McGugart v. Brumback , 77 Wash. 2d 441 ( 1969 )

Neill, J.

Plaintiff, Daniel McGugart, brought this action against the estate of William Rhodes, deceased, seeking to recover compensation for goods and services rendered decedent during his lifetime. The primary issue raised on appeal is whether the submission of written interrogatories to plaintiff concerning his alleged transactions with the decedent was a waiver of defendant’s right under RCW 5.60.030, the deadman’s statute, to bar testimony by plaintiff at trial.

Prior to trial, defendant administratrix submitted written interrogatories to plaintiff pursuant to CR 33, RCW vol. 0 (formerly RPPP 33). These included:

9. What were the nature of the goods and services allegedly rendered by plaintiff for the period March 1, 1951 to July 1,1965?

10. Was the agreement to render goods and services to the Deceased oral or written?

11. State the nature of the agreement and the date said alleged agreement was entered into and where said alleged agreement was entered into.

12. Was the agreement to render 24 hour nursing care to the deceased oral or written?

13. State, in substance, the nature of the agreement to render nursing care if oral and, if written, set forth the written agreement.

15. What was the extent, the duties, and the nature of the nursing care rendered to the deceased subsequent to July 1,1965.

Plaintiff duly answered the interrogatories. Defendant did not offer the interrogatories and answers into evidence at trial.¹

During trial plaintiff was asked a question by his counsel concerning his oral agreement with the deceased. Defendant objected, contending the proffered testimony was incompetent under the deadman’s statute. The objection was overruled on the ground that the submission of the interrogatories constituted a waiver of the bar of the statute. Later in the trial, an objection to similar testimony of plaintiff’s wife was made by defendant. This objection was also overruled.

A judgment for plaintiff was entered on the theory that there was an implied contract between plaintiff and decedent.

Defendant administratrix appeals. Her principal assignments of error challenge the trial court’s rulings on the competency of both plaintiff and his wife to testify concerning their transactions with the decedent.

The trial court’s ruling was based upon our prior holdings that when a personal representative of a deceased person causes the pretrial deposition of the adverse party to be taken,which reaches alleged transactions with the decedent, such inquiry constitutes a waiver of the bar of the dead-man’s statute with respect to such transactions. American Fruit Growers, Inc. v. Calvert, 186 Wash. 29, 56 P.2d 1307 (1936). Also Hall v. American Friends Serv. Comm., Inc., 74 Wn.2d 467, 445 P.2d 616 (1968); and Miller v. O’Brien, 17 Wn.2d 753, 137 P.2d 525 (1943).

Defendant urged to the trial court and reiterates here that the rule of American Fruit Growers, Inc. v. Calvert, supra, should be reexamined in light of changes in our rules and concepts of pretrial discovery proceedings as permitted by CR 33, RCW vol. 0, and CR 26, RCW vol. O. We see no basis for distinguishing between a pretrial discovery process carried out by written interrogation under CR 33, rather than by deposition under CR 26. We believe that changes in the rules and the theories surrounding these discovery techniques require us to reexamine these earlier decisions.

These holdings force the representative of a decedent’s estate to exercise these discovery procedures at his peril. The result is that a careful executor or administrator will waive the benefits of this useful fact finding procedure to avoid the forfeiture of the protection given by the statute to heirs, legatees and other creditors of the estate.

We have previously recognized the difficulty in laying down a fixed rule concerning questions which would constitute a waiver of the bar of the deadman’s statute. Miller v. O’Brien, supra. In fact, whether there is a waiver would seem to depend as much upon the answers as upon the questions propounded. Therefore, as a practical matter, a decedent’s representative is confronted with a Hobson’s choice of either exercising his rights of discovery or relying upon the protective bar of the statute. Such a result and dilemma for a personal representative are not supported by the rationale behind either the rules or the statute.

Our discovery rules are taken almost verbatim from the Federal Rules of Civil Procedure. The pretrial deposition-discovery provisions of these rules were among the most significant innovations contained in the federal rules. They were designed to eliminate the “hide and seek” trial practices encouraged by earlier procedures. They serve to narrow the issues and provide access by all parties to the facts pertinent to these issues. It is well settled that these rules are to be given a broad and liberal construction. See Moore v. Keesey, 26 Wn.2d 31, 173 P.2d 130 (1946); Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947).

Deadman’s statutes are obviously designed to prevent frauds upon the estates of those who are no longer present to defend themselves. The doctrine that the personal representative may waive the protection of this statute by using testimony forbidden to the other side is sound, and eliminates what would otherwise be a flagrant injustice in the statute.

