Brennan v. Bell

Shadle, J., This case involves the question of whether a deceased party to a transaction loses the benefit of the Dead Man’s Rule by instituting discovery proceedings as to his opponent prior — 708 — to his death. By an opinion and order filed herein on April 30, 1965, we held that the incompetency arising by virtue of such rule was not waived by such discovery proceedings in this case. Plaintiff requested reargument to enable the court to reconsider its opinion and order in the light of Anderson v. Hughes, 417 Pa. 87, which was decided on March 16, 1965, but was not published until April 30, 1965, and, therefore, was not available when the opinion and order were written. Reargument was had before the court en banc, and the matter is now before us for reconsideration. An automobile accident occurred in which plaintiff was struck and injured by a car driven by Madge E. Shipe and owned jointly by her and Burdwell H. Shipe. Plaintiff and Mrs. Shipe were the only witnesses to the accident. Plaintiff started suit in this court against both parties. Thereafter, he likewise instituted suit on the same cause of action against the same parties in the State of Florida where defendants were then residing. In that Florida action Arthur M. Bell, the fiduciary defendant herein, appearing there as counsel of record for both defendants, filed interrogatories on plaintiff which the latter answered as required. Thereafter, Mrs. Shipe died, and Arthur M. Bell, as her administrator, was substituted herein for her as a party defendant. He filed a petition herein praying that separate trials be had of plaintiff’s claims against the two defendants, or, in the alternative, that the court now rule that plaintiff will be incompetent to testify in either claim if they are tried together. Plaintiff objected to either course of action, claiming that Mrs. Shipe waived his incompetency by requiring him to answer her interrogatories. The crux of the matter is that the death of Mrs. Shipe has rendered plaintiff, the only surviving eyewitness, incompetent to testify concerning the accident under the Dead Man’s Rule in section 5(e) of the Act of May 23, 1887, P. L. 158, 28 — 709 — PS §322, so far as his claim against Mrs. Shipe’s estate is concerned, but not as against Mr. Shipe. We pointed out in our prior opinion that if Mrs. Shipe waived the protection of the Dead Man’s Rule by her interrogatories to plaintiff, then, obviously, plaintiff is competent to testify on both claims, and a severance is unnecessary. Rosche v. McCoy, 397 Pa. 615 (1959), held that where a deposition is taken of a decedent in his lifetime at his own instance to perpetuate his testimony, and at the subesquent trial the deposition is offered in evidence on behalf of decedent’s estate, this constitutes a waiver of the Dead Man’s Rule and the surviving adverse party becomes competent to testify. Perlis v. Kuhns, 202 Pa. Superior Ct. 80 (1963), decided that where a defendant dies before trial, and his administrator thereafter requires plaintiff to. answer interrogatories, the administrator thereby waives the benefit of the Dead Man’s Act, even though the interrogatories and answers are not used at trial. Neither case involves facts such as those here presented. The interrogatories and answers have not been offered in evidence at trial, as in Rosche, and they were filed before, not after, the death of decedent, which was the situation in Perlis. Here, all parties were living and fully competent when defendants filed their interrogatories on plaintiff. Then came Anderson v. Hughes, supra. That case involved a situation in which, before the death of any party, defendants took the deposition of plaintiff for discovery, one of the defendants died, and defendants then used plaintiff’s deposition to crossexamine him at trial. The trial court permitted plaintiff to testify as against the surviving defendant but not as against the deceased defendant. On appeal, the Supreme Court held that, although so limiting plaintiff’s testimony was error, it did not constitute reversible error requiring — 710 — a new trial. However, in reaching this conclusion, the Supreme Court used the following language: “. . . the Superior Court in Perlis v. Kuhns, 202 Pa. Superior Ct. 80, 195 A. 2d 156, held that, where a party is required to answer pretrial interrogatories, any objection based upon the ‘Dead Man’s’ rule to the competency of such party to testify at the trial is waived even though the answers to the interrogatories were not offered in evidence. In Rosche v. McCoy, 397 Pa. 615, 156 A. 2d 307, we held that a surviving party became competent to testify