Appeal, No. 229, April T., 1954, from judgment of Court of Common Pleas of Cambria County, March T., 1950, No. 329, in case of James K. Psinakis v. Alexandra Psinakis, Admrx., Estate of George Psinakis, otherwise George K. Psinakis. Judgment reversed.
Frank P. Barnhart, Johnstown, for appellant.
Ray Patton Smith, Johnstown, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 177 Pa. Super. Page 251]
The principal question involved in this appeal is the competency of the plaintiff (appellee here) to testify that his claim has not been paid contrary to the provisions of Sec. 5, Clause (e), of the Act of May 23, 1887, P.L. 158, 28 P.S. 322, commonly known as the "dead man's rule."
This is a suit in assumpsit in which plaintiff sued the administratrix of the estate of his deceased brother to recover the sum of $3,307.50 which plaintiff paid for certain stock ordered by the deceased brother before he departed for Europe.
Plaintiff offered into evidence the pleadings where-in defendant admitted that the deceased brother had received the stock, and, after his return from Europe, had from time to time orally promised to repay unto the plaintiff the loan of $3,307.50. Plaintiff's check to the stockbroker in the sum of $3,307.50 was admitted without objection. It was also admitted by defendant that the decedent died December 19, 1949, but in new matter she averred payment by decedent in his lifetime. The plaintiff was then permitted to testify, over the objection of the defendant, as follows: "Q. Mr. Psinakis, have you been paid for this check? A. No. Q. Any part of it? A. No part of it." The court in its charge said: "... but nothing seals the lips of a man from testifying that he has not been paid."
In her defense the administratrix proved by a bank officer that plaintiff had received the proceeds of the three following checks:
May 5, 1949 1,000.00 Notation: "For Part ...