Rosche v. McCoy

• Citation: 397 Pa. 615,156 A.2d 307
• Decision Date: 25 November 1959
• Docket Number: No. 142,No. 141,141,142
• Parties: , 81 A.L.R.2d 377 William ROSCHE, Guardian for Dennis Howard Rosche, a minor, v. Frank C. McCOY, Executor of the Estate of Fred McCoy, Deceased, Appellant in, and William Rosche and Genevieve Rosche, Additional Defendants. William ROSCHE v. Frank C. McCOY, Executor of the Estate of Fred McCoy, Deceased, Appellant in 141, 142
• Court: United States State Supreme Court of Pennsylvania

Page 307

156 A.2d 307

397 Pa. 615, 81 A.L.R.2d 377

William ROSCHE, Guardian for Dennis Howard Rosche, a minor, v. Frank C. McCOY, Executor of the Estate of Fred McCoy,

Deceased, Appellant in No. 141,

and

William Rosche and Genevieve Rosche, Additional Defendants.

William ROSCHE v. Frank C. McCOY, Executor of the Estate of Fred McCoy,

Deceased, Appellant in No. 142.

141, 142

Supreme Court of Pennsylvania.

Nov. 25, 1959.

Rehearing Denied Dec. 31, 1959.

Martin E. Cusick, William J. Joyce, Wiesen, Cusick, Madden, Joyce, Acker & McKay, Sharon, for appellant.

Chester B. Scholl, C. T. Garvey, Sharon, for appellees.

Before CHARLES ALVIN JONES, C. J., and BELL, BENJAMIN R. JONES, COHEN, BOK, and McBRIDE, JJ.

McBRIDE, Justice.

This is an appeal from a judgment entered on a verdict for plaintiff in a negligence case. The accident occurred on October 22, 1954, in Sharon, Pennsylvania, when a vehicle, being driven by Fred McCoy, in a southward direction on Flowers Avenue, came in contact with the minor plaintiff, Dennis Rosche, ¹ causing a head injury to him which was permanent in nature. The action was commenced by William Rosche as parent and natural guardian both in his owe right and on behalf of Dennis. Prior to the trial the defendant, Fred McCoy, died and his executor, Frank C. McCoy, was substituted for him on the record. The defendant joined the father and mother of Dennis as additional defendants. On November 8, 1956, the deposition of Fred McCoy was taken to perpetuate his testimony and in May, 1957, during the lifetime of Fred McCoy, the deposition of the minor plaintiff, Dennis, was taken. At that time Dennis was 7 years 9 months old. The trial commenced on February 3, 1958, and concluded on February 6, 1958. The jury returned a verdict in favor of the parent, William Rosche, in his own right and also on behalf of the minor child. Defendant filed motions for judgment n. o. v. and for a new trial. These were denied and judgments were entered on the verdict. On appeal the motion for judgment n. o. v. has not been pressed. In any event, the evidence actually received by the court, whether its rulings thereon were right or wrong, must be considered in deciding such a motion. Cherry v. Mitosky, 353 Pa. 401, 45 A.2d 23; Hershberger v. Hershberger, 345 Pa. 439, 29 A.2d 95. The court below correctly refused to enter judgment n. o. v. on the authority of Van Buren v. Eberhard, 377 Pa. 22, 104 A.2d 98.

It is contended, however, that the verdict was against the weight of the evidence. This question is within the discretion of the trial judge, and his decision thereon will not be reversed unless for clear abuse of that discretion. Such abuse has not been shown.

Appellant presses upon us that there were serious trial errors. The most important is that the court admitted the testimony of Carolyn Laou, whose birth date is not shown by the evidence but who was 4 years of age at the time of the accident and 7 years of age at the time she testified. The court ruled that she was competent.

Competency is the rule and incompetency the exception. Allen's Estate, 207 Pa. 325, 327, 56 A. 928; Pattison v. Cobb, 212 Pa. 572, 573, 61 A. 1108; Bates v. Carter Const. Co., 255 Pa. 200, 205, 99 A. 813, 814. The burden to show incompetency lies upon the party who asserts it. McClelland's Executor v. West's Administrator, 70 Pa. 183, 187, so decided under the Act of April 15, 1869, P.L. 30; Bates v. Carter Const. Co., 255 Pa. 200, 205, 99 A. 813, 814, interpreted the Act of May 23, 1887, P.L. 158, 19 P.S. § 681 et seq., which repealed the Act of 1869, supra, to the same effect. Neither act rendered any person incompetent who was competent before its passage. Paschall v. Fels, 207 Pa. 71, 79, 56 A. 320, 323; Groome's Estate, 337 Pa. 250, 255, 11 A.2d 271, 273; Brown's Estate, 131 Pa.Super. 463, 467, 200 A. 940, 941, 942.

