
    In re Martin, Jr.
    
      (No. 29257
    Decided February 17, 1943.)
    
      
      Messrs. Boggs & Winchester, for appellant. ,
    
      Mr. Barry 8. Bugbee, for appellee.
   Bell, J.

The conclusions herein reached being in conflict with some of the previous pronouncements of this court we shall proceed to re-examine the questions involved.

In this state a notary public, or a commissioner, has no inherent power to preside at the taking of depositions or to punish for contempt. The source of such authority must be found in the statutes.

Section 11530, General Code, provides:

“Depositions taken in and to be used in this state, must be taken by an officer or person whose authority is derived within the state; but, if for use elsewhere, they may be taken before a commissioner or officer who derives his authority from the state, district, or territory in which they are to be used.” (Italics ours.)

Section 11510, General Code, provides:

“Disobedience of a subpoena, a refusal to be sworn, except upon failure to pay fees duly demanded, and an unlawful refusal to answer as a witness or to subscribe a deposition, may be punished as a contempt of the court or officer by whom the attendance or testimony of the witness is required.” (Italics ours.)

Section 11530, General Code, recognized the. authority of the Surrogate’s Court to appoint LeDow Johnston, as commissioner, to preside at the taking of the depositions; and Section 11510, General Code, empowered such commissioner to punish a witness for contempt for any violation of the statute. Such commissioner, however, was not invested with the ultimate authority to pass upon the relevancy, competency or materiality.of the' testimony. DeCamp v. Archibald, 50 Ohio St., 618, 35 N. E., 1056; Ex parte Bevan, 126 Ohio St., 126, 184 N. E., 393.

Section 8, Article I of the Constitution of Ohio provides :

“The privilege of the writ of habeas corpus shall not be suspended, unless, in cases of rebellion or invasion, the public safety require it.”

The manner of its exercise is provided in Part Third, Title IV, Division IX, Special Proceedings, Chapter 2, Section 12161 et seq., General Code.

Section 12161, General Code, provides:

“A person unlawfully restrained of his liberty, or a person entitled to the custody of another, of which custody he is unlawfully deprived, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment, restraint, or deprivation.”

The General Assembly of Ohio has limited the power of the courts in habeas corpus proceedings by Section 12165, General Code, as follows:

“If it appears that the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or, if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order.”

Therefore, if the witness, Fred J. Martin, Jr., unlawfully refused to answer any of the questions here in dispute, the commissioner had jurisdiction to make the order and the writ should have been denied; on the other hand if the refusal of the witness to answer was not unlawful the writ should have been granted. This calls for an examination of the twenty-five questions, and for convenience they will be considered in three separate groups:

(1) Three questions, Nos. 133, 723 and 727, to each of which objection was made and the commissioner at no time ordered the witness to answer.
(2) Thirteen questions, Nos. 46, 132, 136, 192, 728, 730, 735, 745, 756, 917, 919, 921 and 923, to each of which objection was made and upon advice of counsel the witness refused to answer, the claim. of counsel being that the testimony sought was not relevant, competent or material.
(3) Nine questions, Nos. 260, 261, 263, 654, 686, 687, 695, 709 and 784, to each of which the objection was grounded upon the claim of privilege.

The first group presents little difficulty. We agree with the contention of counsel for the petitioner that upon the taking of a deposition a witness cannot lawfully be committed for contempt for failure to answer a question until after being ordered to answer by the presiding officer he refuses so to do. DeCamp v. Archibald, supra; Ex parte McKee, 18 Mo., 599.

The second group involves the refusal of the witness to answer, upon the advice of his counsel, upon the ground that the testimony sought was not relevant, competent or material to the issues.

In the course of orderly procedure, after objection, the witness, when ordered, should have answered the questions, and the questions, objections and answers should have been submitted to the Surrogate’s Court of New York county for decision. Bradley v. Veazie, 47 Me., 85; DeCamp v. Archibald, supra; Finn v. Winneshiek District Court, 145 Iowa, 157, 123 N. W., 1066.

However, the witness refused in each of the thirteen instances to answer, and by such action constituted himself the judge as to what testimony was relevant, competent and material.

Did this conduct constitute an unlawful refusal to answer as a ivitnessf

The conflict in the previous decisions of this court is apparent in the following cases:

In DeCamp vi Archibald, supra, paragraph three of the syllabus, the court held:

“Where the question propounded involves no question of privilege on the part of the witness, it is his duty to answer, if ordered by the notary to do so. The question of its competency is a matter for the determination of the court on the trial of the action in which the evidence is taken; and if he refuses to do so, when ordered, he may be committed as a contumacious witness.”

Nest came the case of Ex parte Jennings, 60 Ohio St., 319, 54 N. E., 262, in which it is said in the syllabus:

“A witness whose deposition is being taken before an officer may refuse to testify to facts not relevant to the issues in the case in which the deposition is to be read, if the disclosure of such irrelevant facts would be injurious to the business of the witness; and, if imprisoned by the officer for such refusal, he may be discharged on habeas corpus.”

In the case of Ex parte Schoepf, 74 Ohio St., 1, 77 N. E., 276, the court held, in paragraph four of the syllabus:

“While an officer before whom a deposition is being taken is empowered to punish as for contempt any person who refuses to obey an order to answer a question or to produce a document, he cannot do so unless it is so ‘lawfully ordei-ed;’ and where such question or document is not pertinent to the issues tendered or made, or is not material or necessary to make out the case of the party calling for it, or is incompetent or privileged, the witness cannot lawfully be ordered to answer such question or to produce such document.”

Then follows the pronouncement in the former appeal in this case, In re Martin, Jr., supra.

We think that a careful study of the Jennings and Schoepf cases will disclose that they were decided upon the question of privilege and not upon the question of relevancy, competency or materiality of testimony.

There is no great difference of opinion upon the proposition that a witness who is not a party cannot lawfully refuse to answer any question, upon the taking of his deposition, that he could not lawfully refuse to answer if personally present at the trial.

