Goehring v. Dillard

Full title: GOEHRING, APPELLEE v. DILLARD, A MINOR; DILLARD, ADMR., APPELLANT

Court: Supreme Court of Ohio

Date published: Apr 4, 1945

145 Ohio St. 41 (Ohio 1945)

60 N.E.2d 704

Opinion

No. 30060

Decided April 4, 1945.

Executors and administrators — Presentation of claims in writing — Section 10509-112, General Code — Not necessary to present properly revived action against deceased defendant — Deposition of such defendant may be read in evidence — Plaintiff may testify as to competent matters contained therein, when — Section 11495, General Code.

1. Where an action against a deceased defendant has been revived properly it is not necessary for the plaintiff in such revived action to present his claim in writing to the executor or administrator as provided in Section 10509-112, General Code.

2. Where the deposition of a defendant is duly filed in an action properly revived against defendant's administrator, such deposition may be read in evidence and the plaintiff may thereafter testify as to all competent matters contained in such deposition. (Paragraph 8, Section 11495, General Code.)

APPEAL from the Court of Appeals of Summit county

Appellee (plaintiff below) brought an action against a minor for damages for personal injury suffered by appellee in an automobile collision.

A guardian ad litem was appointed for the minor and such guardian filed an answer joining issue generally on the allegations of the petition and pleading contributory negligence.

Thereafter the minor defendant died, an administrator (appellant herein) was appointed and the action revived by an agreed entry filed within the time provided by law for the presentation of claims by creditors of the estate of a deceased person. This entry reads:

"The death of the defendant, Ransie Dillard, being suggested, and the court finding that his death occurred on May 2, 1943, and it further appearing that Louis Dillard is now the duly appointed, acting and qualified administrator of the estate of said deceased defendant, Ransie Dillard, it is now accordingly the order of this court that this action be, and the same is hereby revived in the name of the said Louis Dillard, as administrator of the estate of said deceased defendant, Ransie Dillard, and that this action may proceed to final determination, on the issues made by the pleadings heretofore filed herein, without amendment, refiling or reverification." This entry was approved by attorneys for plaintiff and defendant.

The record does not disclose that appellee ever made formal presentation of his claim in writing to the administrator save by the aforesaid procedure for revivor.

After the action was revived and shortly before trial the administrator sought leave to file a supplemental answer which contained a third defense to the effect that, since plaintiff did not present his claim to the defendant as administrator in writing within four months after the appointment of the administrator, the claim was barred. While leave to file this supplemental answer was first denied such leave was later granted and plaintiff's demurrer to the third defense thereof was sustained. The same question was variously raised and the exceptions of the administrator saved.

Prior to the trial the plaintiff filed the deposition of Ransie Dillard taken on August 27, 1941. Six grounds of exceptions were taken by the defendant administrator to the deposition:

"1. That at the time of the taking of the deposition of the said Ransie Dillard he was a minor and the sole defendant, with his defense herein being made by Louis E. Dillard, as his guardian ad litem.

"2. That subsequent to the taking of said deposition it was not filed herein during his lifetime.

"3. That at the time of the taking of said deposition Louis E. Dillard, administrator of the estate of Ransie Dillard, deceased, was not a party to this action and as such administrator was not served with any notice of the taking of said deposition.

"4. That the parties to this action at this time are not the parties to the action at the time of the taking of said deposition.

"5. That the testimony of the said Ransie Dillard, as contained in said deposition is not admissible, relevant or competent as against the defendant, Louis E. Dillard, administrator of the estate of Ransie Dillard, deceased.

"6. That said deposition may not be read by the plaintiff in this action as against the defendant, Louis E. Dillard, administrator of the estate of Ransie Dillard, deceased."

