Evans's v. Reed

84 Pa. 254

• Court: Supreme Court of Pennsylvania
• Decided: June 26, 1877
• Status: Published

Opinion

Mr. Justice Mercur

delivered the opinion of the court,

This record presents a single question. That is, whether the defendant was competent to testify to matters which transpired during the life of the original plaintiff. That he was incompetent is clearly ruled by Pratt v. Patterson, 31 P. F. Smith 114. That case is very similar to the present one. There, in a former suit, in the lifetime of both parties, each party had testified, and the testimony had been reduced to writing. The verdict was set aside and the suit discontinued. A second suit between the same parties was brought for the same subject-matter. Before the trial the defendant died, and his executors were substituted. On the trial at Nisi Prius, before our late brother Williams, the plaintiff was offered as a witness to testify in regard to matters which occurred in the lifetime of the defendant. The witness was rejected. On the case being certified to this court for review, we affirmed that ruling.

■ The statute provides a method by which the evidence of a party competent to testify may be perpetuated. Each party stands on an equal footing. The deposition of each party may be taken, subject to cross-examination by the opposite party. If the case be tried in the life of both parties, the testimony taken on the trial may afterwards be treated as a deposition.

■ If a party neglects or omits to take, at a proper time, the steps necessary to secure and perpetuate his testimony, he must suffer the loss resulting to him therefrom. It by no means follows that because the testimony of the deceased party, duly taken in his lifetime, was given in evidence on the trial, therefore the surviving party is madé competent to go on the stand to testify in his own behalf. When the testimony of the party since deceased, was taken, he was a competent witness. He was subject to cross-examination by the opposite party. The lips of the survivor were not then dosed. He could then have offered himself as a witness to explain or contradict the testimony of the opposite party. If he did so he thereby perpetuated his own testimony, and it is now available. If he then failed to perpetuate it, there is no equality in now permitting him, after the death of his adversary, to go on the stand to testify to anything which transpired during the life of the opposite party. The lips now closed in death cannot prompt any cross-examination, nor explain or contradict the testimony thus given.

As a matter of fact, in this case, the testimony of the survivor was actually taken in the lifetime of the opposite party. Yet he withholds that testimony and claims the right to now testify generally. The learned judge erred in admitting the testimony.

Judgment reversed, and a venire facias de novo awarded.