'Where the acts of the agent will bind the principal, then his representations, declarations, and admissions respecting the subject-matter, will also bind him, if made at the time, and constituting a part of the res gestae.'
7. The court erred in rejecting the deposition of Turner.
Messrs. W. P. Bartlett and M. H. Carpenter, contra:
1. The act of Congress and the statutes of Wisconsin (stated, supra, p. 530) settle the first assignment of error.
The court cannot look at those statutes and have doubt as to their potential operation. The courts of Wisconsin apply them to just such cases as this case. Indeed, this first exception is hardly pressed. The whole force of the opposite argument lies in an assumption, not true, that the husband alone was the party suing. Now, Mrs. Clough was a necessary and proper party plaintiff. The injury was to her person. With, in, and by her, the cause of action existed. Without her there was no right of action. She and the meritorious cause coexisted. She was the party seeking to enforce her legal remedy for the actual injury practiced upon her body. The joining of the husband as a coplaintiff was a nominal thing, to answer a technical requirement of the law. The death of the husband, at any time, could not have defeated the right of action. If it is argued, that in case of a judgment for the plaintiff, Carlos Clough could control the judgment, the answer to that is, that the court, on a proper application, in behalf of Mrs. Clough, would control him, and would see that the proceeds of the judgment were properly applied for the use of the injured person.
2, 3, and 4. The second, third, and fourth assignments may be treated together and are equally unfounded.
The action was a common-law 'action on the case,' for consequential damages-tortious, in form, ex delicto. The cause of action is set forth in and by a common-law declaration. The plea is not guilty. That plea puts in issue the gravamen of the complaint, the fault or guilty negligence and carelessness of the defendant, and not the relationship of the plaintiffs, or the corporate existence of the defendant, or citizenship of the parties. All of these matters however essential are impliedly admitted by the plea of not guilty. The existence of the defendant as a corporation might have been put in issue, but it was not; so might the citizenship of the respective parties, but was not; so might the relationship of the plaintiffs, but was not. Had issues on these several subjects been formed, they would have been issues in abatement of the action and not to the merits. The defendants elected to plead to the merits, not guilty, thereby waiving all formal objections or dilatory pleas. The court well said, that the plaintiffs' relation to each other was not in issue by the pleadings, though to avoid controversy or argument the marriage of the plaintiffs was proved, and that too without any objection.
5. The attempt to set up the non-payment of fare as a release for the injury.
The verdict and judgment was for $6000. The injury was of course great. The attempt to release a claim for such injury by non-payment of a few dollars passage-money is hard to support. No captain in common decency could have extorted fare in such a case. The clearest proof of intention to release should have been given if such a pretension was to be supported. The charge was right.
6. The statement made by the captain in conversation with Mrs. Clough was evidence.
It was made while Mrs. Clough was still a passenger upon the boat, not having reached her destination. It was competent as a part of the res gestae, and independent of the question whether the admission was a part of the res gestae or not, it was made during the time that the plaintiff was on her journey, and before its termination, and is competent evidence in that view alone. In The Enterprise, Curtis, J., says:
'I am quite sure the practice has been to admit declarations made by the master while in command concerning any matters which came under his authority as master, though not part of any res gestae strictly speaking.'
In Burnside v. Grand Trunk Railway Company, it was held by the court that the statements of the general freight agent of the railway company as to the condition of goods delivered to him for transportation, made while the goods were in transit, were admissible in evidence against the company, although made eight months after the goods were delivered, and the court says that the only question is,
'Whether at the time these statements were made the contract with the railroad was still in the course of execution, and we think it must be so considered.'