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GORDON v. ROBINSON

December 10, 1952

GORDON
v.
ROBINSON (GORDON, third-party defendant)



The opinion of the court was delivered by: GOURLEY

This is a trespass action based on an automobile accident. A jury trial was held, over which my late associate, the Honorable Owen M. Burns, presided, which resulted in a verdict in favor of defendant.

On the basis of Rule 63 of the Federal Rules of Civil Procedure, 28 U.S.C.A., I am satisfied the record speaks with sufficient clarity and completeness for me to dispose of the matters which remain for adjudication, and that no need exists to hear the case de novo.

 The instant motion is for a new trial, based upon alleged errors of the trial judge in the admission of certain testimony which falls within three separate categories:

 (a) Testimony given by an attorney who was consulted by the plaintiff, but who did not represent the plaintiff at the time of trial was called as a witness by the defendant for the purpose of contradicting statements made by the plaintiff when testifying as a witness in support of his right to cover.

 (b) Testimony given by the representative of an adjustment bureau taken from the plaintiff on behalf of the insurance carrier of the plaintiff.

 (c) Testimony and statements offered by a state police officer who made an investigation subsequent to the accident, based on a report formulated by him which contained conclusions and expressions of opinion as to how the accident occurred and the cause therefor.

 Discussion

 (a) Did the trial judge commit error in admitting the testimony of an attorney previously consulted by the plaintiff who was called by the defendant to contradict the plaintiff on matters of material fact?

 At the time the plaintiff discussed the accident with his former attorney, he was confined to a hospital. During the entire period that the statement was taken by the attorney and his stenographer, the plaintiff's stepson was present in the hospital room. The stepson was not present at the time of the accident, nor did he reside with either of the plaintiffs involved in the litigation. There is nothing in the record to indicate that the aid or assistance of the stepson was required for the plaintiff to familiarize counsel with any facts or circumstances which could possibly relate to the accident.

 The law is settled in Pennsylvania that all privileged communications between attorney and client an sacred. If any particular case forms an exception, it must by shown by him who did withdraw the seal of secrecy and should be clearly shown. Alexander v. Queen, Appellant, 253 Pa. 195, 97A. 1063.

 The applicable rule, as set forth in VIII Wigmore on Evidence, Third Ed., Sec. 2292, is as follows: '(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.'

 Rule 210 of Model Code of Evidence of the American Law Institute, 1942 Ed. is to the same effect. The comments accompanying the rule, both in Wigmore, and in the Model Code of Evidence, point to a granting of privilege only where freedom of consultation of legal advisers by clients may be promoted. Cafritz v. Koslow, 1948, 83 U.S.App.D.C. 212, 167 F.2d 749, 751.

 The statute and decisions in Pennsylvania appear to conform to the ruling that communications made by a client to his attorney in the presence of third persons are not privileged. 28 P.S.Pa. ยง 321; In re Cridges Estate, 289 Pa. 331, 137 A. 455; Machnofsky v. Smith, 101 Pa.Super. 578.

 This also seems to be the ruling in the courts of the United States. Himmelfarb v. United States, 9 Cir., 1949, 175 F.2d 924, 938-939, certiorari denied 338 ...


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