# McGugart v. Brumback > Washington Supreme Court · December 31, 1969 · 77 Wash. 2d 441 URL: https://www.frixlaw.com/law-library/cases/9536072 ## Case - **Full name:** Daniel McGugart, Respondent, v. Addie M. Brumback, as Administratrix, Appellant - **Court:** Washington Supreme Court - **Decided:** December 31, 1969 - **Citations:** 77 Wash. 2d 441; 463 P.2d 140; 1969 Wash. LEXIS 604 - **Precedential status:** Published - **Opinion:** Dissent by Hamilton - **Judges:** Neill, Hamilton - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9536072 ## Opinion text Hamilton, J. (dissenting) — I dissent. The majority, in my view, has unnecessarily and without compelling reason reached out to strike down a preexisting and well-established rule of law and procedure which found its judicial rationale and genesis in this jurisdiction as early as 1912, was fully recognized and expressed in 1936, and was reaffirmed by this court as late as 1943 and 1968. Robertson v. O’Neill, 67 Wash. 121, 120 P. 884 (1912); American Fruit Growers, Inc. v. Calvert, 186 Wash. 29 , 56 P.2d 1307 (1936); Miller v. O’Brien, 17 Wn.2d 753, 137 P.2d 525 (1943); and Hall v. American Friends Serv. Comm., Inc., 74 Wn.2d 465 , 445 P.2d 616 (1968). In so doing, the majority has quietly and conveniently ignored the history of interrogatories and depositions in this state, and has pivoted the about face upon the adoption in our state of the Federal Rules of Civil Procedure. Also, it seems to me, the majority has focused consideration of its innovation primarily upon the area of alleged contractual claims against a decedent’s estate without giving full regard to the possible impact of the new approach in other contexts, e.g., probate and contests of wills, tort and fraud actions, partnership accountings, partition proceedings, all of which fall under the constrictions of the so-called “dead-man’s” statute (RCW 5.60.030), when the estate of a decedent is appropriately involved. In re Estate of Wind, 27 Wn.2d 421 , 178 P.2d 731 , 173 A.L.R. 1276 (1947); Maciejczak v. Bartell, 187 Wash. 113, 60 P.2d 31 (1936); Shaw v. Lobe, 58 Wash. 219 , 108 P. 450 (1910); Hampton v. Gilleland. 61 Wn.2d 537 , 379 P.2d 194 (1963). The ramifications of the newly announced rule in these related areas of litigation were, neither briefed nor argued by counsel nor explored by the majority in its discussion. As early as the territorial days of 1854, this jurisdiction enacted statutes, in lieu of the common-law bill of discovery, which enabled the (1) pretrial discovery of facts and *453 documents material to the support or defense of pending litigation by way of written interrogatories to be answered under oath by an adverse party, (2) examination of an adverse party as a witness at trial, and (3) rebuttal by adverse testimony of any evidence of an adverse party elicited either through pretrial interrogatories or by examination at trial. Laws of 1854, 1st Ses., ch. 33, §§ 305, 306, 308, 309, p. 189. Furthermore, all or any pertinent parts of the interrogatories and answers could be introduced into evidence at the trial by the proponent. Allend v. Spokane Falls & N. Ry., 21 Wash. 324 , 58 P. 244 (1899). And, it was early determined that the proponent of interrogatories, the answers to which were later put in evidence at the trial by the proponent, was not bound by his adversary’s answers. Sawdey v. Spokane Falls & N. Ry., 30 Wash. 349 , 70 P. 972 (1902). Depositions, as distinguished from written interrogatories, were, on the other hand, generally limited to the preservation or perpetuation of the testimony of a witness who might not otherwise be available at the trial. Laws of 1854, 1st Ses., chs. 34, 35, 36, p. 190-93. The early territorial laws and procedures remained with us in virtually their original form until their formal repeal by Laws of 1957, ch. 50, p. 179. They were, however, during the interim, periodically supplemented, expanded and partially abrogated by court rule. In this latter respect, the first pertinent supplementation of the statutory discovery procedures by way of court rule appears to have surfaced in early 1927, when, pursuant to Laws of 1925, ch. 118, p. 187, authorizing such, this court first promulgated and adopted Rules of Pleading, Procedure and Practice. At that time Rule 8 of such rules, authorized the taking of the deposition of an adverse party and the use thereof as evidence in the trial. Rules of Pleading, Procedure and Practice 8, 140 Wash, xl (1927). It was under the reign of this rule that our decision in American Fruit Growers, Inc. v. Calvert, supra, was rendered. The next significant change occurred in 1938 when the Rules of Pleading, Procedure and Practice were revised *454 and Rule 8, above mentioned, dealing with depositions, was altered to permit the pretrial oral examination of an adverse party. The altered rule, however, restored some of the original 1854 restrictions upon the use of depositions at trial. Rule of Pleading, Procedure and