For the appellant, Walter R. Carroll.
For the respondent, Harry R. Cooper.
The opinion of the court was delivered by
CAMPBELL, J. The action was brought for the purpose of recovering compensation for services rendered by the plaintiff-respondent, as a nurse, to the defendant-appellant, from February 17th, 1926, to December 14th, 1929.
The trial of the issue resulted in a verdict in favor of the plaintiff-respondent for $12,000 and from the judgment entered thereon the defendant-appellant appeals.
There are two grounds urged for reversal:
1. That it was error to permit the plaintiff below to testify in her own behalf, over objection, because the defendant below was under a legal disqualification, viz., mental incapacity.
2. Because it was error to deny the motion of the defendant below for a nonsuit.
Under the first ground the appellant urges and calls to his assistance section 3 of the Evidence act (2 Comp. Stat. 1910, p. 2218), which provides: "No person shall be disqualified as a witness in any suit or proceedings at law or in equity by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credit; provided, no party shall be sworn in any case when the opposite party is prohibited by any legal disability from being sworn as a witness."
When the plaintiff below was called as a witness the attorney for the defendant below objected to her being sworn "on the ground that the defendant here is legally disqualified and cannot be sworn as a witness and, therefore, she cannot be sworn on her own behalf."
The trial judge recognized the statutory prohibition, before quoted, but remarked that no such disqualification had been shown. To this the attorney for the defendant below replied that the testimony of two physicians had been heard and that "there was also a stipulation entered into between Mr. Cooper and myself with respect to this man's mental condition so I think that the man's mental capacity is here quite firmly established in this case," to which the trial judge replied that the difficulty was that the defendant had not been shown to be disqualified and to which the attorney for the plaintiff below added "this stipulation with Mr. Carroll having been entered into does not disqualify this witness to testify." To this counsel for the defendant replied: "The question of whether the witness is mentally incompetent to testify is primarily one for the trial judge to determine. For instance, that stipulation was entered into at my suggestion in order to save the party's estate the expense of bringing down to Freehold those experts by whom he had been previously examined and their depositions are on file in this case, being the basis of the order made by Justice Bodine appointing me counsel in this case."
Now, it appears that upon the service of the summons and complaint in this cause a motion was ...