Jacobi v. Podevels

• Decision Date: 31 March 1964
• Citation: 127 N.W.2d 73,23 Wis.2d 152
• Parties: William JACOBI, Jr., Respondent, v. La Vern PODEVELS et al., Appellants. La Vern PODEVELS et al., Appellants, v. MILWAUKEE AUTOMOBILE MUTUAL INSURANCE CO., Respondent. Audrey LUDWIG, Plaintiff-Respondent, v. William JACOBI, Jr., et al., Defendants-Respondents, La Vern E. Podevels et al., Appellants.
• Court: Wisconsin Supreme Court

Page 73

127 N.W.2d 73

23 Wis.2d 152

William JACOBI, Jr., Respondent, v. La Vern PODEVELS et al., Appellants.

La Vern PODEVELS et al., Appellants, v. MILWAUKEE AUTOMOBILE MUTUAL INSURANCE CO., Respondent.

Audrey LUDWIG, Plaintiff-Respondent, v. William JACOBI, Jr., et al., Defendants-Respondents, La Vern E. Podevels et al., Appellants.

Supreme Court of Wisconsin.

March 31, 1964.

Stanley F. Schellinger, James G. Doyle, Milwaukee, for appellants.

D. J. Regan, Milwaukee, for Milwaukee Auto. Mut. Ins. Co. and William Jacobi, Jr.

Nathaniel D. Rothstein and Alan A. Olshan, Milwaukee, for Audrey Ludwig.

Habush, Gillick & Habush, Milwaukee, for William Jacobi, Jr.; Robert L. Habush and Howard A. Davis, Milwaukee, of counsel.

FAIRCHILD, Justice.

Appellants challenged a ruling of the circuit court that a written statement given by Jacobi on January 9, 1960, to an adjuster for his insurer, ten months before the commencement of the first action, was privileged.

Jacobi testified upon the trial. On cross examination, he indicated he had made the written statement referred to and had refreshed his recollection by reading it earlier in the day. Appellants' counsel, Mr. Schellinger, asked Mr. Regan, counsel for Jacobi and his insurer, to produce the statement. Mr. Regan objected that it was confidential. After a colloquy among court and counsel, Mr. Regan turned it over, and Mr. Schellinger began to cross examine on the basis of the statement.

Later it developed that Jacobi's answer that he had used the statement to refresh his recollection was incorrect and was the result of misunderstanding a question. The court was satisfied Jacobi had not looked at the statement. The court then instructed the jury to disregard all references to the statement and required Mr. Schellinger to refrain from cross examination based upon the statement.

1. Alleged waiver of privilege. It is asserted that if the statement was privileged, Mr. Regan waived the privilege by voluntarily surrendering the statement to Mr. Schellinger. Although the court did not expressly direct Mr. Regan to surrender it, we think the statements made by the court sufficiently indicated the court's agreement, at the time, with Mr. Schellinger's demand, so that Mr. Regan's surrender of the statement should not be deemed a voluntary waiver.

2. Would exclusion of the statement, if erroneous, be prejudicial? Each driver testified that he was driving at less than 25 miles per hour, the legal limit. Each had a passenger who corroborated his testimony. One bystander testified to excessive speed of Jacobi, and one to excessive speed of Podevels. In the written statement, Jacobi admitted speed of 30 miles per hour and made statements bearing on the matter of lookout which were less favorable to his cause than his testimony at trial. It strikes us that the admission as to speed and the other inconsistencies between the statement made shortly after the accident and Jacobi's testimony would probably be quite persuasive. Under the circumstances we deem the ruling prejudicial if erroneous.

3. Was the statement privileged? This court has held that a statement given by an insured to his liability insurer under similar circumstances is a privileged communication, as being between attorney and client. Wojciechowski v. Baron. ¹ The theory was that since the insurer was bound by its contract to defend the insured, the statement was, in effect, given to the insurer for transmittal to the attorney who would ultimately handle any litigation, and should be treated as a privileged communication between the insured as client and the attorney who might later defend him. The question is squarely presented whether we ought to overrule Wojciechowski v. Baron, supra, or apply its doctrine to the instant case.

We point out that when Jacobi gave the statement no action had been commenced nor could be said to be imminent. At any rate, no counsel had been assigned to advise and defend Jacobi. If the latter were the case, a claim of privilege could even more reasonably be made, or a claim that the work product of an attorney was involved. ²

A statement of the type under consideration will ordinarily be used by the insurer, along with statements of other witnesses and other information, to determine whether and on what basis adjustment of any claim shall be attempted, although if adjustment is not effected and a claim is pursued, all this information will be part of the file turned over to counsel for use in litigation. Whether the accident under consideration involves clear, doubtful, or no liability, and whether it will ever give rise to a claim in excess of coverage, or otherwise directly involve the personal interests of the insured, is often unknown at this stage.

When the insured makes such a statement he is ordinarily fulfilling a condition of his policy, requiring him to notify the insurer of the occurrence and circumstances of the accident and to cooperate with the insurer. If the statement be false, the insurer may use it against the insured as foundation for a claim of noncooperation. If the statement...