#### Verbsky, Appellant, *v.*Burger et al., Appellees.

(No. 30469

Decided February 13, 1946.)

*236
      *Mr. Michael S. Cerrezin*and *Mr. H. L. Deibel,*for appellant.

*Mr. John B.*Kistner, for appellees.

Weygandt, C. J.

The single question of law presented for consideration by this court is whether the trial court was in error in refusing to permit the plaintiff, over objection, to examine the defendant daughters as if under cross-examination as provided by Section 11497, General Code, which reads in part as follows :

> “At the instance of the adverse party, a party may be examined as if under cross-examination, either orally, or by deposition, like any other witness.”

It is the contention of the plaintiff that this provision is general, unconditional and applicable in'every instance.

Likewise, the plaintiff relies upon the following provisions of Section 11493, General Code:

> “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.”

On the other hand the defendants insist that the following provisions of Section 11495, General Code, are decisive of the controversy:

> “A party shall not testify when the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child of a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee, or legatee of a deceased person except * # *.”

In response to this contention of the defendants the plaintiff admits that she comes within none of the eight exceptions set forth in this section and that over objection she could not have testified in *her*own behalf, *237because the administrator is an adverse party and because the daughters as heirs, grantees and assignees of a deceased person are likewise adverse parties. She concedes, too, that over objection the-daughters could not have testified in *their*own behalf, because as the widow she is claiming as heir of a deceased person. But she strenuously insists that Section 11497, supra, contains no exceptions and that therefore she has the right, even over the daughters’ objections, to examine them as if under cross-examination, although the testimony would relate to events antedating the decedent’s death. Restated and reduced to its lowest terms, the contention of the plaintiff is simply that “Section 11495 does not mean literally what it says” but merely prohibits a party from testifying in *his*own behalf when seasonable objection thereto has been made.

This court shares the difficulty of the trial court and the Court of Appeals in attempting to follow this view of these statutes. In the first place, it is a fundamental rule of statutory construction that as between one provision that is merely general and another that is specific and unambiguous in its terms, the latter must prevail. It is conceded that Sections 11493 and 11497 are general and that Section 11495 is specific.

Furthermore, Section 11495 does not provide that a party shall not testify “in his own behalf” or that he “may be examined as if under cross-examination.” Rather, it provides specifically and unambiguously that “a party shall not testify” — language too plain to require construction.

Then, too, it must be remembered that this section contains eight exceptions within its own provisions. Hence, it seems reasonable to suppose that when the General Assembly considered the matter of exceptions, it would have specified additional ones if more had been intended. In any event, judicial legislation is not the proper means to enlarge the list.

*238The plaintiff further suggests that Section 11495 and all similar statutes are of questionable expediency; that by reason of such statutes many just claims are defeated by inability to prove them, because often only the claimant possesses the facts; and that since the right to cross-examine claimants always exists after they have testified in their own behalf, it is doubtful whether many fictitious claims are successfully assorted in jurisdictions which do not have statutes of this tenor. Even though the correctness of these considerations be conceded, they present questions of state legislative policy to be determined by the General Assembly and not by the courts.

According to the defendants, the plaintiff’s purpose in calling the defendants for cross-examination was, in the absence of objection, to obtain a waiver of the statute and thus enable the plaintiff to testify in her own behalf as to the matters upon which the defendants had been cross-examined. But the defendants express doubt whether, even then, a waiver would have been accomplished, since it was not the administrator who called the defendants for cross-examination. However, no question of waiver is before the court and hence none is decided or considered.

The case of *Goehring*v. *Dillard, a Minor,*145 Ohio St., 41, 60 N. E. (2d), 704, is mentioned. In the second paragraph of the syllabus this court held as follows:

> “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.)”

Several important distinctions are apparent. That case involved the admissibility of the defendant’s deposition taken by the plaintiff as upon cross-examination. The defendant died before the trial. The depo*239sition was duly filed and offered in evidence by the plaintiff. A majority of this court held that the deposition was admissible under the specific exception set forth in paragraph 8 of Section 11495, General Code, and that the plaintiff was permitted to testify as to all competent matters with reference to which the défendant himself had testified in such deposition. Two of the dissenting members of the court in -the instant case were then of the opinion that the deposition in that case was not admissible even under a specific exception provided by the statute itself. In the instant case it is not contended that the proffered testimony is admissible under any of the eight specific exceptions.

The trial court was not in error in refusing to permit the plaintiff, over objection, to examine the defendant daughters as if under cross-examination, and the judgment of the Court of Appeals affirming the action of the trial court must be affirmed.

