Summary
stating that for the privilege to apply, “the relation of attorney and client must exist”
Summary of this case from People v. RolarkOpinion
Docket No. 148, Calendar No. 34,498.
Submitted June 20, 1929.
Decided October 7, 1929.
Error to Wayne; Houghton (Samuel G.), J., presiding. Submitted June 20, 1929. (Docket No. 148, Calendar No. 34,498.) Decided October 7, 1929.
Case by John J. Watson against the Detroit Free Press, a Michigan corporation, and Fred W. Schwedt, for personal injuries. From judgment for plaintiff, defendants bring error. From remittitur, plaintiff brings error. Reversed, and new trial ordered.
Walter M. Nelson, for plaintiff.
Vandeveer Vandeveer, for defendants.
In this action, brought by plaintiff to recover damages for injuries occasioned by being struck by an automobile driven by the defendant Schwedt while in the service of the Detroit Free Press, a corporation, the jury found in his favor, and assessed his damages at $12,000.
The error relied on by the defendants is the refusal of the court to admit in evidence the deposition of one Ralph V. Dillard. Dillard stated therein that the day after plaintiff's injury he called on plaintiff at the request of plaintiff's daughter, and on behalf of Howard Edsell, who was in "the adjusting business." On cross-examination, he deposed as follows:
" Q. You told him that you were the agent of the National Adjustment Company?
" A. Yes, sir.
" Q. Did you write, when you first went out to see Mr. Watson, did you agree to represent him in working up his case?
" A. We did.
" Q. Did you agree on what figure was to be charged for it?
" A. Yes, we told him we would take his case and we had a firm of attorneys there who would handle it, and it would not cost him anything unless we got him something.
" Q. Was any figure agreed on in case you recovered?
" A. Well, we were to go fifty-fifty; that was the contract we made with him.
" Q. Did you have a written contract with him?
" A. We did."
Under the common law the mantle of secrecy is thrown upon communications between an attorney and his client on the ground of public policy, because they are regarded as essential to enable the attorney to properly advise his client in the matter under consideration. Plaintiff's right to recover damages for his injury was here involved. Dillard did not assume to be an attorney, or to advise the plaintiff relative to such right. The contract entered into does not appear in the record, but from the statements of Dillard it appears that as a result of his conference with plaintiff it was agreed that the adjusting agency represented by Edsell "would take his case," that it "had a firm of attorneys there who would handle it, and it would not cost him anything unless we got him something." He in no way assumed to advise plaintiff as to his right to recover, but undertook that the adjustment agency would submit his claim for damages to an attorney who would be employed to act. He was asked: "What were your duties with Mr. Edsell?" and replied, "To go out and take these statements after these people were injured, get the dope on it," and added that he took plaintiff's statement and "turned that in to Edsell," and that so far as he knew Edsell "was working for himself." The plaintiff was questioned on cross-examination as to the visit of Dillard to him in the hospital, but was not asked, nor did he state, whether he supposed he was an attorney and talked to him as such.
Counsel for the plaintiff relies upon the following quotation from the opinion in People v. Barker, 60 Mich. 277, 297 (1 Am. St. Rep. 501):
"Confidential communications made in reliance upon the supposed relation of attorney and client, whether the party assuming to act as such is an attorney or not, are excluded upon the plainest principles of justice."
The record does not disclose that plaintiff "supposed" that Dillard was an attorney, or that he would handle his case. On the contrary, it quite clearly appears that, if the Edsell adjustment agency were unable to settle the case, its prosecution was to be turned over to attorneys to be selected by it.
The rule excluding such testimony is in contravention of the general rules of law, as it tends to prevent a full disclosure of the truth. It is to be construed with some strictness, and not extended beyond the principle of public policy on which it is founded. It has been applied to communications with a clerk or agent who acts as an intermediary between the parties. But the relation of attorney and client must exist, and the communication must have been made in furtherance of the purposes of this relation.
A leading case where this question was considered is People v. Pratt, 133 Mich. 125 (67 L.R.A. 923). The decision in that case in no way applies to the facts here presented. In an annotation thereto in 67 L.R.A. 923, the authorities are reviewed at length. A discussion of the cases wherein it is held that the privilege extends to persons in an attorney's office who represent him or assist in the transaction of his business will be found in a note in 53 A.L.R. 370. See, also, 5 Wigmore on Evidence (2d Ed.), § 2290 et seq.; 5 Modern Law of Evidence (Chamberlayne), § 3676 a et seq. The applicable rule is clearly stated in 28 R. C. L. p. 574:
"The privilege of exemption from testifying to facts actually known to a witness is in contravention to the general rules of law; it is therefore to be watched with some strictness, and is not to be extended beyond the limits of that principle of policy upon which it is allowed. Except as otherwise provided by statute, it is extended to no other person than an advocate or legal adviser, and those persons whose intervention is strictly necessary to enable the client and attorney to communicate with each other, such as an interpreter, agent, or attorney's clerk."
The trial court expressed much doubt in concluding to reject this testimony. For the error in doing so, the judgment must be reversed and set aside and a new trial ordered, with costs to defendants. This action renders it unnecessary to consider the assignment of error of which plaintiff also seeks review.
NORTH, C.J., and FEAD, WIEST, CLARK, McDONALD, and POTTER, JJ., concurred. The late Justice FELLOWS took no part in this decision.