(dissenting).
I would reverse the judgment of the District Court with directions to grant a new trial for these reasons:
The District Court erred (1) in ruling that the Pennsylvania Dead Man’s Act, 28 P.S. § 322, rendered Dutcher incompetent as a witness against the Lynch and Smith estates; and (2) in its instructions in the Harris trial on the score of deviation.
In order to bring into focus the issue stated, this factual statement of the situation which gave rise to them must be made.
The instant declaratory judgment proceeding was brought by Lynch’s Estate1 to determine whether the coverage of a public liability policy issued by the defendant, Lumbermens Mutual Casualty Company, to an owner of an automobile, one Edward S. Dutcher, extended to the deceased Donald Cionci, who was driving the car at the time of an accident. The policy by its terms extended its coverage to any person operating Dutcher’s automobile with his permission at the time of the accident. The critical fact issue to be determined was whether the automobile was being operated by Cionci, within the scope of the permission granted to him by Dutcher when the accident occurred.
Cionci was killed when the automobile collided with a truck driven by one Smith, who was also killed. Lynch and Harris were riding in the Cionci ear at the time of the accident. Lynch was killed; Harris was injured.
Lynch’s estate then sued Cionci’s estate in the District Court for the Eastern District of Pennsylvania in Civil Action No. 25149, seeking damages under the Pennsylvania Wrongful Death and Survival Statutes. The defendant insurance company refused to defend Cionci’s estate on the ground that he had deviated beyond the use authorized by Dutcher, viz., to drive from Bryn Mawr to Ard-more, some two miles southeast, provided he return in half an hour, whereas Cionci had instead driven some twelve miles in an opposite direction to Media. Lynch’s estate obtained a default judgment against the Cionci estate and then brought this declaratory judgm«nt action against the insurance company. Damages allowed on the judgment were subsequently fixed at $50,000. Smith’s estate, which had brought suit against Dutcher and the Cionci and Lynch estates, in the Common Pleas Court of Delaware County, Pennsylvania, and Harris who had sued all three in the Delaware County Court, were joined as parties in the instant declaratory judgment action on Lumbermens' motion. Dutcher was not joined.
At the trial in the instant declaratory judgment action the District Court ruled that Dutcher was incompetent to testify with reference to the scope of permission granted to use his car under the Penn*101sylvania Dead Man’s Act, 28 P.S. 322, as far as the Lynch and Smith estates were concerned, on the ground that his interest was adverse to that of the two estates because the coverage of the policy was limited and he had an interest in maintaining its coverage for his own protection in view of the pending actions against him in the state court. The District Court then directed verdicts in favor of the Cionci and Lynch estates since no evidence had been introduced to rebut the Pennsylvania presumption that one who operates a borrowed automobile does so within the scope of his permissive use. Dutcher was, however, permitted to testify in the Harris phase of the trial, and the jury found that Cionci had not deviated from his permitted use of the automobile.
It may be here noted, parenthetically, that our brother Van Dusen, then a District Court Judge, in the pre-trial stages of the instant action, specifically held that the Pennsylvania Dead Man’s Rule did not preclude Dutcher’s testimony against the Lynch and Smith estates.
On this appeal, Lumbermens, as earlier stated, contends that the trial judge erred (1) in ruling that Dutcher was incompetent under the Pennsylvania Dead Man’s Act as a witness against the Cionci and Lynch estates and in directing verdicts in favor of the Lynch and Smith estates, and (2) in its instructions on the score of deviation in the Harris phase of the trial, and (3) “that it was impossible for the jury to consider the Harris case impartially when it had been directed to find against Lumbermens in the Lynch and Cionci cases.”
' The District Court erred, and the majority should have held that it did, in ruling that Dutcher, under the Pennsylvania Dead Man’s Act, was incompetent as a witness against the Lynch and Smith estates.
The Dead Man’s Act provides in relevant part as follows:
“Nor, where any party to a thing or contract in action is dead, * * * and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, shall any surviving or remaining party to any such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased * * *, be a competent witness to any matter occurring before the death of said party * * * ” 28 P.S. § 322
It is settled law in Pennsylvania that the Dead Man’s Act does not render a witness incompetent in an action under the state’s Wrongful Death Act,2 “for the reason that the action of wrongful death is not for damages sustained by the decedent but for damages sustained by the plaintiff by reason of the decedent’s death.” Dennick, Adm’x v. Scheiwer, 381 Pa. 200, 201, 113 A.2d 318, 319 (1955).