*Judgment affirmed.*

Zimmerman, Bell and Turner, JJ., concur.

Williams, Matthias and Hart, JJ., dissent.

Matthias, J.,

dissenting. The testimony sought to be elicited upon the cross-examination of the defendant daughters by counsel for the plaintiff related to facts which occurred prior to the death of their father. The plaintiff claims as an heir and the defendant daughters defend as heirs. The plaintiff and defendants are concededly adverse parties and their interests in the litigation are antagonistic. The action was one for the rescission of an antenuptial contract claimed to have been procured by fraud and concealment of assets by the deceased husband, a portion of which assets it was claimed was later, with the connivance of the daughters, transferred to them.

*240Under the broad and all inclusive provisions of Section 11497, General Code, “at the instance of the adverse party, a party may be examined as if under cross-examination, either orally, or by deposition, like any other witness.”

As I understand the position of the majority it is that the privilege thus conferred is not available to the plaintiff in this case for the reason that the testimony sought to be elicited is absolutely prohibited by the provisions of Section 11495, General Code.

All agree that the two sections of the statute referred to, and Section 11493, containing general provisions as to the competency of witnesses, and Section 11494, covering the matter of privileged communications, are *in pari materia*and, therefore, should be so construed that their provisions may be harmonized if. possible.

Upon such consideration I find myself unable to agree with the conclusion announced by the majority, which, in my opinion, overlooks the real purpose intended to be served by the enactment of the provision now embraced in Section 11495, General Code. I find no better statement of such purpose than that by Dickman, J., in the case of *Roberts*v. *Briscoe,*44 Ohio St., 596, 10 N. E., 61: “The purpose and policy of the law in preventing a party from testifying, where the adverse party is an executor or administrator, is to guard the estates of decedents against the setting up of fraudulent defenses, and the establishment against them of fraudulent claims, or unfounded causes of action.”

The reasoning of Judge Dickman ably supports the view that the attempted cross-examination in this case was not inconsistent but in harmony with the purposes and policy of the law and should have been permitted. If it be held that the defendants are not subject to cross-examination, then it must likewise be held that counsel for the administrator may not in any such case subject the plaintiff to cross-examination.

*241Judge Dickman, therefore, concluded that “the Legislature could not have designed to place the estates of deceased persons at such disadvantage by depriving them of evidence, within reach, necessary to their protection against imposition and fraud. The adverse and surviving party, when compelled to testify by the executor or administrator, can not reasonably complain; for, though a party, he can then'be examined fully in his own behalf on the subject of his examination in chief.”

Another authority supporting the views expressed is the case of *Chase*v. *Evoy, Admx.,*51 Cal., 618, from which the following pertinent statement is quoted:

> * * in view of the evil to be remedied, the Legislature could hardly have intended to prohibit the executor or administrator from calling a party to the action to testify in behalf of the estate. On the opposite theory, the defendant, representing the estate, would not be permitted to call the plaintiff himself to prove that the demand was fraudulent or had been fully paid. Such a construction of the statute is wholly inadmissible, and would be at variance with its manifest intent.”

Diligent research has failed to disclose any authority contrary to the reasoning and conclusion thus announced. In numerous cases incidental questions arising out' of the cross-examination of parties under conditions similar to those involved in this case are discussed and decided, but the right to conduct such cross-examination apparently was not contested but was conceded. Among cases of that character in this state are those of *Stream*v. *Barnard, Exrx., 120*Ohio St., 206, 165 N. E., 727, 64 A. L. R., 1144; *Prince, Exrx.,*v. *Abersold,*123 Ohio St., 464,175 N. E., 862; and *Nicola, Exr.,*v. *General Oil & Gasoline Co.,*133 Ohio St., 618, 15 N. E. (2d), 140.

*242As has previously be.eu indicated we find no authority anywhere supporting the proposition'that statutory provisions, such as those contained in Section 11495, prohibit the- calling of an adverse party for cross-examination. It is, of course, well settled that the ineom-petency of an adverse party is waived by calling him as a witness for cross-examination. The question of the right of the plaintiff to testify, following such cross-examination of the defendant, is not in issue here, but, in my opinion, such right could arise only from the voluntary testimony of the adverse witness and not from her cross-examination. See *Goehring*v. *Dillard, a Minor,*145 Ohio St., 41, 60 N. E. (2d), 704.

