Opinion
No. 70-285
Decided March 17, 1971.
Evidence — Competency of witnesses — R.C. 2317.03 — Party may not testify, when — Evidence inadmissible against one defendant, admissible against another defendant, when — Both defendants subject to joint and several liability.
The fact that the dead man's statute (R.C. 2317.03) prohibits the admission of evidence against one of two defendants, against whom separate judgments may be entered, does not prevent the admission of such evidence against the other defendant.
APPEAL from the Court of Appeals for Scioto County.
Plaintiff, Charles Canary, while operating his automobile in a westerly direction on U.S. Route No. 52 east of New Boston, made a left turn to enter a gasoline station. As he crossed the highway his automobile was struck in the right rear side by an automobile being driven in an easterly direction by defendant Donald Wallace. Another automobile also traveling in an easterly direction and operated by Virgil Loop then collided with the Wallace vehicle.
In August 1965, plaintiff filed an action for damages against Wallace and Loop alleging in his petition "that at the time of said collision and for some time previous thereto said defendants were racing their respective automobiles, running abreast, cutting in front of each other and traveling at the approximate rate of seventy (70) miles per hour, which racing was the proximate cause of the collision * * * and due to the joint and concurrent acts of said defendants."
In November 1965, defendant Wallace filed an answer and a cross-petition for damages in which he alleged the collision resulted from Canary's "causing his automobile to turn into the path of" Wallace's vehicle.
Defendant Loop filed an answer in May 1966, but in September of that year he died. Flo E. Loop was appointed administratrix of Loop's estate, and in December 1966 she filed a cross-petition for the estate alleging that Canary's left turn caused a collision between Canary and Wallace and that Wallace swerved into Loop's automobile causing injuries to Loop.
The cause was tried to a jury, and during the course of the trial plaintiff called defendant Wallace as on cross-examination, as appellant states, "for the purpose of testifying with reference to matters involving defendant Wallace as to matters that occurred prior to the death of defendant Virgil Loop."
The trial court refused to permit such testimony, basing its refusal on paragraph three of the syllabus in Hawkins v. Hawkins (1964), 176 Ohio St. 469. It also refused to permit Canary to testify as to matters which occurred prior to the death of defendant Loop.
At the conclusion of plaintiff's case the trial court directed a verdict in favor of defendant administratrix Loop. The jury found in favor of defendant Wallace on plaintiff's petition and in favor of Wallace on his cross-petition, awarding him $3,000. The jury also found in favor of the administratrix on her cross-petition and awarded her $11,852.45.
Upon appeal, the Court of Appeals affirmed the judgment.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Miss Gladys Davis, Mr. John Alden Stalker and Mr. Richard L. Eisnaugle, for appellant.
Messrs. Miller, Searl Fitch, Mr. Chester P. Fitch, Messrs. Skelton, Kahl, Horr Burton, Messrs. Bannon, Howland, McCurdy Dever and Mr. William L. Howland, for appellees.
We are concerned in this appeal with the question of whether the trial court erred in refusing to permit plaintiff Canary to testify against defendant Wallace, and to call as upon cross-examination the defendant Wallace.
Stated generally, the issue may be phrased as follows: Where the provisions of R.C. 2317.03 prevent a plaintiff from testifying against a party defendant administratrix, may the plaintiff testify against and call as upon cross-examination a co-defendant where the action is one in which the two defendants are subject to joint and several liability?
In forbidding plaintiff to testify against and cross-examine defendant Wallace, the trial court relied upon Hawkins v. Hawkins, supra ( 176 Ohio St. 469), in which paragraph three of the syllabus reads:
"Under the provisions of Section 2317.03, Revised Code, a party is prohibited, over objection, from examining an adverse party as if under cross-examination, where one of the adverse parties is an administrator or claims or defends as heir, grantee, assignee, devisee or legatee of a deceased person. (Paragraph two of the syllabus of Verbsky v. Burger, 146 Ohio St. 235, followed.)"
A literal interpretation of the above-quoted syllabus from Hawkins supports the trial court's conclusion that it is controlling in this case. However, close examination of Hawkins and Verbsky reveals that in neither instance was joint and several liability claimed against multiple defendants. To the contrary, in both Hawkins and Verbsky all the defendants' rights were dependent upon the outcome of the action asserted against the administrator. Here, on the other hand, the rights of the defendants were not dependent one upon the other inasmuch as they were subjected to joint and several liability and the jury could have reached different conclusions as to the liability of each defendant.
Thus, the facts presented in the instant case, wherein either party defendant might be subjected to a separate judgment, distinguish this case from both Hawkins and Verbsky, and the rule expressed in those cases does not apply. The proper rule, rather, in the circumstances presented here, was set forth in Totten v. Estate of Miller (1941), 139 Ohio St. 29, wherein paragraphs one and two of the syllabus read:
"1. A plaintiff whose evidence is competent as against one of two parties defendant as to whom a separate judgment may be entered, but incompetent as against the other, may testify against the party as to whom he is a competent witness.
"2. When a witness is precluded from testifying on the ground of his alleged incompetency as a witness and not on the ground that his proposed testimony is incompetent, his exclusion, if erroneous, will be presumed to be prejudicial, and it is not necessary to proffer his proposed testimony in order to challenge or review the action of the court as to his exclusion."
In such case, as stated in the syllabus in Hubbell v. Hubbell (1871), 22 Ohio St. 208, "the court should render such judgment or judgments * * * as would have been warranted by the evidence, in case there had been several actions — the evidence being considered in one action and not in the other."
Applying the rules expressed in Totten and Hubbell to the facts herein, we are of the opinion that plaintiff's evidence was admissible against defendant Wallace in the actions between those two parties on the petition and cross-petition, that the trial court erred in ruling that it was not, and that the exclusion of such evidence must be presumed prejudicial.
Therefore, the judgment is affirmed as to the causes of action between plaintiff Canary and defendant administratrix Loop; the judgment is reversed as to the causes of action between plaintiff Canary and defendant Wallace and those causes are remanded to the Court of Common Pleas for further proceedings according to law.
Judgment affirmed in part and reversed in part.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, STERN and LEACH, JJ., concur.