, in all cases not falling within the exceptions of its proviso, which this case does not.

The statute of March 7, 1879 (Sec. 23, p. 517, Ibid) enacting that in all civil actions married women shall not be excluded as witnesses in cases wherein their husbands are parties and allowed to testify, was not intended to restore to a wife any disability which had been removed by the former legislation. The meaning and purpose of the act are not to be found in a consideration of the condition of the law existing at the time of its enactment. Potter’s Dwarris, p. 203, note 20.

She at that time could, as a result of the act of 1874, have testified as to her own interests, although her husband was a party to the action, but she could not have testified as to his interests. Public policy, as regulated by the common law, would not, for reasons other tha'n mere interest in the result of the suit, permit her to do this, in any action to which she was a party or interested, although the nature of the action was such that the act of 1874 permitted him to testify in his own behalf; the peace and welfare of families as a public consideration dictating her exclusion.

The law standing thus in 1879, the evident purpose of the act of that year was to create competency in her where it did not exist before. There was no necessity for it to enable her to testify as to her own interests and where she was a party, even though her husband were one, but there was necessity for legislation, if it was desired that she should testify as to her husband’s interests in qny cqse. It \yas to overcome to a certain extent this disability that the legislation of March 7, 1879, was made.

Why the Legislature has not extended to the husband the same right to testify as to her interests in cases where she is a party and can testify as to such interests, is not a question for our consideration; we only know that it has not done so; and we are entirely satisfied thatdt was not the intention of the Legislature of 1879 in limiting its-extension of the wife’s competency to cases in which the husband is a party and “ allowed to testify, ” to take away any right which had been previously given her.

Testimony as to her own interests is not within the purview of the act; but it relates to testimony as to his interests. The purpose of the act was to permit her to testify as to his interests in some, of the cases, from which she was, for reasons of public policy as the law still stood, “excluded,” but not in all of them, and in limiting its modification of the existing exclusion it has seen fit to confine such modification to the cases in which he is a party and can testify as to his own interests.

It has not seen fit to extend the modification further; to instance, it has not bestowed upon her competency to testify as to his interests in any case to which he may be a party, yet cannot, on account of the exceptions in the act of 1874, testify. The judgment is reversed and the cause remanded.