Nash v. Fid.-Phenix Fire Ins. Co.

• Decision Date: 12 February 1929
• Docket Number: (No. 6363)
• Citation: 106 W.Va. 672
• Court: West Virginia Supreme Court
• Parties: Roy Nash, Assignor et al. v. Fidelity-Phenix Fire Insurance Company

106 W.Va. 672

Roy Nash, Assignor et al.

v.Fidelity-Phenix Fire Insurance Company

(No. 6363)

Supreme Court of Appeals of West Virginia.

Submitted February 5, 1929.

Decided February 12, 1929.

1. Witnesses Communication Between Husband and Wife is Privileged, Unless Made in Known Presence and Hearing of Third Party; Wife Could Not Testify as to Communication Over Objection of Husband, Who Made it Not Knowing of Presence or Hearing of Third Person.

A communication between husband and wife is privileged unless made in the known presence and hearing of a third party, and the spouse to whom it was made can not testify thereto over the objection of the spouse who made it not knowing of the presence or hearing of a third person, (p. 675.)

2. Same Third Person Hearing Private Conversation Between

Husband and Wife Could Testify Thereto in Suit Involving Subject Matter of Conversation.

A third party who has heard a conversation between husband and wife intended by him to be private and privileged may testify thereto in a suit involving the subject matter of the conversation. (p. 675.)

3. Same; Exclusion of Evidence of Impeaching Witnesses After

Proper Foundation is Erroneous, in Case Question to Impeaching Witness is Not so General as to Introduce Irrelevant and Improper Testimony; Testimony, Relative to Attempt to Suborn Testimony of Witness, was Relevant. Where proper foundation has been laid for impeachment of a witness, it is error to exclude the evidence of an impeaching witness if the question propounded to the latter is sufficiently precise as to indicate the same subject matter or transaction denied by the witness to be impeached, and is not so general as to introduce irrelevant and improper testimony. (Morgan v. Ins. Co., 6 W. Va. 496.) (p. 677.)

4. Trial Trial Judge Should Not Indicate to Jury His Views

as to Weight of Evidence Determining Important Facts.

A trial judge should not indicate in any manner to the jury his views as to the weight of the evidence which determines an important fact. (p. 679.) Maxwell, Judge, absent.

Error to Circuit Court, Mercer County.

Notice of motion for judgment by Roy Nash, assignor, and others against the Fideli ty-phenix Fire Insurance Company. Judgment for plaintiffs, and defendant brings error.

Reversed; new trial awarded.

Steptoe & Johnson, James M. Guiher and Walter V. Ross, for plaintiff in error.

James S. Kahle and John, Kee for defendants in error Beauguess and Nash.

Lively, Judge:

The defendant, Fidelity-Phenix Fire Insurance Company, was awarded this writ to a $2,000.00 judgment obtained by Nash v. Insurance Co.

[Feb. 1929

Roy Nash, assignor, et al., in a proceeding by notice of motion for judgment on an insurance policy.

The plaintiff, Roy Nash, had, for some time prior to January, 1927, conducted a general mercantile business in the City of Bluefield, West Virginia, under the name of "Nash Grocery Company". November, 1926, plaintiff, George Beauguess became a silent partner in the firm. On December 29, 1926, plaintiff, Roy Nash, as active partner in charge of the Nash Grocery Company, secured from a Bluefield agency two insurance policies for $2,000.00 each, covering the stock of merchandise and fixtures in the store, one of which was issued by the defendant insurance company. Both policies became effective as of January 1, 1927, and in each of them the stock of merchandise was insured in the sum of $1,250.00 and the store fixtures to the extent of $750.00, the Nash Grocery Company being designated as the beneficiary.

On January 4, 1927, between two and three o'clock in the morning, the grocery company's stock of merchandise and its fixtures were partially destroyed by a fire. On this date the insured property was valued at $5,000.00. Several judgments were then outstanding against the firm.

