Strickland v. Capital City Mills
| Decision Date | 04 April 1906 |
| Citation | 54 S.E. 220,74 S.C. 16 |
| Parties | STRICKLAND v. CAPITAL CITY MILLS. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Richland County; J. P Carey, Special Judge.
Action by Henry Strickland against the Capital City Mills. Judgment for plaintiff. Defendant appeals. Affirmed.
R. W Shand, for appellant. Frank G. Tompkins, for respondent.
The plaintiff brought this action March 8, 1902, to recover damages for injuries received by him while working as an employé on a picker machine in defendant's mills, on November 15, 1901, as the result of defendant's alleged negligence in providing unsafe machinery without adequate guards over exposed cogwheels, and in not warning plaintiff of the danger of the machine, of which he was ignorant. The defendant, by amended answer, pleaded general denial assumption of risk, and contributory negligence. Plaintiff recovered judgment on verdict for $1,500, entered November 21, 1903, but, on appeal therefrom by defendant, judgment was reversed and new trial granted; the remittitur from this court being filed December 16, 1904. 70 S.C. 211, 49 S.E 478. In the meantime, in April, 1904, pending said appeal in this court, defendant was adjudged a bankrupt by the United States District Court for South Carolina, under the bankrupt act of Congress, and on June 6, 1904, was discharged; the creditors having agreed upon a composition. By supplemental answer this discharge was set up in bar on the second trial. The plaintiff again recovered a verdict for $1,500, and from the judgment thereon comes this appeal.
1. The first question raised is whether the court erred in refusing to grant a nonsuit; it being contended by appellant that the evidence for plaintiff failed to show any negligence on the part of defendant, and having shown that the injury was due solely to the negligence of plaintiff in not avoiding a manifest danger. The plaintiff, while adjusting a lap on the picker machine, had his sleeve caught by the cogwheel and his arm pulled under the cogs, lacerated, and injured. The cogwheel was unguarded, and there was some testimony in behalf of plaintiff that in cotton mill machinery the general rule with the best manufacturers is to have all parts with which an operative will come in contact covered with casing, including cogwheels. The plaintiff testified that he had only been operating a picker machine for two days previous to the day he was injured; that he had received no caution or warning concerning the danger of operating the machine, of which he was ignorant; that, while he could have seen the cogwheels if he had looked, as a matter of fact he had not noticed them. It appears from the testimony offered in behalf of the defendant, which may be considered in determining whether there should be a reversal of nonsuit, that the cogwheel is located on the side of the picker machine, is about two inches in diameter, its cogs meshing in with the cogs of a larger covered wheel below, and thus driving it; that it is located behind the gear casing, is not in a position of danger to a person in the usual position of feeding the machine, but, according to the testimony of E. W. Thomas, general manager of the Granby and Olympia Mills at Columbia, S.C. (at folio 235), and the testimony of W. P. Hamrick, superintendent of the Capital City Mills (at folio 251), the duty of the operative would at times require him to go all around the machine. Moreover, it appears that, on motion of appellant's counsel and with consent of plaintiff's counsel, the jury were permitted to view the premises and inspect the machinery in question. We cannot say as a matter of law that there should be a reversal in this case or failure to nonsuit. It was for the jury to say whether the defendant discharged its duty to supply its operatives with reasonably safe machinery. If the defendant was negligent in not properly guarding the machinery with which the operative would probably come in contact in the discharge of his duties, and in not warning him in his inexperience, then whether the plaintiff, after knowledge, voluntarily assumed the risk in this case, or whether by his own want of care he proximately contributed to bring about his injury, were, we think, under the circumstances of this case, properly referred to the jury. This case is distinguishable from the case of Wofford v. Clifton Cotton Mills, 72 S.C. 346, 51 S.E. 918. In that case plaintiff received injury by having his hand caught in the cogwheel of a speeder-frame while cleaning the floor beneath. The cogwheels were covered on top, but this covering did not extend to the floor. The plaintiff in that case had been working in the mill two years, saw the machine put up, and it was his duty and habit to take the covering off and clean the cogs. The court considered that the evidence admitted of no other conclusion than that the plaintiff in that case not only knew the nature of the machine, but fully comprehend the danger of putting his hands under the moving cogs to clean the floor.
2. The next question is raised by the second and third exceptions which assign error in refusing to allow F. G. Tompkins, Esq., attorney of record for plaintiff, to testify whether he had any assignment, contract, or agreement, whereby he owned an interest in the claim of Henry Strickland against Capital City Mills between April 1, 1904, and July 1, 1904, and in ruling out as a priviliged communication a written paper, signed by plaintiff and produced by F. G. Tompkins, assigning to said F. G. Tompkins an interest in the judgment in this case entered November 5, 1903. The written instrument in question was dated November 5, 1903, was signed by Henry Strickland, and purported to assign to Frank G. Tompkins a specified per cent. of Strickland's interest in the judgment against Capital City Mills for legal services rendered therein. The court ruled this evidence out as a privileged communication between attorney and client. This, we think, would be error in a case where such testimony is material to some issue therein. The general rule excludes from evidence all confidential communications of a professional nature between attorney and client, unless the client, for whose benefit the rule is established, waives the privilege. This is based upon a wise public policy which considers that the interests of society are best promoted by inviting the utmost confidence on the part of the client in disclosing his secrets to his professional adviser, under the pledge of the law that such confidence shall not be abused by permitting a disclosure of such communications. This rule, however, is subject to limitations, and should not be extended beyond its legitimate scope and purposes. We see no reason why the contract between the client and attorney as to the fee to be paid for professional services, and the assignment of an interest in a judgment recovered in payment of services rendered, should fall within the rule of privileged communications. This is knowledge which is not communicated by the client to the attorney, but is knowledge of the attorney derived from his own act in creating the fact sought to be disclosed, and not from a revelation of any secret of the client. The fee contract, whether regarded as made preliminary to the relation of attorney and client, or at the close of such relation in compensation for services rendered, or whether made during the existence of such relation, is really collateral to the professional relation, is not strictly a part of it, and has no bearing upon the merits of the matter, upon which professional aid was invoked. As to such a contract the parties ordinarily stand in adversary relation. In 23 Ency. of Law, 74, the doctrine is stated that there is no privilege as to the amount of the attorney's fee or the terms of payment, citing Smithwick v. Evans, 24 Ga. 462; Moats v. Rymer (W. Va.) 41 Am. Rep. 703; and, at page 76, this same work states that there is no privilege where the attorney is himself a party to the transaction or agreement which he is called upon to disclose. See, also, note in O'Brien v. Spalding (Ga.) 66 Am. St. Rep. 213, for a comprehensive statement of the general rule on this subject and its limitations, and especially on pages 231 and 232. Then, in this case, the nature of the fact sought to be disclosed must be considered. The assignment was of an interest in a matter of record, which necessarily involved the right of the assignee to place it with the judgment record as a protection to his interest therein, and this must be deemed to have been within the contemplation of the client. Furthermore, the assignment was made in the presence of a witness, A. F. Spigner. It appears that Mr. Spigner was also an attorney in the case associated with Mr. Tompkins. The fact that one of the attorneys was a witness to the instrument would undoubtedly render such attorney competent to testify as to its execution, consideration, and the circumstances attending its execution in his presence. Moffatt v. Hardin, 22 S.C. 26; Brazel v. Fair, 26 S.C. 385, 2 S.E. 293; Monaghan Company v....
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