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Frat. Mut. Life Ins. Co. v. Applegate.

The fact that he was dead could not make them competent. Lund v. Tyngsborough, 9 Cush. 36.

They were not admissions against interest; for they concerned his wife's separate property, in which he had no interest whatever. They were not competent as declarations of an agent. Smith v. Bodfish, 39 Maine, 136; Burnham v. Ellis, Ib. 319; Franklin Bank v. Cooper, Ib. 542; Patton v. Meinsinger, 25 Penn. St. 393; Runk v. Ten Eyck, 4 Zabr. 756; Welch v. Johnson, 2 Sneed, 73; Cov. & Lex. R. R. v. Ingles, 15 B. Mon. 637; Balt. & Ohio R. R. v. Gallagher, 12 Gratt. 655.

The admissions of a husband will not bind a feme covert as to her separate estate. Dawson v. Hall, 2 Gibson (Mich.), 390.

They were not admissible on the ground of being declarations of a sick person; for declarations of a sick person are competent 296] *only so far as they relate to his condition at the time when the statements are made. Gardiner Peerage Case, note to Aveson v. Kinnaird, 6 East, 188; Lusk v. McDaniel, 13 Ired. 485; Eckles v. Bates, 26 Ala. 655; Alien v. Vancleave, 15 B. Mon. 236.

The case of Aveson v. Kinnaird, 6 East, 188, is overruled in Stobart v. Dryden, 1 Mees. & W. 615.

SCOTT, J. The first question which arises in the case is: Did the court below err in sustaining the demurrer to the sixth plea?

The general law in relation to life insurances taken for the benefit of wives, provides that "it shall be lawful for any married woman by herself, and in her own name," etc., "from her separate property, to cause to be insured for her sole use the life of her husband," etc. Swan's Stat. 480. By the eighth section of the act incorporating this company (49 Ohio L. 220), it is provided, "that policies of insurance may issue to any married woman in her name, or in the name of a third person, as trustee, to cause to be insured for her sole use the life of her husband; and in case of her surviving him, the amount shall be payable to her for her sole use and benefit, free from any claims of the creditors or representatives of her husband, provided the annual premium shall not exceed the sum of $150, unless paid from the private property of the wife."

These provisions treat a married woman as a feme sole in respect to policies of insurance taken out in her name upon the life of her husband. Such policies become her separate property, and are placed beyond the reach of her husband or his creditors.

Frat. Mut. Life Ins. Co. v. Applegate.

Henry S. Applegate had, therefore, no legal right to control this policy, and the unauthorized surrender of it by him, as set up in the sixth plea, constituted no bar to the action; and the demurrer was, therefore, properly sustained.

It is shown by the record that the plaintiff in error, upon the trial in the court below, offered in evidence certain statements made by Henry S. Applegate to Doctor Vattier and several other witnesses, during the negotiation for the surrender of the policy, and the substitution of the $500 policy in its stead, which took place [297 more than a year after the issuing of the policy upon which suit was brought. This policy was issued June 7, 1851.

Mr. Applegate was taken with hemorrhage of the lungs in December following, from which he never fully recovered; and died of pulmonary consumption about the close of the year 1852. The statements offered in evidence consisted of admissions made by said Henry S. Applegate in relation to the condition of his health before the date of the policy sued upon; that he had spit blood before that time, and that his declaration upon that subject, contained in the application for the policy, was untrue.

Counsel for the defendant in error objected to the reception of these admissions by the court, " for the purpose of establishing the condition of Henry Applegate's health before the issuing of the policy; which said objection was sustained by the court, and thereupon the court refused to receive and consider the said declarations for the said purpose." Was this ruling erroneous?

There is no direct evidence in the case, that Applegate, in the surrender of his wife's policy, or in the negotiations which preceded this arrangement, acted as the authorized agent of Mrs. Applegate. It is not shown that she had knowledge of the transaction at the time, or ratified it afterward. The surrender was made in writing by Henry S. Applegate, in his own name. He did not even profess, as in the taking out of the policy, to be acting as the agent of his wife. The transaction was manifestly against her interest, for the second policy was for but one-fourth the amoun of the former, and was for the benefit of other parties. Her assent can not, therefore, be presumed. The court below accordingly found, and as we think properly, in her favor, upon the issues presented by the seventh and eighth pleas.

The statements in question, then, are the declarations of a stran

Frat. Mut. Life Ins. Co. v. Applegate.

ger, one who is neither a party to the suit, nor was, at the time of making them, acting as the agent of a party. They are not the declarations of a sick person in relation to his condition at the time of making them; for they relate to transactions and a state of facts long past. They were not admissions against interest; for they could injuriously affect only his wife's separate property. 298] They were not the statements of one who had been a *witness on the trial, offered to impeach his credit; but were offered and excluded merely as proof of the facts claimed to have been thus stated. It may be true that these were the declarations of the person who best knew the facts of the case; but whatever weight this consideration might properly give to competent evidence, it can not remove the objection to its competency. Coming from the

witnesses through whom it was offered, it was still mere hearsay. Nor do the declarations become competent because made by a person deceased, and who can not, therefore be produced as a witness upon the trial. This circumstance alone, however unfortunate for a party, will never convert hearsay into competent evidence.

