11 Haw. 1 | Haw. | 1897
OPINION OF THE COURT BY
In an action for malicious prosecution the defendant, among other defenses, claimed and relied on as a defense and justifica
This ground of defense, that the advice of counsel established the fact of probable cause, was relied upon by the defendant, and the presiding judge gave instructions thereon to the jury. The jury rendered a verdict for the defendant. The presiding judge at the trial clearly erred in sustaining the objection of counsel to answer pertinent legal and material questions put on cross-examination to defendant’s counsel, he being a witness called by defendant as to what facts and how full and correct a statement was given to him by his client; the ground relied on by him and sustained by the court, for such refusal, to wit, “privileged communications” by client to counsel, is not in this case .available to the defendant, for not only did the defendant testify himself regarding some of the alleged facts, but he voluntarily put his counsel on the witness stand to maintain such ground of defense; the defendant thus consented to the counsel disclosing such matters, and the claim of privileged communication falls to the ground. The privilege was waived. 1 Greenl., Ev., Sec. 243; Foster v. Hall, 12 Pick. 93; Hunt v. Blackburn, 128 U.S. 464; Benjamin v. Coventry, 19 Wend. 353. Further, to maintain this ground of defense in these actions, it is necessary that
2 Greenl., Ev., Sec. 459; Bigelow, Lead. Cases, Torts, Sec. 200; Olmstead v. Partridge, 1 Gray 383; 14 Am. & Eng. Encyc. of Law, p. 53, note 2.
The points are included in defendant’s exceptions, Nos. 18 and 19, and on these grounds we find error. It is unnecessary to consider the other exceptions.
New trial ordered.