In respect of the foregoing exceptions the trial court said during the progress of the trial:

"The court is going to overrule the exceptions, to which the defendant of course has his exception. I might as well make this statement now that the jury is out. This whole problem has been a very perplexing one to the court. The lawyers and the court are familiar with the section of the statute — 11495, which says that generally the party, the adverse party, who would be Mr. Goehring, cannot testify against the administrator as to any matters that happened prior to the death and appointment of the administrator concerning the transaction involved. There are several exceptions to that, one of which is paragraph 7 of 11495, which reads substantially as follows: 'If after testifying orally a party dies, the evidence may be proved by either party on a further trial of the case, whereupon the opposite party may testify to the same matters.' Exception 8 — 'If a party dies, and his deposition is offered in evidence, the opposite party may testify as to all competent matters therein.' * * * It does not appear now, but the court knows from discussing the matter with counsel, that the plaintiff here took the deposition of the deceased Ransie Dillard, and had it written up, and so forth, and filed, and now seeks to offer the same in evidence. The defendant here, or counsel for the defendant, who represented Ransie Dillard, I am assuming at the taking of the deposition had the right to go forward and question Ransie Dillard directly. I'm taking for granted from what has been told me by counsel that the deposition was taken by the plaintiff as upon cross-examination, but I understand no questions were asked in direct by the then counsel for the defendant, Ransie Dillard, when his deposition was taken. It has also come to my attention that at the same time the deposition of Mr. Goehring, the plaintiff in this action, was taken by the plaintiff at which time the defendant was represented by the same counsel. The court feels at this time that the deposition is admissible, and I caution counsel not to read anything from the deposition which is in any way prejudicial. I will warn you as to that. I haven't read the deposition, but if the court feels after reading the deposition, as he does now, and the plaintiff is offered, the court will rule, under the authorities, that the plaintiff can testify, but only as to those matters that are gone into by the deceased defendant in the present action as brought out upon the deposition."

The court ruled that the deposition should not go to the jury. The deposition was read and thereafter the plaintiff was allowed to testify accordingly. Plaintiff was not cross-examined and the defendant administrator offered no evidence but did move for a directed verdict at the close of plaintiff's evidence. This motion was overruled and the case submitted to the jury which returned a verdict for the plaintiff. A motion for judgment notwithstanding the verdict, a motion for judgment on the special findings of fact and a motion for new trial were all overruled and judgment was entered on the verdict.

Upon appeal to the Court of Appeals the judgment of the trial court was affirmed.

The cause is here following the allowance of a motion to certify the record.

Messrs. Brouse, McDowell, May Bierce, for appellee.

Messrs. Wise, Roetzel Maxon and Mr. Wm. A. Kelly, for appellant.

TURNER, J.

Appellant presents two principal questions: (1) Upon the death of a defendant and the revivor of the action against his administrator, is the plaintiff required to present his claim in writing to the administrator, for allowance or rejection, within the four-month period provided for in Section 10509-112, General Code? (2) Does the plaintiff have the right to offer the deposition of a deceased defendant, which deposition was taken by plaintiff as upon cross-examination, and thereafter testify as to the same matters contained in the deposition? The answers to these questions are to be found in the statutory law of this state.

1. In passing upon this question the trial court said:

"I feel that the law should be that where a suit is pending, such as this case was, and there is an answer in by the guardian for the defendant, now deceased, which guardian is also the administrator of the estate, and in view of the fact that the case was revived as it was with the kind of an entry that was put on on July 3, 1943, that the court should rule that no filing of claim was necessary under the circumstances."

In the course of the opinion in the instant case the Court of Appeals said:

"We are of the opinion, and hold, that, under the circumstances, no presentation to, and rejection by, the administrator of the claim was necessary. The revivor of the action rendered unnecessary a presentation of the claim. That has been the settled law of the state for many years, and we do not find that any recent section of the code changes that rule."

We agree with the foregoing statement.

In the case of Musser's Exr. v. Chase, 29 Ohio St. 577, it was held:

"Section 96 of the administration act, which provides that unless the claim has been exhibited to the executor or administrator, and has been disputed or rejected by him, he shall not be liable at the suit of a creditor, does not apply to proceedings to revive an action before judgment, against the personal representative of a deceased party."

In the case of Pepper v. Sidwell, Admr., 36 Ohio St. 454, this court held:

"In an action against an administrator, the objection that the claim sued on was not presented for allowance before the action was bought, is waived, where the administrator joins issue and goes to trial on the validity of the claim without objection."