The holding in Dennick reaffirms a prior decision to the same effect in Mann v. Weiand, 81 1/2Pa. 243 (1875) where it was held that the trial court erred in ruling a witness incompetent in an action for wrongful death. In so holding the Pennsylvania Supreme Court said at pages 256-257:
“This action, however, was not brought by him [the decedent], nor is it for the recovery of damages for injuries he sustained; but it is for injuries his wife sustained by his death. It is for a cause of action her husband never had. It arose on and after his death, and accrued to his widow.”
It is also settled in Pennsylvania that where an action under the state’s Sur*102vival Act3 for the enforcement of a right inuring to the decedent, is joined with one under the Wrongful Death Act, a witness remains competent even though he would have been incompetent to testify in the Survival Act, action had it been separately brought. Dennick, Adm’x v. Scheiwer, supra; Alinkoff v. McDonald, 33 Pa.D. & C.2d 715, 717 (C. P. Luzerne Co. 1964).
Here, the Provident Tradesmens Bank & Trust Co., administrator of the Estate of Lynch, in Civil Action No. 25149, sued the Cionci estate, under both the Wrongful Death and Survival Acts.4 Further, in the District Court’s order in Civil Action 25149 which approved the $50,000 settlement of the default judgment therein, it was specifically stated that “two-fifths of any amounts received under the terms of such settlement shall be allocated recovery under the Wrongful Death Act. * * * ”
The record in the instant case also discloses that the Smith estate’s action in the state court against Dutcher, and the Lynch and Cionci estates, was under the Wrongful Death Act, and consequently Dutcher was competent to testify as far as the Smith estate was concerned in this proceeding under Pennsylvania law.5
The foregoing establishes that the District Court erred in ruling that Dutcher was incompetent6 and in its further instruction to the jury to return directed verdicts in favor of the Lynch and Smith estates in the absence of testimony rebutting the Pennsylvania presumption that one is driving another’s car within the scope of permitted use.
That these directed verdicts had a prejudicial effect in the jury’s finding in the Harris phase of the trial that Cionci was driving within the scope of Dutch-er’s permission is too evident to require further statement.
The majority further errs in its holding that the District Court did not err in its charge to the jury in the Harris phase of the trial.
I hold to the view that prejudicial error was committed by the District Court in its charge on the score of the critical issue of deviation for these reasons:
While Dutcher was ruled to be incompetent as a witness in the Cionci and Lynch phases of the trial under the Pennsylvania Dead Man’s Rule, he was permitted to testify in the Harris phase with respect to the use of his automobile. Dutcher was per force the only witness who could give testimony on the score of this permission since Cionci and Lynch had been killed in the accident and Harris had not been present when it was granted.7
Dutcher’s testimony on the score of permission may be summarized as follows:
He by chance happened to encounter Cionci and Lynch in a tavern in Bryn Mawr when he dropped in to “have a beer” in mid-afternoon January 17,1958; he had known the two men for some eight to ten years; they asked his permission to use his car to drive to Ardmore, some two miles southeast, “to pay a bill”; Dutcher granted the permission requested subject to the condition that they return in half an hour; he did not give *103them general permission to use the car as they pleased or for as long as they pleased but only to go to Ardmore and return in half an hour; he waited for an “hour or more” for Cionci and Lynch to return and when they failed to do so he “got a ride home” and then “went back to wait for them”; he didn’t see the car until the day after the accident.
Lumbermens’ defense at the Harris trial was that Cionci’s use of the Dutcher car to go to Media instead of Ardmore constituted a substantial deviation from the permission granted; that he was consequently operating the car without permission and accordingly the coverage of the policy was not available to Cionci. It submitted to the District Court a point for charge embodying this defense which was denied, and an exception noted.
The District Court charged the jury as follows with respect to the critical issue of deviation:
“If Mr. Dutcher gave permission only to go to Ardmore and return, and Cionci drove to Media, I think that we would all agree that, when you look at this map, that goes beyond what you would call a minor deviation from the permission, because of the distance that is involved.
“There is also a possibility that Mr. Dutcher’s permission was limited in space, destination and return being Ardmore, as he testified at one point, or possibly it was limited as to time. As I recall, he indicated he provided that they would be back in a half hour. Then there was some other questioning of him which seemed to indicate that perhaps a couple of hours might have been involved. But this is all for you to recall precisely what the testimony was.