And it can not be claimed, that from the mere relation of husband and wife, a feme covert is bound, in respect to her separate property, by the admissions or declarations of her husband. Indeed, I am not aware of any recognized rule in the law of evidence, under which such declarations can be held competent.

Counsel for plaintiff in error, rely mainly on the authority of Aveson v. Kinnaird, 6 East, 188.

The admissibility of the evidence in that case was placed upon grounds which do not exist in the case before us. The declarations there, were regarded as a species of cross-examination, and as statements made by a sick person in relation to the condition of her health at the time of making them. Besides, the authority of that case has not been acquiesced in; and the contrary doctrine was since held in Stobart v. Dryden, 1 Mees. & W. 615, where the question was considered both on principle and authority.

We think that the evidence, viewed in connection with the purpose for which it was offered, does not fall within any established exception to the general rule in regard to hearsay, and was therefore properly excluded.

Discarding these admissions of the deceased, we have no doubt

Doolittle & Chamberlain v. McCullough.

that the finding of the court below, upon the issues made by the first five pleas, was fully warranted by the evidence.

Judgment affirmed.

BARTLEY, C. J., and SWAN, BRINKERHOFF, and SUTLIFF, JJ., concurred.

*DOLITTLE & CHAMBERLAIN v. EDWARD MCCULLOUGH. [299

A written assignment of personal property from A to B, as agent, authorizing B to sell the property to C & D, at a price therein named, to be paid by them to the workmen and creditors of A, obtained by threats of personal violence by the workmen, was voidable on the part of A for duress. If A chose to avoid said assignment, it was incumbent upon him to do so, by notice to B and to C & D, when released from duress.

Where, previous to notice of avoidance of the assignment for duress, C & D had in good faith, in accordance with the terms of the assignment, and at the request of the agent, purchased the property, and paid the price to the workmen for A's benefit; upon the avoidance of said assignment, and action of trover brought by A against C & D, the payment to them so made to the workmen for A's benefit, is admissible in evidence on the trial, in mitigation of damages.

Where such evidence has been improperly excluded, but, pending the petition in error, A shows to this court that he has remitted from his judgment the amount of such payment and interest, the judgment will not be reversed for such error.

PETITION in error to reverse the judgment of the district court of Hamilton county.

In December, 1850, McCullough brought an action of trover against Doolittle & Chamberlain, in the Superior Court of Cincinnati, to recover damages for an alleged conversion of various items of personal property claimed by McCullough to be his.

Doolittle & Chamberlain pleaded the general issue to the declar

ation.

At the April term, 1852, the case was tried to a jury, and McCullough obtained a verdict and judgment for $710.89; and Doolittle & Chamberlain appealed.

At the October term, 1855, of the district court, the case was again tried by jury upon the same issue, and McCullough obtained

Doolittle & Chamberlain v. McCullough.

a verdict for $847.87; upon which, after hearing and overruling a motion made on behalf Doolittle & Chamberlain for a new trial, the court entered judgment.

From the bill of exception taken in the district court by the plaintiffs in error, the following facts appear:

300] *The property in question consisted of two shanties and their furniture, tools, lumber, and other property, situated along the line, on sec. No. 7, of the Cincinnati, Hamilton & Dayton Railroad. McCullough was a sub-contractor under Doolittle & Chamberlain, and previous to November 20, 1850, held and was using the property, in the construction of the work upon that section, for the accommodation of the workmen employed by him. In the prosecution of his job, McCullough became embarrassed and unable to pay his hands. They in consequence became dissatisfied, and some of them stopped work. McCullough proposed to Bates, the foreman and agent of Doolittle & Chamberlain, that they should buy the property in question, and from the proceeds pay the hands. At McCullough's request, Bates went and viewed the property, and while viewing it, said to some of the hands who had. quit work, and were threatening to sell the property for their pay, that nothing was remaining due to McCullough from Doolittle & Chamberlain, but that if McCullough would sell the property to them he believed there would be enough, and they would pay the hands.

But after having examined the property, Bates valued it at only two hundred and fifty dollars, whereas McCullough had estimated it to be worth seven hundred dollars. The hands seem to have become apprehensive that the price fixed upon the property by Bates would be insufficient to pay them, and notwithstanding his informing them, at McCullough's request, that the price of the property, if bought by Doolittle & Chamberlain, would be paid to the workmen, they seemed dissatisfied, became excited, and threatened personal violence to Bates, who soon left them. It was, however, agreed that McCullough should meet a committee to be sent by the hands the next day, at a place called the "Eleven-Mile House,” to try and make some satisfactory arrangement for the payment of the amount due them.

According to agreement, the next day McCullough repaired to the "Eleven-Mile House," and so did the committee; only it seemed to be a committee of the whole. From fifty to one hundred hands

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