Bailey v. Chicago, Burlington & Quincy Railroad Co.

UHLENHOPP, Justice

(dissenting).

The question here is whether communications by Maude E. Bailey to Attorney Ward Reynoldson during her lifetime aré admissible against the fiduciary of her estate in this action by the fiduciary for damages for her death.

Francis P. and Maude E. Bailey were husband and wife. Mrs. Bailey met death in a collision at a railroad crossing.

If the communications in question are admissible and are believed by the jury, it appears that for about seven years prior to Mrs. Bailey’s death, Mr. Bailey did not stay with her and took only an occasional meal at home. Instead, he carried on with his hired man’s wife, Mildred Liddell, and slept down at the hired man’s house. He treated Mrs. Bailey with indifference. Mrs. Bailey learned that the neighbors were talking about the situation and that the last two children of Mrs. Liddell were reputed to be Mr. Bailey’s offspring. All this adversely affected Mrs. Bailey’s health.

Eventually Mrs. Bailey consulted Attorney Reynoldson, who commenced a divorce suit for her. Mrs. Bailey was killed while the suit was pending. After her death, Mr. Bailey was appointed fiduciary of her estate and brought the present action against the railroad for “the value of her services and support which decedent would have contributed to her spouse”, for “what she could be expected to accumulate from the time of her death to the end of her natural life”, and for interest on funeral expenses prematurely paid. Likewise after Mrs. Bailey’s death, the divorce suit was dismissed.

At the trial of the present action for Mrs. Bailey’s death, defendant sought to introduce the court file in the divorce suit as well as statements made by Mrs. Bailey to Mr. Reynoldson in connection with the divorce matter. The trial court excluded the court file, but permitted Mr. Reynoldson to relate Mrs. Bailey’s statements to him regarding Mr. Bailey’s affair with the other woman and its effect on Mrs. Bailey’s health.

The jury returned a verdict for defendant. The fiduciary appeals and urges that Mr. Reynoldson ought not to have been permitted to testify to Mrs. Bailey’s statements to him because they are hearsay and privileged.

We should approach points of evidence mindful of the modern tendency to enlarge rather than to restrict the evidence juries may hear — “the principle that everything probative of some matters required to be proved should come in unless a clear ground of policy or law excludes it”. E. Morgan and J. Maguire, Looking Backward and Forward at Evidence, 50 Harv.L.Rev. 909. See also I Wigmore, Evidence (3rd ed.) vii.

Hearsay. Mrs. Bailey’s statements about her marital trouble are said to be inadmissible as admissions because not inconsistent with the fiduciary’s present position. But the fiduciary is claiming damages for loss of the services Mrs. Bailey would have rendered as spouse, whereas Mrs. Bailey admitted in substance that she rendered practically no such services by reason of Mr. Bailey’s absence. Thus the position of the fiduciary in his damage claim is in conflict with his decedent’s admission. As said of similar admissions by a husband in Allen v. Riedel, 425 S.W.2d 665, 670-671 (Tex.Civ.App.), “Such evidence was important in determining the value of said things which his wife probably would have received from him had he lived.”

Moreover, it is doubtful that admissions, in order to be admissible, need be contradictory to the present position of the party *569 against whom they are offered. Admissions of the opposing party or his privies are not merely impeachment, no foundation need be laid, and no prior inconsistent statement need be shown. Olson v. Hodges, 236 Iowa 612 , 19 N.W.2d 676 ; McCormick, Evidence (1954) 503-04. Anything the opposing party has said ought to be useable against him unless irrelevant or impermissible under some exclusionary rule other than hearsay. Indeed, the sweeping statement is usually made that any utterance of an opposing party may be shown, if pertinent to the issues. Katcher v. Heidenwirth, 254 Iowa 454, 466 , 118 N.W.2d 52, 59 (“The general rule concerning admissions is that they are competent when they constitute admissions of the existence of relevant matters.”); McKelvey, Evidence (5th ed.) § 90 (“Admissions of parties to the action are always receivable.”); American Law Institute, Model Code of Evidence, § 506. In actual practice, a party offers admissions because they are inconsistent with the opponent’s present claims or demands, hut that is not the basis for their admissibility. Cf. 4 Wigmore, Evidence (3rd ed.) § 1048(1) (b): “Thus, in effect and broadly, anything said by the party-opponent may be used against him as an admission, provided it exhibits the quality of inconsistency with the facts now asserted by him in pleadings or in testimony. (This proviso never needs to be enforced, because no party offers thus his opponent’s statement unless it does appear to be inconsistent.)” See also Woodruff v. Pennsylvania R. R. Co., 52 Ill.App.2d 341, 349 , 202 N.E.2d 113, 118 (“We view the statement made by plaintiff prior to trial as an admission, not as impeachment, and, as such the required inconsistency is minimal.”).

