Pearson v. Yoder
| Decision Date | 06 August 1913 |
| Docket Number | Case Number: 2819 |
| Citation | 39 Okla. 105,134 P. 421,1913 OK 515 |
| Parties | PEARSON v. YODER et ux. |
| Court | Oklahoma Supreme Court |
¶0 1. WITNESSES--Confidential Communications--Attorney and Client. An attorney is incompetent to testify as a witness of and concerning confidential communications had with his client.
2. SAME--Attorneys--Production of Client's Books. An attorney may be compelled to produce papers belonging to his client, where the knowledge of their existence or contents is accessible to others or to the public.
3. SAME--Production of Papers. An attorney may be compelled to produce in evidence any paper or record in his possession belonging to his client, which the client himself could be compelled to produce.
4. APPEAL AND ERROR--Harmless Error--Abstract Instructions. The giving of an instruction which states a correct proposition of law, but which has no application to the issues involved, or the proof, will not warrant a reversal of judgment, unless it is apparent that such instruction misled the jury.
Wilson & Roe, for plaintiff in error.
Sam W. Johnson, H. P. McGuire, and S. D. Tant, for defendants in error.
¶1 This was an action by W. C. Yoder and wife to recover damages from D. B. Pearson on account of the wrongful recordation of a certain real estate mortgage. It is alleged in the petition that plaintiffs were the owners of a certain described tract of land in Tillman county; that in the year 1909 they contracted with the defendant, Pearson, to make a loan of $ 1,800 on said place, said money to be secured for plaintiffs by Pearson through the company which he represented; that before the consummation of said contract they discovered that they were not obtaining the money at the rate of interest agreed upon, and refused to conclude the loan. Prior to their discovery that Pearson was charging them a higher rate of interest than they had agreed to pay, but after the note and mortgage had been signed by the plaintiff Bell Yoder, but not acknowledged before a notary public; and before her husband, W. C. Yoder, had signed the same, the said defendant, Pearson, with full knowledge of all these facts and without right or authority of law, wrongfully placed said mortgage, signed by the plaintiff Bell Yoder alone, on record in the office of the register of deeds of Tillman county, and thereby cast a cloud upon plaintiff's title, and prevented them from making a loan with other parties, and damaged them in various other ways. The defendant answered by general denial. The cause was tried to a jury, and a verdict was returned in favor of the plaintiffs in the sum of $ 115.55. Motion for new trial was filed, considered, and overruled, and defendant brings error. Many specifications of error are set out in the petition in error; but the plaintiff in error has treated but two or three of these in his brief, and is, therefore, deemed to have waived the others. The first assignment relied upon is that the court erred at the trial in compelling one of the attorneys for plaintiff in error, defendant below, to produce the original mortgage signed by Bell Yoder, to be used in evidence in the trial of the case. The record discloses that Mr. Wilson, one of the defendant's attorneys, was called as a witness, and the following questions propounded to him over the objection of the defendant:
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¶2 The mortgage was thereupon delivered to the attorneys for plaintiffs, and was introduced in evidence as Exhibit B over defendant's objections. It is insisted by the attorneys for the plaintiff in error that this was a violation of the rule of evidence, which prohibits confidential communications between attorney and client being disclosed in open court, unless the client waives the privilege. There is no merit in this contention. This class of evidence is not protected by the general rule which prohibits an attorney from testifying of and concerning confidential communications had with his clients. Communications (which frequently include the exchange and possession of documents and papers) between attorney and client during, and by reason of, their relation as such, made in confidence and for the purpose of enabling the attorney to perform his professional duty in regard to the matter communicated, or made by him in performing such duty, are privileged. 10 Ency. Evidence, 205. This is one of the well-established and generally recognized rules of evidence. This principle was recognized at common law, and such communications are protected by statute in every state in the Union. Section 5050, Rev, Laws 1910. This is on the ground of public policy, and the object is to enable and encourage free and unembarrassed communication between attorneys and their clients, without which the rights of the latter would in many cases be infringed, and justice perverted. But it is not every communication that is privileged. The exercise of this principle is governed by well-established rules, among which none is better known and recognized than that which provides that papers delivered to one's attorney shall not be held privileged, if the knowledge of their existence or contents is accessible to others or to the public. In such case an attorney can be compelled to produce them or to give their contents in evidence. In this case the mortgage was recorded in the office of the register of deeds of Tillman county, and was accessible to all, and its contents were known to the public generally, so much so that it operated as a cloud on plaintiffs' title. To be sure, plaintiffs had another method of proving its existence; but no objection is...
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