Frank S. Streeter, for the plaintiffs. The question whether these plaintiffs,
through their servants, were guilty of negligence in contributing to the fire was
put directly in issue by the pleadings in the Rolfe action. The issue thus presented
was not withdrawn or eliminated from the case, but was tried and determined upon
its merits. The Rolfes insisted upon its submission to the jury, as is shown by
their exceptions and request. The charge of the court upon the subject, particularly
the instruction that "there is no evidence in the case upon which you will be justified
in finding the defendant railroad responsible upon this ground," is an unmistakable
charge that the jury could not reasonably find the railroad guilty otherwise than
in the person of Sargent, and all parties at the time so understood.
It is obvious that this charge was in substance and effect the direction of a verdict
for the railroad upon the issue of contributory negligence, and that a formal verdict
for the railroad would
have been directed, in accordance with its motion, had it not been liable for the
acts of Sargent as its quasi servant. But the court's decision, as expressed in
his charge, was itself an adjudication of the issue on the merits, in a constitutional
manner, and to the efficacy of that adjudication a formal verdict would have added
nothing. "When a party is entitled to a judgment in his favor, he may have it without
the idle formality of a verdict which the jury would be required by law to give";
and a judgment "is merely the conclusion that naturally and regularly flows from
the premises of law and fact." Ordway v. Railroad, 69 N.H. 429 . The verdict and
judgment in the Rolfe action, construed in the light of the court's charge, were
a verdict and judgment that the railroad was there liable only because Sargent was
its quasi servant, and, by necessary implication, that it was not liable by reason
of any negligence of its own. Morgan v. Railway, 83 Wis. 348 .
If the judgment is binding upon any issue, it is binding upon every issue therein
litigated and determined; and if it binds one of these parties, it binds the other.
If Sargent had satisfied the judgment and were seeking indemnity of the railroad,
he would be estopped by the judgment to deny his negligence; and the reversed position
of the parties cannot affect the result. If it had been adjudged in the Rolfe action
that the railroad, of itself and independent of Sargent, was negligent, the railroad
would be estopped in this proceeding to deny that negligence; and the railroad can
assert a judgment in its favor if, on the same issue, in proceeding between the
same parties, it would be bound by an adverse judgment. Gregg v. Belting Co., 69
N.H. 247 . Both the railroad's due care and Sargent's negligence having been adjudicated
in the Rolfe action, the plaintiffs were entitled to rest their case upon the judgment
in that action and the sheriff's turn, and a judgment must now be entered in the
plaintiffs' favor. Lawrence v. Stearns, 79 Fed. Rep. 878.
Martin Howe and Sargent Niles, for the defendant. No evidentiary force should
be ascribed to the statement of the defendant's counsel in the argument of another
suit. We base our conclusion on these grounds: (1) What counsel said in the other
suit was the statement of a legal proposition, and not a statement of fact. (2)
The part of the counsel's argument in question was not authorized by the defendant,
and therefore cannot affect his rights. (3) If the part of counsel's argument in
question is held to be the statement of any fact from which a jury would be authorized
to conclude that the railroad could not have prevented the loss by the exercise
of ordinary care, such statement was the unwarranted disclosure of facts learned
by the counsel of his client, as a result
of the professional employment of the former by the latter; and such disclosure,
being of absolutely privileged communications, is not evidence for any purpose against
the client.
1. No one will claim that the trial judge in the former case stated facts to the
jury in what he said about holding the railroad. He was instructing the jury in
the law that was to govern them in deciding the case. The defendant's counsel said:
"The road has no interest in here, practically speaking. It is Mr. Sargent, because,
if there has been any carelessness, it is simply the carelessness of Sargent; .
. . if the railroad is held here at all, it simply turns around and calls for Sargent,
and if he has got money enough he must respond." The meaning of this was, that the
railroad was to be held liable in law for Sargent's negligence, if liable at all;
and that, if held liable for the result of Sargent's negligence, the railroad could
recover indemnity of him. Counsel paraphrased what he had been told the trial court
would charge the jury, and added his own opinion that Sargent under those circumstances
would be responsible over to the railroad. The context clearly shows that when counsel
said, "if there has been any carelessness it is simply the carelessness of Sargent,"
he meant, and his hearers must have understood, that, as the case then stood, all
the evidence of negligence was against Sargent. That was the fact, and is the only
sensible construction of which his language is susceptible. There is not a word
or combination of words in what counsel said that has any tendency to show, broadly
speaking, that the railroad could not have prevented the injury by the exercise
of ordinary care; and that fact is the material issue here. All said and done by
counsel which does not tend to establish that fact is immaterial. What did counsel
say that does not harmonize with our theory? Why should counsel discuss the rights
and liabilities between the railroad and Sargent in the argument of a case in which
those rights and liabilities were not involved, and a fortiori where they were expressly
left out of consideration? He must have discussed those rights and liabilities in
order to make evidence against his client in regard to them, because so long as
he was talking about another case he was not making evidence against Sargent in
this one. Where did he stop talking about the facts and circumstances of the former
case, and begin to make the admission credited to him? What is the admission that
he made?
2. "An attorney who is employed to prosecute or defend an action is a special agent.
His authority is bounded and limited by the necessities of the case. . . . But no
case is found, pushing the limits of the authority beyond the limit of a reasonable
necessity, or beyond the performance of acts touching the action and the proceedings
connected therewith." White v. Hildreth,.
