Wallace v. Wilmington & N. R. Co.

• Decision Date: 13 December 1889
• Citation: 18 A. 818,13 Del. 529
• Parties: WALLACE v. WILMINGTON & N. R. CO
• Court: Delaware Superior Court

18 A. 818

13 Del. 529

WALLACE v. WILMINGTON & N. R. CO

Superior Court of Delaware, New Castle

December 13, 1889

ACTION on the case for damages sustained by plaintiff due to the negligence of defendant.

A. E Sanborn, being called by the plaintiff, was examined as follows:

Mr Bradford:--I desire to ask Mr. Sanborn some questions on voir dire and waive the oath.

Mr Bird:--I would rather have it put. Mr. Sanborn stated that he had conscientious scruples to swearing, and he was then affirmed.

By Mr Bradford.

Q. Have you been assisting Mr. Bird in preparing this case for trial?

A. I have.

Q. Have you been examining the authorities for him?

A. I have.

Q. Collecting cases for him?

A. I have.

Q. Have you been examining witnesses for him. I mean outside of court?

A. I have in collecting testimony for him.

Q. Have you not been actively assisting and aiding Mr. Bird in the preparation of this case all the way through?

A. I have.

Q. Have you not been taking notes for Mr. Bird at this table?

A. I have.

Q. You have your office with Mr. Bird?

A. Yes sir.

Mr. Bradford:--I do not propose to argue it, but I propose to object to the competency of the witness on the ground of public policy; that he has, of his own showing, identified himself with the counsel in this case.

(Objection sustained.)

Mr. Bird asked that the Court state the ground of the ruling.

COMEGYS, C. J.: The majority of the Court decide that the offer is inadmissable.

The reason of my brethren is this, that it is contrary to public policy according to the views they take of the matter, understanding, that he is not counsel in the case.

HOUSTON J. It is well settled and has been ruled in this Court that counsel in the case cannot be a witness or is incompetent, not by any law, but by reason of the public policy which has been recognized and established. I am very sorry that this question has arisen, but as it has arisen, I must decide it according to the dictates of my own conscience. Mr. Sanborn, in whom I have as much confidence as any gentlemen at the Bar, has been so immediately identified with the counsel in the trial of this case, and the preparation of it, that I consider that the principle of public policy applies to him and forbids his examination as a witness as much as if the counsel himself proposed to prove the facts.

Also on the further ground that it would be very easy in this method to avoid the difficulty of counsel testifying. The danger of that is it opens the door to it, and in a case like this, which all new methods will be adopted as they can be on both sides for the purpose of getting in evidence, I feel the obligation more imperative upon me to adhere strictly to the principle as ruled, and that is that public policy forbids the examination of such witnesses, counsel or any one who has been so particularly identified with the counsel in the trial of the case as Mr. Sanborn has admitted to have been by his own statement in this case.

That is the ground upon which I put it, and I think it rests upon the same foundation that excludes counsel from being a witness. Not that I mean to intimate that any such thing has been done in this case, but it opens the door to it. I see that very readily if it is allowed.

PAYNTER J. It is the same as a privileged communication, that counsel have not only not got the right to give away themselves, but even if they want to give away, the Court has got no right to hear them. The rule is for the protection for attorneys in their practice, and applies to whatever come in their knowledge as attorneys. I am speaking now of where they are counsel. In this case, it has been said that Mr. Sanborn is not actually counsel, but facts have been mentioned here, and we know that he has been here taking notes, and he says he has been looking up cases and looking for evidence; and also the fact that he is in Mr. Bird's office and is closely allied with him, and although he may not have a special pecuniary interest in this case, yet he has an interest in Mr. Bird's practice, and though it is nothing whatever against him, or his character as an attorney, it is strictly according to that rule, that where an attorney is in any way interested in a case at all, he must be excluded as a witness, and anything that comes to his knowledge as such attorney is excluded, not only for its effect upon the case itself, but for the interest of the attorney also.

I think that Mr. Sanborn is too closely allied to Mr. Bird, to be a witness in this case.

Ch. Justice. The rule as I understand it is, where the relation of attorney at trial exists between parties, that the parties should not be allowed to be witnesses in a case, and that for very evident motives of public policy. I have never heard of the rule being extended any further.