May a witness who is not a party, and is being examined in the trial of a cause inmpen court, be permitted to refuse to answer any question propounded, upon the claim that it is not relevant, competent or material, and to thereupon stop the trial while he tests that question in any or all the courts of this state? It would seem obvious that to countenance such procedure would give the witness the power to delay and frequently to defeat justice. It being true, as we shall see, that a witness upon the trial may not refuse to answer any question upon the ground of relevancy, competency or materiality, upon what logical basis then may a witness, in the taking of a deposition, be permitted to refuse to answer questions upon those grounds? It would seem both upon reason and authority that the witness has no such right. Nelson v. United States, 201 U. S., 92, 50 L. Ed., 673, 26 S. Ct., 358.

Mr. Justice McKenna, speaking for the court at page 115, of the Nelson case, said:

“These writs of error are not prosecuted by the parties in the original suit, but by the witnesses, to review a judgment of contempt against them for disobeying orders to testify. Being tvitnesses merely, it is not open to them to make objections to the testimony. The tendency or effect of the testimony on the issues between the parties is no concern of theirs. The basis of their privilege is different from that and entirely personal, as we shall presently see.” (Italics ours.)

In 26 Corpus Juris Secundum, 879, Section 65, it is said:

“A witness cannot refuse to answer questions simply because he deems them incompetent or irrelevant, and the production of the evidence should be compelled if there is a possibility of its being competent, relevant, and material on the trial.”

Rapalje on Contempt, 81, Section 66, uses this language :

■ “A witness cannot be permitted to refuse to answer a question on the ground that it is irrelevant. To hold that a witness could decide for himself upon the ■relevancy of a question, against the opinion of the judge presiding or the officer taking the deposition, would be subversive of all order in judicial proceedings.”

8 Wigmore on Evidence, 148, Section 2210, reads:

- “The witness has no privilege to refuse to disclose ,matters irrelevant to the issue in hand, first, because irrelevancy relates to the scope of the investigatiqn, and therefore is a concern of the parties alone, and ■may be obviated, as a ground for exclusion, by their consent or failure to object; and, secondly, because there is in the mere circumstance of irrelevancy nothing which' creates for the witness a detriment or inconvenience such as should suffice {ante, §2192) to override his general duty to disclose what the court ■requires. Moreover, the recognition of a privilege of this sort would add innumerable opportunities to make .a' claim of privilege, and would thus tend to complicate a trial and add to the uncertainty of the event.

“Accordingly, it has always been accepted, at common law, that no privilege of this sort existed.”

The Supreme Court of Missouri in Ex parte McKee, supra, considered this question. Paragraph two of the syllabus reads:

“A notary public, being an officer authorized to take depositions, has authority under the 8th Section of the act concerning ‘witnesses,’ (R. C. 1845,) to commit a witness for refusing to answer any questions other than those which it is his personal privilege to refuse to answer.”

Gamble, J., speaking for the court at page 601, said:

“Again, the officer who takes the deposition, and who may know the nature of the action, when he requires a.witness, under the penalty of imprisonment, to answer a question propounded to him, does in effect decide that it is a proper question, and one sufficiently relevant to the issue to require an answer. The opinion of the witness, that the question is irrelevant, is entitled to no consideration. If that is his only objection to answering it, there can no injury result to him from compelling him to answer.”

In Ex parte Munforcl, 57 Mo., 603, the Supreme Court of Missouri again had this question, and used this language in paragraph four of the syllabus:

“If a suit be pending, a notary public may enforce the attendance of witnesses to give (their depositions, and may compel them by imprisonment to answer any questions not violative of personal privilege.”

In the case of Finn v. Winneshiek District Court, supra, it was held (paragraph four of the syllabus):

“A witness can not refuse to answer questions for his deposition simply because he considers them irrelevant and incompetent, and upon an adverse ruling* by the court have the matter reviewed on certiorari.”

The Supreme Court of Maine, in Bradley v. Veasie, supra, speaking through Cutting, J., at page 87, used this language:

“If questions are improperly asked, they must be answered as the justice or presiding judge in his discretion shall dictate, subject, however, to be excluded, whenever such testimony shall be offered in any legal proceeding. By such a course, the law is magnified and rendered efficient and effectual, and the just and lawful rights of all parties fully protected.”

: The Supreme Court of Georgia in the case of Williams v. Turner, 7 Ga., 348, speaking through Nisbet, J., at page 350, said:

“It will not do to permit a witness to judge what questions he shall answer, and what not; unless the questions are such, as by law, he is not bound to answer, he must answer all.”

The Supreme Court of Kansas in In matter of Abeles, 12 Kan., 451, a proceeding for a writ of habeas corpus, said (paragraph three of the syllabus):

“The giving of testimony, whether on trial, or by deposition, is not a privilege of the witness, but a right of the party.”

Again in In re Merkle, 40 Kan., 27, 19 P., 401, a proceeding for a writ of habeas corpus, the court held, as stated in the syllabus:

“A party to an action can compel a witness to give his deposition in the case prior to the trial, even though such witness resides in the county in which the action is brought; and where a witness duly subpoenaed to testify in a cause before a notary public, in giving his deposition refuses to answer certain questions propounded to him, for no other reason than that he is instructed by counsel not to do so, after having been instructed by the notary to answer them, he may be committed by the notary for contempt for such refusal. {In re Abeles, 12 Kan., 451, cited, and followed.) ”

In that case, as in the case at bar, counsel contended that the questions were irrelevant.

In Harding v. American Glucose Co., 182 Ill., 551, 55 N. E., 577, 74 Am. St. Rep., 189, 64 L. R. A., 738, it was held (paragraph eighteen of the syllabus) :

“A witness cannot base his refusal to answer a question which does not involve self-crimination or privileged communication, on the ground that it calls for immaterial testimony. ’ ’

In the case of Nelson v. United States, supra, the Supreme Court of the United States held, as stated in paragraph four of the headnotes:

“Witnesses cannot take objections to materiality of evidence in order to be rélieved from testifying. The tendency or effect of the testimony on the issues between the parties is no concern of theirs.”