There is nothing in the case to show that Sargent's counsel had any other or greater
authority than that conferred by the rule of this court above quoted. One thing
is reasonably certain: he was not hired by Sargent to make a case against him in
favor of the railroad. We can conceive of nothing necessarily involved in the discharge
of his duty in the former case — the only case he was hired to do work in
— which by any stretch of imagination can be considered to warrant him in
making evidence against his client for use in a case brought months afterward, and
not then even contemplated, so far as there is anything to show. We have, then,
the following truisms: Counsel's authority was limited to the reasonable necessities
of his case; and it was not necessary, or even sensible, in the defence of the first
case, for counsel employed for that defence to jeopardize his client's rights in
another and separate case. It follows as a corollary that, if what counsel said
was an admission that the railroad by ordinary care could not have prevented the
injury, it was the admission, by a special agent, as to a matter outside the scope
of his authority, and therefore void.
3. It is certain that, in order to give to the remarks of counsel the probative
force attributed to them, what was said must be considered an admission of fact,
because an admission (or, more properly, an opinion) of law would not be evidence
from which the jury would have been justified in finding that the plaintiffs were
not negligent. It is equally certain that counsel could not have made such admission
from any facts in the former case, because the so-called admission presupposes counsel's
knowledge of every fact material to a final adjustment of the question of negligence
between the railroad and Sargent; and it is to fly in the face of the record (particularly
the part of it where the trial court says "Therefore we need not investigate in
this case, in the shape it now is, the relative rights of the two defendants") to
assert that, counsel was able to make the admission credited to him, — that
is, an admission necessitating full knowledge of all material facts bearing on the
question of negligence as between the railroad and Sargent, from the facts in a
case where that question was expressly excluded from consideration, and where by
no possibility could any evidence of the railroad's negligence in the possession
of Sargent have appeared.
Assume, then, that counsel made the admission charged, and it unquestionably and
necessarily appears that he possessed knowledge of other facts than those in the
Rolfe case, and that from such
other facts he was able to say that the railroad by ordinary care could not have
prevented the injury. Who could have known those other facts, absolutely essential
to the so-called admission, but the client Sargent? How did counsel become possessed
of information of what Sargent knew regarding the facts material to the question
of negligence as between the railroad and himself, unless Sargent, under the protection
of professional secrecy, revealed that knowledge to him? Afford counsel all the
information contained in the trial of the Rolfe case, restrict him to that information,
and then ask him: "Could the railroad have prevented the injury by ordinary care?"
It is plain that he must answer: "I cannot say; the answer to that question depends,
not alone or primarily, on the evidence of the railroad's negligence possessed
by the Rolfes; it cannot be answered until I know what evidence material to that
issue Sargent has." We can see no escape from the conclusion that if counsel made
the admission credited, he made it, and it derives its entire weight, from knowledge
acquired from his client by virtue of his confidential employment.
Does the court propose holding such violation of privilege evidence against the
injured party? The general rule is: "Admissions made by a client while in consultation
with his attorney, and in fact all communications between parties so situated, which
are the proper subject of professional employment, are privileged; and, although
admissions in the strict, technical sense of the term, they cannot invade the province
of legal evidence without the express assent of both parties." 1 Rice Ev. 450. It
is true the client can waive his privilege, and the counsel can then disclose what
he knows; but such waiver must be "clear and express." Tate v. Tate, 75 Va. 522
; Montgomery v. Pickering, 116 Mass. 227 , 231 . The privilege includes all communications
made for the purpose of professional advice, whether it relates to a suit pending
or contemplated, or any other proper matter for such advice. Bigler v. Ryner, 43
Ind. 112 ; Yates v. Olmstead, 56 N.Y. 632 . The rule seems to be that the attorney
cannot make disclosure unless the facts warrant his belief that his client consents.
Sleeper v. Abbott, 60 N.H. 163 . There is nothing to show Sargent's consent to
the revelation, by his counsel, of his evidence in the present case. It does not
even appear that he was present; and, whether he was or not, the so-called admission
is too far-fetched and abstruse to admit of insistence that Sargent must have understood
it as now interpreted, and have interrupted the argument of his counsel by objecting
in order to prevent a waiver. Waiver is predicated upon voluntary action with full
knowledge of the facts, and nothing of the kind can be pointed out here.
4. Assuming counsel's remarks in argument of the former case to amount to an admission
that the railroad could not have prevented the injury by ordinary care, the defendant
claims that such admission was not evidence in the present case for any purpose.
In Cocheco Bank v. Haskell, 51 N.H. 116 , at the first trial the defendant's counsel
admitted that the settlement of certain questions of law raised "would be the end
of the case." The case was thereupon taken from the jury, and the questions of law
settled. Upon the second trial of the case, the plaintiff introduced in evidence
the former reserved case in which the admission of the defendant's counsel appeared.
The court expressly declined to give any weight to the admission. We can comprehend
no difference between declining to enforce such an admission as an agreement, and
declining to allow the jury to enforce the same; and the present case should adopt
the latter alternative. See, also, Larry v. Herrick, 58 N.H. 40 ; Adee v. Howe,
27 Hun 98; Dennie v. Williams, 135 Mass. 28 ; Weisbrod v. Railroad, 20 Wis. 441
; Wilkins v. Stidges, 22 Cal. 231 ; Colledge v. Horn, 3 Bing. 119.