The question of competency of persons said to be mentally immature due to infancy is to be determined in the discretion of the trial judge after an inquiry as to mental maturity once the fact of infancy appears on the record or is obvious to the judge. This discretion, however, is not absolute but legal. Nevertheless, it will not be reversed in the absence of abuse.

In the earlier common law the ability of a child of tender years to understand the obligation of an oath was the pivotal factor because it was thought that otherwise the child might be giving what amounts to unsworn testimony. That was the view originally taken by the trial judge when the question of competency was first raised. Thereafter, however, he applied the rule that no particular age has been held to be conclusive of incapacity and that the question must be judicially ascertained in the light of the facts and circumstances surrounding the particular case. However, the issue is not to be determined merely because of the capacity of the witness at the time he is called to communicate his thoughts in terms of language. There must be (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is called to testify about and (3) a consciousness of the duty to speak the truth. These first two considerations are in some instances easily answered where a 7 year old witness is called upon to testify as to a very recent event, particularly where the testimony covers a simple and uncomplicated fact. The situation, however, is not the same where a 7 year old witness is called upon to testify what that witness saw when she was 4 years of age. See Commonwealth v. Furman, 211 Pa. 549, 60 A. 1089; Piepke v. Philadelphia & Reading Railway Company, 242 Pa. 321, 89 A. 124.

The presently prevailing rule (in the absence of statute) is that competency is presumed where the child is more than 14 years of age. Under 14 there must be judicial inquiry as to mental capacity, which must be more searching in proportion to chronological immaturity. In the disposition of such a question the courts are confronted by conflicting policies. One is that a party should not be denied justice because reliance necessarily must be placed upon the testimony of a child of tender years. But, on the other hand, experience has informed us that children are peculiarly susceptible to the world of make-believe and of suggestions. Care must be exercised to keep the balance true as between these conflicting claims. So it is that much must be left to the discretion of the trial judge who hears and sees the witness.

No case in this commonwealth has been called to our attention or discovered by our own research which passed upon competency of a 7 year old child to testify as to events which occurred when she was 4 years old. It is obvious that had she been called as a witness at the time of this occurrence, when she was but 4 years of age, she would have been incompetent. See Commonwealth v. Goldman, 127 Pa.Super. 523, 193 A. 112, where the Superior Court refused to sustain a verdict which relied on the testimony of a 5 year old. Carolyn's memory of the event and its details did not, indeed it could not, improve as time went on. The only thing that did improve was her capacity to communicate in terms of words. But that capacity is meaningless unless supported by the capacity to note the occurrence at the time it happened and the ability to remember it. ²

In Commonwealth v. Allabaugh, 162 Pa.Super. 490, 58 A.2d 184, testimony as to an act of sodomy occurring shortly before was admitted on the part of a childvictim almost six years old because of her statement that if she did not tell the truth she would be punished in various ways. In Commonwealth v. Furman, supra, an 8 year old witness was permitted to testify after he stated that he knew he must tell the truth. The testimony was not material to the establishment of guilt and had no practical bearing on it. In Commonwealth v. Troy, 274 Pa. 265, 118 A. 252, a 9 year old witness met the required test when he testified that if he did not tell the truth he would go to hell. Competency had been attacked solely because he could not remember the name of an aunt.

In the present case the testimony of the 7 year old girl as to events occurring approximately 3 years before was material to the whole issue. Here her testimony was not to a simple fact, such as that a dog bit her or that it was her father who shot her mother. Her testimony involved the exercise of contemporaneous judgment as to different factors ordinarily beyond the comprehension of a 4 year old child. It was not shown that she was precocious, but, on the other hand, her testimony did not show that she was not an ordinarily intelligent child for her age. The important part of her testimony on direct examination was as follows:

'Q. Tell us what happened that day. A. Well, he was on the other side of the street and he walked in the middle of the street and he was calling us names and a car came up from State Street and it came down and it turned and we told him to get out of the way and he didn't listen and the car came down and hit him and the guy came and he picked him up and he took him in the car and he took the shoes in there.

'Q. What side of the street were you on, honey? A. I was on the side I live.

'Q. And on what side was Denny on before he walked into the street? A. He was on Mrs. Moran's side--the other side of the street.'

On cross-examination her essential testimony remained unshaken but she did not remember how long she had been on the sidewalk, nor whether she had her lunch that day before the accident, nor how long Dennis had been in the street, although she later stated he had been standing there about 'ten minutes'.

The whole of her testimony shows (1) that Dennis walked and did not run into the street and was standing at the time of the accident; (2) that he had been on the...