Schmitt v. Emery, 32784.

Citation2 N.W.2d 413,211 Minn. 547
Decision Date16 January 1942
Docket NumberNo. 32784.,32784.
PartiesSCHMITT v. EMERY et al.
CourtSupreme Court of Minnesota (US)

Appeal from District Court, Stearns County; J. B. Himsl, Judge.

Action for personal injuries by Delma Schmitt against Percy F. Emery and others. There was a verdict for defendants, and, from an order denying her motion for a new trial, plaintiff appeals.


Bundlie, Kelley & Finley, of St. Paul, and Atwood & Quinlivan, of St. Cloud, for appellant.

Freeman & King and Hoke, Cobb & Janes, all of Minneapolis, (Henry H. Sullivan, of St. Cloud, of counsel), for respondents.

PETERSON, Justice.

This is an action to recover for personal injuries sustained in an automobile collision on the night of February 2, 1939. Plaintiff was a guest passenger in the Ford automobile of her husband, which he was driving on a U. S. trunk highway in a generally easterly direction. After he had reached a point a short distance east of Clear Lake, he passed the Buick automobile of the defendant Emery, which was being driven at the time by the defendant LeRud. After he passed the Buick, the Ford collided with a westbound bus of the defendant Northland Greyhound Lines, Inc., which caused the Ford also to collide with the Buick.

The highway had two paved lanes on which there were patches of snow and ice which made it slippery and driving hazardous. There was a conflict in the evidence as to whether the lights on the Buick were on and whether it was moving or standing still. The bus was on its right side of the road. The defendant Pentz, the driver of the bus, saw the Ford approaching from the west on its right side of the highway 600 feet distant and 300 feet behind the Buick. At that time the bus was going about 40 or 50 miles per hour and the Ford about 40 or 45 miles per hour. In passing the Buick, the Ford turned onto the left side of the road directly in front of the bus, which Pentz estimated was then about 150 feet east of the Buick. The Ford started to skid either as it was passing the Buick or immediately after it got back on its right side of the road in front of the Buick. The rear end of the Ford swung around onto the left side of the road, where it collided with the bus. The bus hit the Ford with such impact as to force it back against the Buick, which was about 100 feet behind the Ford when the collision took place.

The negligence charged is that the driver of the bus failed to exercise due care to avoid the collision. While the evidence is conflicting, there is testimony that when Pentz saw the Ford some 600 feet away he took his foot off the accelerator, and that when the Ford swung around the Buick Pentz applied the brakes so as to reduce the speed of the bus to about 30 miles per hour. He swung the bus to his right so that its right side was on the shoulder and finally brought it to a stop in a snow bank.

Plaintiff claims that before the accident the Buick was standing still without the lights on. As a consequence, she claims that her husband did not see it until he was close to it and thus was confronted with an emergency, which necessitated his passing it on the left to avoid a collision. To substantiate the claim, she subpoenaed duces tecum one Quinn, who was in charge of Northland's claim department, and demanded that he produce a written statement which Pentz made immediately after the accident in which he stated that the Buick appeared to be standing still and had no lights on. The testimony showed that Quinn had taken the statement after consultation with and by direction of the company's attorneys and immediately turned it over to them for use in anticipation of litigation arising out of the collision. Northland and Pentz objected to the production of the statement as being a communication made by a client to his attorney which was privileged under Mason St.1927, § 9814(2). The other defendants objected upon the ground that as to them the statement was hearsay.

Pentz testified that at the time he made the statement he expected Northland to defend him in case he was sued. Although there was no explicit prior arrangement that the company would defend him, he assumed that it would. This it did.

At first the court overruled the objection and tentatively received the statement in evidence. Being in doubt, the court directed counsel to prepare and make an argument on the point, for which purpose he adjourned the trial over a week end. For convenience of counsel for Emery and LeRud in preparing their argument, counsel for Northland and Pentz furnished them with a copy of the statement. After full argument the court excluded the statement as privileged upon the ground claimed.

Plaintiff offered to show by one Fesenmeyer, a state highway patrolman, that Pentz stated, but not in the presence of defendants Emery and LeRud, that the Buick appeared to be standing still without any lights. The offer was excluded upon objection by such defendants that as to them the statement was hearsay. The next witness was another highway patrolman, one Wicktor, who testified that Pentz made the purported statement and that both he and Fesenmeyer signed a report of the accident showing the statement. The report was received as an exhibit. Fesenmeyer was not recalled for the purpose of again interrogating him concerning either the statement or the report.