“The thing that you must consider is whether Mr. Dutcher’s testimony is credible and, if you determine that it is credible, you will have to interpret precisely what permission he gave to Cionci to drive this car and whether that permission was exceeded. If the permission was exceeded, then you must find in favor of the defendant.” (emphasis supplied)
I am of the opinion that the District Court committed prejudicial error in instructing the jury that it might find that the permission to use the car was for “perhaps a couple of hours”. There wasn’t an iota of evidence on which such an instruction might be premised or justified. Dutcher specifically stated that the permission was limited to a half hour to travel to Ardmore and return. His testimony that he waited for an “hour or more” for the return of his car couldn’t possibly be construed as permission to use the car for “a couple of hours.” This Court has held that it is prejudicial error to submit an issue to a jury “on which there was no evidence”. O’Neill v. Reading Company, 306 F.2d 204, 206 (3 Cir. 1962). We there ruled that the trial judge committed prejudicial error when he instructed the jury that it might find the plaintiff driver of an automobile guilty of contributory negligence if he was unable to see an approaching train because of frost on the side windows of his car, when there was no evidence of frost on the windows. We recently applied the principle stated in O’Neill v. Reading Company, supra, in Freifield v. Hennessy, 353 F.2d 97 (3 Cir. 1965) and Eichmann v. Dennis, 347 F.2d 978, 981 (3 Cir. 1965).
The majority’s view that the District Court remedied its error in instructing the jury that it might find that permission had been granted to use the car “for perhaps a couple of hours”, without limitation as to the trip to Ardmore and return to Bryn Mawr, when it later told the jury that it was their recollection of the testimony which was to govern, begs the question of error.
This must be added to what has been said. The majority avoids deciding whether the District Court erred in ruling Dutcher incompetent as to the two estates by holding that since Dutcher was permitted to testify as to Harris, Lumbermens is now estopped from litigating the issue of permission with respect to the two estates. I disagree.
*104Pennsylvania law governs the scope of collateral estoppel in the instant case. Gramm v. Lincoln, 257 F.2d 250, 255 (9 Cir. 1958); Hartmann v. Time, Inc., 166 F.2d 127, 138, 1 A.L.R.2d 370 (3 Cir. 1947), cert. den. 334 U.S. 838, 68 S.Ct. 1495, 92 L.Ed. 1763 (1948); Cobb v. Clark, 257 F.Supp. 175 (M.D.N.C.1966), aff’d per curiam, 375 F.2d 773 (4 Cir. 1967). See also Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 308 U.S. 530, 309 U.S. 4, 60 S.Ct. 215, 84 L.Ed. 447, 537 (1940). Thus, the majority’s motions as to the better rule of law, and decisions applying the law of jurisdictions other than Pennsylvania, are of secondary value, since our function is to determine what the Pennsylvania Supreme Court would hold if it were now faced with the identical problem. Just as with the Pennsylvania Dead Man’s Statute, we cannot apply the “more liberal” rule or the “modern” rule unless Pennsylvania decisional law convinces us that the Pennsylvania Supreme Court would do likewise. Our problem here is not resolved by non-Pennsylvania decisions applying collateral estoppel in factual situations analogous to that presented in the instant case. While the one “fair and full opportunity to litigate” rationale of the majority has been accepted in a few opinions, a review of the Pennsylvania cases discloses that this is not the rule applied by the Pennsylvania courts.
A long line of Pennsylvania Supreme Court cases has firmly established the mutuality doctrine as part of the law of Pennsylvania. See, e. g., Shulze’s Appeal, 1 Pa. 251 (1845); Chandler’s Appeal, 100 Pa. 262 (1882); Walker v. City of Philadelphia, 195 Pa. 168, 45 A. 657 (1900); Woodburn v. Pennsylvania R.R. Co., 294 Pa. 174, 144 A. 93 (1928); Evans v. Moffat, 388 Pa. 559, 131 A.2d 141 (1957); 20 Pennsylvania Law Encyclopedia, Judgment §§ 311-313. This obviously does not mean that only those formally a party to a judgment are bound by it. Privies of parties are, of course, bound. See, e. g., American Surety Company v. Dickson, 345 Pa. 328, 28 A.2d 316 (1942); Stevenson v. Silverman, 417 Pa. 187, 208 A.2d 786 (1965), cert. den. 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76. Moreover, the addition of new parties in the second suit does not automatically defeat the application of res judicata or collateral estoppel. See, e. g., Hochman v. Mortgage Finance Corporation, 289 Pa. 260, 137 A. 252 (1927); Helmig v. Rockwell Mfg. Co., 389 Pa. 21, 131 A.2d 622 (1957), cert. den. 355 U.S. 832, 78 S.Ct. 46, 2 L.Ed.2d 44. Also, the Pennsylvania courts have expressly recognized certain limited exceptions to the rule requiring mutuality. See, e. g., Brobston v. Darby Borough, 290 Pa. 331, 138 A. 849 (1927) (collateral estoppel where same plaintiff brings suit against a defendant whose liability arises from the alleged wrongful act of another who has been exonerated in a prior suit); Helmig v. Rockwell Mfg. Co., supra (same); Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965), cert. den. 381 U.S. 925, 85 S.Ct. 1561, 14 L.Ed.2d 684 (plaintiff allowed to use jury verdict that defendant guilty of crime of extortion). In no decision, however, has the Pennsylvania Supreme Court indicated that it is now prepared to abandon the requirement of mutuality or to make an exception to the rule applicable to the instant case. In determining the limits of the doctrine of mutuality, the Pennsylvania courts have considered whether the one against whom the judgment is used has in fact litigated the issues in an earlier action, but they have never held that merely because a party has litigated the issues in a prior action, he is barred from litigating them anew against one not bound by the prior judgment. The Pennsylvania cases in the field show that whatever might be this Court’s view of the “modern” rule, the Pennsylvania courts still adhere to the doctrine of mutuality and have made no exception applicable to the situation presented in the instant case. This view is reinforced by the heavy reliance the Pennsylvania courts have placed on the Restatement of Judgments since it was *105first published. The Restatement sections relating to mutuality certainly do not permit the estates of Smith and Lynch to utilize the verdict and judgment in favor of Harris.
