Strause v. Braunreuter , 4 Pa. Super. 263 ( 1897 )

Opinion by

Rice P. J.,

No interest or policy of law now makes any person an incompetent witness in any civil case or proceeding unless he is shown to come within one of the specified exceptions, and the only exceptions we are here called upon to consider are those contained in clauses (a) and (e) of section 5 of the Act of May 23, 1887, P. L. 158. By clause (e) the disqualification is made to depend not only on the fact of the witness being a surviving or remaining party, to the thing or contract in action but also on the fact of his having an interest adverse to the right of the deceased party which right has passed by his own act or the act of the law to a party on the record who represents his interest in the subject in controversy. The deceased party to the contract in action was Adam Braunreuter but his right had not passed to a party on the record who represented his interest. The issue was between Joseph H. Strause and Elise Braunreuter. The legal representative of Adam Braunreuter was not a party to the record, and the testimony which the defendant proposed to give related to matters occurring between her and the agent of the living plaintiff, and concerning which he had testified fully at the instance of the plaintiff. The estate of Adam Braunreuter may have been interested in the question being tried, but not in the immediate result of the suit. There is wanting, therefore, one of the essentials necessary to bring the case within the exception. The language of the clause is plain and unambiguous, and there is no justification for construction whereby it shall be extended to cases not expressly excepted from the general rule of competency. But even if there were room for construction we think the decision in Bank v. Henning, 171 Pa. 899 would be conclusive of.the question for determination.

Nor was she an incompetent witness under clause (c). What she proposed to testify to was in no sense a confidential communication, and the common law rule which prevents the husband or wife from divulging in testimony such communications after the death of the other does not apply. The wife after the death of the husband is competent to prove facts coming to her knowledge from other sources, and not by means of her situation as a wife, notwithstanding they related to the transactions of her husband: 1 Gr. Ev. sec. 338, (15th ed.); Cornell v. Vanartsdalen, 4 Pa. 364; Peiffer v. Lytle, 58 Pa. 386; Robb’s Appeal, 98 Pa. 501. The defendant was a competent witness, and her testimony going to show that she was a mere surety on the note should have been received. The first assignment of error being sustained it is unnecessary to discuss the others.

The judgment-is reversed, and a venire facias de novo awarded.