Thomas v. Miller ( 1895 )

Opinion by

Mb. Justice Gbeen,

The first four assignments of error raise but one question which is common to all. The plaintiff was offered1 to testify on her own behalf in contradiction of certain witnesses who had testified for the defendant. The subject-matter of the testimony offered was proof that certain existing states of fact, such as whether a room had been used as a bedroom, what furniture was contained in a room, that the witness had acted as a nurse for Richard Elliott during a certain time, and that after the death of Mrs. Elliott the room in which she died was renovated and the furniture changed somewhat, were not as they had been described by the other witnesses, and therefore were in contradiction of their testimony. It is claimed that the witness was competent to testify as proposed under the first section of the act of 11th June 1891, P. L. 287. That act authorizes the testimony of any surviving or remaining party to any relevant matter occurring before the death of the opposite party, “ if and only if such relevant matter occurred between himself and another person who may be living at the time of the trial and may be competent to testify, and who does so testify upon the trial, against such surviving or remaining party or against the person whose interest may be thus adverse, or if such relevant matter occurred in the presence or hearing of such other living competent person.” It will be observed that the subject-matter of the proposed contradicting evidence, must be something that occurred between the witness and another living competent person, or something that occurred in the presence or hearing of such other living competent person. Now the offers of contradictory proof by the plaintiff were not as to matters occurring between her and the other witnesses, but simply to the same matters of fact to which the others had testified, only that they were different from the description of them given by the other witnesses. The testimony was offered for the purpose of contradiction. We think the offers were not competent and that they were properly rejected by the court below. We think the act of 1891 was intended to apply to conversations, or to events transpiring between, or in the presence or hearing of the witness and the other parties, and not to mere physical facts or to states of fact described by the other witnesses in their testimony. If it were not so there would be no practical limit to the general capacity of the surviving party to testify, and the act certainly was not intended to confer general capacity to testify to anything simply because it would be contradictory to the testimony of some other witness.

We are also clearly of opinion that the fifth assignment of error is without merit. The rejected offer was an offer to prove the declaration of the plaintiff to Mrs. Agnew, her sister, “showing the bona fide existence of the contract leading up to the signing and giving of the note in suit,” the purpose being to rebut the allegation of forgery. In the ease of Clever v. Hilberry, 116 Pa. 431, we reviewed fully the subject of the admissibility of such declarations and held them to be incompetent in the circumstances of that case. We can see no material difference between the conditions which affected the decision in that case, and the conditions which affect the same question in this. It is the giving in evidence of the plaintiff’s own declarations in her own favor that is proposed. We said there, “ The declarations of a party in his own behalf are not evidence. No rule is clearer than this. We can perceive nothing in the declarations received in this ease but the mere assertions made by the plaintiff as to the defendant’s breaches of contract. They are her own statements of her cause of action to the witnesses who simply repeat what she told them. Certainly she cannot do this.” We there pointed out the very narrow and exceptional circumstances in which this kind of testimony is admitted, and we say here, as we did there, that those “.exceptional circumstances are all wanting.” Neither Zell v. Commonwealth, 94 Pa. 258, nor Hester v. Commonwealth, 85 Pa. 140, affords any assistance to the plaintiff’s contention here.

The assignments of error are all dismissed.

Judgment affirmed.

This case was here on a previous appeal in 151 Pa. 482.