It would ... be palpably unjust to permit the representative of a deceased person to use the adverse party to the extent that it might aid him in defeating a claim or in establishing an independent claim in favor of the estate, and then claim the benefit of the statute when the adverse party sought to qualify or explain his testimony.

Robertson v. O’Neill, 67 Wash. 121, 124, 120 P. 884 (1912).

At a time when depositions were always taken with a view toward introducing them in evidence and broad questions for purposes of discovery were prohibited, there was reason for the rule that objections to a party’s competency were waived by deposing that party — particularly when the party questioned also waived any objections not made during the taking of the deposition.

The adoption of our new rules of discovery in 1950 marked a major change in our attitude toward interrogatories and depositions. Depositions may now be used for discovery, for use as evidence, or both. CR 26 (a). Interrogatories no longer entail ritualistic little trials, but have become economical and expeditious means of discovery which frequently are not intended to be used as evidence. Slover v. Harris, 77 Wyo. 295, 314 P.2d 953 (1957).

All parties have the right to use these discovery techniques and their availability is essential to a fair trial of all the issues. “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, supra, at 507. This mutual access to knowledge, secured by discovery, is a basic premise upon which civil litigation is now conducted and its availability should not be strictly contingent upon the rules of evidence or competency as are applied at trial.

To hold that the mere taking of a deposition constitutes a waiver arbitrarily forces the decedent’s representative to forego either the protection of the deadman’s statute or the benefit of the discovery processes. Judicial dissatisfaction with the deadman’s statute as expressed by some legal writers should not be used as an excuse to deprive a personal representative of an otherwise acceptable and acknowledged benefit of a fact finding process. The wisdom of the deadman’s statute is a matter which has been determined by the legislature. The prudent personal representative can hardly be expected to waive a statutory protection and thus risk an unwarranted exposure for heirs, legatees and other claimants. The result, for all practical purposes, is that an estate is deprived of the discovery machinery available to other civil litigants. Any imbalance of the relationship between a decedent’s estate and a claimant against the estate is created by the deadman’s statute, not by a legitimate use of discovery procedures. The Supreme Court of Michigan arrived at a similar conclusion in Banaszkiewicz v. Baun, 359 Mich. 109, 115, 101 N.W.2d 306 (1960):

It is apparent that there is no conflict between the purposes ... of the dead man’s statute and the rule for discovery. Both are intended to aid in arrival at truth and justice in litigation. Invoking the one need not be treated as a waiver of the other. Enabling both parties to become fully conversant with all the facts involved in a matter and to avoid “traps and surprises” makes for enlightened administration of justice. Its achievement need not be paid for by sacrifice of the object or purpose of the dead man’s statute. There is no unfairness in permitting defendants and their counsel to know what plaintiff’s claims are and the foundation on which she bases them and, yet, at the same time, closing her mouth at trial as to matters equally within the knowledge of the deceased whose mouth has been closed by death.

Further, the conclusion that the mere taking of a deposition constitutes a waiver is negated by CR 26(f), which reads:

A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, . . .

4 Moore’s Federal Practice § 26.35 (2d ed. 1968), at 1691, states one purpose of the Federal Rule 26(f) (identical to our CR 26(f)) as follows:

The purpose of the first sentence of Rule 26(f) is to make it perfectly clear that by merely taking a deposition before trial a party does not thereby impose restrictions upon himself with respect to the deponent at the actual trial.

(Footnote omitted.)

The federal courts have repeatedly held that under this rule the mere taking of a deposition without introducing it into evidence does not amount to a waiver of the deadman’s statute. See Moore, supra, p. 1691 n.l, citing Anderson v. Benson, 117 F. Supp. 765 (D. Neb. 1953); Duling v. Markun, 231 F.2d 833 (7th Cir. 1956); Stricker v. Morgan, 268 F.2d 882 (5th Cir. 1959).

In Duling v. Markun, supra, at 839, the court held that Rule 26 (f) prevented a waiver of Indiana’s deadman’s statute even though under then existing state decisions the mere taking of a deposition amounted to a waiver:

We do not think that a litigant in Federal Court must either refrain from taking advantage of the Federal Rules pertaining to discovery or to proceed to do so at his peril because, under state law, in a state court proceeding, the taking of a deposition is considered a waiver.

