G.M. McKelvey Co. v. General Casualty Co. of America

142 N.E. 2d 854 (Oh. 1957).

One-Sentence Takeaway: Where death, absence from the jurisdiction, or insanity make a witness unavailable, and where such witness is the only source for which the evidence can be obtained, a declaration by such a witness against his or her interest should be admitted in evidence as an exception to the hearsay rule.

Summary: Plaintiff’s employees stole from the business and, after the thefts were discovered, said employees signed affidavits admitting to stealing from Plaintiff and the specific amounts that were stolen by each employee.  The employees thereafter fled the jurisdiction.

Plaintiff attempted to recoup its losses sustained through the misappropriation of store funds by its employees, from the defendant, General Casualty, who had bonded the employees.  At trial, Plaintiff sought to introduce the written and signed confessions of the allegedly defalcating employees after clearly establishing that all the declarants were unavailable as witnesses.

The trial court admitted the ‘confessions’ for a limited purpose, excluding any amounts stated therein. The jury returned a verdict for less than the sum claimed, and the plaintiff appealed the limited-purpose ruling of the trial court on the hearsay testimony. The court of appeals reversed, stating that the trial court should have unconditionally received such ‘confessions.’

The Ohio Supreme Court affirmed the judgment of the court of appeals:

“It is our conclusion that, in a civil action by an insured against his fidelity insurer to recover for defalcations by employees of the former, where such employees are unavailable as witnesses, they having been summoned and not found in the jurisdiction by the sheriff, written and signed confessions of such employees are admissible in evidence as declarations against interest as to both the fact and the amount of the loss.”

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