Pennell v. Phillips , 53 Pa. Super. 324 ( 1913 )

Opinion by

Head, J.,

The plaintiff’s action was on a promissory note dated July 30, 1901, payable on demand. The maker died November 25, 1905. Suit was begun against his executor February 8, 1909. On the face of the note the action was barred by the statute of limitations. As presented at the trial, the note showed an indorsement of one year’s interest within six years before suit brought. This indorsement was in the handwriting of the plaintiff. It was therefore necessary for him to prove it had been placed there at a time when it would be such a declaration against interest as to make it competent evidence to toll the statute and carry the case to the jury. The testimony of one disinterested witness was offered and received for the purpose of identifying the note in suit with a paper exhibited by the plaintiff to the maker during his lifetime, with certain declarations of the maker in respect thereto. The plaintiff then offered to prove by his wife that a short time after the death of the decedent she had seen the note in suit and that it then had on it the indorsement just as it appeared at the time of the trial. It was objected that she was an incompetent witness to testify to that fact. The learned trial court sustained the objection and rejected the witness. The case was then submitted to the jury and resulted in a verdict for the plaintiff. The defendant made motions for a new trial and for judgment non obstante veredicto. The learned court denied the motion for a new trial but entered judgment for the defendant, notwithstanding the verdict, on the ground that the only evidence tending to establish the vital fact in the plaintiff’s case was so vague, on the subject of the identification of the paper, that it did not justify the submission of the question to the jury. The plaintiff appeals.

In this state of the record two questions arise, the necessity of determining the second depending on the disposition of the first.

(1) Assuming that the record, as it stood at the close of the trial, disclosed no serious trial errors, was the learned court warranted in entering judgment for the defendant n. o. v.? To make a prima facie case the burden was on the plaintiff to produce evidence sufficient to remove the bar of the statute. The single witness, whose testimony on that subject was admitted, was not able to say that he had ever seen, read, heard read, or referred to the note in suit. Until presented to him at the trial he had no knowledge whatever of its date, amount or terms. The most he could say was that, being present at a meeting of the maker and payee, the former inquired if he had been credited with the interest he had paid. No reference was made to the amount paid or to the character or amount of the account, note, bond, or other evidence of the debt on which the interest accrued. The payee then produced and exhibited to the maker a paper of the shape and size of the note in suit. It contained writing on both sides, but, of the tenor and effect of that writing, the witness was wholly ignorant. He could not even affirm that what he saw was a note and not a receipt; but, judging by the shape and size of the paper he saw at that meeting, he was of the opinion it was the note in suit. This testimony, standing alone, was plainly insufficient to discharge the burden assumed by the plaintiff when he began his suit more than six years after his cause of action had accrued. There was then, as the record stood, no evidence to support a verdict for the plaintiff and judgment for the defendant necessarily followed.

(2) But the plaintiff appellant further and chiefly complains of the action of the learned trial judge in refusing to admit the testimony of Margaret Pennell, wife of the plaintiff, for the purpose already stated, and holding her to be an incompetent witness. It will be observed that the precise fact as to which she proposed to testify was not an occurrence in the lifetime of the maker of the note. The fact which her testimony was to establish was that she had seen the note in suit shortly after the death of the maker, and the further fact that when she then saw it, it was in exactly the same condition in which it appeared at the trial. The theory upon which the learned court below held her to be incompetent, as appears in his opinion, is because the proof of the two facts stated would warrant an inference that the indorsement had been made before the death of the maker, and she would thus indirectly be establishing by her testimony a fact to which she could not directly testify. In so holding, the learned judge rested his conclusion on the authority of Foster v. Collner, 107 Pa. 305, and kindred cases. The distinction between that line of cases and another, of which Rothrock v. Gallaher, 91 Pa. 108, Stephens v. Cotterell, 99 Pa. 188, and Hoffer’s Est., 156 Pa. 473, are types, was thoroughly examined and clearly pointed out by President Judge Rice in the recent case of Keating v. Nolan, 51 Pa. Superior Ct. 320. He there states the doctrine of the cases last named and others which he cites in this language: "An interested person is competent to testify to a fact, or condition of facts, existing 'after the death of a deceased party in interest, notwithstanding such testimony may inferentially tend to show that the same state of facts existed, or that some other connected fact existed or Occurred, prior to the decedent’s death. In the latest case on the subject it was declared that it is immaterial, upon the question of competency, how obvious the inference is; and necessarily this must be so if the rule is sound in principle.” The application of the doctrine thus stated to the case in hand necessarily leads to the conclusion that the learned trial judge fell into error in rejecting the witness as incompetent to testify to the fact proposed.

The judgment then must be reversed. But we cannot agree with the able counsel for the appellee that this must result in entering a judgment for the plaintiff on the verdict. We have already shown that the record as now made up contains no evidence to support the plaintiff’s verdict and no judgment in his favor could be entered. If the plaintiff must do battle to defend a judgment on a verdict in his favor, he is entitled to have that verdict as the result of a trial where he has been permitted to introduce all the testimony in support of his claim that is available. The situation is practically the same as if the trial judge had directed a verdict for the defendant and entered judgment thereon.

What we have said as to the second assignment of error applies to the fourth and fifth, and they with the second are sustained.

Judgment reversed and a venire facias de novo awarded.