As a result of an investigation by the State Fire Marshal Roy Nash was indicted and tried as an accessory before the fact to the burning of the merchandise and fixtures of the Nash Grocery Company, the first trial resulting in a "hung" jury. Before the case could be heard again, Nash was arrested for violating the Volstead Act, and was sentenced to six months in jail on a charge of possessing liquor. He was in confinement at the time of the second trial for arson, when, upon the advice of counsel, he pleaded guilty to having had his automobile destroyed by fire in October or November, 1926, under a compromise agreement with the prosecuting attorney whereby the indictments for burning of the goods and fixtures of the Nash Grocery Company and the store building were nollied.

Upon the trial of the instant case, two colored men, John Worthy and Charley Calhoun, testified that they had, at the instigation of Roy Nash, set fire to the plaintiff's store. (This was denied by Nash.) Worthy and Calhoun had con- fessed to the arson of the goods and fixtures of the grocery company and had served their sentence on that charge.

The defendant assigns as error the action of the trial court in rejecting the testimony of Mrs. Roy Nash, who stated that a few days prior to the fire her husband, during the course of a conversation had with her at their home, said, "Before he would let the creditors come in on him and close him out, he would burn the damn thing." She stated that because of previous discussions had with her husband in this regard, she knew that he had reference to the burning of the store. This conversation took place about eleven o'clock at night while Roy Nash and his wife were in their bedroom preparing to retire. A Miss Blankenship who was then boarding in the home and clerking in Nash's store was in a nursery room with the Nash children across the hall and about ten feet away. She testified that she heard Nash say, in a loud tone of voice, "before he would let his creditors sell him out he would burn the damn thing". The door of the Nash bedroom was open on this occasion, and Mrs. Nash said she heard Miss Blankenship moving around in the room across the hall.

We are of the opinion that the trial court ruled correctly in excluding the testimony of Mrs. Nash regarding the alleged statement. It was clearly a confidential and privileged communication made by the husband to his wife. Defendant contends, however, that the conversation was not privileged because it was made in the presence of a third person, and reliance is had upon Fuller v. Fuller, 100 W. Va. 309, and kindred cases. An examination of the authorities has failed to reveal a single case in which a wife has been permitted to testify to a conversation taking place between her and her husband in the alleged presence of a third person, unless the husband in making the communication to his wife was aware of such presence. It is not shown in the instant case that the husband knew that Miss Blankenship was listening to their conversation. It was late at night and the statement attributed to him was made in the privacy of his bedchamber.

However, we are of opinion that the court did rule erroneously in rejecting the testimony of Miss Blankenship. For, even though a conversation between a husband and wife was intended to be confidential, a third person who overheard it, whether his presence was known or not, may testify as to what was said. 40 Cyc, page 2359; State v. Center, 35 Va. 378; Vol. 5, Wigmore on Evidence (2nd ed.), section 2339 and section 2326. It is the contention of the plaintiffs that the statement testified to by Miss Blankenship was not admissible, because it did not have any legal or logical relation to the arson of the store by Nash. Evidence of incriminating circumstances tending to show a motive for destruction of the property is admissible. 5 C. J., section 53, p. 572. The statement attributed to Nash was indicative of the presence of a design or plan to have his stock of merchandise and fixtures destroyed in order that he might procure the insurance therefor, and has probative value to show that the act was in fact done. Vol. 1, Wigmore on Evidence (2nd ed.), section 102, p. 336. It is true, of course, that the more specific the design, the greater will be its probative value; "but the mere fact that it is generic, i. e., points towards a class of acts, however broad, does not itself destroy its relevancy, provided the purpose might naturally include the act charged." Vol. 1, Wigmore on Evidence, (2nd ed.) section 106. Nash's declaration made a few days prior to the fire was a circumstance to be considered by the jury as of probative value in connection with the other evidence in the ease in determining whether he had procured the commission of the arson. Joy v. Liverpool, London & Globe Insurance Co., 74 S. W. (Tex.) 822. The rejection of this evidence was prejudicial to the defendant, and is reversible error.

Upon cross-examination of the witness Nash, the defendant brought out the fact that he had confessed to arson of an automobile about two months before...