McGugart v. Brumback, 39584

• Decision Date: 31 December 1969
• Docket Number: No. 39584,39584
• Court: Washington Supreme Court
• Parties: Daniel McGUGART, Respondent, v. Addie M. BRUMBACK, as Administratrix of the Estate of William Rhodes, deceased, Appellant.

Page 441

77 Wn.2d 441

463 P.2d 140

Daniel McGUGART, Respondent, v. Addie M. BRUMBACK, as Administratrix of the Estate of William Rhodes, deceased, Appellant.

No. 39584.

Supreme Court of Washington, En Banc.

Dec. 31, 1969.

Philip R. McIntosh, John R. Simmons, Seattle, for appellant.

Culp, Dwyer, Guterson & Grader, Robert A. Keolker, Seattle, for respondent.

NEILL, Judge.

Plaintiff, Daniel McGugart, brought this action against the estate of William Rhodes, deceased, seeking to recover compensation for goods and services rendered decedent during his lifetime. The primary issue raised on appeal is whether the submission of written interrogatories to plaintiff concerning his alleged transactions with the defendant was a waiver of defendant's right under RCW 5.60.030, the deadman's statute, to bar testimony by plaintiff at trial.

Prior to trial, defendant administratrix submitted written interrogatories to plaintiff pursuant to CR 33, RCW vol. O (formerly RPPP 33). These included:

9. What were the nature of the goods and services allegedly rendered by plaintiff for the period March 1, 1951 to July 1, 1965?

10. Was the agreement to render goods and services to the Deceased oral or written?

11. State the nature of the agreement and the date said alleged agreement was entered into and where said alleged agreement was entered into.

12. Was the agreement to render 24 hour nursing care to the deceased oral or written?

13. State, in substance, the nature of the agreement to render nursing care if oral and, if written, set forth the written agreement.

15. What was the extent, the duties, and the nature of the nursing care rendered to the deceased subsequent to July 1, 1965.

Plaintiff duly answered the interrogatories. Defendant did not offer the interrogatories and answers into evidence at trial. ¹

During trial plaintiff was asked a question by his counsel concerning his oral agreement with the deceased. Defendant objected, contending the proffered testimony was incompetent under the deadman's statute. The objection was overruled on the ground that the submission of the interrogatories constituted a waiver of the bar of the statute. Later in the trial, an objection to similar testimony of plaintiff's wife was made by defendant. This objection was also overruled.

A judgment for plaintiff was entered on the theory that there was an implied contract between plaintiff and decedent.

Defendant administratrix appeals. Her principal assignments of error challenge the trial court's rulings on the competency of both plaintiff and his wife to testify concerning their transactions with the decedent.

The trial court's ruling was based upon our prior holdings that when a personal representative of a deceased person causes the pretrial deposition of the adverse party to be taken, which reaches alleged transactions with the decedent, such inquiry constitutes a waiver of the bar of the deadman's statute with respect to such transactions. American Fruit Growers, Inc. v. Calvert, 186 Wash. 29, 56 P.2d 1307 (1936). Also Hall v. American Friends Service Committee, Inc., 74 Wash.Dec.2d 475, 445 P.2d 616 (1968); and Miller v. O'Brien, 17 Wash.2d 753, 137 P.2d 525 (1943).

Defendant urged to the trial court and reiterates here that the rule of American Fruit Growers, Inc. v. Calvert, Supra, should be reexamined in light of changes in our rules and concepts of pretrial discovery proceedings as permitted by CR 33, RCW vol. O, and CR 26, RCW vol. O. We see no basis for distinguishing between a pretrial discovery process carried out by written interrogation under CR 33, rather than by deposition under CR 26. We believe that changes in the rules and the theories surrounding these discovery techniques require us to reexamine these earlier decisions.

These holdings force the representative of a decedent's estate to exercise these discovery procedures at his peril. The result is that a careful executor or administrator will waive the benefits of this useful fact finding procedure to avoid the forfeiture of the protection given by the statute to heirs, legatees and other creditors of the estate.

