Williams v. Condit

Present: All the Justices

KATHLEEN MORIARTY WILLIAMS
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 020476 January 10, 2003

KATHARINA CONDIT, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
ROSS R. CONDIT, JR.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Henry E. Hudson, Judge

In this appeal, we consider whether the circuit court

erred by granting the defendant's motion to strike the

plaintiff's evidence on the basis that the plaintiff failed to

present corroborating testimony as required by Code § 8.01-

397, commonly referred to as the dead man's statute.

Plaintiff, Kathleen Moriarty Williams, filed her motion

for judgment in the circuit court against Katharina Condit,

personal representative of the estate of Ross R. Condit, Jr.

Plaintiff sought damages for personal injuries that she

allegedly sustained as a result of an automobile accident that

was purportedly caused by the negligence of Ross Condit, who

died after the accident from unrelated causes.

At a jury trial, plaintiff was the only witness who

testified in her case-in-chief about the circumstances

surrounding the accident. Plaintiff testified that she was

involved in an automobile accident on December 17, 1997 as she

was driving her car south on Dolly Madison Boulevard in

Fairfax County. Plaintiff stated that as she approached the
intersection of Dolly Madison Boulevard and Ingleside Avenue,

a car entered her lane of travel and collided with her

vehicle.

At the conclusion of the plaintiff's case, defendant made

a motion to strike the evidence on the basis that plaintiff

failed to satisfy the requirements of Code § 8.01-397 because

she did not present any evidence that corroborated her version

of how the accident occurred. The circuit court took the

motion to strike the plaintiff's evidence under advisement.

The defendant presented the testimony of Katharina

Condit, who was married to the decedent and was a passenger in

a car driven by him when the accident occurred. She testified

that when Mr. Condit was driving his car, he approached an

intersection, "came to a complete stop and he tried to get

across. And I looked, too. There was no car coming. We

didn't see anything. And then he proceeded and we got hit."

After Katharina Condit concluded her testimony, the

circuit court took a recess. After the recess, the court

granted the defendant's motion to strike. Subsequently, the

court entered a final judgment, and plaintiff appeals.

Code § 8.01-397, in pertinent part, provides that:

"In an action by or against a person who, from
any cause, is incapable of testifying, or by or
against the committee, trustee, executor,
administrator, heir, or other representative of the
person so incapable of testifying, no judgment or
decree shall be rendered in favor of an adverse or

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 interested party founded on his uncorroborated
testimony."

Plaintiff argues that the circuit court erred by granting

the motion to strike because once Katharina Condit, who was a

witness to the accident, testified, her testimony satisfied

the corroboration requirement of Code § 8.01-397. Responding,

defendant argues that the circuit court was required to

consider only the evidence presented at the time that the

court took her motion to strike under advisement, and that the

court could not consider any evidence subsequently presented

by the defendant when deciding whether plaintiff satisfied

Code § 8.01-397. The defendant contends that when the

plaintiff's evidence is considered alone, plaintiff failed to

provide any evidence of corroboration as required by Code

§ 8.01-397.

We disagree with defendant's contention that the circuit

court was not required to consider the defendant's evidence

when the court ruled on her motion to strike the plaintiff's

evidence. We have repeatedly held that if a circuit court

grants a defendant's motion to strike the plaintiff's evidence

at the conclusion of a trial, we will consider all the

evidence, including evidence presented by the defendant.

Austin v. Shoney's, Inc., 254 Va. 134, 138, 486 S.E.2d 285,

287 (1997); Estate of Taylor v. Flair Prop. Assoc., 248 Va.

410, 414, 448 S.E.2d 413, 416 (1994); Kendrick v. Vaz, Inc.,

3
244 Va. 380, 384 n.*, 421 S.E.2d 447, 450 n.* (1992); Hadeed

v. Medic-24, Ltd., 237 Va. 277, 280, 377 S.E.2d 589, 590

(1989); Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d

265, 266 (1948). Similarly, we hold that when a defendant

makes a motion to strike at the conclusion of the plaintiff's

case based upon plaintiff's alleged failure to comply with the

dead man's statute, but for some reason, the motion is taken

under advisement, the circuit court is required to consider

all the evidence that has been admitted before ruling on the

motion. * Therefore, in determining whether plaintiff in this

appeal satisfied the corroboration requirement in Code § 8.01-

397, we will consider all the testimony adduced during the

trial, including defendant's testimony presented during her

case.