Thus the trial court properly overruled the hearsay objection.

Privilege. The other objection is privileged communication. While somewhat incongruous, unquestionably plaintiff as fiduciary has the right to assert his decedent’s claim of privilege although he uses the privilege to cloak her statements about his own misdeeds against her. The question is, are her statements privileged? On that question more facts must be considered.

When the testimony of Mr. Reynoldson was given on trial, the circumstances surrounding the making of the oral admissions by Mrs. Bailey were only sketchily shown, and the divorce file was excluded by the court. But plaintiff filed a motion for new trial after verdict, asserting as a ground that confidential communications were improperly admitted. An evidentiary hearing was held on the motion, and plaintiff himself called Mr. Reynoldson as a witness. Plaintiff examined Mr. Reynold-son regarding the circumstances of the conferences with Mrs. Bailey, and Mr. Reynoldson testified that one Martha Arnold, a friend or relative of Mrs. Bailey, was present when Mrs. Bailey told him the things he testified to. Mr. Reynoldson further testified in response to plaintiff’s questions:

“To the best of my recollection I may have testified that she was accompanied by a lady by the name of Martha Arnold and to the best of my recollection Mrs. Arnold came over with her several times on several of the visits and I do specifically recall, and my memory being refreshed by my notes, Mrs. Arnold was present with her during the first visit to my office * * *. On subsequent occasions my recollection is sometimes she would come in the room and sometimes she would wait outside in the waiting room.”

Also:

“Q. And Mrs. Arnold was present perhaps on only one of those occasions.

“A. She was present on more than one. She was present the first time that Mrs. Bailey told me all the things I did testified to." (Italics added.)

Also:

“Q. Do you care to tell the court that you consider the relationship with Mrs. *570 Bailey and the information she divulged in the course as an attorney-client relationship?

“A. Yes. I would say Mrs. Arnold was present through the first meeting at which time she discussed Mr. Bailey’s relationship with the hired man’s wife, Mrs. Liddell; and she felt Mrs. Liddell’s last two children, and all the things she divulged there, Mrs. Arnold was present throughout the conversation.” (Italics added.)

Nowhere does it appear that Mrs. Arnold was the agent or confidential clerk of Mr. Reynoldson or of Mrs. Bailey, or that she was there for any particular purpose. Plaintiff evidently hoped to show Mrs. Arnold was present as a prospective witness, but his inquiry of Mr. Reynoldson resulted in this:

“Q. Did you explain to Mrs. Bailey that she had to have a corroborating witness and she would be expected to have a corroborating witness?

“A. I don’t have a recollection of that, but I don’t believe we had proceeded to that state.”

Also:

“Q. Mrs. Bailey did not know she was going to be required to produce a corroborating witness.

“A. I don’t recall ever saying that to Mrs. Bailey that was required.

“Q. And you did not know Mrs. Arnold was going to be called as a corroborating witness.

“A. I don’t know. We were not that close to trial.”

Mr. Reynoldson also testified on the hearing on motion for new trial:

“I think everything that I testified to would be substantially in the court file.” Also:

“I further felt that what I was testifying to wás a matter of public record in the courthouse in Lucas County.”

At the hearing on the motion for new trial, Mrs. Bailey’s divorce pleadings were also before the court. In her amended pleading seeking a divorce, on file as a public record, Mrs. Bailey stated:

“That the Defendant quit having marital relations with the Plaintiff approximately seven years ago. That he has displayed no husbandly affection or consideration toward the Plaintiff in said time. That he appears at the house only occasionally to eat,a meal. That to the knowledge of this Plaintiff, the Defendant has been keeping company with Mildred Liddell, the wife of a man living in the community where these parties reside. That the Defendant has slept at the home of Mildred during almost all of the aforesaid time. That all of said treatment has caused the Plaintiff to become nervous and upset, and it has caused her mental anguish and that she has lost weight and has lost sleep and that said treatment has adversely affected Plaintiff’s health.”