In this respect attention is called to the terms of the agreed entry upon which the instant action was revived. (See statement of facts.)

In 18 Ohio Jurisprudence, 538, Section 432, it is said:

"The provision that an executor or administrator shall not be liable to the suit of a creditor unless the claim has first been exhibited to him, and has been disputed or rejected, does not apply to proceedings to revive an action pending at the death of the party, or to such action after revivor."

While the 94th General Assembly made an extensive revision of the probate code (119 Ohio Laws, 394 et seq.), it must be assumed that such a revision was made in the light of the theretofore declared principles of law, and that where it was intended to change the then declared law, such change would be effected by statutory provision.

While Section 10509-112, General Code, was so amended as to require all claimants to present their claims in writing to the executor or administrator within four months after the fiduciary's appointment, yet we note that in the amendment of Section 10509-121, General Code (119 Ohio Laws, 410), in respect of the order in which debts are to be paid, the General Assembly provided:

"The giving of written notice to an executor or administrator of a motion or application to revive an action pending against the decedent at the date of death shall be equivalent to the presentation of a claim to such executor or administrator, for the purpose of determining the order of payment of any judgment rendered or decree entered in such action."

We are of the opinion that this was a recognition by the General Assembly that where an action against a deceased person is properly revived it is not necessary to go through the formality of an independent presentation of the claim to the executor or administrator.

In 2 Woerner American Law of Administration (3 Ed.), 1251, Section 387, it is said:

"The revival of an action, abated by the death of the defendant, against his executor or administrator, is equivalent to the exhibition of the demand as of the day when notice of the revival or summons is served upon him; it has been so held even without statutory provision to that effect."

In the third edition of Addams Hosford's Ohio Probate Practice Procedure by Judge McClelland, the following editorial comment follows Section 10509-112 as amended (119 Ohio Laws, 407):

"While the statute throws around the presentation of a claim, proper formalities, yet they are not such but what may under certain conditions be waived."

In the 1944 supplement to Deibel's Ohio Probate Law it is said in a note to Section 957 at page 319:

"It is submitted that mortgages and other claims which were not required to be presented before, are not required to be presented by the new code."

2. The appellant administrator by proper exception saved all questions relating to the introduction of the testimony contained in the deposition of Ransie Dillard and to permitting the plaintiff below to testify in respect of the matters testified to in such deposition.

Paragraph 8 of Section 11495, General Code, provides:

"8. If a party dies and his deposition be offered in evidence, the opposite party may testify as to all competent matters therein."

Appellant admits the right of appellee to have taken the deposition of Ransie Dillard, but insists that such right does not carry with it the right to use the deposition upon trial. As the appellee had the right under Section 11521 and Section 11497, General Code, to take Ransie Dillard's deposition as upon cross-examination, we are of the opinion that the appellee had the right to offer that deposition upon the trial and thereafter the appellee had the right to testify as to all competent matters therein. The appellant contends that inasmuch as the deposition was not offered in evidence by him but by the appellee the provisions of paragraph 8 of Section 11495, supra, do not apply. We agree with what was said by the Court of Appeals upon this subject, to wit: "Under the circumstances, it seems to us that the mere fact that the deposition was introduced by the plaintiff should not defeat his right to testify."

Paragraph 8 provides for an exception to the general provision of Section 11495, General Code, that a party shall not testify when the adverse party is an executor or administrator.

Plaintiff's testimony was limited to the facts to which Ransie Dillard had testified in his deposition.

In discussing the competency of witnesses including the provisions of the then existing statute that a party shall not testify where the adverse party is an executor or administrator, Judge Dickman said in Roberts v. Briscoe, 44 Ohio St. 596, 600, 10 N.E. 61:

"When we consider the enlightened progress made through the code in relaxing the rigid rules as to the competency of witnesses, we can not but be impressed with its liberal spirit, and inclined, in order that justice may not fail, to apply to it such canons of interpretation as will, when not plainly violating the legislative intent, favor the admission rather than the exclusion of testimony."

