O'Toole v. Ohio German Fire Ins. Co.

CourtSupreme Court of Michigan
Writing for the CourtOSTRANDER
Citation159 Mich. 187,123 N.W. 795
Decision Date10 December 1909
PartiesO'TOOLE v. OHIO GERMAN FIRE INS. CO.

159 Mich. 187
123 N.W. 795

O'TOOLE
v.
OHIO GERMAN FIRE INS.
CO.

Supreme Court of Michigan.

Dec. 10, 1909.


Error to Circuit Court, Lenawee County; Guy M. Chester, Judge.

Action by Myrtle E. O'Toole against the Ohio German Fire Insurance Company. There was a judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

Argued before BLAIR, C. J., and MONTGOMERY, OSTRANDER, HOOKER, and BROOKE, JJ.

[123 N.W. 796]

Bird & Sampson, for appellant.

D. B. Morgan and Smith, Baldwin & Alexander, for appellee.


OSTRANDER, J.

The policy of insurance sued upon-a Michigan standard form-is dated November 12, 1904. The barn, a portion of the property insured, burned November 5, 1906. This suit was begun by summons April 2, 1907; the declaration being filed April 10, 1907. The trial began February 7, 1908. With its plea the defendant gave notice that it would rely upon a number of the conditions violations of which would avoid the policy, among them the one relating to a change other than by death of the insured in the interest, title, or possession of the subject of insurance. The specification in this behalf was that upon a day named a writ of attachment had been levied upon the property. It also gave notice that it would show (I omit the verbiage) that plaintiff fired the barn, or caused it to be fired, with intent to defraud the defendant. The assignments of error relied upon will be referred to in the order in which they are presented in the brief for appellant.

1. It appeared at the trial that, when the policy was issued, plaintiff represented that she was sole owner of the property, when, in fact, it was owned by herself and her husband by entireties; that, the fact being discovered, a rider was placed upon the policy correctly stating the title. About a year before the fire plaintiff again became of record the sole owner of the legal title, a fact not discovered by defendant until the trial had begun. After plaintiff's case was closed, the court was moved to permit defendant to amend the notice so as to set up specifically the change in the title last above mentioned. The motion was denied, and error is assigned upon the ruling. The proofs of loss contained the statement that the interest of plaintiff in the destroyed property was a total interest, except as to the interest of a certain mortgagee. The statement of counsel to the trial court was that the change of ownership was first discovered from an examination of the records of title made after the trial was begun. The ruling of the court is sustained upon the authority of Baptist Church v. Insurance Co., 119 Mich. 203, 77 N. W. 702.

2. The second and third assignments of erred are based upon rulings which permitted two witnesses for the plaintiff, who in the order of proof preceded her, to detail certain statements made by plaintiff. To one of the witnesses her statement, made by telephone, was directed. The other heard her talking at the telephone. Neither witness was incompetent to testify to what they heard plaintiff say. What she said, in their presence was a fact within their knowledge. It is said that the effect of the rulings was to bring to the attention of the jury selfserving statements of the plaintiff. The fact is that she called the office of the sheriff, and said, in substance, that she would like to have the matter of the fire investigated, that there were suspicious circumstances connected with the burning of the barn. The evidential fact sought to be proved was that plaintiff invited an investigation-set one on foot, or sought to do so, the inference that such conduct was inconsistent with guilty knowledge. The particular act of telephoning and the utterances accompanying it were relevant because the defendant in its notice had informed plaintiff that she was charged, either as principal or as accessory, with burning the insured barn. The testimony for defendant had been concluded. The conduct of plaintiff, her acts and declarations before and after the fire, supposed to be favorable to the theory of defendant, had been brought to the attention of the jury, including statements which were interpreted as declarations that she intended to burn the barn. The particular conduct and utterances of plaintiff occurring at a time before she had been charged with setting the fire, whether making for her innocence or her guilt, were relevant, and no reason is perceived for excluding them.

