Summary
holding that "a party may not, upon appeal, raise a claim that the oath of a witness was omitted or defective, unless objection thereto was raised at trial" because if "no objection was raised, the error is considered to be waived"
Summary of this case from State v. FloydOpinion
No. 74-112
Decided January 29, 1975.
Evidence — Unsworn testimony — Omission of oath waivable error — Testimony competent, when — No objection — Appeal.
The omission of administration of the oath to a witness in a trial or administrative hearing is waivable error. ( Arcaro Bros. Builders v. Zoning Board of Appeals, 7 Ohio St.2d 32, distinguished.)
APPEAL from the Court of Appeals for Cuyahoga County.
Stores Realty Company, appellee, is the owner of property located on Superior Avenue, between 59th and 60th Streets, in the city of Cleveland. The property was at one time the site of a gasoline station, but is now surfaced with asphalt and used as a parking lot. By letter dated June 20, 1969, the Acting Chief of the Division of Fire of the city of Cleveland directed an order to Stores Realty to abate the violation of Section 5.2118 of the Codified Ordinances of the city of Cleveland. This ordinance recognizes the Standards of Accepted Safe Practice, as outlined in Pamphlet No. 30 of the National Fire Protective Association, and establishes requirements for the safe abandonment of unused underground gasoline storage tanks. Essentially, these standards require that the tanks either be removed, or filled with sand and sealed.
Stores Realty appealed the order and requested a hearing, which was held before the board of Building Standards and Building Appeals. Stores Realty was represented by counsel, who described the use which had been made of the property and of the underground tanks. Also present at the hearing was Captain J.W. Chase of the Cleveland Fire Prevention Bureau, who reported the condition of the property and answered questions concerning possible dangers which might exist through lack of proper abandonment of the tanks. Neither the attorney for Stores Realty nor Captain Chase was placed under oath before testifying, and no objection was raised thereto. At a subsequent meeting, the board sustained the order of the Division of Fire.
Appeal was taken to the Court of Common Pleas of Cuyahoga County, which sustained the order. The Court of Appeals reversed, holding that because the testimony of Captain Chase was not under oath, there was no evidence in the record to support the decision of the board.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Kahn, Kleinman, Yanowitz Arnson and mr. Gary D. Greenwald, for appellee.
Mr. Herbert R. Whiting, director of law, and Mr. Emmanuel E. Dickerson, for appellant.
The issue presented is whether unsworn testimony is competent evidence, where the opposing party is represented by counsel who neither requests that the witness be sworn nor objects to the testimony.
The Court of Appeals relied upon this court's per curiam opinion in Arcaro Bros. Builders v. Zoning Board of Appeals (1966), 7 Ohio St.2d 32, 218 N.E.2d 179. In that case, the chairman of the Zoning Board of Appeals, at an administrative hearing, "refused permission to have any of the witnesses sworn, and allowed unidentified statements, apparently from the audience attending the hearing, to be recorded in the transcript." This court held that, as a result, the record contained no evidence.
Arcaro makes clear that it is error for unsworn testimony to be admitted in evidence. However, Arcaro does not answer the question of whether such error is waived if timely objection is not made.
Ordinarily, errors which arise during the course of a trial, which are not brought to the attention of the court by objection or otherwise, are waived and may not be raised upon appeal. Snyder v. Stanford (1968), 15 Ohio St.2d 31, 238 N.E.2d 563; Oney v. Needham (1966), 6 Ohio St.2d 154, 216 N.E.2d 625.
Although the issue has never been decided by this court, the rule is well-established that a party may not, upon appeal, raise a claim that the oath of a witness was omitted or defective, unless objection thereto was raised at trial. If no objection was raised, the error is considered to be waived. Wilcoxon v. United State (C.A. 10, 1956), 231 F.2d 384; United Parts Mfg. Co. v. Lee Motor Products (C.A. 6, 1959), 266 F.2d 20; State v. Doud (1950), 190 Ore. 218, 225 P.2d 400; State v. Whiting (1953), 173 Kan. 711, 252 P.2d 884; Grant v. Grant (1947), 202 Ga. 40, 41 S.E.2d 534; Estate of DaRoza (1947), 82 Cal.App.2d 550, 186 P.2d 725; Tennant v. Civil Service Comm. (1946), 77 Cal.App.2d 489, 175 P.2d 568; Brenton State Bank v. Heckmann (1943), 233 Iowa 682, 7 N.W.2d 813; Beausoliel v. United States (C.A.D.C., 1939), 107 F.2d 292; 6 Wigmore on Evidence (3 Ed.) 295, Section 1819; 58 American Jurisprudence 307, Witnesses, Section 550. See, also, Newcomb v. Wood (1878), 97 U.S. 581, 583.
Had appellee objected to the unsworn testimony during the hearing, there is little doubt that the chairman would have sworn the witness. By failing to bring the matter to the attention of the board, appellee effectively waived the right to appeal upon that ground.
The Court of Appeals relied upon this court's decision in the Arcaro case. We now hold that Arcaro does not apply where no objection is raised to the omission of the oath to a witness.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.