Hartford Fire Ins. Co. v. Reynolds

• Decision Date: 12 June 1877
• Citation: 36 Mich. 502
• Court: Michigan Supreme Court
• Parties: Hartford Fire Insurance Company v. James S. Reynolds

36 Mich. 502

Hartford Fire Insurance Company v. James S. Reynolds

Supreme Court of Michigan

June 12, 1877

Heard April 6, 1877

Error to Washtenaw Circuit.

Judgment reversed, with costs, and a new trial granted.

Ashley Pond, for plaintiff in error, to the point that the competency of a witness is a question for the judge, and not for the jury, cited.--Harris v. Wilson, 7 Wend. 57; Commercial Bank v. Hughes, 17 Wend. 94; Cook v Mix, 11 Conn. 432; Reynolds v. Lounsbury, 6 Hill 534; Halcomb v. Halcomb, 28 Conn. 177; Reg. v Hill, 5 Eng. L. & E. 547; Naves v. Williams, 22 Ind. 368; Campbell v. State, 23 Ala. 44; Withauer v. Latham, 12 Conn. 392; Chottau v Searcy, 8 Mo. 788. Contra, Bartlett v. Howitt, 33 N. H., 131; Hays v. Hunsicker, 26 Penn. St., 58.

Beakes & Cutcheon, for defendant in error.

OPINION

Campbell, J.

Suit was brought and recovery obtained on a policy of insurance alleged to have been in force at the time of the destruction of certain mill property of defendant in error in August, 1874.

There were several counts in the declaration, and among other things it is claimed the court erred in refusing to charge that there could be no recovery except under the first count, which was for a renewal of a policy which had expired on the 2d day of April, 1874, by its extension for one year, including the engines and boilers, which were not covered by the original policy.

We think that as the case was left to the jury, this instruction was in fact given, inasmuch as their attention was strictly confined to questions depending entirely on the existence and validity of the renewal agreement. The important questions in the case arise out of other matters of more direct bearing on the merits.

Another objection is perhaps proper to be considered by itself, namely, the rulings concerning the testimony of the witness Hewitt, whose statements were in part ruled out originally, and in part left to the jury to receive or reject, as relating to privileged communications between attorney and client.

After the fire, Mr. Hewitt was employed to prepare the proofs of loss, and seems to have had some other work to do in hunting up the documents and making inquiries. It is difficult from the record to determine,--supposing him to have been a professional adviser,--precisely what part of the transactions came within professional privilege. Hewitt and Reynolds were directly at variance concerning the existence of the relation at all, during some part of the occurrences. The court excluded some matters and received some matters during Hewitt's examination. In the charge it was left to the jury to exclude his testimony of interviews entirely, if they were satisfied from the evidence before them that the conversations took place while Hewitt was Reynolds' attorney.

We do not think it improper to leave to the jury the question of the existence of such a relation when disputed. The judge may determine upon the statements of a witness himself whether he is competent or not; but it does not properly belong to a judge to decide upon the truth of matters which have come out during the examination of witnesses who conflict. And it has been held that on an intricate question of fact the jury may very properly be consulted.--1 Edw. Ph. Ev., 4. We understand this to be correct practice, and in many cases to be the only safe rule for determining such questions. It is laid down very plainly by Greenleaf.--1 Gr. Ev., §§ 49, 425.

But in the present case, we think too large a range of exclusion was left to the jury. They were left at liberty to exclude all the conversations between Reynolds and Hewitt during the period of the professional employment. There was room to claim that all of their intercourse was not privileged or confidential, and some testimony was given by the plaintiff himself, concerning what took place between them, which might possibly be at least a partial waiver of the privilege as to the occasions referred to. At one of the principal meetings Mr. Case was present and took part in the deliberations, which could not, therefore, be regarded as within professional confidence. The judge undoubtedly did not intend to shut out any but confidential matters, and the failure to define them was probably inadvertent.

The principal controversy arose concerning the existence of the renewal of the policy. The evidence was uncontradicted that the insurance company held it cancelled in May, 1874. It was returned to them by their orders, from the agent, Kirchhofer, who had countersigned it, but who had always kept it in his custody for Reynolds. The contest, therefore, was as to whether this cancellation was operative or not as against Reynolds. He claimed to have paid the premium, and to have received no notice of cancellation.

It is necessary, therefore, to know something of the surroundings of the case. Reynolds owned a valuable mill property in Manchester, where Kirchhofer and he resided. He kept up a large insurance, amounting with that in dispute to about thirty thousand dollars. Of this, twenty thousand dollars was obtained of companies for which Kirchhofer was agent. An arrangement existed between them whereby, in consideration of dealing with Kirchhofer, Reynolds was to have an abatement of five per cent. out of the premiums, to be allowed out of Kirchhofer's commissions. The latter also gave him time on his payments of premiums, and did not exact cash down.

There was evidence also of a further understanding that Kirchhofer should look after the insurances and see to their renewal; and that Reynolds left the whole custody and care of the documents with him, and never informed himself except through Kirchhofer concerning the risks. He made no personal application to the insurers. All that was done was done by the agent.

There was a dispute of fact, whether Reynolds made any specific payment of renewal premiums, and also whether he had notice of the cancellation. There was also a question concerning the date of any payment, if made.

Upon the trial,...