In Bevan v. Krieger, Sheriff, 289 U. S., 459, 77 L. Ed., 1316, 53 S. Ct., 661, in a review of three judgments of this court, the United States Supreme Court held, as stated in paragraph two of the headnotes:

“In Ohio, as generally elsewhere, testimony by deposition is taken subject to the right of the parties — not of the witness — to object to its admissibility at the trial. ’ ’ *

At page 463 Mr. Justice -Roberts, speaking for the court, used this language:

■ “In Ohio, as generally elsewhere, the officer taking a deposition does not rule upon the competency or the materiality of the evidence to the issues made by the pleadings. The witness’s testimony is taken subject to the reserved right to object to its admissibility at the trial. The right of objection and exclusion belongs to the parties, not to the witness.”

Some of these thirteen questions were undoubtedly •subject to objection; however this afforded no ground for the witness to refuse to answer.

In the Finn case, supra, Deemer, J., at page 164, used this language:

“Even though many of the questions propounded were subject to objection properly interposed, which objection would undoubtedly have been considered and made effective upon the trial of thé case, this was no reason in itself why the witness should not have answered them when before the commissioner. It would be intolerable to hold that a witness whose testimony is being taken by deposition may refuse to answer, have the propriety of the question determined by the court, and upon an adverse ruling bring the case to this court on certiorari, and delay, and prolong the trial of the case upon its merits indefinitely. It has been frequently held that a witness can not refuse to answer questions simply because he deems them incompetent or irrelevant.”

See, also, In re Romine, 138 F., 837; Blease v. Garlington, 92 U. S., 1, 23 L. Ed., 521; Winder v. Diffenderffer, 2 Bland (Md.), 166; Stewart v. Turner, 3 Edw. Ch. (N. Y.), 458; 18 Corpus Juris, 685, Section 208; Thomson-TLouston Electric Co. v. Jeffrey Mfg. Co. (D. C.) 83 F., 614; Noell v. Bender, 317 Mo., 392, 295 S. W., 532; Bennett v. Strodtman, Sheriff (Mo.), 42 S. W. (2d), 43; Ex parte Gfeller, 178 Mo., 248, 77 S. W., 552; In re Hammond, 83 Neb., 636, 120 N. W., 203, 23 L. R. A. (N. S.), 1173.

We are clearly of opinion that the witness had no legal right to refuse to answer these thirteen questions after being ordered so to do, simply because he or his counsel deemed them to be irrelevant, incompetent or immaterial.

We hold that the commissioner had the lawful right to order the witness to answer these questions, and when the witness refused to comply with such order he was guilty of an unlawful refusal to answer as a witness and was properly committed for contempt.

It is claimed by counsel for the petitioner that the examination was not in good faith and was conducted only for the purpose of prying into the business affairs of the witness. There is nothing in this record to justify that claim.

We are further of the opinion that the Court of Appeals was correct in holding- that the questions of relevancy, competency or materiality of the testimony could not be considered in a habeas corp%is proceeding, but should be determined by the Surrogate’s Court when offered upon the trial.

The last group of nine questions which the witness refused to answer upon the claim of privilege presents the most difficult question- in this case. The determination depends upon the application of the doctrine of privileged communications between client and attorney. This doctrine was first recognized in England during the reign of Elizabeth. The first theory granted the privilege to the attorney upon the basis of the oath and the honor of the attorney, but did not extend the privilege to the client; that theory was finally repudiated by the courts of England and a second theory developed granting the privilege to the client in order to free him from apprehension in consulting his legal adviser; under this theory the attorney was refused permission to testify.

It is now a recognized common-law rule that confidential communications between a client and an attorney are privileged and protected from inquiry when the client is a witness as well as when the attorney is a witness; a client cannot be compelled to disclose •communications which his attorney will not be permitted to disclose. ,

In this jurisdiction this right is preserved by Section 11494, General Code, which provides in part as follows:

“The following persons shall not testify in certain •respects:
‘ ‘ 1. An attorney, concerning a communication made to him by his client in that relation, or his advice to his client * * *. But the attorney * * * may testify by express consent of the client * * *; and if the client * * * voluntarily testifies, the attorney * * * may be compelled to testify on the same subject.”

By this provision the mouth of the attorney is closed as to such communications unless the client consents or waives the privilege.

It is well settled in this state that a witness has the lawful right to refuse to answer any question, the answer to -which would infringe any personal privilege granted by the Constitution or statutes of Ohio, or any recognized rule of the common law, and a witness committed for contempt for such refusal has the right to have that question of privilege determined in a subsequent habeas corpus proceeding. De Camp v. Archibald, supra; Ex parte Schoepf, supra.

The rule with regard to privileged communications between client and attorney is well understood; difficulty is often encountered in its application.

The Court of Appeals recognized and applied the rule and determined the claim of privilege as it applied to each of the nine questions. The conclusion was that three of the questions were privileged. We are not disposed to disturb that ruling.

The six other questions held not privileged read as follows:

Q. 261. “What work did he do for you?”
Q. 686. “What was the nature of the services that Mr. Rappaport rendered for you?”
Q. 687. “Where did Mr. Rappaport perform these services for you?”
Q. 695. “Well, were they in the Southern Kraft matter ? ’ ’
Q. 709. “Was he working in the Southern Kraft matter at the same time Mr. Boggs was working in it?”
Q. 784. “Did Mr. Rappaport interview any witnesses for you?”

The first five of these questions sought information with regard to the employment of Mr. Rappaport as attorney for the witness or the Martin Brothers Box Company. It is not seriously contended that the last question involves any question of privilege.