The Federal Rules themselves indicate that a waiver should not result from the mere taking of a discovery examination. Rule 26(f) provides, in substance, that a party shall not be deemed to make a person his own witness for any purpose by taking his deposition. “* * * The purpose of the first sentence of Rule 26 (f) is to make it perfectly clear that by merely taking a deposition before trial a party does not impose restrictions upon himself with respect to the deponent at the actual trial.” Anderson v. Benson, D.C. 117 F.Supp. 765, 771.

Five years after the decision in Duling, Indiana adopted a state counterpart of Federal Rule 26(f) (Burns’ Indiana Statutes Anno., § 2-1538). In 1967, the Indiana Supreme Court was faced with the argument that Indiana’s adoption of Rule 26(f) invalidated the court’s earlier decisions holding that the mere taking of a deposition amounted to a waiver under the deadman’s statute. The court noted the inconsistency of the rule with their earlier waiver doctrine, Plummer v. Ulsh, 229 N.E.2d 799, 801 (Ind. 1967):

In viewing this statute and the doctrine ... together, it is manifest that they are inconsistent. The purpose of discovery is to bring out the relevant material before trial in an effort to better equip the litigants to decide what is actually at issue. One should not be penalized for the mere acquisition of information in furtherance of this purpose.

The court then concluded that the mere taking of a deposition under their new discovery statutes did not amount to a waiver of Indiana’s deadman’s statute and overruled such of their previous cases as were inconsistent with this conclusion.

In reaching this decision, Indiana joined what appears to be the uniform rule in federal courts and the general rule in state jurisdictions which have adopted the federal rules in substance. See 97 C.J.S., Witnesses § 243 (1957); Stricker v. Morgan, supra; McCargo v. Steele, 160 F. Supp. 7 (W.D. Ark. 1958), aff’d, 260 F.2d 753 (8th Cir. 1958); Baumel v. Travelers Ins. Co., 179 F. Supp. 88 (E.D.N.Y. 1959); Thomas v. Thomas, 83 Idaho 86, 357 P.2d 935 (1960); Hamilton v. Bethel, 256 Iowa 1357, 131 N.W.2d 445 (1964); In re Estate of Ford, 23 Wis. 2d 60, 126 N.W.2d 573 (1964); Stewart v. Brandenburg, 383 S.W.2d 122 (Ky. App. 1964); Banaszkiewicz v. Baun, supra; Slover v. Harris, supra; Small v. Shure, 94 So. 2d 371 (Fla. 1957). See 43 Texas L. Rev. 435, 437 and 23 A.L.R.3d 389, 391 (1969).²

Our case law regarding waiver of the deadman’s statute originated at a time when legal rules relating to discovery by deposition and interrogatories were much different. Since that time, civil procedure has undergone basic changes in this state and most other states with the adoption of the federal rules. The general rule relating to waiver of the deadman’s statute has reflected this increased encouragement of full discovery, but this court has until now failed to reexamine our waiver doctrine in light of these new developments. CR 26(f) was not mentioned in the briefs or the opinion of Hall v. American Friends Serv. Comm., Inc., 74 Wn.2d 467, 445 P.2d 616 (1968), nor could it have been considered in cases decided prior to the adoption of this rule in 1950. Penalizing the use of discovery procedures by decedent’s representatives when they are freely available to all other litigants is an unreasonable and improper method of indicating judicial dissatisfaction with the deadman’s statute.

Therefore, we hold the mere taking of a deposition or propounding of interrogatories is not a waiver of the statute’s (RCW 5.60.030) bar when the deposition or interrogatories are not introduced in evidence by a representative of the estate. Cf., Percy v. Miller, 115 Wash. 440, 197 P. 638. (1921), involving a special discovery proceeding in probate wherein we adopted a rule consistent with the position we take here. Our earlier cases to the contrary are overruled insofar as they are inconsistent with this view.³

The trial court’s ruling that defendant had waived the bar of the statute by propounding interrogatories was therefore error. Plaintiff is precluded by the statute from testifying concerning his transactions with the deceased. Likewise, it is well settled that plaintiff’s wife is an interested party within the bar of the statute, because any recovery by plaintiff from decedent’s estate would inure to the benefit of the community composed of plaintiff and his wife. See Boettcher v. Busse, 45 Wn.2d 579, 277 P.2d 368, 49 A.L.R. 191 (1954); Andrews v. Andrews, 116 Wash. 513, 199 P. 981 (1921); Whitney v. Priest, 26 Wash. 48, 66 P. 108 (1901). Therefore, the trial court’s ruling admitting plaintiff’s wife’s testimony concerning transactions with the deceased was also error.

