Bailey v. Chicago, B. & Q.R. Co., 54060

• Citation: 179 N.W.2d 560
• Decision Date: 02 September 1970
• Docket Number: No. 54060,54060
• Parties: Francis P. BAILEY, Individually and as Administrator of the Estate of Maude Elizabeth Bailey, Deceased, Appellants, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellee.
• Court: United States State Supreme Court of Iowa

Page 560

179 N.W.2d 560

Francis P. BAILEY, Individually and as Administrator of the Estate of Maude Elizabeth Bailey, Deceased, Appellants, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellee.

No. 54060.

Supreme Court of Iowa.

Sept. 2, 1970.

Rehearing Denied Oct. 12, 1970.

John A. Jarvis, Chariton, for appellants.

Virgil E. Meyer, Chariton, for appellee.

RAWLINGS, Justice.

Action at law by Francis P. Bailey, individually, for automobile damage, and as administrator of the estate of Maude Elizabeth Bailey, deceased, for damages resulting from claimed negligence-caused-death of his decedent, killed instantly when the vehicle operated by her collided with defendant's train. Trial to jury resulted in a judgment on verdict for defendant. From adverse ruling on their motion for a new trial, plaintiffs appeal. We reverse.

At the outset, our review is restricted to the limited record presented.

Prior to trial an application for adjudication of law points was filed by plaintiffs. This, in effect, constituted a withdrawal of any claim for loss of decedent's company and affection as a spouse, and consortium. Trial court apparently so considered it and never ruled on the matter.

Subsequently plaintiffs moved for 'Advance Ruling on Evidence' (Motion in Limine). In brief, it was thereby requested, defendant be barred from any trial reference to matters connected with a divorce action commenced by decedent, prior to her death, against plaintiff Francis P. Bailey. Thereupon trial court ordered the divorce file and proceedings 'shall be inadmissible in the trial of this case.'

In course of trial defendant called as a witness Ward Reynoldson, attorney for decedent in the aforesaid divorce action, incidentally dismissed after her death. Despite timely privileged testimony and hearsay objections interposed by plaintiff individually and as administrator, Mr. Reynoldson was permitted to testify regarding statements made to him in course of three consultations with his client, plaintiff-administrator's decedent, which apparently took place about a year prior to the fatal accident.

On appeal plaintiffs contend, trial court committed reversible error in, (1) failing to enter any order on the adjudication of law points application; (2) failing to fully rule on the pretrial motion relative to introduction of evidence; and (3) permitting attorney Reynoldson to testify regarding statements made to him by his client in the pending divorce action.

These assignments will be considered in the order presented.

i. The initial problem to be resolved is whether trial court erred in failing to act on plaintiffs' application for adjudication of law points. In this respect we find no reversible error.

First, it is to us apparent an application under rule 105, Rules of Civil Procedure, was inappropriate under the circumstances. See National Farmers Union Property & Cas. Co. v. Nelson, 260 Iowa 163, 168, 147 N.W.2d 839.

This application was in essence a request for an advisory opinion by the court, not involving a true issue of law. See rule 176, R.C.P.; 71 C.J.S. Pleading § 516, page 1073; and 312 Iowa L.Rev. 417, 428. More precisely, no issue existed upon which plaintiffs could effectively invoke rule 105. See 71 C.J.S. Pleading § 512, page 1068.

Actually plaintiffs thereby asked the court to do that which could be best effectuated by them procedurally, via an amendment to their petition.

Finally, by proceeding to trial on the merits, absent any request for a ruling on their application, plaintiffs must be deemed to have waived any right to later complain. See in that regard Shover v. Iowa Lutheran Hospital, 252 Iowa 706, 721, 107 N.W.2d 85; In re Estate of Coleman, 238 Iowa 768, 770, 28 N.W.2d 500; 89 C.J.S. Trial § 658, page 501; 5 Am.Jur.2d, Appeal and Error, sections 557, page 40, and 562, page 42.

Further discussion of this issue will serve no useful purpose.

II. As heretofore disclosed, plaintiffs filed what is best identified as a pretrial motion in limine. Request was thereby made that defendant be precluded from mentioning or asking any questions in the selection of jurors, or in the jury's presence during trial of the subject case, regarding (1) claims made by decedent in the divorce action pending against plaintiff at time of her death or to their relationship with respect to affection, cooperation, company, society, companionship, comfort, care, advice, conjugal relations, distress of mind, sorrow or mental anguish; (2) any claims relative to alleged marital infidelity on the part of plaintiff individually in connection with the divorce action and attorney's fees or costs pertaining thereto, or discontinued marital relationship.

Trial court merely directed the divorce file and proceedings would be inadmissible.

