183 Ky. 679 | Ky. Ct. App. | 1919
Opinion op ti-ie Court by
Reversing'.
The appellee, Sallie Smithhart, owned a house, in Henderson, upon which and its contents, she carried four insurance policies, in the appellant Standard Fire Insurance Company, which insured her against damages, by fire, to the house and contents insured. The larger part of the house and its contents, were destroyed, by fire, and the appellant, company, having’ refused to pay the damages, she instituted this action against the insurance company, upon the policies, to recover the damages. The trial resulted in a verdict of the jury in her favor, and a judgment of the court, in accordance with the verdict. A motion for a new trial was made and denied, and the insurance company appeals.
The only ground upon which a reversal is sought, is that an error prejudicial to the substantial rights of the appellant was made by the trial court, in excluding from the jury, certain evidence offered by the appellant. One of the grounds, relied upon, by the appellant, in the defense of the action, was, that the burning of the house and goods, was not accidental, but, was of incendiary origin, and that the appellee procured the house and contents to be burned, with the fraudulent purpose of
So far as the offered evidence, was a statement of conversations, or communications or agreements, between the attorneys of the company and the witness, they were properly excluded upon well known grounds, but, as regards the statements of the appellee made to the attorney, and which were offered to be proven by him, a question is presented, which has not, heretofore, been determined, in this jurisdiction. The witness, at the time, the statements were made to him, by appellee, was representing her, in his professional capacity, as an attorney, with reference to her claim, under the policies, against the insurance company, and the statements, made by her,
“No attorney shall testify concerning a communication made to him in his professional character, by his client, or his advice thereon, without the client’s consent: ?)
Touching all matters, an attorney is a competent witness and is privileged to testify, either for or against his client, except as to communications made to him, in his professional character, by his client, and as to such, he can not testify, without the consent of the client, although the relationship has ceased between them. As said in Carter v. West, 93 Ky. 211, “the seal of silence is upon it” — such communication — “subject to be broken by the consent of the client only. ” Hence, the matter for decision, here, is whether the communications, offered to be proven, were made to the attorney in his professional character. It is gathered from the text books and authorities, that there are many communications, which a client may make to an attorney, and touching the matter about which the attorney is employed or consulted,which are not made to him, in his professional character, and often times for the reason, that they are communications, which the attorney can not receive in his professional character, and sometimes, as to whether the communication is privileged, depends upon the parties to the controversy, in which he is called, as a witness, to testify concerning the communications. As an instance, where one has been the legal adviser, at the same time and about the same matter for two persons, the statements made to him by either of them, in the presence of the other, are not privileged communications, in a controversy with each other, though they are privileged, in a contest between them, and other persons. Rice v. Rice, 14 B. M. 135; Smick v. Beswick, 113 Ky. 439. The principle, upon which this rule is based, is that the com
In Chamberlyn, vol. 5, 5280, it is said: “The protection, which the law affords to communications, between attorney and client, has reference to those, which are legitimately and properly within the scope of a lawful employment. It does not recognize those, which may be made in connection with and an aid to the accomplishment of a criminal purpose. It is the duty of an attorney, in the eyes of the law, to act in conformity with the laws in force and in no wa3r endeavor to violate them, or to aid, in their violation. ’ ’
In 40 Cyc. 2373, the exception is defined, as follows: "The rule does not extend to communications respecting proposed infractions of the law, and so there is no privilege as to communications made in contemplation of the future commission of a crime, or perpetration of a fraud, in which, or in avoiding* the consequences of which, the client asks the advice or the assistance of the attorney. But, communications in respect to ah alleged crime or fraud made after the act or transaction is finished are privileged.”
While the decisions of the courts, in the various jurisdictions, have not been, altogether, harmonious, as to the soundness of the exception above stated, it is sustained by the weight of modern authority, and is consistent with the purposes of the general rule, which is to aid the dispensing and administration of justice, and not the dispensing of injustice. Matthews v. Hoagland, 21 Atl. 1054; Orman v. State, 6 S. W. 544; State v. Faulkner, 175 Mo. 546; Hickman v. Green, 123 Mo. 165; Hyman v. Grant, 102 Tex. 50; Taylor v. Evans, 29 S. W. 172; Collins v. Hoffman, 113 Pac. 625; Dudley v. Beck, 3 Wis. 274; Dunn v. Amos, 14 Wis. 106; Hamil v. England, 50 Mo. App. 338; Stone v. Stinnett, 121 S. W. 187; Supple v. Hall, 96 Am. St. Rep. 188; Rex v. Cox, 142 B. D. 153. In the instant case, the communications avowed to have been made by the appellee to her attorney, tended to prove, that she had procured her house to be burned,
The judgment is therefore reversed, and cause remanded for proceedings not inconsistent with this opinion.