Lord v. Boschert , 47 Ohio App. 54 ( 1934 )

Plaintiff in error here, Irvin C. Lord, who was plaintiff below, brought an action in the Court of Common Pleas against defendant in error, defendant below, Frank Boschert, for loss of affection, society, companionship, consortium, and services of his wife, Bertha Lord, and for doctors' bills and nurse's services, all of which were caused by the negligence of the defendant, Boschert. The injuries to Bertha Lord resulted from a collision between an automobile owned and driven by Boschert and the automobile of the plaintiff, Lord.

It appears that in a prior suit by Bertha Lord, the wife of Irvin C. Lord, the plaintiff in this action, against Frank Boschert for her injuries received in the collision, one August Noelcke gave testimony; that his testimony was taken down by an official court reporter in the trial of the Bertha Lord case; that before the trial of the instant case August Noelcke died. In the trial of the instant case plaintiff sought to offer in evidence the testimony of August Noelcke, deceased, previously given by him during the trial of the Bertha Lord case. On objection, the trial court refused to permit the introduction of the Noelcke testimony, given at the trial of the Bertha Lord case.

The sole question presented here is whether or not the trial court erred in refusing to permit the introduction of the testimony given by Noelcke at the trial of the Bertha Lord case. Authority for its admissibility is claimed under the provisions of Section 11496, General Code, the pertinent part of which is as follows: "When a party or witness, after testifying orally, dies, * * * if the evidence given by such party or witness is incorporated into a bill of exceptions, in the case wherein such evidence was given, as being all the evidence given by such party or witness, and such bill has been duly signed by the judge or court before whom such evidence was given, the evidence so incorporated into such bill of exceptions, may be read in evidence by either party on a further trial of the case. If no bill of exceptions has been taken or signed as aforesaid, but the evidence of such party or witness has been taken down by an official stenographer, the evidence so taken may be read in evidence by either party on the further trial of the case, and shall be prima facie evidence of what such deceased party or witness testified to orally on the former trial."

It will be noted the section provides, "on the further trial of the case," and the right to the introduction must be based on that proposition.

Many cases are cited in the brief for plaintiff in error to the effect that the reason for the rule is that the parties may have opportunity to cross-examine the witness, which justifies construction of the statute to the effect that, if a party in an action pending had an opportunity at another trial to cross-examine, the evidence would be admissible. Whatever the reason given, the statute is explicit, and states "on the further trial of the case."

The fact that Bertha Lord was the wife of Irvin C. Lord would have no bearing on the question of admissibility. Irvin C. Lord's case was an entirely different cause of action from the Bertha Lord case. Her case was for personal injuries, while his action is one for loss of services, et cetera. The parties were not the same. Only the defendant was the same person. Irvin C. Lord's case is not a further trial of the case of Bertha Lord, notwithstanding the same accident was the basis of the two causes of action. Had there been a retrial of the Bertha Lord case, undoubtedly Noelcke's evidence, given at the former trial, would have been admitted. But this is not the case here.

Some of the cases cited by counsel for plaintiff in error in their brief are cases where an administrator was permitted to bring an action after the death of an injured party, where an action had been commenced by the injured party prior to his death. The courts seem to be of the opinion that the administrator is so identified with the injured party in representing his estate that the rule would admit the testimony given at the former trial. These were decisions of other states and we are not prepared to say, if tried here, such would not be the law of Ohio. But we have no such situation here.

Counsel also quote from Greenleaf on Evidence. But it will be noted that in all the comments of the author as to the reason for the exception to the hearsay rule, the citation closes with the phrase "in any subsequent suit between the same parties."

Our conclusion is that the statute is clear in its terms, and that, to admit such evidence, such action must be taken in "the further trial of the case" in which the evidence was given, and that therefore the Court of Common Pleas did not err in excluding the evidence.

Judgment affirmed.

CUSHING and ROSS, JJ., concur.