The one Pennsylvania case relied upon by the majority is Posternack v. American Casualty Co., 421 Pa. 21, 218 A.2d 350 (1966). In that case plaintiff, who suffered fire loss when a building owned by him was destroyed by fire, brought separate suits against two insurance companies, American Insurance Company of New Jersey (American) and American Casualty Company of Reading (Reading), each of which had issued fire insurance policies allegedly covering the loss. The policies had been obtained by plaintiff at the same time and from the same broker.
The action against American was brought in the United States District Court for the Eastern District of Pennsylvania, while that against Reading was brought in the Court of Common Pleas No. 1 for Philadelphia County. In both actions the same defenses were interposed — non-issuance of the policies, lack of authority by the broker, failure of the broker to have a state broker’s license, fraudulent representation by plaintiff, and issuance of the policy after the fire. The action against American came to trial first and resulted in verdict and judgment for the insurance company.
Reading then moved in the Pennsylvania state proceeding for leave to amend its answer to include the defense of res judicata and collateral estoppel. This motion was denied by the trial court, but the Pennsylvania Supreme Court reversed, stating that the insurance company should be allowed to assert the defense, but that whether collateral estop-pel would be applicable would depend upon the particular facts revealed at trial:
“The lower court denied the amendment solely because of the absence of mutuality of estoppel. While it is true * * * that an amendment showing an error of law on its face should not be allowed, we are not convinced that such an error is patently evident here. “The Pennsylvania rule on mutuality of estoppel is by no means so rigid that the mere mention of it, without more, will defeat the right to assert res judicata as a defense in an amendment to the pleadings. Several recent cases have recognized exceptions to the general rule. * * * Helmig v. Rockwell Mfg. Co. * * * Stevenson v. Silverman * * * and Hurtt v. Stirone * * * are other cases evidencing exceptions, thus showing a tendency by this Court, at least in limited areas, not to allow the technical formalities of res judicata to stand in the way of justice.
“On the posture of the present record, it is far from clear whether or not the doctrine of res judicata should be applied. Certainly, the question is not so open and shut as to now permit its determination as a matter of law. * * * " 421 pa. at 25, 218 A.2d at 352.
While the opinion does indeed indicate that in a proper case one not a party or privy may benefit from a prior judgment, as noted earlier, the Pennsylvania rule requiring mutuality is not an absolute one. If either insurance company were held liable, it would probably have a suit over against the other for a pro rata share of the judgment, based on the provisions of the policies. In view of this, defensive use of the first judgment in Posternack might well have come within one of the best established exceptions to the mutuality doctrine — -that providing that an indemnitee can use as a defense a judgment in favor of the indem-nitor. Thus, it is no help to the majority position that the Pennsylvania Supreme Court should hold that lack of mutuality, standing alone, is not enough to keep a party from pleading res judicata as a defense.