if the opposing party offered in evidence a deposition of the decedent. On the authority of Perlis and Rosche, the ruling of the trial court in excluding the testimony of . . . (the survivor) as against . . . (the decedent) was erroneous. . . .” (Italics supplied.) This language creates something of a problem. Did the court mean to extend the rule of Perlis, in which discovery was had after the death of decedent, to the facts in Anderson in which discovery occurred before decedent died? Did the court mean to extend the rule of Rosche in which decedent’s own deposition was offered by his estate at trial, to the facts in Anderson in which decedent’s estate used the survivor’s deposition at trial? Such extensions are inevitable under the statement of the court that the action of the trial court in not recognizing a waiver of incompetency “was erroneous”. It may be said with justification that the question of whether there was in fact a “waiver” of incompetency in the Anderson case apparently was not argued before, nor discussed by, the Supreme Court. The point of decision there was that if there was error in the trial court in not recognizing any such waiver, such error did not require a new trial. Yet the fact remains that the Supreme Court said in clear and unmistakable terms that the failure to recognize the waiver when — 711 — the decedent deposed his opponent prior to his death “was erroneous”. It likewise may be true that in every case in which discovery proceedings have been held to constitute a “waiver” of the Dead Man’s Rule, some use was made of the discovery product after decedent’s death, which use constituted a waiver of the incompetency which existed at that time. Yet the Supreme Court in Anderson repeated the Perlis rule that waiver results from the discovery process “even though the answers to the interrogatories were not offered in evidence”. We believe the solution of the problem depends not on technical terms but on procedural practicalities. It cannot be denied that the Dead Man’s Rule is becoming increasingly unpopular in favor of a policy of general competency of witnesses. While courts are not free to repeal this statute by judicial legislation, they are not bound to extend it where the facts create legitimate distinctions. Whether the proper term be waiver, estoppel, or any similar label, we think the thrust of the Perlis and Anderson decisions was directed at fairness of procedure. It seems fundamentally unfair to permit a decedent’s estate, or the decedent before his death, to discover all relevant facts from his adversary, and then at trial to seal his opponent’s lips by the Dead Man’s Rule. As stated in Perlis, page 84: “The very use of depositions or interrogatories requires the adverse party to give testimony in a way sanctioned by the Pennsylvania Rules of Civil Procedure. Pa. R.C.P. 4001-4025. These rules include written interrogatories as depositions. Pa. R.C.P. 4004. This is the equivalent of placing him on the witness stand. As stated in Cox v. Gettys, supra, and quoted by the court below: ‘Any other construction of the statute would enable one party to search the conscience of his adversary, drag to light his private papers and — 712 — other evidence, and then repudiate the result, if the experiment proved unsatisfactory.’ ” Defendants here contend that the interrogatories were used not in this action but in the Florida suit, and that the mere filing of them does not, under Florida law, constitute a waiver of that State’s Dead Man’s Rule. However, the Florida action was in all respects identical with this one, the essential facts of both actions were, in fact, obtained by discovery, and it is the law of the Pennsylvania forum which decides such an evidentiary matter as the applicability of the rule: Restatement, Conflict of Laws, §596. We conclude that the filing by Mrs. Shipe on plaintiff of interrogatories which he fully answered removed from defendant Bell the right to object to the competency of plaintiff under the Dead Man’s Rule as a result of Mrs. Shipe’s death. Plaintiff’s testimony is, therefore, fully competent as against both defendants, and a severance of the trial of his claims against them becomes unnecessary. Judge Buckingham concurs in the foregoing opinion. President Judge Atkins filed a dissenting opinion. Order And now, to wit, August 13, 1965, at 9 a.m. (EST), the order entered herein on April 30, 1965, is revoked. In lieu thereof, it is ordered that the petition of defendant Arthur M. Bell for a severance of the claims of plaintiff against the two defendants is overruled and refused. An exception is noted on behalf of said defendant.