It is the well-settled rule that the burden of showing that testimony sought to be excluded under this doctrine of privileged communications rests upon the party seeking to exclude it, and in this .case required that the record disclose, first, the existence of the relationship of client and attorney, and second, that the communications dealt with were connected with business for'which the attorney had been retained and not extraneous matters. Griffiths, an Infant, v. Metropolitan St. Ry. Co., 171 N. Y., 106, 63 A., 808; Rosseau, Admr., v. Bleau, 131 N. Y., 177, 30 N. E., 52.

In Collins v. Hoffman, 62 Wash., 278, 113 P., 625, the Supreme Court of Washington held (paragraph four of the syllabus) :

“An attorney is not privileged from disclosing by whom he was employed nor the terms of the employment. ’ ’

See, also, Satterlee, Admr., v. Bliss, 36 Cal., 489; Chirac v. Reinicker, 11 U. S. (24 Wheat.), 280; Strickland v. Capital City Mills, 74 S. C., 16, 54 S. E., 220; O’Brien v. Spaulding, 102 Ga., 490, 31 S. E., 100, 66 Am. St. Rep., 202; Weeks on Attorneys at Law, 320, Section 151; 70 Corpus Juris, 420, Section 562.

In 42 Ohio Jurisprudence, 276, Section 276, the rule is thus stated:

‘•‘To render the attorney incompetent to testify to communications of his client, the communications must have been made strictly in the relation of attorney and client. The testimony of a witness as to conversations with a party to an action cannot be excluded merely on the ground that the witness is an attorney at law and that the communications were confidential, unless it appears that he was the attorney for the party and that the communications were made in the course of such professional employment. In other words, before, the communication will be held to be privileged, it must have been made by the client to one who had been engaged to represent him as legal counsel, or to whom the revelation was made with the purpose of engaging him, so that the relation of attorney and client may be said to exist. * * *
“Whether the relation of attorney and client in fact existed at the time the communications were made is to be determined by the court; the opinion of the parties themselves is not final.”

In 28 Ruling Case Law, 559, Section 149, it is said: “It is sometimes said that all communications between counsel and client are privileged; but this is too general, and is inaccurate. They must relate to the business and interest of the client. The privilege extends only to communications connected with the business in which the attorney has been retained, and not to extraneous matters.”

In Section 154, at page 564, it is said:

“Ordinarily, an attorney may properly be examined as to the existence of the relation of attorney and client between himself and his client, and as to the terms of that relation. Thus, he may be required to state his authority for conducting a suit, or for compromising a claim, as the granting of such an authority necessarily imports permission to disclose its existence. He may also be compelled to disclose the character in which his client employed him, whether as executor, trustee, or on his private account; where the relationship began and ended, and whether he was instructed by one person to follow the direction of another. * * * It is also well settled that an attorney may be examined as to his fee, the contract therefor, and the amount thereof, these matters being deemed to be facts within his own knowledge, rather than confidential communications.”

In this deposition, upon several occasions the witness was asked whether he had ever employed Mr. Rappaport as attorney in connection with the Southern Kraft matter and upon each occasion he refused to answer. (Questions Nos. 260, 261, 262, 263, 654, 655 and 656.) The record therefore does not disclose (due to the refusal of the witness to answer) the existence of the relation of client and attorney between the witness or the Martin Brothers Box Company and attorney Rappaport in connection with the Southern Kraft matter.

Upon this state of the record we are of opinion that the witness should not now be heard to say that he can lawfully refuse to answer these six questions (Nos. 261, 686, 687, 695, 709 and 784) upon the ground that the answers thereto call for privileged communications.

This brings us to a consideration of the last claim of the petitioner, which is that the order of commitment is indivisible and that if the witness had a lawful right to refuse to answer any one of the twenty-five questions set forth therein he must be discharged.

This question was never presented in the original hearing in the Court of Appeals or in this court. The claim seems to be based upon the following language in In re Martin, Jr., 139 Ohio St., 609, at page 618:

“* * nonetheless, as the order of commitment was predicated on the refusal to answer the twenty-five questions involved, and the order is indivisible, it follows that the judgment of the court below should be reversed and the cause remanded for further proceedings in accordance with this opinion.”

With this statement we are not in accord. If the witness unlawfully refused to answer any question his commitment was lawful. The law does not require that a separate commitment be issued for each question which the witness refused to answer.

It follows that the judgment of the Court of Appeals is correct and is therefore affirmed.

Judgment affirmed.

Weygandt, C. J., Zimmerman and Williams, JJ., concur.

Matthias, J., concurs in paragraphs one, two, three, six and seven of the syllabus and in the judgment, but dissents from paragraphs four and five of the syllabus.

Hart and Turner, JJ., concur in paragraphs one, two, three, six and seven of the syllabus, but dissent from paragraphs four and five of the syllabus and from the judgment.

Matthias, J.,

concurring. I concur in the judgment of affirmance and in all propositions of the syllabus except four and five; from’ these I dissent.

The primary question presented, considered and decided by this court upon the former submission of the case was whether, in determining the lawfulness of the commitment of a witness for refusal to answer questions upon the taking of his deposition, the court, in a habeas corpus proceeding, could deny the witness any hearing upon or any consideration of the challenged relevancy or competency of the questions, for refusal to answer which the witness had been committed.

This court previously held that the Court of Appeals, in refusing to hear the petitioner on the issue of relevancy and competency, committed prejudicial error. Thereupon the Court of Appeals, pursuant to and in compliance with the mandate of this court, upon further hearing and consideration, re-examined the questions which had been challenged upon the ground of competency, whether as privileged or otherwise,, and held that, while “As to some of the questions,, standing alone, the objections may seem well taken but. when considered as a part of the whole inquiry” arn. competent.

That court having proceeded pursuant to and in. accordance with the mandate of this court, I am not. disposed to reverse its finding and conclusion.

I adhere to the decision of .this court as announced in the syllabus in In re Martin, Jr., 139 Ohio St., 609, 41 N. E. (2d), 602, which follows and applies the pertinent rule announced in previous Ohio cases. I am not, however, in accord with the statement in that opinion that the order of commitment was indivisible. The-commitment, would be valid if it be found that the witness had unlawfully refused to answer any question.