We have stated that "Code § 8.01-397 is designed to

prevent a litigant from having the benefit of his own

testimony when, because of death or incapacity, the personal

representative of another litigant has been deprived of the

testimony of the decedent or incapacitated person. The

statute substitutes a requirement that testimony be

corroborated in place of the harsher common law rule which

*
We note that the defendant could have rested her case
without presenting any evidence and then renewed her motion to
strike the plaintiff's evidence. Had the defendant done so,
the circuit court would have been required to consider only
the plaintiff's evidence when the court ruled on the motion to
strike.
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disqualified the surviving witness for interest." Diehl v.

Butts, 255 Va. 482, 488, 499 S.E.2d 833, 837 (1998); accord

Vaughn v. Shank, 248 Va. 224, 229, 445 S.E.2d 127, 130 (1994);

Hereford v. Paytes, 226 Va. 604, 607-08, 311 S.E.2d 790, 792

(1984).

We hold that plaintiff satisfied the corroboration

requirement of Code § 8.01-397 because Katharina Condit, who

was a passenger in the decedent's car, testified about the

facts surrounding the accident. And, we note that the

defendant does not contend that plaintiff failed to provide

sufficient corroboration once defendant's testimony is

considered.

Accordingly, we will reverse the judgment appealed from,

and we will remand this case to the circuit court for a new

trial.

Reversed and remanded.

JUSTICE LACY, with whom JUSTICE KINSER and JUSTICE LEMONS
join, concurring.

The trial court in this case dismissed the plaintiff's

motion for judgment holding that Code § 8.01-397, the dead

man's statute, applied and that the plaintiff failed to

provide sufficient corroboration as required by that statute

to allow a judgment to be entered in her favor. In her appeal

from this judgment, the plaintiff asserted two assignments of

error:

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 I. THE TRIAL COURT ERRED BY APPLYING VA CODE
§ 8.01-397 OF THE CODE OF VIRGINIA, 1950, AS
AMENDED.

II. THE TRIAL COURT ERRED BY GRANTING THE
DEFENDANT'S MOTION TO STRIKE WHEN IT FOUND THAT NO
CORROBORATION AS REQUIRED BY VA CODE § 8.01-397 OF
THE CODE OF VIRGINIA, 1950, AS AMENDED, WAS
PRESENTED.

I.

The first assignment of error unequivocally challenges

the application of the dead man's statute to this case. The

record reflects that the plaintiff argued the inapplicability

of the statute at the trial level and repeated those arguments

in the petition for appeal and brief she submitted in this

Court, yet the majority inexplicably fails to address this

assignment of error and the issues it raises.

The principles for the application of Code § 8.01-397

have been well established and discussed in a number of our

prior cases. One must be sensitive to the distinction between

those principles addressing compliance with the statute and

those addressing whether the statute is applicable in the

first place. The first assignment of error addresses the

latter proposition.

Our jurisprudence establishes that the dead man's statute

will not prevent entry of a judgment in the absence of

corroboration in all instances because there are circumstances

in which the statute simply is not applicable. One of those

circumstances is when another interested party testifies to a

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version of the facts on behalf of the party unable to testify.

Epes' Adm'r v. Hardaway, 135 Va. 80, 86, 92-93, 115 S.E. 712,

714, 716 (1923). 1 The interest of the testifying party must be

a pecuniary interest in the outcome of the litigation.

Merchants Supply Co., Inc. v. Ex'rs of the Estate of John

Hughes, 139 Va. 212, 216, 123 S. E. 355, 356 (1924). 2

Six months ago this Court in Johnson v. Raviotta, 264 Va.

27, 563 S.E.2d 727 (2002), reaffirmed this exception to the

application of the dead man's statute. In Johnson, we

discussed and approved the holding of the federal district

court in Paul v. Gomez, 118 F.Supp.2d 694, 696 (W.D.Va. 2000),

that "Virginia's dead man's statute does not require

corroboration of a party's testimony regarding certain facts

if another interested party testified to a version of the

facts on behalf of the decedent." 264 Va. at 34, 563 S.E.2d

at 732. We stated that this principle "accurately states

Virginia law." Id. Applying this principle to the testimony

adduced in that case, we concluded that Code § 8.01-397 did

not apply to the defendant's testimony in defense of one

1
Another exception to the application of the statute
is where an adverse party is called by the representative of
the incapacitated party and testifies regarding the facts in
dispute and that testimony is uncontradicted and not
inherently improbable. Brown v. Metz, 240 Va. 127, 393 S.E.2d
402 (1990); Balderson v. Robertson, 203 Va. 484, 125 S.E.2d
180 (1962).
2
The source and development of this exception is
discussed in Epes' Adm'r, 135 Va. at 92-93, 115 S.E. at 76,

