Dissenting Opinion
Here, we previously held that under the facts set forth in the pleadings on a motion for severance, there should be severance for the reason that in the action against Arthur M. Bell, Administrator of the Estate of Madge E. Shipe, deceased, plaintiff would be in*713competent to testify on the basis of the record as it now stands. Plaintiff, of course, could testify in the case against the husband, Burdwell H. Shipe, and it was felt it was not desirable in this case to ask the jury to consider plaintiff’s testimony in that case and disregard it in the case against decedent’s estate. Since that order, Anderson v. Hughes, 417 Pa. 87, was decided, and we allowed a reargument to consider the effect of that case upon this one.
I agree with my colleagues that if this plaintiff is now a competent witness as against the estate of Mrs. Shipe, there is no need for a severance. Of course, the competence of plaintiff has to be determined on the present record. On this record, the question presented simply is if one party to an action sees fit to use discovery procedures which involve taking a deposition of the adverse party or obtaining the answers of that party to interrogatories, will section 5(e) of the Act of May 23, 1887, P. L. 158, 28 PS §322, be rendered inoperative. In other words, does this constitute a waiver of the so-called Dead Man’s Rule if the party taking the depositions later dies?
Here, plaintiff has not argued that our former order was wrong, but that Anderson v. Hughes, supra, has changed the rule in Pennsylvania.
In that ease, the court said:
“It was argued in the court below that the exclusion of such testimony under the Dead Man’s rule, supra, was erroneous because the immunity under the statute had been waived by (a), the fact that a deposition covering matters which had occurred prior to the death of James Hughes, Sr., had been taken of Anderson and filed of record prior to Hughes’ death, and had been used at trial for cross examination of Anderson, and (b), the fact that interrogatories, covering matters which had occurred prior to the death of James Hughes, Sr., had been submitted to Anderson prior to Hughes’ *714death.” It then says: “On the authority of Perlis and Rosche, the ruling of the trial court in excluding the testimony of Anderson as against Hughes was erroneous. . . .”
Both Perlis and Rosche were cases in which the personal representative of the deceased party waived the rule. In Rosche v. McCoy, 397 Pa. 615, the personal representative waived the rule by introducing the deposition of decedent, thus rendering plaintiff competent. In Perlis v. Kuhns, 202 Pa. Superior Ct. 80, the personal representative of the deceased party filed interrogatories which were answered by the surviving party. This was held to be a waiver of the rule. In Anderson, the court, in basing its holding on Rosche and Perlis, must be said to be holding that there was a waiver of the rule there. That waiver has to be the use of the depositions of Anderson in his crossexamination at trial. It seems illogical to say that the waiver consists of the submission of interrogatories to Anderson prior to Hughes’ death. When the interrogatories were submitted, no one could know that the Dead Man’s Rule would ever come into the picture. No one could know who, or if .anyone, would die before the trial. No one existed at that point who had the right to waive the operation of the rule. “To constitute a waiver of legal right, there must be a clear, unequivocal and decisive act of the party with knowledge of such right and an evident purpose to surrender it”: Brown v. Pittsburgh, 409 Pa. 357; Linda Coal and Supply Company v. Tasa Coal Company, 416 Pa. 97.
The act here relied on by plaintiff to constitute a waiver of the Dead Man’s Rule is that of Mrs. Shipe when, through her counsel, she took the deposition of Brennan. The right of her estate acting through her personal representative to waive the rule did not exist until she died. The rule was not created to protect her but was created to protect her estate. In 58 *715Am. Jur., Witnesses, §360, the editors make this statement : “The general rule is that the taking of a deposition of a witness with respect to transactions or conversations with a deceased party amounts to a waiver of the ineompetency of the witness as to such matters. According to . . . many courts the taking of the deposition amounts to a waiver although the deposition is never filed or is not used in evidence by the party taking it.” Notes in 64 ALR 1164, 107 ALR 490 and 159 ALR 421 are given as authority for this statement.
An examination of the cases cited in those annotations shows that in every one of those cases one of four conditions was present:
(a) The depositions were taken by a personal representative of the deceased party;
(b) the deposition was offered in evidence by the personal representative of the deceased party;
(c) the surviving party was called to testify by the personal representative of the decedent; or
(d) if the surviving party was called in his own case to testify to things occurring after the death of the other party, the personal representative of the deceased in his cross examination of the witness delved into matters that occurred prior to the death.
I have found no case, nor has counsel referred to any case in any jurisdiction, holding that a waiver occurs by the taking of a deposition of an opposing party while both parties are alive and no use is made of it by the personal representative of the other party after the other party’s death.
Since there was no incompetence to be waived when the deposition was taken, I fail to see how that act can be said to be done with an evident purpose to waive that incompetence which did not then exist, and I would affirm our previous order.