The majority now relies strongly upon the decision of DeCamp v. Archibald, 50 Ohio St., 618, 35 N. E., 1056. The conclusion is unavoidable that subsequent, decisions of this court cited in the former opinion in this case modified materially the holding in the DeCamp case, supra. It is to be observed that in that, cáse, as in some other cases cited in the majority opinion herein, the reviewing court considered and determined the competency of the questions challenged.

In the opinion in Ex parte Jennings, 60 Ohio St., 319, 54 N. E., 262, this court held, as stated in the syllabus,, that if a witness whose deposition is being taken be imprisoned for refusal to testify to facts not relevant, to the issues in the case, and disclosure of such irrelevant facts would be injurious to the business of the witness, he may be discharged on habeas corpus. Shauclq. J., in his opinon directed attention to the fact that in the DeCamp case “it was clearly pointed out in the opinion that the question which the witness refused to answer was competent.”

That the syllabus in the DeCamp case was at least modified, if not in effect overruled, in the Jennings case is attested by the fact that Minsfiall, J., who wrote the opinion in the former case, dissented from the syllabus in the latter case.

In referring to the DeCamp case, it is said in 14 Ohio Jurisprudence, 39: “This holding has been modified by subsequent decisions, however, to the extent that the witness in this situation may, if he chooses, decline to answer, if in his opinion the evidence sought to be elicited by the question is incompetent or irrelevant, as well as where he considers the matter privileged, and, in the event of being committed for contempt on account of such refusal, seek his vindication in a habeas corpus proceeding, which would necessarily involve a determination of the question, the legality of the commitment depending upon the legality of the order to answer, and the legality of the order to answer depending, in turn, upon the admissibility of the evidence sought to be elicited by the question propounded, or upon its character as privileged, as the case might be.”

Turner, J.,

dissenting. With the exception of paragraphs four and five thereof I agree with the syllabus of the majority opinion. I do not agree with paragraphs four and five of the syllabus for the reason that the syllabus in the case of In re Martin, Jr., 139 Ohio St., 609, 41 N. E. (2d); 702, the syllabus in the case of Ex parte Schoepf, 74 Ohio St., 1, 77 N. E., 276, 6 L. R. A. (N. S.), 325; and the syllabus in the case of Ex parte Jennings, 60 Ohio St., 319, 54 N. E., 262, 71 Am. St. Rep., 720, correctly state the law of Ohio which should control the decision in the instant case. The Schoepf and Jennings cases have long formed the pattern of practice in this state.

In the case of Ex parte Jennings, supra, this court held:

“A witness whose deposition is being taken before-an officer may refuse to testify to facts not relevant to the issues in the case in which the deposition is to-be read, if the disclosure of such irrelevant facts would be injurious to the business of the witness; and, if imprisoned by the officer for such refusal, he may be-discharged on habeas corpus.”

In the decision of the Jennings case this court did not. consider that it was reversing the case of DeCamp v. Archibald, 50 Ohio St., 618, 35 N. E., 1056. In respect of that case Judge Shauck said at page 330:

“In DeCamp v. Archibald, so confidently relied upon, to justify this imprisonment, it was clearly pointed out in the opinion that the question which the witness-refused to answer was competent. Indeed it does not. seem to have been finally determined in any case that the personal liberty of the citizen is of so little importance that it should yield to a desire to gather food for idle gossip.”

Judge Shauck also pointed out that the settled law on the subject was as stated in Church on Habeas Corpus, section 319, which he quoted at page 329 as follows:

“ ‘The law has not invested such officers (notaries public) with arbitrary and omnipotent power to compel a witness to answer all questions however incompetent, irrelevant, immaterial or inadmissible. A refusal to answer such questions is not necessarily a contempt. To have power to commit for contempt, the notary must exercise his functions substantially in the manner and under the circumstances prescribed and contemplated by law. It has, therefore, been held that a witness will be discharged on habeas corpus where he has been committed for contempt by a notary public for failing or refusing to produce papers and testimony that-are incompetent and inadmissible.’ ”

In 14 Ohio Jurisprudence, 35, Section 36, it is said:

"The general rule as to the scope of the examination of a witness, who is not a party to the action or proceeding, in the taking of his depostion, is that it may extend to any matter which is pertinent to the issues tendered or made, but not to any matter which is incompetent, irrelevant, immaterial, or privileged. The supreme court has expressly declined to sustain the contention that a witness who is testifying in a deposition may be compelled to produce any document, or disclose information as to facts, which by any possibility may become pertinent on the trial of the case, and has held, on the contrary, that the right to compel the production of a document, or to elicit other evidence, is to be determined on the basis of its relevancy and competency under the issues as they stand at the time of the taking of the deposition. In other words, a pai’ty has no greater privilege under the law in the taking of a deposition, with respect to the scope of the examination of the witness and the production of books and papers, than he would have on the trial of the case, under the same state of the pleadings and issues.”

The syllabus of Ex parte Jennings, supra, fits the facts in the'instant case like a glove. The only basis for the deposition is a bill of discovery filed in an estate. No claim was made that Martin, Jr.,' or his •company was in any way indebted to the estate or that either of them had any property of any kind belonging to the estate. Neither Martin, Jr., nor his company is a party to the litigation. Under such a commission and the circumstances of this case must they meekly submit and allow their business files to be ransacked and their business secrets and transactions laid open to the view of their competitors?

In the course of Judge Bell’s opinion it is said: 44It is claimed by counsel for the petitioner that the ex-animation was not in good faith and was conducted only for the purpose of prying into the business affairs of the witness. There is nothing in this record to justify that claim.” With this conclusion I cannot agree. The record discloses that there had been litigation between the Martin Brothers Box Company and Southern Kraft Corporation and of the 976 questions put to Mr. Martin (practically all of them relating to' the Southern Kraft Corporation litigation) there were but 25 which he refused to answer. It would take entirely too much space to set out and discuss the various questions relating to Southern Kraft Corporation, the refusal to answer which has been held contempt, but here are two of the group-two questions:

‘‘Q. 136. Prior to the filing of this petition by Southern Kraft Corporation against your company demanding the sum of $89,402.06 and interest, did they make a demand upon you for the payment of that sum?”
“Q. 192. Bid .Southern Kraft threaten suit before instituting the action against your company?”

