In an action against husband and wife for maintaining an annoying structure in the nature of a fence, a verdict against the latter cannot be sustained when the only evidence of her participation in the acts complained of is a declaration that the fence was to be built higher, and such inferences as might be drawn from the residence and relationship of the parties. Declarations by one improperly joined as defendant are not admissible against a co-defendant, if not authorized by the latter or made in his presence. Certain evidence deemed sufficient to warrant a submission of the question whether the sole purpose of the defendant in maintaining a structure in the nature of a fence was to annoy and injure an adjoining owner.
BLODGETT, C. J.
The only grounds of error insisted upon in the defendants' brief are, first, the denial of their motions for a nonsuit and the direction of a verdict in favor of Ann; second, the admission of her declaration as against James; and, third, that upon the evidence it must be held as matter of law that the sole effect of building the structures complained of was not to annoy and injure the plaintiff.
In respect of the first ground, the jury having been instructed that Ann's declaration, made on the Sunday before the trial, could be considered by them "only as herring upon the defendants' malice," we think a verdict for her should have been directed, in view of the finding in the reserved case that, aside from that declaration, there was no evidence that she erected or took any part in causing the erection of the structures, except such inferences as might be drawn from the relation of the parties and their residence. Under these circumstances, however rightful the verdict against her may have been in point of fact, there was no evidence upon which it might properly be rendered. In a judicial tribunal, mere guesses and conjectures cannot be substituted for the legal proof which the law requires (Deschenes v. Railroad, 69 N.H. 285, 290, 291); and beyond this, it is quite elementary that there is no liability of wife, as such, for her husband's torts.
The second ground is also sustained. Ann having been improper joined as defendant upon the evidence adduced at the trial, and there being no evidence that James authorized her to make the declaration excepted to, or that it was made in his presence, the declaration was not admissible against him for the purpose for which it was admitted, or for any purpose; nor can its admission be regarded as a harmless error.
The third ground is not sustained. It cannot well be doubted that there was competent evidence (e. g., the structures themselves) tending to show that the sole purpose of James was to annoy and injure the plaintiff; and this being so, it is equally clear that it was the duty of the trial court to receive the evidence and allow it to be weighed by the jury. If they erred in their estimate of weight, the error is remediless here. It is the right of a jury to decide as a finality upon the weight of the evidence which they are permitted to consider.
Judgment for the defendant Ann: verdict against the defendant James set aside.
PEASLEE, J., did not sit: the others concurred.