The court instructed the jury at the request of the defendants Emery and LeRud that the testimony of one Tabert, to the effect that Pentz stated to him that the Buick was stalled and had no lights on, was to be considered as not binding on those defendants and that "it was admitted only for the purpose of showing the credibility of the witness." Instructions of like import were given as to similar testimony of Wicktor and one Fitzsimmons.

The court also instructed the jury that Northland and Pentz did not discover that the plaintiff was in a position of peril until Pentz actually saw the Ford turn from behind the Buick onto the north lane of travel; that Pentz was entitled to assume until the contrary appeared that the driver of the Ford "would give the bus one-half of the main travelled portion of the highway," and that "one suddenly confronted by a peril through no fault of his own, who, in the attempt to escape, does not choose the best or safest way, should not be held negligent because of such choice, unless it was so hazardous that the ordinarily prudent person would not have made it under similar conditions."

The jury returned a verdict in favor of defendants. Plaintiff appeals from the order denying her motion for a new trial.

Numerous assignments of error are made which relate mainly to rulings on the admissibility of evidence and the instructions to which we have referred. Such further statement concerning the facts and the reasons urged in support of plaintiff's contentions as may be necessary will be made in connection with consideration of them.

1. Mason St.1927, § 9814(2), provides that "an attorney cannot, without the consent of his client, be examined as to any communication

made by the client to him or his advice given thereon in the course of professional duty; * * *". The question here is whether or not the statement obtained from Northland's employe, Pentz, by its claim agent, upon the advice and direction of its attorneys, in anticipation of litigation that might result from the accident, and delivered by the claim agent to the attorneys for such use, is a communication between attorney and client. An attorney cannot be compelled without the client's consent to produce or disclose the contents of a document entrusted to him by his client to be used in conducting a litigation. Lindahl v. Supreme Court I. O. F., 100 Minn. 87, 110 N.W. 358, 8 L.R.A.,N.S., 916, 117 Am.St.Rep. 666 (letter to beneficiary by insured that he intended to commit suicide); Davis v. New York, O. & W. Ry. Co., 70 Minn. 37, 72 N.W. 823 (letters and telegrams concerning claim for negligent transportation of freight); Stokoe v. St. P., M. & M. Ry. Co., 40 Minn. 545, 42 N.W. 482 (release by plaintiff of a claim for personal injuries claimed to have been fraudulently procured).

Because it is so often necessary for clients to communicate with their attorneys with the assistance or through the agency of others, as well as by their own personal action, the privilege extends to a communication prepared by an agent or employe, whether it is transmitted directly to the attorney by the client or his agent or employe. Of course the privilege is limited to the necessities of the situation. Where a document is prepared by an agent or employe by direction of the employer for the purpose of obtaining the advice of the attorney or for use in prospective or pending litigation, such document is in effect a communication between attorney and client. The client is entitled to the same privilege with respect to such a communication as one prepared by himself. The agent or employe as well as the attorney is prohibited from testifying with respect thereto without the client's consent. In re Klemann, 132 Ohio St. 187, 5 N.E.2d 492, 108 A.L.R. 505; Ex Parte Schoepf, 74 Ohio St. 1, 77 N.E. 276, 6 L.R.A.,N.S., 325; Davenport Co. v. Pennsylvania R.R., 166 Pa. 480, 31 A. 245; 5 Jones, Commentaries on Evidence, § 2174. Numerous decisions in England hold that such documents are privileged as communications between attorney and client. Ankin v. London and N. E. Ry. Co., [1930] L.R. 1 K.B.D. 527; The Hopper No. 13, [1925] L.R.Prob.Div. 52.

Plaintiff relies on Chicago, St. P., M. & O. Ry. Co. v. Kulp, 8 Cir., 102 F.2d 352, 356, 133 A.L.R. 1445, where a report by a conductor made in the regular course of duty under a rule of a railroad company concerning physical circumstances within his knowledge and containing an opinion that the deceased, a brakeman, "was on top of train and was knocked off" by a telltale, was held admissible as a declaration binding upon and substantive evidence against the...

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