Jayne v. Bateman

• Decision Date: 22 September 1942
• Docket Number: 30391.
• Citation: 129 P.2d 188,191 Okla. 272,1942 OK 298
• Parties: JAYNE et al. v. BATEMAN.
• Court: Oklahoma Supreme Court

129 P.2d 188

191 Okla. 272, 1942 OK 298

JAYNE et al. v. BATEMAN.

No. 30391.

Supreme Court of Oklahoma

September 22, 1942

Syllabus by the Court.

1. Confidential communications between an attorney and client are privileged and the attorney cannot as a witness relate the same.

2. Generally, a communication made to an attorney in the presence of a third person is deemed an open communication as distinguished from a confidential communication; however, the circumstances surrounding or necessitating the presence of the third person may be such that the communication still retains its confidential character and the attendant privilege.

3. Circumstances of a conversation between an attorney appointed guardian ad litem for an incompetent person and the incompetent and his general guardian in the presence of a third person for whose presence the guardian ad litem was responsible examined, and the conversation held to be confidential.

4. Error committed in permitting an attorney to relate a confidential communication as a witness held not excusable under the harmless error doctrine.

Appeal from District Court, Oklahoma County; Clarence Mills, Judge.

Action by M. L. Bateman against Leila Jayne and Maurice Jayne to recover amounts advanced to defendants on ground that advancement was made by reason of alleged false representations of defendant Maurice Jayne and to recover exemplary damages. From a judgment for plaintiff, the defendants appeal.

Reversed and remanded.

GIBSON J., dissenting.

Frantz C. Conrad and John Staley, both of Oklahoma City, for plaintiffs in error.

Wheeler & Mounger, and Chas. D. Scales, all of Oklahoma City, for defendant in error.

DAVISON Justice.

Maurice Jayne is an incompetent. He was adjudicated such prior to the transactions involved in this action. Leila Jayne is his guardian, and also his wife.

In the latter part of 1937 the Jaynes made a trip from Oklahoma City to Panama City (Isthmus of Panama). Immediately preceding this trip, M. L. Bateman delivered to the Jaynes $1,100 for the purpose of defraying their expenses.

At that time Bateman held an option to purchase some property near Panama City on which there was a mortgage of $150,000. He was endeavoring to procure a loan to liquidate the existing loan and provide additional funds for operations upon the land.

On December 13, 1939, Bateman commenced this action against the Jaynes in the District Court of Oklahoma County, alleging in substance that they had falsely and fraudulently represented that Maurice Jayne was the representative of an English loan syndicate which would make the desired loan on his (Jayne's) approval for loan purposes. That in reliance upon the false representations he (Bateman) paid the Jaynes the $1,100 for expenses to make the above mentioned trip and that at or about the same time and as an incident to the contemplated inspection of the property for loan purposes he himself made a trip for the purpose of meeting the Jaynes in Panama City that he incurred expenses in the sum of $1,000. He sought $2,100 as actual or compensatory damages and $2,500 as exemplary damages.

On January 25, 1940, a young attorney practicing in Oklahoma County was appointed by the trial court as guardian ad litem for the defendant, Maurice Jayne. On February 9, 1940, he filed an answer consisting of a general denial. On April 23, 1940, judgment was entered against the defendants.

Thereafter the defendants appearing through their present attorney instituted a proceeding to vacate the judgment. The judgment was vacated on October 18, 1940, and the guardian ad litem previously appointed was discharged. The case was then tried to a jury which returned a verdict for the plaintiff in the sum of $1,600 upon which judgment was rendered. The defendants present the case for review, appearing before this court as plaintiffs in error. The order of appearance is thus reversed. However, our continued reference to the parties will be by their trial court designation.

The defendants have preserved a number of alleged errors for review. Only one of these need be considered.

The plaintiff as a part of his evidence in chief placed the attorney who had previously been guardian ad litem on the stand and over the objection of the defendants the attorney was permitted to testify to a conversation between himself and the defendants, Maurice Jayne and Leila Jayne, which conversation occurred during the time that the attorney was acting in a representative capacity.

We have concluded that the conversation was privileged communication between attorney and client and that permitting the attorney to relate the same as a witness for the plaintiff constituted reversible error.

12 O.S.1941 § 385, provides in part:

"The following persons shall be incompetent to testify: ***

4. An attorney, concerning any communications made to him by his client, and that relation, or his advice thereon, without the client's consent."

Statutes of this character are declaratory of the common law and their purpose and effect are determined by reference thereto. 28 R.C.L. 549.

When the young attorney previously mentioned in this opinion had undertaken to act in a representative capacity he contacted the incompetent defendant herein and for the purpose of discussing the litigation herein went to his place of residence.

On or about the first of February, 1940, he went to the apartment where the Jaynes lived. He was accompanied by one of his friends whom he was taking home. Respecting the conversation had with the defendant Maurice Jayne, he was permitted to testify that:

"I introduced myself and also my friend and told them I was appointed guardian ad litem by the Court to look after their interests and that I had checked the file and found that they had not filed any papers at all, whereupon she called her attorney and went to the telephone and asked about it, and he said he was taking care of the matter, and then he and she were talking, both at the same time, and they both told me how dreary and desolate it was down in the Canal Zone and he said that Mr. Bateman had come up and hung around and finally they had signed a slip of paper to get rid of him and that he was in California and they got this draft and thought they had to go down and look around and they went down there and couldn't find him and that an army officer told them it wouldn't be a good profitable investment. However, she said the weather was so dreary they didn't go out to the property. She said 'You refer to the loan syndicate,' and said that her husband did not represent a loan syndicate, however, she used to represent one, and that is about all I could get out of her. I told them, however, to get in touch with her attorney and see that those papers were filed, that I was only representing Mr. Jayne."

The plaintiff, in support of the trial court's action in admitting this testimony, suggests that the relationship of attorney and client did not in reality exist.

It is pointed out that the defense of an incompetent may be by and through his general guardian. 58 O.S.1941 § 810, and it is suggested that since there was a general guardian of the incompetent, the trial court should not have appointed a guardian ad litem for him.

This field of inquiry surrounding this suggestion need not...