It will be recalled that the Mr. Schwartz referred to in the record appeared on behalf of the estate of William Salzer, deceased. Mr. Eappaport appeared on his own behalf while Mr. Boggs was Martin, Jr.’s, attorney and had represented the Martin Brothers Box Company in the Southern Kraft litigation. Mr. Eappaport had also represented the Martin Brothers Box Company. The deposition was being taken" ‘ ‘ In the Matter of the Application of Benjamin Salzer, an Executor of the Last Will and Testament of William Salzer, Deceased,'to Discover Certain Property of Decedent Claimed to be withheld,” and was made upon the application of Emanuel Schwartz as attorney for petitioner. The record does not otherwise show any pending case in which the deposition might be offered.

Immediately after the witness Martin, Jr., was .•sworn, the record shows that the following took place:

“The witness: Can I ask Mr. Schwartz a question?
“Mr. Schwartz: Go ahead.
“The witness: Mr. Schwartz, I would like to be .assured that this deposition being taken is not going to be handed out outside of the purpose it is being used for, and it won’t get around into the hands of any of •our suppliers or competitors. One of our competitors ¡seems to have one of the depositions now. He is-making a lot of noise today with it. That is my reason for asking, and he says he received it directly from .you.
“Mr. Schwartz: Well, Mr. Martin, I don’t think I am free at this time to give you such an unqualified-assurance. I shall be mindful of not only your request but the rationale of your request, and I certainly have no desire nor have I had any desire at any time, either consciously or unwittingly, to have any tiling get about which might be detrimental to you.
“Mr. Rappaport: Mr. Schwartz, does that go for ■everybody else connected with this litigation?
“Mr. Schwartz: I think, Mr. Rappaport, that has nothing to do with the deposition that is being taken now of Mr. Martin.
“Mr. Rappaport: Mr. Schwartz, that happens to be the very core of a lot of this litigation. I am now asking you who has seen the depositions in these various cases, and by that I want to know the names of the parties to whom you have handed them out.
“Mr. Schwartz: Mr. Rappaport, I am examining witnesses here today in behalf of the petitioner, and I am not discussing extraneous matters with you. * *
“Mr. Martin: Well, at that point there, I don’t feel as though I am going to testify unless I can be assured. Now I know the competitor that has it and he knows me, and he is very free about it. Now if you are going to do that with my deposition, then I am going to take steps right now to see that I am not going to make one. In addition to that, I want to know if Southern Kraft is going to get any part of this deposition. ’ ’

The record shows no answer to this but shows that Mr. Schwartz immediately began with question one:

“Where do you reside?”
“The witness: I am going to ask my counsel if I am not entitled to something definite from the request that I made, a definite answer from you.
“Mr. Boggs: I think, Mr. Schwartz, that we are entitled to have an assurance that this deposition is only going to be used for the purpose for which it is being taken, and that is for the purpose of submitting it to the Surrogate to determine the issues between your client and Mr. Rappaport. We are perfectly willing on that basis to have Mr. Martin testify if we have that assurance from you.
“Mr. Schwartz: Now I ask that the Commissioner direct the witness to answer the question.
“The commissioner: Will you repeat the question? (Question read by reporter as follows: ‘Where do you reside?’)
“The commissioner: The witness will answer the question.
“A. I don’t know as I am going to answer. I am telling you right now; listen, this is a competitive proposition.
“Mr. Boggs: Until we have that assurance from you, Mr. Schwartz, I shall advise the witness to decline to answer any questions in this deposition. I will say to you very frankly we are perfectly willing to have him give his testimony on condition that this deposition that 'be gives is used solely and only for the purpose for which it is taken under the order of the Surrogate of New York county in the mat•ter of the application of Benjamin Salzer, an executor of the last will and testament of William Salzer, ■deceased, to discover certain property of the decedent •claimed to be withheld. We are perfectly willing to have Mr. Martin give his testimony pursuant to the order of the Surrogate Court to be used solely and ■only in this case.
‘ ‘ Mr. Rappapoxl: Provided Mr. Schwartz gives that .assurance on the récord.
“Mr. Boggs: Yes.
“Mr. Schwartz: Mr. commissioner, the order of the Surrogate, a certified copy of it, is in your possession, and no such condition is made there, and the attempt on the part of Mr. Rappaport aixd Mr. Boggs to impose a provision in their order which does not appear is abortive and has no validity or effect, and I respectfully submit this witness should be directed to .answer pursuant to the order and the commission axxd the subpoenaes served upon him. * *
‘ ‘ Mr. Rappapoit: Mr. commissioner, I am now asking you to squarely rule whether the law of Ohio permits the taking of a deposition not for use upon the trial of an action in the court of original jurisdiction, 'but for the purpose of peddling it around to competitors of the witness, to business rivals and to people in .general who are shown to have no conceivable proper interest in seeing the deposition. * *
Mr. Schwartz: I respectfully submit, on Mr. Rappaport’s request, that that is not before the commissioner. What is before the commissioner here is the requirement that the witness, Mr. Martin, be required to answer the questions in pursuance of the order made by Surrogate D.elehanty and the commission certified out of that court.
“Mr. Boggs: Mr. commissioner, in view of the fact that Mr. Martin has stated that he had already received direct information from one of his competitors that some of the testimony taken before you has come into their hands, and in view of the fact that Mr. Schwartz, as counsel here for the applicant or for the executor of the last will and testament of William Salzer, has it within his power to see that these depositions do not .get into the hands of anyone except the court, we again make our statement and request of Mr. Schwartz, which is very simple for him to give us, the assurance that if he wants the deposition of Mr. Martin we ask his cooperation to protect Mr. Martin and his business by not showing this deposition of Mr. Martin’s to anyone except to exhibit it to the court in line with the •order of the court for the purpose for which it was taken, to wit, to determine this controversy between Mr. Salzer and Mr. Rappaport, and if Mr. Schwartz will give us that assurance, Mr. Martin will give his •deposition. Without that assurance I shall advise Mr. Martin -to protect his business that he decline to answer any questions here in connection- with this deposition.
“Mr. Schwartz: Without stating or indicating what I might or I might not deem entirely appropriate as to my conduct, irrespective of any implication that might be drawn by my refusal to discuss the matter, whether properly or no, I ask that the commissioner •direct the witness to answer the last question.
“The commissioner: As commissioner, I direct the witness to answer. * * *
“Mr. Boggs: Mr. Schwartz, of course you are begging the question now because the request for assurance that we asked of you related to the deposition as a whole and we do not consider it fair to ask questions •in piece-meal of this kind. You know perfectly well that the reason we asked for this assurance from you is in giving Mr. Martin’s deposition we are considering the deposition as a whole and not the question of what his name is, or whether- or not he is president of the company or where he resides, but we are directing o,ur inquiry to you for assurance that his deposition when completed will not be given out to anyone except to the court, and it is for that reason that we have advised Mr. Martin to decline to answer any questions, and we shall continue to so advise him until we have your assurance, which is a reasonable request, and if you are concerned with this litigation that is now pending in New York, and solely with that, and not interested in in jurying Mr. Martin or in his business, you should be perfectly willing to give that assurance.
“Mr. Schwartz: I have no concern other than the litigation which is now pending in New York. I neither have a desire nor wish of any kind to injure Mr. Martin or his business. I still state with all due respect to the position that you have taken here this morning, Mr. Boggs, in behalf of Mr. Martin, that I don’t think Mr. Martin advances it in good faith when objection is made to the questions that I have put. I could well see that such a statement by me would be unwarranted possibly when a question is asked which might, if known to a competitor, be potentially inimitable [sic] to his interest, and I think what ought to be done in good faith is to allow this examination to go on, in any event, until the witness feels that a question is asked which might hurt him in his business and then the question would be presented to the commissioner for ruling, but until that time I think there is no basis for the witness’s refusal to answer.”

