Appeal, No. 71, Jan. T., 1958, from order of Court of Common Pleas of Delaware County, June T., 1954, No. 1736, in case of Mary R. Lyons v. Estate of Jennie Bodek, deceased et al. Judgment affirmed.
Howard Richard, with him Jack Brian, and Berman and Richard, for appellant.
John F. Cramp, with him Hodge, Hodge & Cramp, for appellee.
Before Jones, C.j., Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE ARNOLD
Plaintiff brought this action to recover damages for injury sustained by reason of a fall in the common laundry of an apartment house owned by Jennie Bodek, deceased defendant, and in which the plaintiff had been a tenant. She alleged that she slipped upon water on the floor of the laundry, and that the deceased had known of the accumulation of water.
The defendant, Jennie Bodek, died subsequently to plaintiff's injury; and under the prohibition of the Dead Man's Act (Act of May 23, 1887, P.L. 158, § 5(e), 28 PS § 322) plaintiff was disqualified from testifying. However, she then offered to limit her claim to the maximum coverage of the liability insurance available to Jennie Bodek, - this to qualify her as a witness - but the trial court sustained defendant's objection to the offer for the reason that the insurance did not remove the prohibition of the Act.
The Act makes no distincition between parties plaintiff and defendant, and it cannot be questioned that plaintiff was rendered incompetent to testify because of Jennie Bodek's death. The deceased party's estate cannot be subjected to testimony emanating from the mouth of the surviving party. Nor does it matter that the deceased party was insured against liability. Unless waived by the other party, the prohibition of the
Act is absolute, without regard to the existence or nonexistence of liability insurance. Cf. Parks v. Parks, 390 Pa. 287, 299, 300, 135 A.2d 65. The court below also declined to charge that because she was prohibited from testifying, a presumption of due care operated in plaintiff's favor.
There is a presumption of due care on the part of a decedent whose death or inability to testify occurs only by reason of accident: Schum v. Pennsylvania Railroad Company, 107 Pa. 8. But merely because the lips of the surviving party are sealed by virtue of the Dead Man's Act does not give to such survivor the benefit of any such presumption in his favor. The plaintiff was not able to testify and give her version of the situation.
Plaintiff also contends that the court erred in permitting the jury to find that not only the defendant, but also the plaintiff, had constructive notice of the condition of the floor. The court so ruled on the basis that plaintiff had been a regular user of the laundry over a period of years. This was so manifestly correct that it cannot be questioned.
Lastly, plaintiff complains that a witness was permitted to testify for the defendant-estate, where the interrogatories were propounded to the co-defendant (against whom plaintiff suffered a non-suit), and the name of such witness had not been given. Again, the correctness of the court's action is clear; and in ...