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PERLIS v. KUHNS (11/13/63)

November 13, 1963

PERLIS
v.
KUHNS, APPELLANT.



Appeal, No. 101, Oct. T., 1963, from judgment of Court of Common Pleas of Lehigh County, Jan. T., 1962, No. 199, in case of Seymour Perlis v. Raymond Kuhns, administrator of estate of Charles Kuhns, deceased. Judgment affirmed.

COUNSEL

John P. Thomas, with him Walker & Walker, for appellant.

Maxwell E. Davison, with him Efron and Davision, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Montgomery

[ 202 Pa. Super. Page 81]

OPINION BY MONTGOMERY, J.

This is an appeal from a judgment in an action for personal injuries arising out of a collision between an automobile being driven by the appellant's decedent and one driven by the appellee on December 1, 1960.

On November 8, 1961, after the decedent died from causes unrelated to the collision, appellee filed an action for the recovery of damages. Following institution of the suit, the appellant filed interrogatories to be answered under oath by appellee. Interrogatory No. 12 reads as follows: "Describe in narrative form and in detail the events leading up to and immediately following the accident alleged in your complaint, including the manner in which the accident occurred and the purpose of the motor vehicle operation on that day." The appellee's answer to the foregoing interrogatory was as follows: "By way of answer to Interrogatory No. 12, the averments of the Complaint, paragraphs 5-8 inclusive, are incorporated herein by reference as fully as though set forth at length herein."

The case was heard by a Board of Arbitrators which awarded damages in the amount of $1,291.43 to the appellee. An appeal was taken by the administrator of the decedent to the Court of Common Pleas of Lehigh County, and following a trial by jury a verdict for the appellee was entered in the amount of $1,011.63. At the trial the court below permitted the appellee to testify over the objection of the appellant who contended that the appellee was incompetent by virtue of the provision of the so-called "Dead Man's Act", Act of May 23, 1887, P.L. 158, section 5 cl.(e); 28 P.L. 322. The court ruled that the appellee was competent to testify because the filing of the interrogatories by the appellant which had been answered by the appellee precluded the operation of the "Dead Man's Act".

[ 202 Pa. Super. Page 82]

The sole question raised by the appellant's motion for a new trial and judgment n.o.v., the denial of which is the basis of this appeal, is whether the filing of interrogatories is tantamount to a waiver of the provisions of the "Dead Man's Act".

Under this statute a surviving party to a thing or contract in action is not a competent witness against the decedent as to any matter which occurred prior to his death. Under the provisions of this act the general rule is that in trespass actions for personal injuries against the alleged wrongdoer's administrator, the plaintiff is not competent to testify to anything that occurred during the wrongdoer's life. Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395.

This section was intended to prevent the injustice which might flow from permitting the surviving party to an occurrence to testify favorably to himself and adversely to decedent, which testimony decedent's representative would be in ...


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