See, also, Stream v. Barnard, Exrx., 120 Ohio St. 206, 165 N.E. 727, wherein Judge Robinson said at page 210:

"It has been held, notwithstanding the general rule that statutes in derogation of the common law will be strictly construed, that statutes abrogating the common-law rule with reference to the right of a party to an action to testify are enlarging and not restraining in effect * * *.

"The object of Section 11495 is to limit the right conferred by Section 11493 in its application to parties adverse to executors and persons suing or defending in a similar representative capacity. It is an exception to Section 11493, and, insofar as it is an exception to the general rule so enacted in Section 11493, it will be strictly construed; that is, it will not be construed to limit the right conferred by Section 11493 to any greater extent than is therein plainly expressed, and inferences will not be indulged."

Section 11493, General Code, provides:

"All persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly."

The case of Gorman, Admx., v. Columbus Southern Ohio Electric Co., 144 Ohio St. 593, involved an attempt to introduce in evidence a deposition taken in a prior case by defendant. Both the parties and causes of action were different from those in which the deposition had been taken.

In the instant case, the deposition was taken and offered in the same case. Section 11540-1, General Code, discussed in the Gorman case, is an enabling statute which authorizes a plaintiff's administrator or executor to introduce in evidence in an action for wrongful death a deposition taken by plaintiff in an action for damages for the personal injuries which later resulted in plaintiff's death. It is not claimed that such section has any application in the instant case. It is mentioned here merely because it is the only modification (other than paragraph 8 of Section 11495, General Code) of Section 11540, General Code, which provides:

"A deposition may be read in any stage of the action or proceeding or in any other action or proceeding upon the same matter between the same parties, subject, however, to such exceptions as are taken thereto under the provisions of this chapter."

We have examined the remaining assignments of error and as to these the record discloses no error prejudicial to the rights of appellant.

We are, therefore, of the opinion that the judgment of the Court of Appeals should be and hereby is affirmed.

Judgment affirmed.

WEYGANDT, C.J., ZIMMERMAN and WILLIAMS, JJ., concur.

BELL, MATTHIAS and HART, JJ., concur in paragraph one of the syllabus but dissent from paragraph two of the syllabus and from the judgment.

HART, J., dissenting.

I concur in the first paragraph of the syllabus of this case, but must dissent from the second paragraph and from the judgment. In my opinion, the statutory disqualification of an interested witness can be removed only by a waiver on the part of the party protected by the provisions for disqualification. To remove the disqualification of an interested witness through the giving or introduction of testimony by an adversary, concerning matters as to which the disqualified witness is incompetent, the testimony of the adverse party must have been voluntarily given. Crafton v. Inge, 124 Ky. 89, 98 S.W. 325; Sorrell v. McGhee, 178 N.C. 279, 100 S.E. 434; Patterson v. Hughes, 236 Pa. 315, 84 A. 829; Nottbeck v. Chapman, 93 Vt. 378, 108 A. 338.

An interested person cannot make his own testimony competent by eliciting as new matter, on cross-examination of his adversary, evidence as to matters concerning which such interested person is incompetent ( Loeb v. Stern, Admx., 198 Ill. 371, 64 N.E. 1043; Crafton v. Inge, supra; Motz v. Motz, 85 App. Div. 4, 82 N.Y. Supp., 926; Corning v. Walker, 100 N.Y., 547, 3 N.E. 290); nor can a party adverse to the representative of a deceased defendant render himself competent by introducing in evidence a deposition of such defendant taken, as upon cross-examination, by the adverse party in the defendant's lifetime. McIndoe v. Clarke, 57 Wis. 165, 15 N.W. 17; Puckett v. Mullins, Admr., 106 Va. 248, 55 S.E. 676. The test of competency is to be applied as of the date of trial, and not as of the date the deposition was taken. St. Clair v. Orr, Admr., 16 Ohio St. 220.

The judgment should be reversed and the case remanded for new trial.

BELL and MATTHIAS, JJ., concur in the foregoing dissenting opinion.