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instance of alleged negligence because an interested party

testified to the disputed facts on behalf of the decedent but

that the statute did apply and corroboration was required for

the defendant's testimony in defense of another instance of

alleged negligence because there was no such testimony of an

interested party as to that allegation. Id. at 35, 563 S.E.2d

at 733.

The plaintiff's argument under her first assignment of

error here is that this exception is applicable to the facts

of this case. Mrs. Condit, the personal representative of the

decedent, was in the decedent's car at the time of the

accident and testified regarding the facts surrounding the

accident. As personal representative of the decedent's

estate, Mrs. Condit has the requisite pecuniary interest

derived from the decedent. See, id. The plaintiff argues

that the decedent's estate was not deprived of the decedent's

version of the facts and that the exception to the application

of the dead man's statute applies, relieving her of the

corroboration requirement.

While the plaintiff correctly recites the law, there is

an additional factor that is crucial to the resolution of this

assignment of error. This case was resolved on a motion to

strike the plaintiff's evidence. The testimony of the

and Johnson v. Raviotta, 264 Va. 27, 34, 563 S. E. 2d 727, 732
(2002).
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interested party, Mrs. Condit, occurred after the defendant

made the motion to strike but before the trial court ruled on

the motion. Therefore, at the time of the motion, no

interested party had testified as to the decedent's version of

the facts. The fact that an interested party "is available to

testify" to the decedent's version of the facts is not

sufficient to invoke the exception to the application of the

dead man's statute; the interested party must testify to those

facts in order to avoid the application of Code § 8.01-397.

See Johnson, 264 Va. at 34, 563 S.E.2d at 732. Whether the

plaintiff can prevail on her first assignment of error then

depends on whether the trial court was required to consider

all the evidence before it at the time the court ruled on the

motion.

Normally, when ruling upon a motion to strike raised at

the close of the plaintiff's evidence, the trial court

considers only that evidence produced in the plaintiff's case-

in-chief. The standard applied is whether the plaintiff has

presented a prima facie case, considering the evidence in the

light most favorable to the plaintiff. That standard, if

applied to this case, would have required the trial court to

deny the motion to strike because the plaintiff's evidence

here established a prima facie case. The motion in this case

however, did not involve the establishment of a prima facie

9
case but, instead, involved compliance with the corroboration

requirement of Code § 8.01-397.

The statute recites that "no judgment shall be entered"

without the requisite corroboration. The import of this

requirement is that, strategically, a party faced with the

possible application of the statute should through his or her

case-in-chief provide either sufficient corroboration or

provide testimony from an interested party to invoke the

exception to the application of the statute. Indeed, if the

defendant in this case had rested following the motion to

strike and not produced Mrs. Condit's testimony, the plaintiff

could not claim the exception to the application of the

statute and corroboration of her testimony would have been

required. Trial strategies, however, do not resolve the

matter.

Determinations of whether a judgment can be issued under

the dead man's statute are not dependant on a plaintiff

establishing a prima facie case. Neither the statute nor our

cases imply or require that the requisite corroboration be

produced by the party whose testimony must be corroborated.

Rather, we have held that corroboration for purposes of the

statute can come from any source, need not be presented by the

plaintiff, and may be by documentary or physical evidence.

See Hereford v. Paytes, 226 Va. 604, 608, 311 S.E.2d 790, 792

(1984). Thus, the statute and our cases suggest that the

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trial court should review all the evidence, regardless of its

source, to determine whether the statute is applicable and, if

it is, whether the corroboration requirement has been met.

Under these circumstances, the normal rules used in

considering motions to strike the plaintiff's evidence are not

appropriate.