Plaintiff further contends that even if the trial court erred in following the rule of American Fruit Growers, Inc. v. Calvert, 186 Wash. 29, 56 P.2d 1307 (1936), et al., that defendant waived the protection of the statute when she cross-examined plaintiff regarding the transaction with the decedent, citing Ellis v. Wadleigh, 27 Wn.2d 941, 182 P.2d 49 (1947). If plaintiff were correct in this contention, we should affirm the trial court under the rule that if the ruling of a trial court is correct on any basis, even one not argued or relied on at trial, the judgment should be affirmed. However, Ellis does not support the plaintiff’s position. We pointed out in Ellis, that the bar of the statute may be waived and that such waiver may be by failure to properly object to testimony or by cross-examination of the adverse party. We held there was a waiver as the testimony of the adverse party as to transaction with the decedent was admitted on direct examination without objection.

The rule of waiver by cross-examination is correctly delineated by a comparison of our holdings in Robertson v. O’Neill, 67 Wash. 121, 120 P. 884 (1912) and Kline v. Stein, 30 Wash. 189, 70 P. 235 (1902). In Kline we held that testimony of the adverse party as to transactions with the decedent which is brought out on cross-examination is still within the bar of the statute and inadmissible. In Robertson we held that cross-examination of the adverse party relating to transactions with the decedent constituted a waiver of the protection of the statute “where the cross-examination is extended beyond the scope of what the witness would have been permitted to testify in chief upon direct examination.” It would be palpably unfair and in violation of the purpose of the deadman’s statute to hold that the decedent’s representative, who has properly objected to the direct testimony of the adverse party as to transactions or conversations with the decedent, waives the statutory protection by cross-examination of the witness solely on matters which the court permitted on direct examination. There is no waiver of the protection of the deadman’s statute by cross-examination of the adverse party unless the cross-examination goes beyond the scope of the direct examination and into transactions or conversations between the decedent and the adverse party not testified to on direct examination. See Annot., 64 A.L.R. 1161 (1930); 107 A.L.R. 482 (1937); and 159 A.L.R. 411 (1945).

The record discloses that defendant administratrix clearly and timely objected to the testimony of Mr. and Mrs. McGugart and that her cross-examination of these witnesses, after the court permitted direct testimony on the theory that the discovery interrogation constituted a~«. waiver of the protection of the statute, did not extend beyond the scope of the direct examination.

Defendant also assigns error to the admission of testimony of a Mrs. Anderson as being hearsay and self-serving. However, the court excluded this testimony and it appears in the record only as an offer of proof.

Since the errors resulted in the admission of the bulk of the testimony upon which the judgment is based, the judgment of the trial court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Hill, Weaver, Hale, and McGovern, JJ., concur.

1 At the trial court’s request, the interrogatories and answers were read into the record at the close of the case.

2 The author of the annotation in 23 A.L.R.3d, at pages 391 and 392, succinctly states the difference in rationale:

[T]he cases have arrived at what are essentially conflicting results, principally upon a fundamental difference in basic philosophy regarding the purpose of pretrial examination. Thus, under the older view still adhered to in many jurisdictions, the courts speak in terms of the unfairness which would result if a party were permitted to conduct a so-called “fishing expedition” and then withhold the results if dissatisfied, and have equated the taking of a deposition or serving of interrogatories to the “calling of the witness” or “taking of testimony” within general rules or statutes providing that such action waives the incompetency of the witness, with the result that they have held generally that the voluntary act of a party in taking the deposition of or serving interrogatories upon one who otherwise would be incompetent to testify constitutes a waiver of such incompetency, at least to the extent that the examination touches upon matters as to which the deponent is incompetent.

Although also represented by some of the older cases, the more recent trend has been to hold that the voluntary act of taking the deposition of, or serving interrogatories upon, one who would otherwise be incompetent as a witness in a particular civil action does not waive the incompetency of the witness unless the deposition or answers to the interrogatories are offered or introduced into evidence in the cause. The cases so holding generally reflect the liberalization of pretrial discovery procedures, particularly under the Federal Rules of Civil Procedure and various state statutes and rules patterned thereon, and effectively reject the older “no fishing” doctrine.

3 The cases inconsistent with the rule we adopt today are: American Fruit Growers, Inc. v. Calvert, 186 Wash. 29, 56 P.2d 1307 (1936); Miller v. O’Brien, 17 Wn.2d 753, 137 P.2d 525 (1943); Hall v. American Friends Serv. Comm., Inc., 74 Wn.2d 467, 445 P.2d 616 (1968).