Dominguez v. Citizens' Bank & Trust Co.

• Decision Date: 21 November 1911
• Citation: 56 So. 682,62 Fla. 148
• Court: Florida Supreme Court
• Parties: DOMINGUEZ v. CITIZENS' BANK & TRUST CO.

56 So. 682

62 Fla. 148

DOMINGUEZ v. CITIZENS' BANK & TRUST CO.

Florida Supreme Court, Division B.

November 21, 1911

Error to Circuit Court, Hillsborough County; J. B. Wall, Judge.

Action by E. Dominguez against the Citizens' Bank & Trust Company. Verdict for plaintiff. From an order granting a new trial, plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

When an attorney represents both or all the parties to a transaction conversations and transaction between such parties in the presence of the attorney are not privileged communications and such attorney may be required to testify to such conversations and communications; but where one of the parties went alone to such attorney, because he was his retained attorney, and made statements to him, in the absence of the other party, which were apparently confidential, he should not be permitted to testify as to such statements.

Where a new trial is granted, and there is such a conflict in the evidence that this court cannot say the trial judge abused his discretion in granting such new trial, his ruling will not be disturbed.

COUNSEL MacFarlane & Chancey, for plaintiff in error.

F. M Simonton, for defendant in error.

OPINION

HOCKER J.

Plaintiff in error sued defendant in error in the circuit court of Hillsborough county to recover $1,000, which the plaintiff alleges he deposited with defendant bank on the 22d of September, 1910. The bank denied indebtedness, and in May 1911, a trial was had, resulting in a verdict for plaintiff for $900, with interest at 8 per cent. from the commencement of the suit. A motion for a new trial was made on nine grounds, the substance of which may be stated to be that the verdict was contrary to the law, the evidence, and the weight of evidence, that there is no credible testimony on which the verdict can be sustained, and that the court erred in not permitting E. R. Gunby to testify that the plaintiff stated to him that the $900, claimed as having been deposited, consisted of a certain check for $800, on a bank at Tarpon Springs, which fact the defendant was prepared to rebut.

As to the last assignment, it appears that when Gunby was introduced as a witness by defendant the jury were withdrawn, and the facts were all presented to the court in their absence. Mr. Gunby stated, in substance, that the plaintiff came to consult him about the difference with the bank; that he was at that time plaintiff's attorney; that he told plaintiff he could not represent him, as he was also attorney for the bank; that he would endeavor to abjust the matter and obtain a settlement; that he must bring Gunby his books, and if he was convinced the bank was in error he would advise it to settle with plaintiff; that under these circumstances plaintiff brought his books to witness, and witness went through them, and endeavored to place the matter in its true light before Dominguez; that before he allowed plaintiff to talk to him he informed plaintiff he was attorney for the bank and could not represent him; that he told the defendant's attorney he could not testify as to what plaintiff told him, because at that time the relation of attorney and client also existed between him and the plaintiff.

Mr Gunby objected to...