Practice 7, 193 Wash. 44 -a (1938). It was against this background that the court reaffirmed the American Fruit Growers decision in Miller v. O’ Brien, supra. Except for the importation in 1942 of rules relating to pretrial conferences and admission of facts and genuineness of documents (Rules of Pleading, Procedure, and Practice 18, 21, 11 Wn.2d xviii , xx (1942)), modeled after the Federal Rules of Civil Procedure (effective September 16, 1938), no additional significant changes in the discovery procedures of this jurisdiction were forthcoming until 1950, when, as the majority point out, the language of the Federal Rules of Civil Procedure pertaining to depositions, oral examinations, and written interrogatories was adopted. Rules of Pleading, Practice, and Procedure 26, 30, 31, 33, 34A Wn.2d 84, 90, 94, 97 (1950). Without pertinent change these cited rules constitute our present CR 26, 30, 31, and 33, which permit pretrial discovery by way of oral examination as well as written interrogatories, and authorize use of the answers as evidence in the trial. Against this backdrop, we again reaffirmed the American Fruit Growers, Inc., ruling in Hall v. American Friends Serv. Comm., Inc., supra. In summary, this abbreviated review of the history, availability, and use of pretrial discovery in this state as between adverse parties, together with a comparison of the provisions of past statutes and present rules, indicates that, with the exception of a moderate broadening of the scope of inquiry by way of written interrogatory, the principal changes over the years have occurred in the deposition field, i.e., broadening the scope and use of depositions and oral examinations. Thus, it would appear that the major shift in pretrial discovery procedures and techniques in this state, as between adverse parties, has been in method rather than availability. This is hardly the cataclysmic *455 change which the majority propounds as a reason for overruling the prior decisions of this court extending from 1936 to 1968, each of which was considered and decided within the framework of a system of statutes, rules, and judicial decisions permitting pretrial discovery and use of the information at trial. To bolster its position, the majority point to decisions of federal courts, which, in turn, rely upon the first sentence of Fed. R. Civ. P. 26 (f), which asserts that a party shall not be deemed to make an adversary his own witness by pursuing discovery procedures. Here again, this offers but a straw upon which to rest the majority’s conclusion, for whatever might have been the rule in federal jurisdictions prior to the advent of Rule 26(f), supra, the rule in this state has always been that a party did not become bound by the testimony of his adversary when elicited either by way of pretrial written interrogatory or through examination at trial. Laws of 1854, 1st Ses., ch. 33, § 309; Sawdey v. Spokane Falls & N. Ry., supra. These federal decisions, therefore, offer a weak excuse for reaching a result contrary to our prior decisions. Furthermore, it is reasonable to conclude that the basic purpose of the first sentence of Rule 26(f), supra, is to enhance the opportunity to reveal truth and uncover falsity at the trial of a cause, by permitting a party before trial to freely seek and lay a foundation upon which to impeach or otherwise mount attacks upon the credibility of the opposing party’s claim at the time of trial. Such a purpose, in my view, is inconsistent with the majority’s expansion of the deadman’s statute to the point where a claimant’s mouth can now be forced open during pretrial discovery but may be effectively and unfairly closed at trial. Although the majority’s approach may materially aid a personal representative in his pretrial search for the truth, it appears to me that it can seriously hamper a fair and equal revelation of the same truth at the time of trial. Finally, the majority decries the so-called Hobson’s choice which an executor or administrator must face when confronted by a claim against the estate of a decedent, i.e., *456 to stand on the deadman’s statute or to risk waiving it by pursuing discovery. To strengthen this argument, the majority again points to the expanded scope and use of discovery techniques under our current rules, and reasserts that the objective is the revelation of truth in litigation as well as the simplification of issues. Hence, the majority argues, it is unfair to thrust a personal representative into a position of being unable to stand upon the deadman’s statute after the personal representative has conducted a thoroughgoing, under oath, exploration of a claimant’s cause. In my view the reverse is true. The majority asserts that, among others, one of the purposes of the deadman’s statute is to prevent frauds upon the estates of those who are no longer present or competent to defend themselves. Whatever may be the validity of this assertion 1 , it is equally proper to say that the deadman’s statute was not designed nor intended to work a fraud upon legitimate claimants who have suffered some form of loss at the hands of a person since deceased. Moreover, the dead-man’s statute is a restriction upon the competency of witnesses and ought not be unnecessarily or overzealously extended. In fact, about half of the states of the Union do not have such statutes on their books and the proposed Uniform Rules of Evidence abolish the rule altogether. 