172 P. 801 | Or. | 1918
Under date of February 9, 1913, the plaintiff mailed to O. P. Coshow, an attorney residing at Roseburg, a letter, the language of which is as follows :
*638 “Enclosed please find the copy of three letters which I received from Mr. T. B. Sheridan in regard to money which he drew ont of the First National Bank of Bosebnrg to loan for me, also one from the Bank Examiner. Now, this money was taken ont very near two years ago and I have not received any interest on it. Mr. Sheridan has not as yet sent me anything to secure me or informed me who he loaned it to although I wrote him two letters, the first he answered as you will see, the other he has not answered yet although I wrote him over a month ago.
“I wish you would see him or whoever represents him and find out who has the money and what security he has for it.
“I also wish you would look after-this for me. See that I get proper security for it. The party who ever has it may have it for two or three years longer by giving good security in the way of mortgage by paying the interest.
“Let me know as soon as possible if you can do anything for me. If you want the original of those letters, let me know and I will send them to you. ’ ’
Mr. Coshow, who was acting as attorney for T. B. Sheridan and had for some time been the attorney of record for the bank in certain proceedings, promptly answered and declined to represent Mr. McNamee “because of conflicting interests. ’ ’ Bef erring to the letter addressed to Mr. Coshow, the plaintiff; testified thus:
“I endeavored to employ Mr. Coshow as my attorney. He, being Mr. Sheridan’s attorney replied back that he could not handle the case. Then I employed another attorney.”
This action was commenced in July, 1915. Mr. Coshow appeared as the attorney of record for the defendant in this action.
The plaintiff was called as a witness in his own behalf and on his direct examination he testified that he had on deposit in the bank a balance of $2,956.60
The motion for a new trial assigned three grounds for setting aside the verdict.
“1st. That the evidence introduced by the defendant in the trial of said cause is insufficient to support the verdict or justify the same.
“2d. That said verdict is contrary to the evidence and against the law.
“3d. That there was error in law occurring at the trial of said cause and excepted to by plaintiff in this:
“First. That the court erred in permitting the introduction in evidence, over plaintiff’s objection, the letter written by the plaintiff, G. P. McNamee, to Attorney O. P. Coshow, which said letter being designated as defendant’s exhibit ‘C’ for the reason that said letter was a privileged communication between an attorney and client, and that the same was wholly inadmissible in the trial of said cause; that by reason of the introduction of said communication and letter plaintiff’s cause was prejudiced in the trial of said cause before the jury.”
“If a party to the action, suit, or proceeding offer himself as a witness, that is to be deemed a consent to the examination also of a wife, husband, attorney, clergyman, physician, or surgeon on the same subject, within the meaning of subdivisions 1, 2, 3, and 4 of the last Section.”
When the plaintiff appeared as a witness in his own behalf and testified that the bank had $2,956.60 of his
Our statute is more liberal than the statutes of most of the states which have legislated upon the subject of waiver. Ohio and Oklahoma, however, have statutes similar to Section 734, L. O. L., and the courts of those two states have given the same'construction to their respective statutes as we have to ours: 5 Page and Adams’ Annotated Ohio General Code, § 11,494; King v. Barrett, 11 Ohio St. 261; Duttenhofer v. State, 34 Ohio St. 91 (32 Am. Rep. 362); 2 Rev. Laws of Oklahoma (1910), § 5050; City of Tulsa v. Wicker, 42 Okl. 539, 541 (141 Pac. 963).
It was error to set aside the verdict of the jury and the judgment appealed from is therefore reversed.
Reversed.