Hart, J.,

dissenting. I agree with the majority that Sections 11493 and 11497, General Code, are general in terms and state the general rule. Section 11495, General Code, is specific and creates a limitation upon the other above-named sections, and for that reason it must be strictly construed. *Cockley Milling Co.*v. *Bunn, Admx.,*75 Ohio St., 270, 79 N. E., 478; *Stream*v. *Barnard, Exrx.,*120 Ohio St., 206, 211,165 N. E., 727, 64 A. L. R., 1144. The extent of the limitation imposed by Section 11495, General Code, is the problem now befoi’e the court..

The purpose of Section 11495, General Code, is to protect estates which would suffer disadvantage if claimants were permitted to testify in their own behalf while the decedent or incompetent would be unable to contradict such testimony. It is my view that Section 11495, General Code, does not make a witness within the limitation of the statute incompetent as such and under all circumstances, but that it creates a privilege in the adverse party by which such adverse party may, under certain circumstances, prevent a party from testifying. Being a privilege it may be waived.

Defendants suggest that the purpose of the plaintiff *243in calling the defendant daughters for cross-examination was to create a waiver which would have rendered the plaintiff competent as a witness in her own behalf as to matters upon which the defendants were sought to be cross-examined. _In- my opinion, such cross-examination of the defendants would not constitute such a waiver.

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 to testify. *Loeb*v. *Stern, Admx.,*198 Ill., 371, 64 N. E., 1043; *Corning*v. *Walker,*100 N. Y., 547, 3 N. E., 290; *Motz*v. *Motz,*82 N. Y. Supp., 926; *Hickox*v. *Rogers, Admx.,*33 Ohio App., 97, 168 N. E., 750. To have such effect 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; and *Nottbeck*v. *Chapman,*93 Vt., 378,108 A., 338.

42 Ohio Jurisprudence, reviewing the Ohio case law on the interpretation of these statutes, says, at page 167, Section 160:

> • “It is the well-settled general rule that the protected party may waive the protection of the statute which prohibits a party to an action against certain representative persons from testifying at the trial. Thus, it is held that it is not the design of the statute to place an absolute and insuperable barrier to a party’s testifying as to facts occurring before the decedent’s death when the adverse party is an executor or administrator, the exclusion of the evidence being a privilege which the executor or administrator may waive. * # * ” Citing *Hickox*v. *Rogers, Admx., 3.3*Ohio App., 97, 168 N. E., 750; *Citizens National Bank*v. *Andrews,*24 N. P. (N. S.), 361; *Roberts*v. *Briscoe,*44 Ohio St., 596, *24410 N. E., 61; and *Crowe*v. *Vichery, Admr.,*23 Ohio App., 83, 155 N. E., 247.

At page 171, Section 163, Ohio Jurisprudence, *supra,*continues:

> “The statement of the rule [privilege of waiver] presupposes the existence of a right to exercise the privilege by calling the adverse party as a witness, and it is expressly held that the statute does not prohibit the executor or administrator from calling such party as a witness, which he may do in the exercise of his discretion. [Citing *Atley*v. *Atley,*20 Ohio App., 497, 152 N. E., 761; and 28 Ruling Case Law, 514, Section 102.] The interests of an estate may urgently require that an executor or administrator should waive what belongs to him as a privilege and call the opposite party as a witness, for the facts upon which he founds his claim or defense may be locked up in the breast of the adverse party, so that a failure of justice would ensue without his testimony. The Legislature could not have designed to place the estates of deceased persons at such disadvantage by depriving them of evidence necessary to their protection against imposition and fraud. That the executor or administrator may thus waive the privilege is borne out by the provision of the statute allowing the adverse party to testify when the other party testifies to transactions or conversations with him. * * *” Citing *Roberts*v. *Briscoe, supra.*

In my view the decision of this court in the instant case reverses the long established and well-settled judicial authority of the state on this question. In the case of *Stream*v. *Barnard, E-xrx., supra,*this court recognized the right of a party to waive the privilege given by Section 11495, General Code, when it held that where a representative of a deceased person, party to the action, examines as a witness the adverse party to such action with reference to conversations or transactions with the deceased, he thereby waives the in*245competency of such adverse party to testify as a witness on his own behalf. A cross-examination of such witness has the same effect. See annotations in 64 A. L. R., 1148,1158, and 107 A. L. R., 487; *Conrey*v. *Pratt,*248 Mo., 576, 154 S. W., 749; *Goehring*v. *Dillard, a Minor,*145 Ohio St., 41, 60 N. E. (2d), 704.