We have previously recognized the difficulty in laying down a fixed rule concerning questions which would constitute a waiver of the bar of the deadman's statute. Miller v. O'Brien, Supra. In fact, whether these is a waiver would seem to depend as much upon the answers as upon the questions propounded. Therefore, as a practical matter, a decedent's representative is confronted with a Hobson's choice of either exercising his rights of discovery or relying upon the protective bar of the statute. Such a result and dilemma for a personal representative are not supported by the rationale behind either the rules of the statute.

Our discovery rules are taken almost verbatim from the Federal Rules of Civil Procedure. The pretrial deposition-discovery provisions of these rules were among the most significant innovations contained in the federal rules. They were designed to eliminate the 'hide and seek' trial practices encouraged by earlier procedures. They serve to narrow the issues and provide access by all parties to the facts pertinent to these issues. It is well settled that these rules are to be given a broad and liberal construction. See Moore v. Keesey, 26 Wash.2d 31, 173 P.2d 130 (1946); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).

Deadman's statutes are obviously designed to prevent frauds upon the estates of those who are no longer present to defend themselves. The doctrine that the personal representative may waive the protection of this statute by using testimony forbidden to the other side is sound, and eliminates what would otherwise be a flagrant injustice in the statute.

It would * * * be palpably unjust to permit the representative of a deceased person to use the adverse party to the extent that it might aid him in defeating a claim, or in establishing an independent claim in favor of the estate, and then claim the benefit of the statute when the adverse party sought to qualify or explain his testimony.

Robertson v. O'Neill, 67 Wash. 121, 124, 120 P. 884, 885 (1912).

At a time when depositions were always taken with a view toward introducing them in evidence and broad questions for purposes of discovery were prohibited, there was reason for the rule that objections to a party's competency were waived by deposing that party--particularly when the party questioned also waived any objections not made during the taking of the deposition.

The adoption of our new rules of discovery in 1950 marked a major change in our attitude toward interrogatories and depositions. Depositions may now be used for discovery, for use as evidence, or both. CR 26(a). Interrogatories no longer entail ritualistic little trials, but have become economical and expeditious means of discovery which frequently are not intended to be used as evidence. Slover v. Harris, 77 Wyo. 295, 314 P.2d 953 (1957).

All parties have the right to use these discovery techniques and their availability is essential to a fair trial of all the issues. 'Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.' Hickman v. Taylor, Supra, 329 U.S. at 507, 67 S.Ct. at 392. This mutual access to knowledge, secured by discovery, is a basic premise upon which civil litigation is now conducted and its availability should not be strictly contingent upon the rules of evidence or competency as are applied at trial.

To hold that the mere Taking of a deposition constitutes a waiver arbitrarily forces the decedent's representative to forego either the protection of the deadman's statute or the benefit of the discovery processes. Judicial dissatisfaction with the deadman's statute as expressed by some legal writers should not be used as an excuse to deprive a personal representative of an otherwise acceptable and acknowledged benefit of a fact finding process. The wisdom of the deadman's statute is a matter which has been determined by the legislature. The prudent personal representative can hardly be expected to waive a statutory protection and thus risk an unwarranted exposure for heirs, legatees and other claimants. The result, for all practical purposes, is that an estate is deprived of the discovery machinery available to othre civil litigants. Any imbalance of the relationship between a decedent's estate and a claimant against the estate is created by the deadman's statute, not by a legitimate use of discovery procedures. The Supreme Court of Michigan arrived at a similar conclusion in Banaszkiewicz v. Baun, 359 Mich. 109, 115, 101 N.W.2d 306, 308 (1960):

It is apparent that there is no conflict between the purposes * * * of the dead man's statute and the rule for discovery. Both are intended to aid in arrival at truth and justice in litigation. Invoking the one need not be treated as a waiver of the other. Enabling both parties to become fully conversant with all the facts involved in a matter and to avoid 'traps and surprises' makes for enlightened administration of justice. Its achievement need not be paid for by sacrifice of the object or purpose of the dead man's statute. There is no unfairness in permitting defendants and their counsel to know what plaintiff's claims are and the foundation on which she bases them and, yet, at the same time, closing her mouth at trial as to matters equally within the knowledge of the deceased whose mouth has been closed by death.

Further, the conclusion that the mere taking of a deposition constitutes a waiver is negated by CR 26(f), which reads:

A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, * * *.

4 Moore's...