Muñiz v. Cortés

33 P.R. 620

Opinion

Me. Justice Wole

delivered the opinion of the court.

This is a motion wherein the appellee asked for a reconsideration or modification of our opinion and we are disposed to concede the latter.

At the trial the original attorney of the complainant, over objection, was allowed to testify that the complaint was prepared in accordance with instructions. Then we said by way of obiter: “The admission of this testimony would seem to be error, but it is not made an object of an assignment of error. Ordinarily the communication of the client is privileged and the privilege must be waived by the client. ’ ’

We are now rather of the opinion, after an examination of the authorities, to wit, Cormier v. Richard, 7 Mart. N. S. (La.), 177, San Antonio etc. R. Co. v. Brookling, 51 S. W. 537 and 40 Cyc. 2376, that when there- is a controversy over a pleading and the client denies that it was prepared according to instruction the attorney who prepared it is entitled to testify at the instance of the opposite party. This particular matter, as we have seen,- was not urged as error and the parties are now free to present the question as they find it convenient.

We are not so clear, as maintained by appellee, that an abandoned complaint unsworn to may be considered as an admission. However, as the principal reason for reversal was the improper admission of testimony tending to corroborate defendant, when the case goes back we shall leave the conrt and the parties free to raise the question again of the effect of such an abandoned pleading.

The original opinion will be considered as modified accordingly and a copy of the present opinion be sent to the district conrt to be considered in connection with said original opinion.

Opinion modified.

Chief Justice Del Toro and Justices Aldrey, Hutchison and Franco Soto concurred.