Sprader v. Mueller, s. 38593--38597
| Decision Date | 15 March 1963 |
| Docket Number | Nos. 38593--38597,s. 38593--38597 |
| Citation | 121 N.W.2d 176,265 Minn. 111 |
| Parties | Frances R. SPRADER, as trustee for heirs of Alexander A. Sprader, and Frances R. Sprader, Respondents, v. Howard C. MUELLER, Appellant. Lena VOSSEN, Respondent, v. Howard C. MUELLER, Appellant, and Frances R. Sprader, Spec. Admr'x of Estate of Alexander A. Sprader, Defendant. Mrs. June L. BERG, as trustee, Respondent, v. Frances R. SPRADER et al., Defendants, Howard C. Mueller, Appellant. Howard C. MUELLER, Appellant, v. Frances R. SPRADER, Spec. Admr'x of Estate of Alexander A. Sprader, deceased, and Frances R. Sprader, Respondents. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. The owner of a vehicle who is an occupant at the time of an accident has the burden of overcoming the rebuttable presumption that he was also the driver.
2. Within limits of professional propriety an attorney has implied authority to divulge to third persons a client's confidential communication if he deems it advantageous to his client's cause. However, such communication thereby loses its privileged character and, if otherwise admissible, it is error to exclude it from evidence.
3. The attorney-client privilege may be invoked without asserting it in open court if the jury is unaware of the confidential communication on which it is based and cannot therefore attribute its exclusion to the wrong party.
Miley, Narveson & Williams and David W. Nord, St. Paul, for appellant.
Meagher, Geer, Markham & Anderson and O. C. Adamson, II, and M. J. Coyne, Minneapolis, for respondents Sprader.
Johnson & Ildstad, Minneapolis, for respondent Berg.
Herbert W. Estrem and Leonard E. Oslund, Minneapolis, for respondent Vossen.
These five actions arose out of a two-car collision and were consolidated for trial, resulting in verdicts in favor of all of the claimants against appellant, Howard C. Mueller.
Between 12:30 and 1 a.m. on February 22, 1959, Mueller and one Richard A. Berg were traveling north in Brooklyn Park on Highway No. 52, also known as Osseo Road, in a car owned by Mueller, when they collided with an automobile which had approached from the east on 68th Street, driven by Alexander A. Sprader, in which Frances R. Sprader and Lena Vossen were passengers. As a result of the accident, Berg and Sprader were killed, and the other occupants of both vehicles were injured. Actions for wrongful death were brought against Mueller and the estate of Sprader by Berg's trustee, and by Sprader's trustee against Mueller. Mrs. Sprader sued Mueller, Mueller sued the estate of Sprader, and Mrs. Vossen sued both Mueller and the Sprader estate.
1. The trial court charged the jury that as a matter of law they must find Mueller was the driver of his vehicle when the collision occurred. Appellant contends this was a jury question and assigns the court's ruling as error.
Shortly before the accident, Mueller and Berg had left a bar in north Minneapolis. Thereafter, Mueller was driving the car when it ran out of gas, and he was required to take a can to a service station for refilling. Mueller cannot recall who drove his car subsequent to that incident. There was testimony by Mrs. Berg that while Mueller was in the hospital he admitted to her he was the driver. Both occupants were thrown from the car by the impact, but there was no evidence of where they were found after the accident except that they were on the pavement in front of the Mueller vehicle. Mueller testified that a shoe found near the front left door of his car was not his. On previous occasions Mueller had permitted Berg to drive the car. In this state of the record we hold that it was not error for the trial court to hold that Mueller was the driver as a matter of law.
We adopt the rule supported by the great weight of authority that where the owner is an occupant of his own vehicle at the time of an accident, it is prima facie evidence that he was the driver. 1 Such circumstances create a rebuttable presumption that the owner was in control, and he has the burden of overcoming that presumption. In the absence of direct evidence because of death or amnesia, and where, as here, the circumstantial evidence is wholly inconclusive, it is the duty of the court to hold that the owner was the driver when the accident occurred.
2. Mueller called as a witness an employee of the Hennepin County Attorney's office. Sprader's counsel demanded an offer of proof. Mueller's counsel then advised the court that he wished to show that the county attorney's office had in its files a copy of a statement which Mrs. Sprader had made to an investigator for her own liability carrier in anticipation of trial. Specifically, counsel for Mueller offered to prove:
'* * * (i)t was a statement obtained by the investigator for her attorney, Mr. Lindeman, who voluntarily turned it over to the Assistant County Attorney, Mr. Gearty, and through that statement I propose to show through impeachment of her present testimony, and which she has now changed it, that her husband did not stop for that stop sign as the stop sign that was at the highway and not the stop sign at the service road.
In objecting to the evidence on the ground it constituted a confidential communication from a client to her attorney, Mrs. Sprader's counsel stated:
The court sustained objection to the offer on the ground the evidence was confidential and said, '(T)here may be other reasons, too.'
It is apparent that appellant was attempting to lay a foundation for asserting a waiver of privilege by showing that a copy of the communication was in the possession of a third person. While counsel advised the court that it was to be used against Mrs. Sprader for impeachment purposes, if it was admissible at all it was substantive evidence because she was a party to the action. Although no demand was made for the original document, we believe the court's ruling effectively shut the door on additional attempts to introduce the statement into evidence, and that counsel for Mueller was justified in adhering to the ruling without pursuing the matter further.
That the statement was extremely significant is obvious from the sequence of events and the physical circumstances confronting the two vehicles as they approached the intersection. Highway No. 52 at 68th Street is a divided thoroughfare. The Sprader vehicle was governed by two arterial highway stop signs before reaching the concrete portion of No. 52 from the tarvia surface of 68th Street. One sign was on the right at the entrance to a service road, east of No. 52, which Sprader had to cross; the other sign was at the entrance to the main highway and was located to Sprader's right, on a grass divider between the main highway and the service road.
On direct examination Mrs. Sprader testified:
'Q. Now, when you approached No.--concrete Highway No. 52, what, if anything, did you observe Mr. Sprader do with the driving of your car?
'A. We stopped.
'Q. And do you know where you stopped with respect to the easterly edge of the concrete?
On cross-examination she said:
'Q. Now, he (Mr. Sprader) made a stop before entering onto the highway, didn't he?
'A. Yes.
'Q. Do you know which of the two stop signs he stopped for?
'A. We stopped once that I remember.
'Q. And do you know which stop sign for sure that was?
'A. By the highway.
'Q. And was that stop sign just to the right of your car or would it be to the left of your car?
'A. It was to the right.
'Q. And would it be within say 10 to 15 feet of the car when you stopped?
'A. It was a few feet.
'Q. Well, a few feet, all right. Then, he proceeded out onto the highway and that is the last you remember?
The statement of Mrs. Sprader which Mueller attempted to introduce contained the following:
'We then started for home. My husband then drove about 5 blocks and we were then at highway #52. We stopped for the stop sign. This is located By the service drive.
'My husband and I looked to the left and we saw 2 cars coming and they...
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