This is аn appeal from a judgment in favor of plaintiff-respondent in a civil action based on quantum meruit for services against defendant-appellant, a decedent’s estate. For the reasons discussed below, we reverse and remand for а new trial.
Plaintiff Catherine McCaffrey performed services for the decedent Clarence E. Brennan both in his private affairs as an individual and in his business. The services rendered the business, “Spry Farms,” covered the period from August 1963 to August 1969, when the business was sold by the dеcedent. These services consisted, generally, of duties as a saleswoman and bookkeeper at the business, which was a retail pet supply store. Specifically, plaintiff’s duties included making sales, checking invoices and purchase orders, supervising inventory, handling banking and payroll responsibilities and various tax reports, handling collections, and negotiating the sale of the business. Services allegedly rendered the decedent as an individual consisted of banking and bill-paying, running errands, сhauffeuring, and visiting the decedent in a hospital and nursing home. These services were rendered continuously during the period August 1963 to January 1972. Plaintiff was never paid for any of the above services, but the decedent had promised to make “adequate provision” in his will.
Mr. Flynn was employed as an attorney for “Clarence E. Brennan doing business as Spry Farms,” and subsequently for Clarence E. Brennan’s estate. Mr. Flynn represented the Brennan account in a variety of suits and legal matters from May 1967, up to the time the business was sold. On April 19,1969, at the request of decedent’s brother, Mr. Flynn prepared a power of attorney running from decedent to plaintiff. Mr. Flynn met with the decedent only twice. On these occasions, plaintiff was in their presence; and, on one ocсasion decedent’s brother was “not in hearing distance but there.” Otherwise, all of Mr. Flynn’s contacts were with plaintiff, who furnished him information. For his work, Mr. Flynn billed Spry Farms, and the bills were paid by plaintiff under the power of attorney from the decedent.
Mr. Flynn preparеd a will for Clarence Brennan, also at his brother’s request. This will included a bequest for plaintiff. The apparent amount of this bequest was $10,-000. This will was, however, never executed.
Following the death of Clarence Brennan, plaintiff filed a quantum meruit claim agаinst his estate for $24,413.50. At trial, Betty McNamara, the bookkeeper who had prepared tax returns$for “Clarence Brennan doing business as Spry Farms,” testified extensively concerning various financial aspects of the business, including her estimate that the decedent’s net worth was over $200,000.00. This latter the judge ordered stricken and instructed the jury to disregard it. Plaintiff also called Mr. Flynn as a witness. He was permitted to testify, over frequent objections of counsel, that he had prepared a will for the decedеnt at the direction of decedent’s brother, that the will was never executed, and that the will contained a bequest of money for plaintiff. The unexecuted will was never admitted
On аppeal, defendant has three contentions. First, defendant contends that the trial court erred in admitting Ms. McNamara’s testimony concerning the size of decedent’s estate and other financial matters of decedent, for the reason that such evidence was irrelevant, immaterial, and prejudicial to defendant. Second, defendant contends that the trial court erred in admitting the testimony of Mr. Flynn regarding the preparation for decedent of an unexe-cuted will, for the reasоn that its use was barred by the attorney-client privilege. And finally, defendant asserts that plaintiff’s attorney’s reference in final argument to a “substantial” provision for plaintiff in decedent’s will was so manifestly prejudicial that the trial court abused its discretion in denying defendant’s counsel’s request for a mistrial.
Regarding defendant’s first contention, we note initially that the most damaging testimony, Ms. McNamara’s assigning a value of $200,000.00 to the estate, was in fact not admitted but was stricken. At that time, defendant’s counsel did not request a mistriаl; therefore, the trial court granted defendant all the relief it requested. The evidence which was admitted included the gross sales and personal taxable income of the decedent over the period in question and the sale price of the real estate for Spry Farms. Plaintiff relies on
Allmon v. Allmon,
Defendant’s second contention is that Mr. Flynn’s testimony concerning the preparation of an unexecuted will was inadmissible because of the attorney-client privilege. 2 We agree.
Plaintiff attacks the creation of an attorney-client privilege in two ways, both of which are unavailing. Initially, she asserts that the only attorney-client relationship concerning decedent's will existed between Mr. Flynn and decedent’s brother, apparently because, he requested its preparation. No authority is cited for this proposition, but rather she relies on the trial court’s finding of competency of Mr. Flynn. It is true that, where the evidence is sufficient to justify a finding that the witness was competent, it cannot be said that the trial court abused its discretion.
Ashley v. Williams,
Plaintiff then asserts that, even if an attorney-client relationship existed between Mr. Flynn and the dеceased regarding preparation of the will, the privilege was destroyed by plaintiff’s presence during their communications and her supplying of information to Mr. Flynn directly. As a general rule, the privilege is destroyed by the presence and hearing
4
of third persons, on the ground that the communication was never intended to be confidential.
Canty v. Halpin,
The conclusion is inescapable that Flynn’s testimony had a substantial and prejudicial impact on the jury. His testimony comprises over ten percent of the entire record. He was permitted to describe work done by plaintiff with regard to the decedent’s legal and business affairs that would otherwise not have been before the jury. And most importantly, his testimony concerning the unexecuted will could not help but suggest to the jury that the decedent had intended to take care of plaintiff at the time of his death but, for undisclosed reasons, failed to do so. This inference alone was so prejudicial as to require reversal. See
Doyle v. Reeves,
supra and
In re Smith’s Estate,
Then, plaintiff’s counsel, by referring to the amount, without any basis in the record, as “substantial” took the last step toward impressing the jury that plaintiff deserved a large recovery because the decedent would have wanted it that way. As Mr. Flynn, however, will not be testifying on remand, this error will not recur. Therefore, we need not decide whether merely instructing the jury to disregard these words of plaintiff’s counsel adequately remedied the error.
Esstman v. United Rys. Co. of St. Louis,
For the reasons stated above, we reverse and remand for a new trial not inconsistent with this opinion.
Notes
. See generally Annot.,
. The privilege is statutory in Missouri: § 491.060(3), RSMo 1969. “The following persons shall be incompetent to testify: (3)
.I. F. Mechem, A Treatise on the Law of Agency, § 126 (2d Ed. 1914).
. Deceased’s brother’s presence on one occasion, “not in hearing distance but there,” clearly does not come within this rule.
. 58 Am.Jur., “Witnesses,” § 493, at 276.
. 2 F. Mechem, supra, at § 2308.
. 3 Am.Jur.2d, Agency, § 23; 1 F. Mechem, supra, at § 35.