Before MARIS, GOODRICH, and O'CONNELL, Circuit Judges.
This is an action brought in federal court by reason of diversity only, to recover for injuries sustained by the plaintiff when he was struck by a motor car operated by the defendant. There was a verdict for the defendant in the District Court. The plaintiff charges several errors in the trial. Only one of them presents a question which requires discussion.
While the litigation was pending the defendant died. The plaintiff claims that he is now the only living eyewitness to the accident. His testimony with regard to it was rejected by the trial judge. The correctness of this course is the interesting and important question in the case.
Our starting point now is Rule 43 of the Rules of Civil Procedure.*fn1 It is there provided that all evidence comes in if admissible under United States statutes, or under theretofore existing rules of United States equity courts or state law, whichever favors the reception of the evidence. It has been correctly pointed out that this is a rule of admissibility not exclusions.*fn2 The evidence comes in under whichever one of the tests of admissibility is most favorable.
Is the proffered testimony to be allowed under any of the criteria set out in Rule 43(a)? It certainly is not by the law of Pennsylvania. The Pennsylvania statute*fn3 is explicit in prohibiting the testimony of the survivor. It applies to tort actions*fn4 as well as contract though the latter may predominate. Adversity of interest is the test.*fn5 Death is only the line of demarcation.*fn6 The Pennsylvania Supreme Court has sharply indicated that the plain language of the statute is not to be circumvented.*fn7 So far as Pennsylvania law is concerned, it is clear that the door is tightly closed against admissibility of the proffered testimony. The federal rule cannot be so tersely stated, though, as will be seen, the various figures add up to the same sum as that found by Pennsylvania statutes and decisions.
At common law both the parties to a suit were incompetent as witnesses on the ground of interest. Greenleaf notes the general rule of the common law with the statement that the rule of the Roman Law was the same.*fn8 An encyclopedia of the same year as the Lewis edition of Greenleaf relates the common law rule specifically to survivors.*fn9 Chamberlayne some years later sets out the rule and its rationale.*fn10 More recently Jones in speaking of the same rule adds that it applied both in chancery and at law.*fn11 And finally Wigmore succinctly emphasizes the fact that a disqualifying interest concept was behind the common law rule of exclusion of parties as witnesses.*fn12
In 1862 a federal statute*fn13 referred the rule of admissibility to state law. This first statutory period persisted until 1864 when another federal statute*fn14 prohibited exclusion of any witness on the ground of interest. This general admissibility rule was similar to that of the states. While it changed the common law, it was open to an exception so far as survivors were concerned. This will be discussed later. The second statutory period ended a year later in 1865 when the federal statute*fn15 was amended to indicate specifically that survivors were still incompetent as party witnesses, just as at common law. The survivor rule remained as an evolutionary vestige when the general statutes changing the common law rule of party witness incompetency were passed. This third period which lasted until 1906, saw passed in 1878 the Competency of Witnesses Act*fn16 which "evolved from [the] three statutes passed in 1862, 1864 and 1865 * * *".*fn17 This act did not change the federal law with respect to a survivor's testimony.
In 1906, however, a basic change was made.*fn18 The laws of the states were made controlling. This took the situation back to the first statutory period mentioned. Otherwise, however, this fourth period did not change the tenor of the law, for as will be pointed out, the state courts also barred the testimony of party survivors. In 1938, when the new federal rules came into effect, the situation was once again altered.*fn19 The nature of this change has been discussed.This fifth period brings the statutory situation up to date.
The state statutes which changed the common law did so only to a limited extent. While parties were no longer excluded as witnesses, an exception was made with respect to survivor parties. As to them the common law rule still applied. The change was gradual but today pervades almost all the states. Earlier writers speak of the exception obtaining in "most states."*fn20 A later commentator makes it clear that the exception now is firmly established in all but six of the states.*fn21
The inevitable conclusion is that whatever door one tries it is firmly locked against the admissibility of the proffered testimony in this case. There never has been a federal rule admitting such evidence because the course of federal legislation has either been to make only incomplete changes in the original common law or to refer the matter to state law by which, as shown, the evidence is inadmissible. There is no help to be gained from the reference to suits in equity, the language used in Rule 43(a) because of lack of application and because the survivor rule principle applied in equity suits as well as actions at common law.*fn22 The only conclusion we can reach is to say that the testimony offered by a survivor of the accident in this case is not admissible against his opponent.
We reach the result without enthusiasm. The rule excluding a survivor's testimony seems to stand in the almost unique situation of being condemned by all of the modern writers on the law of evidence. It is said to be as unsound and undesirable as the rule excluding the testimony of parties of which the survivor rule is a part.*fn23 But we believe this to be a case where a rule so thoroughly established through many generations of judicial history should be removed by legislative action or court rule which applies generally and not by judicial legislation against a party in a particular case.