Gabriel v. McMullin

• Decision Date: 03 May 1905
• Citation: 127 Iowa 426,103 N.W. 355
• Parties: GABRIEL v. MCMULLIN.
• Court: Iowa Supreme Court

127 Iowa 426

103 N.W. 355

GABRIEL

v.MCMULLIN.

Supreme Court of Iowa.

May 3, 1905.

Appeal from District Court, Mahaska County; Byron W. Preston, Judge.

Suit to recover damages for an alleged slander and for a malicious prosecution. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals. Reversed.L. C. Blanchard, for appellant.

J. C. Williams and Davis & Orvis, for appellee.

SHERWIN, C. J.

The petition was in two counts, the first alleging that the defendant had accused the plaintiff of the crime of larceny and had thus slandered her, and the second alleging that the defendant had instituted criminal proceedings against the plaintiff charging her with the same crime. The answer to both counts was a general denial. The jury found for the plaintiff on both counts, the sum of $800 on the first and $2,000 on the second. A motion for arrest of judgment and for a new trial was filed by the defendant. A new trial was denied, but the motion in arrest was sustained as to the finding on the first count of the petition, and the plaintiff was given leave to amend that count within a certain time. The motion was otherwise overruled, and a judgment was rendered against the defendant on the second count.

The plaintiff had been the defendant's housekeeper during her absence from home, and on her return, and after the plaintiff had left, she discovered that certain personal property had been taken from the house, whereupon she laid the matter before the county attorney of Mahaska county, Mr. J. A. Devitt, stated the facts to him and her belief that the property had been taken by the plaintiff, and asked him to have her arrested and prosecuted for the crime. Mr. Devitt, after several consultations with the defendant, had an information filed by a constable, and the plaintiff's arrest followed. The prosecution was thereafter dropped for want of sufficient evidence to warrant further proceedings.

On the trial of this case, Mr. Devitt was called as a witness for the plaintiff, and, over the defendant's objection that her statements to him were privileged, and in reality against his protest, he was compelled to testify to the entire conversation between himself and the defendant relative to the charge against the plaintiff. It was prejudicial error to receive this testimony. The trial court evidently based its ruling on the thought that the relation of attorney and client did not exist between Mr. Devitt and the defendant, and consequently that the communication was not made in professional confidence, and was not incompetent under section 4608 of the Code. It is probably true that the relation of attorney and client, strictly speaking, did not exist, and yet we have held that the statute is broad enough to exclude just such testimony as was receivedin this case. In State v. Houseworth, 91 Iowa, 740, 60 N. W. 221, the county attorney was required to disclose what was said to him by the prosecuting witness relative to the commission of the offense and the defendant's participation therein. We held this error, and said, relative to the question of attorney and client: “While it is true that, as to attorneys, such communications are oftener made by clients than by others, we do not think there is any such limitation upon the operation of the statute, but that it matters not from whom the communication is received, if it be to a practicing attorney in his professional capacity, and necessary for him to discharge the functions of his office. Mr. Ranck was attorney for the state. What transpired at the time of the alleged offense was necessary and proper to enable him to discharge the duties of his office. His client could not communicate with him, and all communications must be from third parties. But the statute nowhere fixes the communication to be privileged as between attorney and client, nor is it there by any legal inference.” The rule thus announced was based upon the statute alone, for we said further that we did not think it necessary to consider the question from the standpoint of public policy. The case was referred to and indirectly approved in State v. Swafford, 98 Iowa, 362, 67 N. W. 284. A communication of the same nature was under consideration by the Supreme Court of the United States in Vogel v. Gruaz, 110 U. S. 311, 4 Sup. Ct. 12, 28 L. Ed. 158, and it was there held to be absolutely privileged, the court, speaking through Mr. Justin Blachford, saying: “It was said to Mr. Cook...