Plaintiff in error brought suit in the municipal court of Cleveland against the defendant in error to recover for services performed as manager of a grocery store for Catherine Meyers, deceased. A claim had been presented to the administrator, which had been disallowed. The plaintiff's deposition was taken in New York and read on the trial, stating what services he had performed for Catherine Meyers, how long he had worked for her, the amount he was to receive per week under a contract with her, and that no *Page 84 part of such compensation had been paid. No objection was taken to this testimony on the part of the administrator. The case was tried to the court and a judgment was rendered for the defendant.
This proceeding in error is to reverse the judgment of the municipal court.
The evidence offered by deposition was clearly inadmissible in view of the provisions of Section 11495, General Code, which declares a party shall not testify, when the adverse party is an administrator, except to facts which occurred after the time the decedent died.
If the trial court rendered the judgment for defendant because he refused and had a right to refuse to consider the plaintiff's testimony, then the judgment is sound, since there is no other evidence in the record standing alone which would support a judgment for plaintiff. If he considered such testimony, and had a right to consider it, then his judgment is clearly wrong, since there is nothing to indicate that the plaintiff's testimony was false, and it was supported to some extent by the testimony of another witness.
The question then is, if the defendant is an administrator and the opposite party testifies to facts which occurred prior to the decedent's death, and there is no objection to the testimony on the part of the administrator, should it be treated as competent evidence or should it be disregarded?
The question is referred to in a decision by the superior court of Cincinnati in the case of Brown v. A Raft of Poplar and OakTimber, 1 Handy, 13, 12 Dec. Rep., 1. Referring to the language of what is now Section 11495, General Code, the opinion states: *Page 85
"It is intended rather to carry out a policy of the law, than to secure a right to the party. If evidence disallowed by the first clause were offered, it might well be rejected by the Court, though no objection were offered by the executor or administrator. The clause is intended to protect the estates of decedents, and it would be the duty of the executor or administrator to object."
On the other hand, the opinion in Roberts v. Briscoe, 44 Ohio St. 596,602, 10 N.E. 61, 64, contains the following:
"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]."
But in neither case was the question which is now before us for consideration presented.
The authorities on the question, so far as we have examined them in jurisdictions having a statute like the one named, without exception hold that the incompetency of the party as a witness may be waived by the personal representative. Tolly v.Champion, 191 Ky. 114, 229 S.W. 90; Hodge v. St. Louis UnionTrust Co. (Mo.Sup.), 261 S.W. 67; Green's Adm'r. v. Mason,84 Vt. 289, 79 A. 48; Kinley v. Largent, Admr., 187 Cal. 71,200 P. 937; Howatt v. Green, 139 Mich. 289, 102 N.W. 734; Doty v.Doty, 159 Ill. 46, 42 N.E. 174; Cole, Ex'r., v. Sweet,187 N.Y., 488, 80 N.E. 355.
In the case of Kinley v. Largent, supra, counsel *Page 86 for the administrator stated to the trial court that the administrator knew the situation of the parties, and declared that a judgment against the plaintiff would be unjust, and for that reason made no objection to the competency of the party's testimony. In the instant case the administrator de bonis non appeared as counsel for the estate of which he is such representative, and stated to this court that the claim of plaintiff was for labor, and that he had refused to object to the testimony contained in plaintiff's deposition because he thought the claim was just. So, while the statute is for the protection of estates of deceased persons, it may be waived, and if such waiver often results in preventing injustice, as we feel it may, the courts may well leave it to the personal representative to decide whether or not he will claim such protection. If no objection is made to the testimony it must be treated as other competent testimony.
The trial court should have considered the evidence of the plaintiff contained in the deposition, and, since he must have refused to do so, the judgment is erroneous and will be reversed.
It is agreed in this case that if the judgment is reversed a final judgment may be entered in favor of the plaintiff in error. A judgment may be so entered for the amount sued for with interest.
Judgment reversed.
MAUCK, P.J., and MIDDLETON, J., concur.
Judges of the Fourth Appellate District sitting in place of Judges SULLIVAN, VICKERY and LEVINE, of the Eighth Appellate District. *Page 87