There is much more of this in the record but at no point am I able to find where Mr. Schwartz gave the assurance that this deposition would not be handed to competitors as Mr. Martin positively testified that other depositions had been so handled. It must be remembered that Mr. Rappaport’s objections were being made on his own behalf. The order of the Surrogate directing the issuance of a commission to take testimony contains the following provision:

‘ ‘ Ordered that the actual disbursements of respondent Jacob Rappaport for traveling to and from the place of the examination and for living expenses during the continuance of the examination will be charged .against the assets of the within estate, to the extent that they are reasonable * *

An example of the way the questions were raised with the basis of objection thereto may be seen from .the following:

“Q. 40. So that your contract with Southern Kraft was negotiated in New York? A. Yes, sir.
“Q. 41. But your specifications of quantities and '.the items of merchandise went to the Chicago office? A. Yes, sir.
“Q. 42. Now who handled the contract in New York; who negotiated for the Southern Kraft -Corporation? A. Myself, with Mr. Gransden.
“Q. 43. Is that Mr. Vern F. Gransden? A. Yes, and Mr. Dick Cullen.
“Q. 44. And when was the contract negotiated? A. It was either in 1932 or 1933.
“Q. 45. And for how long a term was that contract .made ?
“Mr. Boggs: Well, just a minute. I object to that. .It is incompetent and immaterial in this proceeding here. That is purely a business matter, Mr. Schwartz, not covered by anything in the subpoena here or the .Surrogate’s order.
“Q. 46. Did the term of that contract extend for .a period beyond April, 1935?
“Mr. Boggs: Object to that also.
“Mr. Schwartz: I ask that the commissioner direct the witness to answer those two questions.
“The commissioner: The witness is directed to .answer.
“Mr. Rappaport: I now object. Both of these questions are not within the issues as to which the examination is permitted by the order of Judge Delehanty.
“Mr. Schwartz: I renew my request that the commissioner direct the witness to answer the two questions.
“The commissioner: The commissioner makes the same order.
“Mr. Boggs: I advise Mr. Martin that those matters are wholly without the order issued by the Surrogate and/or the subpoena served on Mr. Martin, and are purely matters relating to business affairs between his company and the Southern Kraft Corporation, and have no connection with William Salzer or the William Salzer estate, and advise him to decline to answer the questions. * * *
‘ ‘ The commissioner: In answer to both of you gentlemen, my understanding as contained in the instructions and some law I have read with reference to this matter is, as I have repeatedly suggested through this hearing, that the ultimate admissibility of these various matters is for the determination of the Surrogate, and whether or not the matter is relevant or material is up to him. Therefore, the course I follow is that the question should be answered in the given case, and then that submitted to the Surrogate at the proper time for his ruling.”

In the course of Judge Bell’s opinion in the instant case it is said: ‘ ‘ some of these thirteen questions were undoubtedly subject to objection; however this offered no ground for the witness to refuse to answer.”

I turn now to the question of the right of the commissioner to require the production of books and papers belonging to either the witness or the Martin Brothers Box Company. The record discloses the following :

“Q. 729. Have you produced your check book stubs, Mr. Martin, for the year 1937? A. Have we produced them?
“Q. 730. That is right. A. Have we been asked to produce them?
“Mr. Rappaport: I .want to repeat again what I have already said. I want the record to show I am again raising the objection that the commissioner has issued subpoenaes that are far broader in scope than the order of Judge JDelehanty authorizes.
“Mr. Schwartz: I ask that the commissioner direct the witness to produce the Martin Brothers Box Company ,check book stubs since April 1st, 1937.
“The commissioner: He is so directed. The witness is directed to produce the check stubs as requested. ’ ’

The refusal to' comply with question 730 is treated by Judge Bell as belonging to group two, the refusal to answer each of which questions has been held by the majority to be an unlawful refusal.

