G.M. McKelvey Co. v. Gen. Cas. Co. - 166 Ohio St. 401, 142 N.E.2d 854 (1957)

Rule:

A declaration against interest by one not a party or in privity with a party to an action is admissible in evidence, where (1) the person making such declaration is either dead or unavailable as a witness due to sickness, insanity or absence from the jurisdiction, (2) the declarant had peculiar means of knowing the facts which he stated, (3) the declaration was against his pecuniary or proprietary interest and (4) he had no probable motive to falsity the facts stated.

Facts:

Appellee insured was the holder of a policy of insurance issued by appellant insurer, insuring appellee for losses that it might suffer through larceny, theft, embezzlement, or other dishonest or fraudulent acts by its employees. Appellee apprehended certain of its employees in the act of appropriating store funds to their own use. On questioning by the appellee’s store detective, the employees signed written confessions admitting courses of conduct of misappropriation over a period of time and stating the amounts taken during such period. Appellant insurer refused to pay the loss. Consequently, appellee insured brought the present action. During the course of the trial, appellee, claiming that all but one of the allegedly defalcating employees were unavailable as witnesses, they having been summoned and not found in the jurisdiction by the sheriff, offered their confessions to prove the fact and amount of loss. The confessions were admitted only for the purpose of showing waiver on the part of appellant of any conditions or provisions in the policy regarding notice and the filing of formal proof of loss. A verdict for less than the amount claimed by appellee was returned by the jury. On appeal to the appellate court, the judgment was reversed on the basis that the trial court erred in not admitting such confessions for all purposes. Appellant challenged the decision.

Issue:

Whether the employees’ confession admissible as evidence for all purposes of the trial?

Answer:

Yes.

Conclusion:

The Court noted that one of the exceptions to the hearsay rule, which has been found to be based on trustworthiness or a probability of truthfulness and veracity, and which has arisen due to necessity, was a declaration against interest by a third party. According to the Court, a declaration against interest by a third party was admissible in evidence if the declaration was against his pecuniary or property interest. In this case, the Court determined that where the employees involved were unavailable as witnesses after having been summoned and not found in the jurisdiction by the sheriff, written and signed confessions of such employees were admissible in evidence as declarations against interest as to both the fact and the amount of the loss.