Opinion
No. 72-717
Decided June 20, 1973.
Evidence — Action on insurance policy — R.C. 2317.03 — "Dead man's" statute — Prohibitions not applicable, when — Insurance agent may testify, when — Not party to action.
Permitting an agent of an insurance company, who is not a party to an action on an insurance policy, to testify as to conversations and transactions with a decedent who claims to be a policyholder, does not violate R.C. 2317.03.
APPEAL from the Court of Appeals for Hamilton County.
This cause was instituted in a suit by a widower, Charles A. Williams, against the Safeco Insurance Company to collect $100,000 on a binding receipt, which provided interim insurance until a policy is issued or an application is refused. The mother of the decedent and the plaintiff's mother were permitted to intervene because of disputes concerning the cause of death and secondary beneficiaries. Safeco defended by arguing that no binding contract existed at the time of decedent's death.
After a plethora of procedural confusion during the trial, a jury determined that at the time of her death Joanne V. Williams had no valid contract with Safeco. Appeal was taken on questions dealing with the procedure by which the trial was conducted, and with a possible violation of R.C. 2317.03, popularly known as the "dead man's" statute.
The Court of Appeals found no merit in the allegations of procedural errors, but reversed solely for error in the admission of testimony contrary to R.C. 2317.03. The court reasoned that the testimony of Thoral Schehr, an agent of Safeco, concerning his transactions and dealings with the decedent, came within the prohibitions set forth in R.C. 2317.03.
The cause is now before this court pursuant to our allowance of appellant's motion to certify the record.
Mr. Richard C. Curry, Mr. Louis A. Ginocchio and Mr. William L. Leonard, for appellees.
Messrs. McIntosh, McIntosh Knabe and Mr. Robert G. McIntosh, for appellant.
The Court of Appeals based its judgment solely upon what it determined to be violations of R.C. 2317.03. The pertinent parts of that statute follow:
"A party shall not testify when the adverse party is * * * an executor or administrator, or claims or defends as heir, grantee, assignee, devisee, or legatee of a deceased person * * *.
"* * *
"* * * When a case is plainly within the reason and spirit of this section * * * though not within the strict letter, their principles shall be applied." (Emphasis added.)
Initially, we agree with the Court of Appeals that there is no merit in any of the other arguments raised. The determining issue is whether the prohibition of R.C. 2317.03 shall apply.
The rule concerning the competency of testimony of interested survivors is of ancient vintage. It survives from the general prohibition, in the early common law, of interested witnesses' testimony. But the argument for this prohibition has been exploded by most writers on the subject. Apparently, when the general prohibition was subsequently removed the legislatures intended to protect the estates of decedents.
The New York Commissioners on Practice and Pleadings (1848), as quoted in Morgan, The Law of Evidence (1927), 25, reads:
"The only just enquiry is this; whether the chances of obtaining the truth, are greater from the admission or the exclusion of the witness. Who that has any respect for the society, in which he lives, can doubt, that, upon this principle, the witness should be admitted? The contrary rule implies, that, in the majority of instances, men are so corrupted by their interest, that they will perjure themselves for it, and that besides being corrupt, they will be so adroit, as to deceive courts and juries. This is contrary to all experience. In the great majority of instances the witnesses are honest, however much interested, and in most cases of dishonesty the falsehood of the testimony is detected, and deceives none."
See, also, Morgan, The Law of Evidence (1927), 23 to 35; 2 Wigmore, Evidence (3 Ed., 1940), Section 578; 3 Jones, Evidence (6 Ed., 1972), Sections 20:20 to 20:22; Ray, Dead Man's Statutes (1963), 24 Ohio St. L.J. 89.
And for those of more pessimistic nature, it is wise to remember that one who would perjure himself would not hesitate to suborn perjury.
While it is our belief that any change or removal of the Ohio statute must be accomplished by the General Assembly, it has been, and continues to be, our practice to strictly limit the application of R.C. 2317.03.
In the early case of Myres v. Walker's Admr. (1859), 9 Ohio St. 558, the court allowed the assignor of an interest to testify in an action concerning that interest, where he was not a party.
In Shaub v. Smith (1893), 50 Ohio St. 648, 35 N.E. 503, the syllabus of the case holds: "An agent of a vendor who makes a sale of goods for his principal, is not rendered incompetent to testify as a witness to the circumstances of the transaction because of the decease of the vendee."
An excellent history and explication of the statute and the criticisms against liberally construing it is found in Cockley Milling Co. v. Bunn (1906), 75 Ohio St. 270, 79 N.E. 478. There, the court decided that the statute was in the nature of an exception to the general rule that prefers competency of witnesses. The argument was made that the exception "can have no application to a corporation unless the agent who acts for it is excluded." The court answered:
"* * * This may be true, but in view of the fact that a number of exceptions have from time to time been added to the statute and, in view of the fact that in some states the agents of corporations are in such cases expressly excluded, the contention tends to establish only a causus improvisus which is no warrant for judicial legislation." The general manager of the plaintiff corporation was allowed to testify.
See, also, Powell v. Powell (1908), 78 Ohio St. 331, 85 N.E. 541; Loney v. Walkey (1921), 102 Ohio St. 18, 130 N.E. 158; In re Butler (1940), 137 Ohio St. 96, 28 N.E.2d 186.
Thoral Schehr was not a party in this cause. The prohibition of R.C. 2317.03 applies to parties, and we feel that in order for a situation to be "plainly within the reason and spirit of this section" the testimony to be prohibited must be that of a party.
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, W. BROWN and P. BROWN, JJ., concur.