Furthermore, the corroboration requirement is not a

requirement limited to the plaintiff's testimony. The

plaintiff could be the party deprived of the testimony of an

incapacitated person, in which case the defendant's version of

the facts would require corroboration. A motion to strike the

defendant's evidence for failure to provide the required

corroboration would be made at the end of the defendant's

evidence and, in ruling on such a motion, a trial court would

consider all the evidence before it, not just evidence adduced

by the defendant. To adopt a rule that limits a plaintiff

faced with a motion to strike based on the application of Code

§ 8.01-397 to the evidence produced solely by the plaintiff,

but allows all the evidence to be considered in ruling on a

motion to strike the defendant's evidence based on the

application of the same statute, in my opinion, is not a fair

rule. Such a rule gives a defendant a decided advantage when

Code § 8.01-397 is implicated.

For these reasons, I concur with the majority's

determination that the trial court was required to consider

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all evidence before it at the time it ruled on the motion to

strike and could not simply restrict its review to the

evidence produced by the plaintiff in her case-in-chief.

Because all the evidence produced at the time of the

ruling, including the testimony of Mrs. Condit, had to be

considered, I conclude that the trial court erred by applying

Code § 8.01-397, as the plaintiff asserts in her first

assignment of error. Mrs. Condit, an interested party

deriving her interest from the decedent, testified as to the

disputed events, and, therefore, Code § 8.01-397 and its

requirement of corroboration was not implicated. Johnson, 264

Va. at 34-35, 563 S.E.2d at 732-33.

II.

In holding that "the plaintiff satisfied the

corroboration requirement of § 8.01-397," the majority agrees

with the plaintiff's second assignment of error that the trial

court erred in finding that no corroboration of plaintiff's

testimony was presented. For the reasons set out above, I

believe this holding not only ignores the first assignment of

error, it implicitly overrules the longstanding and recently

reaffirmed exception to the application of Code § 8.01-397.

Assuming for this discussion only, however, that the statute

applies, I cannot agree with the majority's statement that the

corroboration requirement was satisfied by Mrs. Condit's

testimony.

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 The majority does not explain how Mrs. Condit's testimony

satisfied the corroboration requirements of Code § 8.01-397

other than stating that she "testified about the facts

surrounding the accident." No prior case has ever held that

testifying about the event alone satisfies the corroboration

requirement of Code § 8.01-397. Corroboration for purposes of

the dead man's statute requires testimony or other evidence

that tends to support some issue or allegation advanced by the

party able to testify which is essential to sustain a judgment

in such party's favor. Rice v. Charles, 260 Va. 157, 166, 532

S.E.2d 318, 323 (2000).

In this case, the plaintiff testified that the accident

occurred at an intersection uncontrolled by a traffic light;

that she saw Condit's car coming the opposite direction; and

that she saw the car enter the left hand turn lane, stop, and

then turn into her lane, causing her to collide with the car.

The plaintiff maintained that the decedent failed to maintain

a proper lookout, failed to keep his car under control, failed

to yield the right of way, was exceeding a reasonable speed,

and was "otherwise negligent."

Mrs. Condit testified that the decedent brought the car

to a complete stop before he turned left, and that there were

no oncoming cars. "And then [the deceased] proceeded and we

got hit." Nothing in Mrs. Condit's testimony corroborates the

plaintiff's testimony or assertions of the decedent's alleged

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negligence. At best, Mrs. Condit's testimony merely verified

that the accident happened. This testimony meets none of the

standards previously established by this Court to meet the

corroboration requirement of Code § 8.01-397.

Thus, if Code § 8.01-397 applies, which for the reasons

stated above I conclude it does not, I would hold that the

corroboration requirement was not met and would reject the

plaintiff's second assignment of error. The statement in the

majority opinion that the "defendant does not contend that the

plaintiff failed to provide sufficient corroboration once

[Mrs. Condit's] testimony is considered" does not eliminate

the necessity of addressing the plaintiff's assertion that the

testimony was sufficient. Furthermore, the defendant argued

exclusively that the trial court was required to consider the

motion to strike solely on the plaintiff's evidence; she did

not address that nature of Mrs. Condit's testimony at all.

We have repeatedly affirmed our strong adherence to the

principles of stare decisis and we have overturned precedent

only in rare instances and for reasons fully explained. In

this case, the majority has ignored principles applied in

prior relevant cases, adopted positions at odds with, or

contrary to, precedent without explanation, and arguably has

adopted new principles of law regarding the dead man's statute

and issues of corroboration. Thus, although I agree with the

majority that the trial court erred in granting the

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defendant's motion to strike and that the plaintiff is

entitled to a new trial, I do so for the reasons stated above.

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