I cannot concur in the opinion of Mr. Justice McDONALD.
This suit was brought to recover damages for the benefit of the heirs of the estate of Emma LaFave, deceased.
Recovery, if had, will go to the husband and chil dren under the statute of distribution. Alfred LaFave, husband, and Walter LaFave, son, of the deceased, witnessed the accident and testified fully to circumstances claimed to have been equally within the knowledge of the deceased and tending to show defendants' negligence. The defendant Micheau, driver of defendant's car, was not allowed to testify in contradiction of such testimony or to any of the *Page 551 circumstances of the accident, because equally within the knowledge of the deceased, and, therefore, excluded by statute. The statute applies to tort actions. Noonan v. Volek, ante, 377.
The statute is a shield and not a sword. Death having sealed the lips of one, the statute closes the lips of the other, except in contradiction of testimony given by witnesses having a pecuniary interest in the recovery. The statute recognizes a condition occasioned by death and establishes equality between the living in interest, but does not permit the living, in behalf of their pecuniary interest, to advance a sword from behind the shield and forbid its parry. It has long been held that the statute may be waived. It is manifestly unfair to permit those having a pecuniary interest in the suit to testify to matters equally within the knowledge of the deceased and to deny the opposite party the right to contradict or be heard with reference to such testimony.
The statute is a hold-over of the common-law disqualification of parties to a suit. When the disqualification of parties was lifted, this reservation was enacted. While somewhat expressive of 'policy, it was not intended to award plaintiffs in interest an advantage. In some States the statutes bar such advantage, and in some others the courts, under the doctrine of waiver, have resolutely accorded fairness. Our statute protects the heirs, assigns, devisees, legatees and personal representatives of the deceased.
When the representative of the estate called heirs of the estate to testify to facts equally within the knowledge of the deceased in order to have recovery in their behalf against defendants, there was waiver of the protection, at least to the extent of permitting the defendant Micheau to give reply testimony to *Page 552 that given by living parties in interest. The exact question presented by this record does not appear to have been heretofore considered by this court. The trial judge excluded defendant Micheau from testifying to the circumstances of the accident because equally within the knowledge of the deceased. Accepting the fact of such knowledge for the purpose of decision, we have a case of heirs testifying to claimed acts of defendant Micheau equally within the knowledge of the deceased and the defendants precluded from contradicting such testimony. Had such witnesses testified to a conversation between the defendant Micheau and the deceased, the rule in this State would permit defendant to testify in contradiction.Webster v. Sibley, 72 Mich. 630. I think the same rule applicable to acts of defendant Micheau equally within the knowledge of the deceased so far as testified to by heirs of the deceased.
In making the ruling, the trial judge inferred that all of the circumstances of the accident were within the knowledge of the deceased. We pointed out, in the Noonan Case, the applicable rule, and think the court, in this case, in any event, should have taken the verdict of the jury upon the question of whether the deceased had knowledge of the excluded facts and circumstances.
For the errors mentioned, the judgment should be reversed and a new trial granted, with costs to defendants.
NORTH, C.J., and FEAD, CLARK, and POTTER, JJ., concurred with WIEST, J. *Page 553