Witness, Impeachment. Evidence, Communications between attorney and client.
Where an attempt is made in cross-examining a plaintiff to impeach her credibility by showing that she is a spiritualist, and she says in answer, that she is not a spiritualist, it does not matter whether this was admissible or not, as the attempt failed and did the plaintiff no harm.
The counsel for a plaintiff was allowed to testify to conversations between the plaintiff, himself and the defendant, when they were all together, with a stenographer, in his office. He was acting at the time for the defendant as well as for the plaintiff. Held, that the conversations were not privileged.
HOLMES, C.J. This is a bill to redeem a mortgage. There was a controversy with regard to the amount to be paid, the case was sent to a master, he reported in favor of the defendant subject to exceptions taken by the plaintiff, and the Superior Court overruled the exceptions and made a decree in accordance with the report. The plaintiff appealed. The only exception not waived is to the master's admitting certain evidence of conversations of the plaintiff with her counsel.
The plaintiff having taken the stand was cross-examined on the subject in controversy. Her evidence was that she did say that the mortgage was lost; that she did not say a spiritualist told her so; that she did not remember saying anything about spiritualists, and that she never said that she was a peculiar woman, or had second sight into the future. The attempt, obviously, was to impeach her credibility by showing that she was a spiritualist and made statements on the faith of spiritualist communications, but it failed. Without going into more general matters, it is enough to say that taken by itself the plaintiff's testimony, whether rightly or wrongly admitted, did her no harm. Later, it is true, her counsel was called and testified that she said that she believed that the mortgage note was lost and that she never signed it, because a clairvoyant told her so. But this was in answer to questions by the plaintiff, to which she hardly can object now.
In his direct examination the same counsel was allowed to testify to conversations between the plaintiff, himself and the defendant, when they were all together, with a stenographer, in his office. The witness was acting for the defendant as well as for the plaintiff, if he was acting for the plaintiff at the time. Very plainly these conversations were not privileged. Whiting v. Barney, 30 N.Y. 330. Gulick v. Gulick, 12 Stew. 516. Hanlon v. Doherty, 109 Ind. 37. Rice v. Rice, 14 B. Mon. 417. Michael v. Foil, 100 N.C. 178. See also Weeks v. Argent, 16 M. & W. 817.
It is difficult to see how the plaintiff could have profited even if her exception had been sustained. We cannot doubt that the master would have come to the same conclusion if spiritualists had not been mentioned.
E.S. Spalding & C.J. Stone, for the plaintiff.
H.J. Cole, for the defendant.