The first question on this branch of the case is, can the circumstances of the conferences between Mrs. Bailey and Mr. Reynoldson, as related by him on the hearing on motion for new trial, be considered in determining whether Mrs. Bailey’s admissions were privileged? The answer would appear to be yes.

The post-trial testimony of Mr. Reynold-son may well be unnecessary to admissibility of Mrs. Bailey’s admissions. No presumption arises from an attorney-client relationship alone that a communication is confidential, and the burden rests on the objector to establish privilege. Allen v. Lindeman, 259 Iowa 1384 , 148 N.W.2d 610 ; 8 Wigmore, Evidence (McN. ed.) 600. Consequently, when the communications were offered on trial, it behooved plaintiff to ask to take the witness on voir dire to try to show confidentiality as a basis for objection. Plaintiff did not do so, and confidentiality was not affirmatively shown.

*571 But if Mr. Reynoldson’s post-trial testimony was necessary as a foundation for Mrs. Bailey’s admissions, the situation comes within the general principle that error in admitting evidence because of insufficient foundation is cured if the foundation is subsequently supplied. SA C.J.S. Appeal & Error § 1735, p. 1034. See also National Surety Co. v. Boone, 227 Ala. 599 , 151 So. 447 ; Smith v. Lombard, 201 Cal. 518 , 258 P. 55 ; W. A. Flint Co. v. John V. Farwell Co., 192 Ind. 439 , 134 N.E. 664 , reh. den. 192 Ind. 439 , 136 N.E. 839 ; Thede v. Rusch, 65 N.D. 34 , 256 N.W. 409 . Consequently, if error was committed in admitting Mrs. Bailey’s admissions without Mr. Reynoldson’s explanation of the circumstances, the error was cured when that explanation was given. The jury did not have to hear this subsequent explanatory testimony, as it went to admissibility of the admissions, and admissibility is for the court. 8 Wigmore, Evidence (McN. ed.) 630. We ought not to send the case back in order to have this testimony given again; it is already before us, and it was before the trial court.

What then are the ground rules regarding reception of evidence claimed to be privileged ? As already stated, no presumption arises from an attorney-client relationship that a communication is confidential. 8 Wigmore, Evidence (McN. ed.) 600. The burden of proof is on the objector. Allen v. Lindeman, 259 Iowa 1384 , 148 N.W.2d 610 . The trial court determines from the evidence adduced whether the requisite confidentiality exists. Steiner v. United States, 5 Cir., 134 F.2d 931, 935 (“a question of fact to be inquired into by the Court”) ; 8 Wigmore, Evidence (McN. ed.) 630 (“The claim of privilege being made, the trial judge determines whether the facts justify the allowance of the claim.”).

As to the privilege itself, the essential element is confidentiality. Code, 1966, § 622.10 (“confidential communication”). As stated by Wigmore, Evidence (McN. ed.) 599, “The privilege assumes, of course, that the communications are made with the intention of confidentiality.”

Any one of several factors may disclose absence of confidentiality. One is the presence of a third person, not an agent of the attorney or client. “One of the circumstances by which it is commonly apparent that the communication is not confidential is the presence of a third person, who is not the agent of either client or attorney. Here, even if we might predicate a desire for confidence by the client, the policy of the privilege would still not protect him, because it goes no farther than is necessary to secure the client’s subjective freedom of consultation (§ 2991 supra). The presence of a third person (other than the agent of either) is obviously unnecessary for communications to the attorney as such, however useful it may be for communications in negotiations with the third person.” Wigmore, Evidence (McN. ed.) 601-03. The rule is stated thus in 97 C.J.S. Witnesses § 290, p. 818: “Communications between attorney and client are not privileged where made in the presence of a third person, not the agent of either party, or in the presence of the adverse party or his attorney; but, where the third person who is present is the agent of either the client or the attorney, the privilege is not destroyed.” A like statement, with an additional exception of a parent who must accompany a child for the interview, is found in 58 American Jurisprudence, Witnesses, 8 492, pp. 275-76.