In the case of *In re Estate of Alger,*10 Ohio App., 93, the .Court of Appeals of the Seventh Appellate District, recognizing the right of waiver, held that if a party to an action, who is prevented from testifying by reason of the provision of Section 11495, General Code, is examined as a witness on certain issues in the case by the adverse party, under favor of Section 11497, General Code, he then becomes a competent witness in the case and may testify on his own behalf in regard to all the issues in the case. In so holding, the court followed the decision of this court in the case of *Choteau*v. *Thompson,*3 Ohio St., 424, wherein this court held that a waiver of objection to the competency of a party who was incompetent as a witness so as to allow his deposition to be taken in a case, is a waiver during the whole progress of the case.

In the case of *Atley*v. *Atley, supra,*decided by the Court of Appeals of the First Appellate District, it was held that parties standing in the same position with the executor or administrator may compel the adverse party to testify as upon cross-examination.

In the case of *Crowe*v. *Vickery, Admr., supra,*the Court of Appeals of the Eighth Appellate District held that the protection conferred by Section 11495, General Code, prohibiting the party plaintiff from testifying as to facts occurring prior to decedent’s death in an action against the administrator, may be waived within the discretion of the administrator, and if no objection is made to such testimony it must be treated as other competent evidence. The court quoted and *246relied upon the decision of this court in the case of *Roberts*v. *Briscoe, supra,*wherein this court said:

“That it is not the design of the statute to place an absolute and insuperable barrier to a party’s testifying as to facts occurring before decedent’s death, when the adverse party is an executor or administrator; and that the exclusion of the evidence is a privilege which the executor or administrator may waive, derives force from an examination of the third exception to Section 5242 [now Section 11495, General Code].”

In the case of *Hickox*v. *Rogers, Admx., supra,*the Court of Appeals of the Sixth Appellate District held that the representative of a deceased person may waive the protection of the statute and permit the party otherwise incompetent under the statute to testify as upon cross-examination. The court cited as authority for this holding cases from other states, having similar statutes, as follows: *Loeb*v. *Stern, Admx., supra; Motz Exrx.,*v. *Motz, supra; Crafton*v. *Inge, supra;*and 4 Jones on Evidence (1914 Ed.), 768-770.

In the case of *Borgerding*v. *Ginocchio,*69 Ohio App., 231, 43 N. E. (2d), 308, the Court of Appeals of the First Appellate District held that the personal representative of a decedent may waive the statutory bar against the adverse party testifying, and that calling such adverse party as a witness constitutes such waiver, citing as its authority 42 Ohio Jurisprudence, 167, Section 160, above quoted.

It is true that in this case the witnesses in question, called for cross-examination, protested and attempted to claim the protection of the statute, but the statute did not operate in their favor and in my view their protest or objection to testifying was unavailing. They were competent witnesses if the plaintiff elected to waive the protection of the statute operating in her favor and call upon them to testify.

*247If one in whose favor the statute operates may waive the protection negatively by failing to object to the testimony of a party disqualified as a witness, he certainly may do it affirmatively by calling as his own witness or as upon cross-examination such a party to testify.

The statute, Section 11495, G-eneral Code, provides that a party shall not testify when the “adverse party * * * claims or defends as heir, grantee, assignee, * **** except if a [such adverse] party ® * * testifies to transactions or conversations with another [disqualified] party, the latter may testify as to the same transactions or conversations * * *.”

What in the statutes disqualifies these defendants, daughters of the deceased husband, from testifying in this case if they should choose to do so or if they are called as upon cross-examination by the adverse party, the plaintiff in this case? The only reason they are disqualified to testify is that the plaintiff is “claiming” as heir of her husband. She has the right under the statute to claim disqualification of the daughters as witnesses since they are parties and she, as the widow, is now the “adverse party” in this case. But here again, the protection given by the statute, operating in her favor and being for her protection, may be waived and was in fact necessarily waived by her by calling these defendants to testify as upon cross-examination, just as an administrator or- executor may waive the statute when it applies to him. This court has heretofore recognized the right of waiver upon the part of an administrator or executor. The plaintiff in this case now stands in the same relation to the statutes in question, and this court, to be consistent, should not deny her right to waive the privilege conferred by the statute and her right to require the defendants, as parties, otherwise fully competent as witnesses, to testify as upon cross-examination.

*248This statute should not he so construed as to operate as a shield for injustice. If the testimony which the defendants are able to give is favorable to them, they should not hestitate to testify. If, on the other hand, their testimony should disclose that they entered into collusion with their father to deprive the plaintiff of her contract rights, they should, in the interests of justice, be required to disclose the truth.