5 R. Meisenholder, Wash. Prac. § 171 (1965), at 180'. And, finally, it is to be borne in mind that the deadman’s statute does not prohibit interested persons from testifying on behalf or in favor of an estate — it only precludes testimony of an interested party on his own behalf against an estate — thus further unbalancing the relationship of the parties and in *457 hibiting the search for truth in the particular litigation wherein it comes into play. Returning then to the majority’s Hobson’s choice argument, it is reasonable to assume that when a claim, with its accompanying affidavit, is initially filed with an executor or administrator some kind of an investigation into and evaluation of its validity is pursued by the personal representative before he allows, compromises or rejects the claim. Certainly, the personal representative could do no less and still carry out his duties to legitimate creditors as well as his correlative obligation to protect the estate from invalid claims. In any event, at this point in time, the personal representative must, in relation to the claim, make some type of judgment based upon some kind of information concerning the background and circumstances giving rise to the claim. In the great majority of instances he does not act in a vacuum. And, it would not be unreasonable to assume in this connection that the personal representative, together with his attorney, would give some consideration to the applicability of the deadman’s statute and its potential effect upon the ultimate establishment of the claim. Again, when suit is filed on a rejected claim, accompanied as it usually is with a heavy burden of proof resting upon the claimant (clear and convincing proof in contract actions such as the instant one), it is not unfair to presume that the personal representative and his counsel come into possession of a bit more knowledge concerning the character and circumstances of the claim which enable them, for the second time, to evaluate the probable effect of the dead-man’s statute upon the claim and the advisability of standing upon it or waiving it. Nevertheless, the majority would now afford a third opportunity for the personal representative to assess and weigh the impact of the deadman’s statute upon the pending claim. And this it does, contrary to our former decisions, upon the basis that our current rules of procedure have broadened and expanded the methods of discovery. Thus, the majority would permit the personal representative on behalf of the estate to explore by way of oral *458 examination, depositions, written interrogatories, and requests for admission of facts every facet of the claimant’s cause; extract and shrewdly utilize the favorable information while discarding the unfavorable matter; and at trial force the claimant to overcome not only the usually heavy burden of proof but also the restrictions of the deadman’s statute. This, the majority contends, is essential to maintain a fair balance between the parties. In short, as I glean the reasoning of the majority, it is to the effect that our former rule was proper because of the limited fishing rights then afforded to a personal representative, but now, since those fishing rights have been vastly expanded, it is appropriate to arm the personal representative with more hooks. This reasoning may find favor in the piscatorial field; however, I cannot agree that it lends aid to the search for truth in the field of civil litigation. Rather, in my view, our former rule provided a happy balance between the deadman’s statute and pretrial discovery. I would, accordingly, adhere to the rule announced in American Fruit Growers, Inc. v. Calvert, supra, and affirm the judgment. Hunter, C. J., Finley and Rosellini, JJ., concur with Hamilton, J. Professor Wigmore in his treatise on the law of evidence (2 J. Wigmore on Evidence §§ 578 and 578a (3d ed. 1940)) seriously challenges the assertion that a deadman’s statute such as ours constitutes a valid protection against false claims. As a basis for his theme, Professor Wigmore points to two surveys on the subject, one conducted by a committee of judges, lawyers and law professors between 1921 and 1927, and a second at the behest of the American Bar Association in 1937-38. Both surveys concluded that such a statute was not a necessary protection against false claims, but rather was an unnecessary obstruction to the ascertainment of truth. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9536072. Public record. Not legal advice.