Marsh v. Preferred Acc. Ins. Co.

• Decision Date: 13 May 1937
• Docket Number: No. 7159,7160.,7159
• Citation: 89 F.2d 932
• Parties: MARSH v. PREFERRED ACC. INS. CO. SAME v. NEW YORK LIFE INS. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

89 F.2d 932 (1937)

MARSH v. PREFERRED ACC. INS. CO.

SAME v. NEW YORK LIFE INS. CO.

Nos. 7159, 7160.

Circuit Court of Appeals, Sixth Circuit.

May 13, 1937.

Gerald Pilliod, of Cleveland, Ohio (Payer, Corrigan & Cook, of Cleveland, Ohio, on the brief), for appellant.

C. M. Vrooman, of Cleveland, Ohio (Garfield, Cross, Daoust, Baldwin & Vrooman and Arthur D. Baldwin, all of Cleveland, Ohio, on the brief), for appellees.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

HICKS, Circuit Judge.

These actions were brought by appellant, the widow of John C. Marsh, to recover on two insurance policies for his accidental death. The first, for $5,000, was upon accident policy No. 859,591 of appellee the Preferred Accident Insurance Company; and the second, for $12,000, on a provision of life insurance policy No. 9,578,272 of New York Life Insurance Company, contracting to pay double indemnity in case death resulted from bodily injury occasioned solely by accidental means. A verdict was directed for the defendants, and the sole question is whether certain evidence offered by appellant was properly excluded.

Mr. and Mrs. Marsh lived alone in a two-story house. A stairway led from the front hall to a landing and thence by ten additional steps to the second floor hall. There was a balustrade on the left side going up and a wall on the right. A light switch was set in this wall about three feet above the first step going down. This switch was for the light which illuminated the upper hallway and could be easily reached by any one on the top floor. Marsh occupied a bedroom opening off the upper hall on the right as one ascended the stairs. Mrs. Marsh occupied a connecting room. The bath was at the rear end of the hall. At the head of the stairs there was a folding screen in three sections.

Marsh retired about 10:30 p. m. March 16, 1933, but before doing so he placed this screen in the stairway. A short time later Mrs. Marsh went downstairs to lock the house and on her return replaced the screen in the stairway. She then retired. She testified that between 3:30 and 4 a. m. she heard a terrible crash, went to the head of the landing, and looked down the stairway. At this point she offered to give the following additional testimony: "Mr. Pilliod (Dictating to reporter): I found my husband lying on the landing at the foot of the stairs, and the screen had folded up and fallen down. He was lying on the left side of the screen. The screen had fallen, tipped over and fallen on the landing. That was lying on the right side; he on the left. Of course I rushed downstairs. As I came out of my bedroom I shouted: `What was that? What happened?' When I saw him lying there I ran downstairs and he said `I stumbled on the screen and fell downstairs, and I must be terribly hurt; I can't stand.'"

The court ruled that this evidence was prohibited by section 11494, subsection 3, of the Ohio General Code.¹

The court was of the opinion that this statute would not permit Mrs. Marsh to testify, either to any communication made by her or her husband, or to any act done by either of them not in the presence of a third person; that if the statute needed any construction it was to be found in the interpretation placed upon it by Dick, Exec., v. Hyer, 94 Ohio St. 351, 114 N.E. 251, and Commercial Gazette Co. v. Grooms, 10 Ohio Dec. 489. The Commercial Gazette Case is not a decision by the Supreme Court of Ohio and we do not think that Dick, Exec., v. Hyer is susceptible of the interpretation placed upon it.

In Ohio the syllabus of an opinion of the Supreme Court is the law of the case and syllabus 2 of the Dick Case is as follows: "2. A husband or wife cannot testify as to the contents of a written paper, handed by one to the other and examined and signed in the presence of each other during coverture, unless it is done in the known presence or hearing of a third person competent to be a witness."

We think this syllabus bears little analogy, even were analogy pertinent, to the question presented, and until there is a more authoritative declaration by the Ohio Supreme Court as to the meaning of the statute when applied to circumstances such as are here involved, we feel at liberty to place our own interpretation upon it. Our view is strengthened by pertinent comments upon the statute in Holtz v. Dick, 42 Ohio St. 23, 26, 51 Am.Rep. 791.

The headnote to section 11494 is "Privileged communications and acts." In addition to subsection 3, the section deals with communications between attorney and client, physician and patient, and with confessions made to a clergyman or priest.

In Dick v. Hyer, supra, the Supreme Court said: "The evident purpose of this provision paragraph 3 of section 11494 is to keep sacred and secret the confidential relations of husband and wife." The court further said: "If it comes within the class of communications between husband and wife that are regarded as confidential, the law throws a veil of secrecy over it forever."

Assuming that the strict letter of the statute must prevail, and that all communications between the husband and wife and all acts done by either in the presence of the other are confidential unless made or done in the presence of a third person, still we think it was error to exclude the evidence of what Mrs. Marsh saw from the head of the stairway. The court permitted her testimony that she looked. What she saw, as the result of looking, was not an act either of herself or her husband, who was quiescent. What she saw, was his plight and condition which was the resultant of movement or...