I was for a long while student at law, and to very great advantage to me I assisted my preceptor in searching up authorities for his cases, days and nights and weeks, and assisted him otherwise in the preparation of his cases for trial, and it never occurred to me for a moment that I would not be a competent witness to prove any fact.

I might have become so identified as being his student and take the deep interest as I did in his welfare as to have created a bias in my mind. That is a matter for the jury.

When the relation shown, the intimacy of it, and all that, it is a question for the jury to determine whether under such circumstances they would give much credit to the testimony of one who has taken so active a part.

In this case on the other side it has been shown that Mr. McCausland, one of their principal witnesses, has assisted in the preparation of this case. He has taken, and it is not anything to his discredit, but to his credit as a faithful officer of the company, an active interest and pains to assist the counsel in preparing this case for trial.

It does not occur to me that Mr. McCausland stands in any other relation to this case looking at it in a common sense point of view than Mr. Sanborn, because Mr. Sanborn, was not counsel, not consulted as counsel has no interest in the cause and nothing he had depended on the cause at all, but he has assisted his preceptor, as he ought to have done, to prepare it for trial. I can see no distinction in reason between his case and that of Mr. McCausland or any other witness on the defendant's side.

The rule is not an absolute rule; that is, it is not one to be followed always, for Courts will allow an attorney to give testimony in a case, but they will compel him beforehand to withdraw from the case so that he no longer has the inclination to represent things in a different light from what they were before. It is not done commonly, but it has been done under circumstances.

Here the object is to contradict a witness; that is a very material and very important matter indeed, and that cannot be done apparently by anybody else, if it can be done by him, and it strikes me it would be a very hard case to deprive the plaintiff of the benefit of the testimony of Mr. Sanborn in this case to contradict the very important testimony of Dr. Smiley simply because he assisted his preceptor in the preparation of this case for trial.

HOUSTON J. I did not suppose there would be any necessity for it or I would have averted to it. This only applies to gentlemen who stand in the relation of legal counsel, professional counsel. It cannot apply to any witness in a case unless he is a lawyer by profession and is so intimately associated with the member of the bar who has charge of the trial of the case as to identify him with it. It is on the ground of public policy. Mr. McCausland's case is very different; he is not a lawyer, he does not come as a relative or connected with the counsel.

I would further say with regard to the student at law, I do not know that it would have applied, still I would feel inclined to look very favorably upon the objection to the admission of a student at law who at the time was reading law in the office of the counsel employed in the case.

There is identity of Mr. Sanborn in this case with the trial of the case, such an identity as the agent of the counsel, in the trial and he has assisted during the trial in Court. What a man does by an agent he does by himself according to the principles of law. If the principal would be objectionable, the agent would also.

The danger of opening the door where counsel are not as high toned and honorable as I admit counsel in this State generally to be, and ought to be, it opens the door in which evidence might easily be produced, if we should hold this strictly admissable. That constrains me to look unfavorably upon the application. Besides whenever I have grave doubt, as I have in this instance, I feel that we ought not to depart from a rule which I think applies to it.

Jury disagreed.

* Railroad companies are bound to keep in a safe condition all portions of their stations and grounds, and approaches thereto, which the public naturally use in passing to and from the cars, Green v. Railroad Co., 36 F. 66; Railroad Co. v. Lucas (Ind.,) 21 N. E. Rep., 968; Timpson v. Railway Co., 5 N. Y. Supp., 684; and to properly light the platform a reasonable time before the arrival and departure of trains, Grimes v. Railroad Co., 36 F. 72; see, also, note Id.; Groll v. Railroad Co., 4 N.Y.S. 80; Lafflin v. Railroad Co., (N. Y.) 12 N.E. 599, and note; Cross v. Railway Co., (Mich.) 37 N.W. 361; Reed v. Railroad Co., (Va.) 4 S. E. Rep., 587.

John Biggs and Levi C. Bird for plaintiff:

The plaintiff was a passenger of the defendant company, towards whom it was bound to exercise the utmost care. Not only that it would safely carry her; but also provide for her a safe...