The element of confidentiality is also lacking in statements to an attorney embodied by him in a pleading for the client— at least, after the pleading is filed. The rule is stated more generally in McCormick, Evidence (1954) 191: “Wherever the matters to be communicated to the attorney are intended by the client to be made public or revealed to third persons, obviously the element of confidentiality is wanting.” Applying the rule specifically to pleadings, the court stated in Wise v. Haynes, 103 S.W.2d 477, 481 (Tex.Civ.App.), “Where, as in the circumstances *572 here presented, facts are communicated to the attorney for the purpose of and are subsequently incorporated into the client’s pleadings in a suit filed and prosecuted thereon, being for publication or transmission to others, are not in the nature of ‘confidential’ disclosures, and do not come within the rule of privileged communications between attorney and client.” The court stated in Ex Parte Griffith, 278 Ala. 344, 350-351 , 178 So.2d 169, 176-177 , cert. den. 382 U.S. 988 , 86 S.Ct. 548 , 15 L.Ed.2d 475 , “Whether a communication by a client to his attorney is privileged is a question of fact to be determined by the court. * * Further, communications made by a client to an attorney which the attorney in the discharge of his duty is of necessity obliged to make public are not privileged. See White v. State, 86 Ala. 69 , 5 So. 674 . This rule is applicable to facts communicated by a client which are to be alleged in a pleading.” See also 97 C.J.S. Witnesses § 283, p. 806 (no privilege as to pleadings made public “or as to statements made by the client to the attorney of facts to be incorporated in such pleading”).

What is the situation here? Mrs. Bailey disclosed the information to Mr. Reynold-son, to the extent he gave testimony on trial, in the presence of a third person, Mrs. Arnold. No showing whatsoever was made that Mrs. Arnold was the agent of the client or of the attorney. An attempt to show she might be a corroborating witness failed.

Moreover, the information given to Mr. Reynoldson, and testified to by him, was embodied by him in Mrs. Bailey’s pleading and was filed and made public in her behalf. A court will not assume that an attorney commences a suit and files a pleading without his client’s authority; the presumption is the other way. 7 C.J.S. Attorney and Client § 73, p. 878; 7 Am. Jur.2d, Attorneys at Law, § 116, p. 118.

Based on the evidence before it, the trial court found that “the matters testified to by Ward Reynoldson were matters which were divulged in the presence of Martha Arnold, a friend and relative of Mrs. Maude Bailey, further that the matters testified to by Attorney Ward Reynoldson were at the time of the trial of this cause, and still is a matter of public record in the amendment to petition filed in Equity No. 18821, and that it is the finding of this Court that said matters were not confidential and therefore not within the privilege of attorney-client communications * * The finding of the trial court was well within the evidence and the claim of privilege was properly denied.

Finally, since exclusionary rules necessarily prevent the jury from hearing some relevant information, contemporary authorities in the field of evidence resist extension of privileged communications to new professions and oppose expansion of existing privileges beyond necessity. E. g., McCormick, Evidence (1954) 165: “The courts often say that privileges, since they curtain the truth from disclosure, should be strictly construed. One may go further, and believe that the privileges are never sufficiently helpful in protecting the outside interests they purport to foster, to justify their obstructive effect in cloaking the facts * * *. The manifest destiny of evidence law is a progressive lowering of the barriers to truth. Seeing this tendency, the commentators who take the wide view, whether from the bench, the bar, or the schools, seem generally to advocate a narrowing of the field of privilege.” And the American Bar Association’s Committee on Improvements in the Law of Evidence, after rejecting proposals to extend the privilege to new occupations, had this to say: “The correct tendency would rather be to cut down scope of the existing privileges, instead of to create any new ones.” Report of Committee on Improvements in Law of Evidence, A.B.A., 63 A.B.A.Rep. 570, 595 (1938).

In Iowa, testimonial privileges are statutory. Code, 1966, § 622.10. Our duty to give effect faithfully to legislative enactments requires us to apply the privileges in *573 accordance with the statutory provisions. We ought not, however, extend the privileges unnecessarily, especially where a trial court has properly found on the evidence that the element of confidentiality is lacking.

The judgment of the trial court ought to stand.

BECKER, J., joins in this dissent.