Tomek v. Farmers Mut. Auto. Ins. Co.

• Decision Date: 08 February 1955
• Citation: 268 Wis. 566,68 N.W.2d 573
• Parties: Marilyn TOMEK, an Infant, by Elsie Tomek, the General Guardian of Her Property, Plaintiff and Appellant, v. FARMERS MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, and Joseph H. Ledvina, Defendants and Respondents.
• Court: Wisconsin Supreme Court

Page 573

68 N.W.2d 573

268 Wis. 566

Marilyn TOMEK, an Infant, by Elsie Tomek, the General Guardian of Her Property, Plaintiff and Appellant, v. FARMERS MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation and Joseph H. Ledvina, Defendants and Respondents.

Supreme Court of Wisconsin.

Feb. 8, 1955.

An action was commenced on December 19, 1953 to recover for injuries sustained by the plaintiff on February 12, 1952 as the result of the alleged negligent operation of a bus in which she was a passenger. The defendant insurance company answered separately and among other things denied liability upon the ground that the owner and operator of the bus failed to comply with the condition of the policy requiring that written notice of any accident should be given to the company as soon as practicable. It is alleged that no notice of the accident was given until February 9, 1953.

On February 15, 1953 Mr. Thomas M. Anich, an attorney, was retained by the company to conduct, and he did conduct an investigation of the circumstances attending the accident. After commencement of the action Mr. Francis X. Mahoney, also an attorney, was retained by the company for the same purpose and made further investigation.

Proceedings were taken by the plaintiff for the examination of the two attorneys under the provisions of sec. 326.12, Stats. Subpoenas were served upon them which required them to bring with them 'for the purpose only of refreshing your recollection as to the subjects of the examination, to wit: all notices, memoranda, notes, reports of investigation, statements, correspondence, and other written matter whatever, or copies thereof as to papers of which the originals are not in your custody, relating to and concerning the investigation by you * * *.' The notices accompanying the subpoenas recited that examination was desired of each of the attorneys with respect to the circumstances referred to in the company's answer setting up the policy defense heretofore referred to.

Orders were obtained by the defendant company requiring plaintiff to show cause why the examinations should not be suppressed. Its motions are based upon the contention that by the proposed examinations plaintiff seeks to obtain from the attorneys information which they may not disclose as such attorneys for the defendants. Orders granting defendants' motion and suppressing the proposed examination were entered on April 5, 1954. Plaintiff appeals.

Arthur DeBardeleben, Park Falls, Cecil T. Rothrock, Park Falls, of counsel, for appellant.

Thomas M. Anich, Ashland, for respondents.

GEHL, Justice.

The applicable statutes are as follows:

'325.22 Communications to attorneys. An attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon in the course of his professional employment. This prohibition may be waived by the client, and does not include communications which the attorney needs to divulge for his own protection, or the protection of those with whom he deals, or which were made to him for the express purpose of being communicated to another, or being made public.'

'326.12 Discovery examination before trials. (1) Persons subject thereto. The adverse examination of a party, or any person for whose immediate benefit any civil action or proceeding is prosecuted or defended, or his or its assignor, officer, agent or employe, or of the person who was such officer, agent or employe at the time of the occurrence made the subject of the examination, may be taken by deposition at the instance of any adverse party upon oral or written interrogatories in any civil action or proceeding at any time before final determination thereof, but the deponent shall not be compelled to disclose anything not relevant to the controversy. * * *'

Obviously the plaintiff desires in part, at least, discovery of facts within the knowledge of the attorneys which were not communicated directly to them by their client, although they became acquainted with such facts while professionally engaged as attorneys for the client.

The controversy involves the interpretation of sec. 325.22 Stats. The provision is narrow. It simply precludes an attorney from disclosing a communication 'made by his client to him'. He is not precluded by its provisions from testifying as to transactions had with or communications made to him by third persons even though those matters came to his knowledge in consequence of his retainer as an attorney.

Apparently counsel sought in Herman v. Schlesinger, 114 Wis. 382, 90 N.W. 460 application of the common-law rule which was stated in Dudley v. Beck, 3 Wis. 274 as follows:

'We think the cases in this country and in England, taken together, establish the doctrine that an attorney cannot be compelled to disclose, at the instance of a third person, any matter which came to his knowledge, in consequence of his employment, even though such business had no reference to legal proceedings begun, or apprehended.'

In answer to counsel's contention made in Herman v. Schlesinger, supra [114 Wis. 382, 90 N.W. 463], the court said:

'It was claimed on the trial that the statutory privilege of secrecy includes all communications made to the attorney by reason of his professional employment, whether by his client or by third persons while he is in pursuit of his client's business, and also to all knowledge obtained by him, whether from his client or otherwise, while in pursuit of the latter's business; and the court so ruled, excluding evidence of negotiations conducted for the defendant and his wife with third persons in respect to a matter material to the issues of the case. Manifestly, the language of the statute does not justify such...