dissenting. The issue in this case is whether a surviving plaintiff may introduce into evidence the deposition of a deceased defendant, taken by counsel for defendant with a stipulation that it was to be used by defendant, where the sole purpose of introducing such deposition is for the plaintiff to make herself eligible to testify in her own behalf and where her testimony will be contra to that of the deceased defendant in the deposition.
Involved in the determination of this question is the interpretation of two statutes, Sections 2317.03 and 2319.22, Revised Code.
Section 2317.03, Revised Code, provides in pertinent part as follows:
“A party shall not testify when the adverse party * * * is an executor or administrator * * * of a deceased person except:
í Í # # %
“ (H) If a party dies and his deposition is offered in evidence, the opposite party may testify as to all competent matters therein.” (Emphasis added.)
Section 2319.22, Revised Code, provides in pertinent part:
“Depositions taken by either party in an action for damages for personal injuries, and before the death of such party taking the depositions, may be read by the surviving party or parties to the action or by the administrator or executor of the estate of such deceased party in an action for personal injuries * # * so far as such depositions are relevant to the issues in an action for damages # *
In these two sections of the Code there are three terms *67which are descriptive of parties — “adverse party,” “opposite party” and “surviving party.” Since the Legislature used these different terms, it obviously meant to convey a different meaning by the nse of each.
The term, “surviving party,” used in Section 2319.22, supra, can mean only one thing, the party who survives the deceased party. This is made clear by the context in which it is used, since the terms, “administrator” and “executor,” are also employed. The term, “adverse party,” used in Section 2317.03, supra, is also clear, since it refers specifically to the executor or administrator. See Hubbell v. Hubbell (1871), 22 Ohio St. 208, 221.
The term, “opposite party,” also used in Section 2317.03, supra, is susceptible of two interpretations, referring either to the party opposing the estate, or to the party opposing the introduction of the deposition of the decedent.
To determine the meaning of this term we must look to the purpose and spirit of the statute.
In Roberts v. Briscoe (1887), 44 Ohio St. 596, the court had this statute before it. The court found that the purpose and policy behind the dead man’s statute were 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 court stated further that the purpose of the statute is to put both parties on an equal footing, and that the exclusion of evidence is a privilege which belongs to the executor, and which he must waive before the surviving party may testify.
From a reading of both sections cited above, it is my view that the term, “opposite party,” must refer to the party opposite the party offering the deposition; that is, the person who is opposing the introduction of the deposition. In this case, that is the executor. Either party may introduce the deposition but only the opposite party to the one introducing it may testify. If the statute was meant to provide as the appellant contends, the phrase, “surviving party,” should have been used instead of “opposite party.”
The purpose of Section 2317.03 (H), supra, is not to aid the surviving party in introducing his testimony in his own *68behalf, bat merely to permit him to answer that of a decedent, if it is introduced on behalf of the estate against him. Equality of parties is achieved by the silencing of the surviving party when the deceased party has been silenced by death, and it is not for the surviving party to upset the balance against himself, in order to restore it by testifying in his own behalf. The exclusion of evidence is a privilege which belongs to the executor, and which he must waive before the surviving party may testify. See Levy v. Dwight (1888), 12 Colo. 101, 20 P. 12; Hollis, Exr., v. Calhoun (1875), 54 Ga. 115; Loeb v. Stern, Admx, (1902), 198 Ill. 371, 64 N. E. 1043; Crafton v. Inge (1906), 124 Ky. 89, 98 S. W. 325; Deak, Admr., v. Perth Amboy Gas Light Co., 1 N. J. Misc. 457, 140 A. 439; Sorrell v. McGhee (1919), 178 N. C. 279, 100 S. E. 434; Puckett v. Mullins, Admr. (1906), 106 Va. 248, 55 S. E. 676; McIndoe v Clarke (1883), 57 Wis. 165, 15 N. W. 17.
I am aware that there is support in other jurisdictions for the view expressed by the majority.