The majority here resorts to an offensive use of the doctrine, as the text writers class it. It is true that such a use has been approved in three cases cited by the majority — Zdanok v. Glidden Com*106pany, Durkee Famous Foods Division, 327 F.2d 944 (2 Cir. 1964), cert. den. 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298; United States v. United Airlines, Inc., 216 F.Supp. 709 (D.Nev.1962), aff’d United Air Lines, Inc. v. Wiener, 335 F. 2d 379 (9 Cir. 1964), petition for cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549; and B. R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 278 N.Y.S.2d 596, 225 N.E.2d 195 (1967) 8 Apart from the fact that in my view these cases were wrongly decided,9 it must be noted that in Zdanok, the defendant, who was the real and primary party in interest, was specifically found by the Court to have “had a full and fair opportunity to litigate the issue effectively”, a consideration absent here by reason of the District Court’s erroneous ruling that Dutcher was incompetent to testify against the plaintiff Lynch and Smith estates and the resulting directed verdicts in favor of these estates.10
Our cases of Bruszewski v. United States, 181 F.2d 419 (3 Cir. 1950), cert. den. 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632, and Makariw v. Rinard, 336 F.2d 333 (3 Cir. 1964) do not support the majority’s application of collateral estoppel here. In Bruszewski, it was held that judgment against the plaintiff in a prior suit against the Isthmian Steamship Company was res ad judicata with respect to his second suit against the United States which owned the vessel operated by the steamship company.
In Makariw we held that neither res ad judicata nor collateral estoppel barred the plaintiff’s recovery because the defendant, in a prior action, arising out of the same accident, had recovered against the employer of the plaintiff’s decedent on the finding that the decedent had been guilty of negligence. We did so on the ground that the plaintiff, the decedent’s administratrix, had not had her day in court. The premise of the majority’s theory is that the doctrine is applicable here because “The primary adversaries, therefore, were Cionci’s estate and Lum-bermens, and it was through Cionci’s estate, which was a named party, that the plaintiffs, including Harris, claimed.”
The hard and inescapable fact is that the real and primary adversaries are Ci-onci’s estate, all the plaintiffs and the absent Dutcher. It is Cionci’s estate which seeks the coverage of Dutcher’s policy in conflict with Dutcher’s interest, and the plaintiffs who similarly look to that coverage to pay any claims recovered against Cionci’s estate, in similar conflict with Dutcher’s interest.
It is manifestly unfair to apply the doctrine of collateral estoppel in the situation stated, in a maneuver to avoid deciding an issue which is critical on this appeal and of vital impact on the real and primary adversaries.
. For simplicity, the name of the representative of a decedent’s estate is omitted.
. 12 P.8. §§ 1601, 1602. The statute provides that specified relatives of one whose death has been wrongfully caused by unlawful violence or negligence shall be entitled to recover damages for any injuries causing death, and in the event none of the specified relatives survive the decedent, then the personal representative shall be entitled to recover certain enumerated damages, viz., hospital, nursing, medical expenses and expenses of administration.
. 20 P.S. § 320.601.
. The instant declaratory judgment act proceeding is the outcome of Civil Action 25149.
. That appears from the affidavit of L. C. Pirrung, Jr. which states: “Sarah B. Smith, Administratix of the Estate of Thomas W. Smith, Deceased, instituted suit in the Court of Common Pleas of Delaware County at December Term 1959, No. 1047 to recover damages for the alleged wrongful death of the said Thomas W. Smith, Deceased.”
. The majority has inexplicably and arbitrarily refused to apply the cited Pennsylvania decisions holding that the Pennsylvania Dead Man’s Act does not render a witness incompetent in a wrongful death action or in instances where a survival action is joined with a wrongful death action, as here.
. Harris had been picked up by Cionci and Lynch in Media to which they had proceeded after obtaining use of Dutch-er’s car. The accident happened on the way back to Bryn Mawr from Media.
. Graves v. Associated Transport, Inc., 344 F.2d 894 (4 Cir. 1965), also cited by the majority, is clearly not a case of offensive or affirmative collateral estop-pel. There an unsuccessful defendant in a prior suit was estopped from relitigating the same issue when he became a plaintiff in a second suit. Berner v. British Commonwealth Pacific Airlines, Ltd., 346 F.2d 532 (2 Cir. 1965), cited in note 17 of the majority opinion, denied plaintiff offensive use of collateral estoppel in an airline accident case.
. See the criticism in 64 Colum.L.Rev. 1141 (1964) of the Zdanok case.
. Likewise, in De Witt the majority expressly stated that defendant offered “no reason for not holding him to the determination in the first action”; that it was “unquestioned (and probably unquestionable) that the first action was defended with full vigor and opportunity to be heard”; and that the plaintiff in the second action, the owner of the vehicle involved in a collision, derived his right of action from the plaintiff who won in the first action, the driver of the vehicle. 278 N.Y.S.2d at 601, 225 N.E.2d at 199.