Dulnikowski v. Stanziano

• Decision Date: 15 June 1961
• Parties: Leon Louis DULNIKOWSKI, Appellant, v. Victor STANZIANO, Appellee.
• Court: Pennsylvania Superior Court

172 A.2d 182

195 Pa.Super. 508

Leon Louis DULNIKOWSKI, Appellant, v. Victor STANZIANO, Appellee.

Superior Court of Pennsylvania.

June 15, 1961.

Edward O. Spotts, Charles S. Morrow Pittsburgh, for appellant.

Robert E. Wayman, Dickie, McCamey, Chilcote & Robinson, Pittsburgh for appellee.

Before ERVIN, Acting P. J., and WRIGHT WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

MONTGOMERY, Judge.

This is an appeal from an order granting defendant's motion for nonsuit. The action was brought by the plaintiff to recover damages for personal injuries sustained on September 23 1956, when it is alleged that he tripped over a fence which extended over and across the public sidewalk adjacent to the premises of 1712 Fifth Avenue in the Borough of Arnold Westmoreland County, where the defendant, a general contractor, was engaged in construction work and in the course of such work had placed the fence upon the sidewalk. There was conflicting testimony covering the presence or absence of light. Great difficulty was encountered in understanding the plaintiff even though two different interpreters were used by the court, in an effort to make the plaintiff's testimony more intelligible. He was the sole witness to testify as to the accident.

After the trial had proceeded to the damage phase and the plaintiff had rested on liability, the plaintiff's physician, a general practitioner, called as plaintiff's medical witness, on cross-examination expressed the opinion that the plaintiff was not competent to testify because of senility. The trial judge, upon motion by counsel for the defendant, struck the entire testimony of the plaintiff relating to the accident. The court then entered judgment of compulsory nonsuit.

The sole question in this case is the propriety of the court below in striking the testimony of the plaintiff because of his mental incompetence upon the opinion of a general practitioner.

The general rule is that the testimony of a witness suffering from an illness affecting mentality is admissible if he has sufficient understanding to apprehend the obligation of an oath, and be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue. Commonwealth v. Kosh, 305 Pa. 146, 157 A. 479; Commonwealth v. Loomis, 270 Pa. 254, 113 A. 428. The mere fact that the plaintiff suffered from senility which at times affected his memory did not render him incompetent to testify. In McClaney v. Scott, 188 Pa.Super. 328, 146 A.2d 653, this Court held that incompetency of a witness does not necessarily follow from insanity. Neither does incompetency of a witness necessarily follow from senility. Mere weakness of intellect resulting from sickness or old age is not legal grounds for voiding the positive acts such as deeds, contracts, wills, etc., if sufficient intelligence remains to comprehend the transaction. In re Ash's Estate, 351 Pa. 317, 41 A.2d 620; Kish v. Bakaysa, 330 Pa. 533, 199 A. 321; Hamilton v. Fay, 283 Pa. 175, 128 A. 837. The same reasoning would apply to sworn testimony.

In the present case, no attempt was made by the trial judge to determine the understanding of this witness or his ability to comprehend the obligation of the oath. The only evidence of mental incapacity before the lower court other than the opinion of a general practitioner is the testimony of the plaintiff himself. Alth...