It thus appears there is substance in the complaint here voiced by plaintiffs. Rule 118, R.C.P.

On the other hand this court said in Bourjaily v. Johnson County, Iowa, 167 N.W.2d 630, 632: 'We have as yet refrained from predicating reversible error solely on the basis of the trial court's disregard of rule 118, at least in the absence of some compelling cause to hold otherwise. Nevertheless, we have repeatedly stated we much prefer specific rulings on each and every ground of a motion. (Authorities cited).

'Meaningful compliance with rule 118 greatly facilitates appellate procedure in that counsel are apprised of the precise grounds of the adverse ruling and are thereby enable to properly and narrowly limit their arguments on appeal to the actual grounds responsible for the court's ruling. The ever increasing volume of appeals renders it imperative the rule be followed.'

On remand, for reasons disclosed infra, trial court might well reconsider propriety of the subject order.

III. The next assignment of error relates to attorney Ward Reynoldson's testimony. Over timely privileged communication and hearsay objections by plaintiff individually and as administrator, Mr. Reynoldson testified to the effect Mrs. Bailey was his client in the previously mentioned divorce case, she consulted with him relative to that action on at least three occasions about a year or more prior to the fatal accident, and he was then told, (1) she had been nervous and upset for several years, lost some weight, encountered difficulty in sleeping, and was at times unable to keep from crying; (2) her husband had not stayed at home for years and seldom had a meal there; (3) talk in the community caused her to be upset; (4) the hired man's wife had five children, the father of the last two being Mrs. Bailey's husband; (5) an automobile Mrs. Bailey had been permitted to drive was taken from her by Mr. Bailey and the car he used was being driven by the hired man's wife.

Incidentally, decedent apparently reacquired the automobile or a replacement, since the one she was driving when the accident occurred belonged to her husband.

We shall first consider the provileged communication issue.

To the extent here relevant section 622.10, Code, 1966, provides: 'No practicing attorney, counselor, * * * who obtains such information by reason of his employment, * * * shall be allowed, in giving testimony, to disclose any confidential communication properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline.'

At the outset no claim of waiver is asserted. See 8 Wigmore on Evidence, McNaughton Revision, sections 2327--2329, pages 634--641, and Annos. 67 A.L.R.2d 1268. Furthermore, in testifying, Mr. Reynoldson made no reference to any possible or occasional presence of a third party. See Crawford v. Raible, 206 Iowa 732, 739--740, 221 N.W. 474; 97 C.J.S. Witnesses § 290, page 818; and 58 Am.Jur., Witnesses, section 492, page 275. Neither do we here deal with the matter of an attorney acting as a scrivener, nor with mental incapacity, undue influence, or pedigree. England v. England, 243 Iowa 274, 51 N.W.2d 437; Olsson v. Pierson, 237 Iowa 1342, 1346--1350, 25 N.W.2d 357, and In re Estate of Conner, 240 Iowa 479, 484--485, 36 N.W.2d 833, superseding the opinion in 33 N.W.2d 866, not contained in Iowa reports.

The attorney-client privilege embodied in Code section 622.10, supra, is of ancient origin. It is premised on a recognition of the inherent right of every person to consult with legal counsel and secure the benefit of his advice free from any fear of disclosure. Thus it protects and belongs to the client alone. Taylor v. Sheldon, 172 Ohio St. 118, 173 N.W.2d 892, 894--896; 8 Wigmore on Evidence, McNaughton Revision, sections 2290--2292, pages 542--557; 3 Jones on Evidence Fourth Ed., sections 748--749, pages 1344--1349; McCormick's Treatise on Evidence, section 91, page 181; 97 C.J.S. Witnesses § 276, page 782; and 58 Am.Jur., Witnesses, section 483, page 270.

IV. Understandably there must exist an attorney-client relationship and the communication, to be protected, must have been made in confidence, the burden of proof being upon him who seeks to establish the privilege, but no express injunction of secrecy is essential. Allen v. Lindeman, 259 Iowa 1384, 1390--1391, 148 N.W.2d 610; 8 Wigmore on Evidence, McNaughton Revision, section 2311, page 599; 3 Jones on Evidence, Fourth Ed., section 749, page 1346; McCormick's Treatise on Evidence, sections 95--96, pages 190--196; and 97 C.J.S Witnesses § 284, page 808.

V. Additionally, the protective shield provided by Code section 622.10, quoted above, generally survives the client's death, termination of the relationship, or dismissal of a case in litigation.

To that effect is this authoritative statement in 8 Wigmore on Evidence, McNauughton Revision, section 2323, pages 630--631: 'The subjective freedom of the client, which it is the purpose of the privilege to secure * * *, could not be attained if the client understood that, when the relation ended...