Cross v. Riggins

• Decision Date: 31 July 1872
• Citation: 50 Mo. 335
• Parties: ASA B. CROSS AND GEORGE W. RIPPEY, Defendants in Error, v. BENJAMIN L. RIGGINS, Plaintiff in Error.
• Court: Missouri Supreme Court

50 Mo. 335

ASA B. CROSS AND GEORGE W. RIPPEY, Defendants in Error,

v.BENJAMIN L. RIGGINS, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1872.

Error to Kansas City Court of Common Pleas.

Gage & Ladd, for plaintiff in error.

The court erred in excluding the testimony of William Douglas. The conversation was not a confidential communication. The relation of attorney and client never existed between plaintiffs and witness, and the rule of privileged communication as between attorney and client is strictly confined to cases in which the relation exists and to the time during which that relation continues. No statements made prior or subsequent to the relation are privileged, but only those made within the relation. A conversation with a view to the employment of an attorney is not an employment. (Foster v. Hall, 12 Pick. 89; Yordan v. Hess, 13 Johns. 492; Cobden v. Kendrick, 4 T. R. 432.)

Wm. E. Sheffield, for defendants in error.

The testimony of Douglas was inadmissible. (Foster v. Hall, 12 Pick. 89, and cases cited; Greenough v. Gaskell, 1 Mylne & K. 102, 103, per Lord Brougham; Parker v. Carter, 4 Munf., Va., 273; 1 Graham's Pr. 212; Betzhoover v. Blackstock, 3 Watts, 20; Cowan & Hill's notes to Phil. Ev., 3d ed., note 139, 162; 2 Stark. Ev. 319 et seq.; 1 Greenl. Ev., § 237-8, notes; Johnson v. Sullivan, 23 Mo. 474; Hull v. Lyon, 27 Mo. 570; The Bank of Utica v. Merserau, 3 Barb. Ch. 595 et seq.;Williams v. Fitch, 18 N. Y. 546.)

BLISS, Judge, delivered the opinion of the court.

Plaintiffs were lumber dealers in Kansas City, and count upon a bill of lumber sold defendant for building a house. That the lumber was furnished is not denied, but defendant claims that it was furnished his contractor. Upon the trial, Mr. Douglas, of the firm of Douglas & Gage, attorneys, testified: “Some time in 1866, A. B. Cross approached me on the street and stated the facts about this case and asked my opinion, and I told him I could not give my opinion without looking at the statute touching mechanics' liens.” Cross testified that he stated his case to Mr. Gage and intended to employ him; had employed him before, but he went away; that he stated the case to Mr. Douglas and asked his opinion, but he manifested so much indifference that he did not go back to him. Mr. Douglas was offered as a witness as to the declarations of Cross to him, but the objection was raised that they were confidential communications made to him in a professional character and could not be disclosed, and the objection was sustained.

Among the persons disqualified to testify, the statute (Wagn. Stat. 1374, § 8) enumerates “an attorney, concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of that client.” In Hull v. Lyon, 27 Mo. 570, where two adverse parties counseled with an attorney and made disclosures to him, he was not permitted to give in evidence the declarations of either, although they were not private, but made to the other party as well. In Johnson v. Sullivan, 23 Mo. 474, testimony as to declarations to an attorney was forbidden, although judicial proceedings were not commenced or contemplated. I cite these cases to show that our statute is held to embody the stricter rule of the common law upon this subject--a rule that excludes from the forum evidence of all declarations made to counsel in order to solicit professional advice, without regard to the institution or defense of a suit.

The present record presents the question whether one who seeks counsel, but who in fact pays no fee, and employs others in the prosecution of the business--the counsel consulted being afterwards employed against him--can be so considered as a client that his communications are privileged. I know not where to draw a distinction. The rule should be universal, and apply to all who...