In the journal entry of the Court of Appeals appears the following:

“The court further finds that the petition of said petitioner should be dismissed; that the said Fred Jj Martin, Jr., should be remanded to the custody of said Charles L. Hennesy, sheriff of Lucas county, Ohio, until he shall produce all of the documents he has refused to produce * * V’ (Italics mine.)

In the petitioner’s motion for new trial in the Court of Appeals appears the following ground:

“9. The court erred in deciding and finding that said Fred J. Martin, Jr., was lawfully ordered to produce books, records and papers requested to be produced by various of the twenty-five (25) questions in that the production of said books, records and papers requires the disclosure of confidential information relating to the business of the Martin Brothers Box Company, which is not named as being interested in the discovery proceedings in the Surrogate’s Court, New York county, N. Y.”

In the journal entry of the Court of Appeals overruling the motion for a new trial appears the following:

“It is therefore ordered, adjudged and decreed. * * * that the said Fred J. Martin, Jr., is remanded to the custody of Charles L. Hennesy, sheriff of Lucas county, Ohio, the respondent herein, -until the said Fred. J. Martin shall produce all of the documents he has-refused to produce * *

Here then we have a situation where the president, of a company is being punished for contempt for failure to produce all of the check stubs of his company for a period of more than four years. It is to be observed that no particular check stub is called for.' Theorcler is to produce all.

Section 11503, General Code, provides:

“A subpoena shall be directed to a person named' therein, and require him to attend at a specified time- and place to testify as a witness. It also may direct, the person it names, to bring with him any book, writing, or other thing under his control, which he may be compelled to produce as evidence. (Italics mine.)

In the course of the opinion in Ex parte Schoepf, supra, Judge Davis said at page 13:

“It was held in the case of Rauh, supra, [65 Ohio St., 128, 61 N. E., 701] that a notary public has power to punish a witness for contempt by. imprisonment' when the witness refuses to obey a subpoena ducestecum directing him to bring with him any book, writing or other thing under his control, which he may be-compelled to produce as evidence. What may he be-compelled to produce? And how may he be compelled' to produce it? These questions are clearly answered by Sections 5289 to 5293 inclusive, of the Revised Statutes. Section 5289 [now Section 11551, General Code] provides that the court may require the parties to an action ‘to produce books and writings in their possession or power which contain evidence pertinent to the issues, in cases and under circumstances where they might heretofore have been compelled to produce the same by the ordinary rules of proceeding in chancery/ ” (Italics mine).

Section 11551, General Code, was enacted on March 6, 1857, 54 Ohio Laws, 23 (Section 5289, Revised Statutes), Section 360, and has not since been changed in substance. While in 6 Wigmore on Evidence (3 Ed.), 439, Section 1856d, it is said:

“The principle of a bill of discovery was never considered to be applicable to third persons not parties so as to secure from them before trial a disclosure of possible evidence; just as it was not available against such persons to secure an inspection of documents.”

To this statement Wigmore now adds:

“But under the modern deposition statutes permitting parties more or less freely to take depositions before trial, may not such discovery be effectually •sought? It would be a sound extension of the principle to permit it; the chancery practice was too cautious; modern policy tends to acknowledge this.”

These are mere observations by the author, not •statements of what the law is, and so far as Ohio Is •concerned the books and writings in the possession of .a witness are to be produced only in cases containing evidence pertinent to the issue, in cases and under ■circumstances where they may heretofore have been compelled to produce them by the ordinary rules of ■chancery.

In the instant case counsel is endeavoring to compel ■the production not of specific papers but generally of papers, checks, etc., which may be attached to the depositions and sent beyond the jurisdiction of Ohio-courts.

Another example of the questions, the refusal to answer which the witness is now being held in contempt, is question 921 which.reads as follows:

“Now have you produced the bills from attorneys received by Martin Brothers Box Company since April 1, 1937?”

The record shows the deposition of the witness was being taken on April 21, 1941. This question calls for the production of bills for more than four years, from the company doing a business of more than $1,500,000 a year. It seems preposterous to punish the president of the company for contempt in refusing to produce all of his company’s check stubs since April 1, 1937, or for refusing to produce attorneys’ bills for a like period of over four years. The record shows that Nolan Boggs and Percy R. Taylor, members of the Bar of this state, conducted the Southern Kraft litigation and there is no charge or claim in the record that either of these attorneys had anything to do with any conspiracy of any kind. The record shows that Mr. Rappaport did act as an attorney in New York for the Martin Brothers Box Company.

It is conceded that the taking of the deposition in this case was a mere fishing expedition. Section 1, Article I of the Constitution of Ohio provides:

"A11 men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”

I consider that the witness was within his rights when he refused to answer each and all of the questions under consideration. Each of these questions was not only incompetent and immaterial but privileged.

In commenting upon DeCamp v. Archibald, supra, it is said in 14 Ohio Jurisprudence, 39, Section 39:

“This.holding has been modified by subsequent decisions, however, to the extent that the witness in this situation may, if he chooses, decline to answer, if in his opinion the evidence sought to be elicited by the question is incompetent or irrelevant, as well as where he considers the matter privileged, and, in the event of being committed for contempt on account of such refusal, seek his vindication in a habeas corpus proceeding, which would necessarily involve a determination of the question, the legality of the commitment depending upon the legality of the order to answer, and the legality of the order to answer depending, in turn, upon the admissibility of the evidence sought to be elicited by the question propounded, or upon its character as privileged, as the case might be.”

In no instance did the witness’s conduct constitute an unlawful refusal to answer as a witness.

There is no justification in this case for disturbing the settled law of this state.

The judgment of the Court of Appeals should be reversed and final judgment entered discharging the petitioner.

Hart, J., concurs in the foregoing dissenting opinion.  