Atlanta Coca-Cola Bottling Co. v. Goss

• Decision Date: 02 February 1935
• Docket Number: 24136.
• Citation: 179 S.E. 420,50 Ga.App. 637
• Parties: ATLANTA COCA-COLA BOTTLING CO. v. GOSS.
• Court: Georgia Court of Appeals

179 S.E. 420

50 Ga.App. 637

ATLANTA COCA-COLA BOTTLING CO. v. GOSS.

No. 24136.

Court of Appeals of Georgia, Second Division

February 2, 1935

Rehearing Denied, Feb. 26, 1935.

Syllabus by Editorial Staff.

Attorney is neither compellable nor competent to testify to any matter, knowledge of which he may have acquired by reason of anticipated employment of him as attorney by one seeking his professional aid, regardless whether attorney was afterwards retained (Civ. Code 1910, § 5786).

Privilege surrounding communications to attorney covers all cases where attorney is consulted by client in line of his profession but does not cover communications respecting proposed commission of crime or fraud, although protection extends to communications after act or transaction is completed (Civ Code 1910, § 5786).

Privilege surrounding client's communications to attorney cannot be avoided by merely charging that communications related to proposed fraud, but there must be prima facie evidence that charge has some foundation in fact (Civ. Code 1910, § 5786).

In suit against bottling company for injuries sustained in drinking bottled beverage allegedly containing glass, testimony of attorney, whom plaintiff consulted before filing suit, but did not retain, that plaintiff had shown him full capped bottle same as bottle exhibited at trial, but containing more glass, held properly excluded on objection of privilege, as against contention that evidence authorized inference that plaintiff conferred with attorney for purpose of future commission of fraud (Civ. Code 1910, § 5786).

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by J. C. Goss against the Atlanta Coca-Cola Bottling Company. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed.

Harold Hirsch & Marion Smith and T. J. Long, all of Atlanta, for plaintiff in error.

Edith Campbell and John I. Kelley, both of Atlanta, for defendant in error.

Syllabus OPINION.

JENKINS Presiding Judge.

This is a suit for pain and suffering and other damages alleged to have been sustained from swallowing pieces of glass while drinking from a bottle of beverage, sold by the defendant to a retail merchant and by him sold to the plaintiff. The plaintiff, the merchant, and three other apparently disinterested eyewitnesses, swore that the plaintiff drank from the bottle, consumed most of the beverage, and expectorated several pieces of glass out on the floor; and that several pieces of glass remained in the bottle. The plaintiff testified that he swallowed some of the glass. This testimony was controverted only by indirect evidence of the defendant as to its care in the processes of bottling and inspecting the filled bottles. The jury returned a verdict in favor of the plaintiff for $250. The general grounds of the defendant's motion for new trial are expressly abandoned and its contentions are limited to the special ground relating to the exclusion, as a privileged communication, of testimony from an attorney at law, not engaged in the trial, to the effect that, three or four days before the filing of the suit, the plaintiff, while consulting him and seeking his advice as a lawyer, brought with him a bottle, which the witness identified as the same or exactly like the bottle in evidence; that it was the "recollection" of the witness that "the bottle was full of coca-cola, something of that color, apparently it had not been uncapped," the cap being on the bottle; and that there was considerably more glass in the bottle than there was when he testified. According to the testimony of the witnesses in the trial, the time when the plaintiff drank from the bottle at the store of the merchant was 15 days before the time of the filing of the suit. It is the contention of the bottling company that this evidence would have authorized the jury to find that the plaintiff had not removed the cap from the bottle and had not consumed any portion of its contents, and that if he consumed any part thereafter, his injury would have been brought about by his own negligence after discovering the presence of glass in the bottle. It is further contended that the evidence was not subject to the objection of privilege, because it "authorized the jury to conclude that the plaintiff in said case conferred with said attorney for the purpose of the future commission of a fraud upon the court and upon the defendant." Held,

1. "Communications to any attorney, or his clerk, to be transmitted to the attorney pending his employment, or in anticipation thereof, shall never be heard by the court." Civil Code 1910, § 5786. Under these provisions "an attorney at law is neither compellable nor competent to testify to any matter or thing,...