Flack v. Neill

26 Tex. 273

• Court: Texas Supreme Court
• Decided: July 1, 1862
• Status: Published

Opinion

Bell, J.

We are of opinion that the charge of the court below to the jury was as favorable to the plaintiff as the circumstances of the case warranted; and that the only question presented by the record which is worthy of any consideration, arises upon the bill of exception to the refusal of the court below to rule out from the consideration of the jury a portion of the deposition of R. A. Rutherford. The plaintiff objected to the admission of so much of one of the depositions of the witness Rutherford as stated the terms of a conversation between himself and the deceased, R. D. Flack, in relation to the note sued on, and the manner in which the said Flack procured the execution of the note by the defendant, Neill, upon the ground that the communications made to Rutherford by Flack were privileged communications, made by Flack to Rutherford, in his character of an attorney-at-law. A communication cannot be considered as privileged, because made in professional confidence, unless the person to whom it is made is acting for the time being in the character of legal adviser of the person who makes it. The communication must also he made for the purpose of obtaining professional advice or aid in the matter to which the communication relates. (1 Grreenleaf’s Evid., sec. 239 and 240.) Tested by these rules, we are of opinion that the communication in question in this case cannot be considered as privileged. It does not seem to have been made for the purpose of obtaining professional advice. The most important part of it, in its bearing upon this- case, was made after the note was executed by Neill, and seems to have been a voluntary narrative of the circumstances attending a past transaction. Nor is it shown that Rutherford was the legal adviser of Flack at the time the conversation to which Rutherford testifies transpired between them. It was for the jury to attach that weight they thought proper to the testimony of the witness, and we think the court below did not err in refusing to disturb the verdict.

The judgment of the court below is affirmed.

Judgment affirmed.