3. Two letters and the accompanying envelopes were produced by the defendant, offered in evidence, and excluded upon the objection and grount that they were privileged communications. The letters were communications made by the wife to and received by the husband. They were read into the record, and, aside from any presumption, should be regarded as confidential communications. See Wigmore on Evidence, § 2336. Testimony was introduced tending to prove that the letters were found in a room temporarily occupied by the husband, under circumstances indicating that they had escaped from his clothing to the floor of the room. The person who found them occupied no fiduciary or other confidential relation to either spouse. It is not claimed, and there appears to be no foundation for such a claim, the there was collusion between the husband and the one who found them, or between the husband and the defendant. From the finder, but indirectly, they came into the possession of the defendant. They contain relevant and material, if competent, testimony in the nature of admissions of the plaintiff. We need not discuss the proposition advanced by appellant, that the statute privilege should be held to be waived or withdrawn in cases where the communications relate to a projected fraud or crime, to be committed or participated in by one or both of the spouses. See Appleton on Evidence, 167. Assuming, but not deciding, that in a proper case the rule contended for ought to be applied,

[123 N.W. 797]

inspection of these letters does not condemn them as within the rule. It is when they are read in the light of many circumstances which they do not disclose or refer to that they take on the character ascribed to them by counsel, and then only as one may find the truth of many other alleged facts to be. In determining the...

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18 practice notes
  • People v. Fisher, No. 92897
    • United States
    • Supreme Court of Michigan
    • June 30, 1993
    ...involving the admissibility, through a third person, of a privileged marital communication. O'Toole v. Ohio German Fire Ins. Co., 159 Mich. 187, 123 N.W. 795 (1909), was a civil suit involving a claim that the plaintiff wife intentionally burned her barn with the purpose of defrauding the d......
  • People v. Hamacher, Docket No. 81202
    • United States
    • Supreme Court of Michigan
    • March 30, 1989
    ...738 (opinion of Cavanagh, J.); p. 712, 391 N.W.2d 738 (opinion Page 57 of Boyle, J.); see also O'Toole v. Ohio German Fire Ins. Co., 159 Mich. 187, 193, 123 N.W. 795 The majority's construction of the statute is that the statute is unambiguous and that the exceptions to the privilege to bar......
  • Halwas v. Am. Granite Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 21, 1909
    ...accomplish a common object, are fellow servants, the application to the facts seems quite forced. Were not the crane crew and the [123 N.W. 795]respondent under the same general control, working to accomplish the general object of bringing new material onto the premises, manufacturing the s......
  • Mckie v. State, (No. 5920.)
    • United States
    • Supreme Court of Georgia
    • November 19, 1927
    ...R. A. 234, 108 Am. St. Rep. 66, 3 Ann. Cas. 912; State v. Buffington, 20 Kan. 599, 27 Am. Rep. 193; O'Toole v. Ohio German F. Ins. Co., 159 Mich. 187, 123 N. W. 795, 24 L. R. A. (N. S.) 802; People v. Dunnigan, 163 Mich. 349, 128 N. W. 180, 30 L. R. A. (N. S.) 940; State v. Wallace, 162 N. ......
  • Request a trial to view additional results
18 cases
  • People v. Fisher, No. 92897
    • United States
    • Supreme Court of Michigan
    • June 30, 1993
    ...involving the admissibility, through a third person, of a privileged marital communication. O'Toole v. Ohio German Fire Ins. Co., 159 Mich. 187, 123 N.W. 795 (1909), was a civil suit involving a claim that the plaintiff wife intentionally burned her barn with the purpose of defrauding the d......
  • People v. Hamacher, Docket No. 81202
    • United States
    • Supreme Court of Michigan
    • March 30, 1989
    ...738 (opinion of Cavanagh, J.); p. 712, 391 N.W.2d 738 (opinion Page 57 of Boyle, J.); see also O'Toole v. Ohio German Fire Ins. Co., 159 Mich. 187, 193, 123 N.W. 795 The majority's construction of the statute is that the statute is unambiguous and that the exceptions to the privilege to bar......
  • Halwas v. Am. Granite Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 21, 1909
    ...accomplish a common object, are fellow servants, the application to the facts seems quite forced. Were not the crane crew and the [123 N.W. 795]respondent under the same general control, working to accomplish the general object of bringing new material onto the premises, manufacturing the s......
  • Mckie v. State, (No. 5920.)
    • United States
    • Supreme Court of Georgia
    • November 19, 1927
    ...R. A. 234, 108 Am. St. Rep. 66, 3 Ann. Cas. 912; State v. Buffington, 20 Kan. 599, 27 Am. Rep. 193; O'Toole v. Ohio German F. Ins. Co., 159 Mich. 187, 123 N. W. 795, 24 L. R. A. (N. S.) 802; People v. Dunnigan, 163 Mich. 349, 128 N. W. 180, 30 L. R. A. (N. S.) 940; State v. Wallace, 162 N. ......
  • Request a trial to view additional results

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