Seitz, Van Dusen and Adams, Circuit Judges.
Plaintiffs appeal from an order of the district court refusing to grant a new trial after a jury verdict for defendant in a diversity personal injury action. Plaintiffs argue that a new trial is required because the verdict was against the weight of the evidence and because the district court erred in allowing defense counsel to read the answers to plaintiffs' written interrogatories to the jury. If the answers to the interrogatories were properly admitted, we are satisfied that the district court did not err in refusing to grant a new trial on the ground that the verdict was against the weight of the evidence.
Although there are multiple plaintiffs, we need refer only to plaintiff Jeanne Treharne. She was driving west on the Pennsylvania Turnpike with her minor son when her car collided with the right rear of a car being driven in the same direction by Howard Callahan, who was accompanied by his wife. Plaintiff was severely injured. There were no witnesses to the accident except the occupants of the two cars. Howard Callahan was named as sole defendant in this action, but he died from causes unrelated to the accident before trial. His widow, as executrix, was substituted as defendant.
At the trial plaintiff testified to her version of the accident.*fn1 Her testimony, if believed, would warrant the conclusion that the decedent without reasonable warning swerved or drifted out of the slow lane of the Turnpike into the path of plaintiff's car which was about to pass in the fast lane, and that plaintiff swerved to the right in an attempt to avoid striking it but could not avoid a collision. Plaintiff's son, age twelve at the time of the accident, was unable to shed any light on the cause of the accident. Since the defendant executrix was unable to testify because of illness, the only evidence offered by the defense on the liability issue consisted of sworn answers given by decedent before trial in response to plaintiffs' written interrogatories.
Plaintiffs objected at trial to defendant's offer of the answers on the grounds that they were (1) inadmissible hearsay, (2) purely self-serving declarations and (3) not subject to cross-examination. The district court admitted the evidence, noting that the peculiar need for the admission of the answers -- they were the only defense evidence available -- outweighed the plaintiffs' right to cross-examination.
We note initially that the answers were not objectionable hearsay solely because they were not testimony given by decedent at trial. Rule 33 of the Federal Rules of Civil Procedure provides that answers to interrogatories "may be used to the same extent as provided in Rule 26(d) for the use of the deposition of a party."*fn2 Rule 26(d), in turn, provides that "so far as admissible under the rules of evidence * * * the deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds [ inter alia ] * * * that the witness is dead." Thus, Rule 26(d) creates an exception to the hearsay rule and accords answers to interrogatories the status of in-court testimony.
Plaintiffs assert, however, that the oath attached to decedent's answers does not permit one to ascertain whether the answers, had they been made at trial, would be "admissible under the rules of evidence" as required by Rule 26(d). The oath attached to the answers recites that the facts in the answers "are true and correct to the best of [decedent's] knowledge, information and belief." We agree that the language of the oath, without more, leaves in doubt whether the answers were based on personal knowledge or were inadmissible hearsay. However, the record shows that the district court reviewed each answer and admitted only those answers which in all reasonable probability were based on the decedent's personal knowledge and were otherwise admissible. We also have reviewed the answers that were admitted and conclude that had decedent been able to testify to the same effect at trial such testimony would have been admissible.
Plaintiffs next assert that the answers were inadmissible because they were self-serving. Such an objection would not be valid had these questions been asked at trial. Most evidence offered by a party is intended to be self-serving in the sense that it helps prove his case. As Professor McCormick has pointed out, "The doctrine that a party's out-of-court declarations or statements cannot be evidence in his favor, because self-serving, seems to have originated as a counter-part and accompaniment of the rule, now universally discarded, forbidding parties to testify." C. McCormick, Evidence, § 275 (1954). Now that parties can testify there is no reason to exclude statements solely on the ground they are "self-serving."
Plaintiffs' third and primary objection is that the answers should not have been admitted because plaintiffs never had an opportunity to cross-examine the decedent orally with respect to them. Since the answers are admissible pursuant to Rule 26(d) only if the rules of evidence would admit them, plaintiffs argue the lack of cross-examination is fatal. Although plaintiffs propounded the questions, it is clear to us that they were not thereby afforded adequate cross-examination. Thus, the situation here is analogous to that presented when a party testifies on direct examination at trial but dies before the opposing party can cross-examine him. The evidence question in such situations is whether the direct testimony should be stricken.
At the outset of our analysis of this issue, we recognize the legal and practical importance of the right of cross-examination. Compare Greene v. McElroy, 360 U.S. 474, 496-97, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). Wisely employed it is perhaps the most powerful weapon in the arsenal of the lawyer in pursuit of the whole truth. Nevertheless, we think that at least in civil cases the right is not so all pervasive that it automatically forecloses the possibility that competing considerations may be of equal magnitude. For example, the loss of plaintiffs right of cross-examination in our case must be weighed against the loss of defendant's day in court.
With the preceding considerations in mind, we look to the controlling evidentiary law to determine whether in our case it precludes the use of the answers by the party who gave them. We point out at the outset that the only question for decision here is whether a district judge has discretion to admit such evidence when (1) the party who gave the answers is dead, (2) cross-examination has not been prevented by the party producing the witness and (3) it constitutes the only evidence available to a party, so that the practical effect of refusing to admit it is to deny him his day in court.
Rule 43(a) of the Federal Rules of Civil Procedure sets forth the rules governing the admissibility of evidence in civil actions in the district courts. ...