Spitzer v. Stillings ( 1924 )

MARSHALL, C. J.

Epitomized Opinion

First Publication of this Opinion

Or'ginal action in the Common Pleas to recover the value of a car of corn wherein' Joseph P. Spitzer and Ulrich J. Coats were plaintiffs and James Ray Stillings, executor of Hai'ley A. Moninger, deceased, and Grover F. Mon-inger were defendants. The petition alleged that the corn was -sold to H. M. and G. M., a partnership. G. M. made no defense. H. M. answered, denying that he was a member of the partnership or that he purchased the corn. The trial resulted in a verdict and judgment for plaintiff.

At the trial both plaintiffs testified at length as to facts and circumstances tending to prove H .M. a member of the partnership and that he participated in the purchase in question. H. M. endeavored to subject both plaintiffs to cross-examination concerning admissions it was alleged plaintiffs had made to an attorney at the time of the purchase indicating that the transaction was with G. M. alone. The court sustained objections to. such cross-examination and later, said attorney being placed on the stand,'sustained objections to the same questions whieh were-asked him.- Defendant G. M. ■prosecuted error to the . Court of Appeals which - reversed- - the judgment on the ground-, i of -the exclusion of ■ that.. evidence. Plaintiffs -proseduted error to the Supreme Court wb'ch held:

By 11494 GC, “If the client or patient voluntarily testifies, the attorney or physician may be compelled to testify on the same subject.” The phrase “on the same subject,” in the absence of any limitation by the legislature, is to be taken in an unlimited and unrestricted sense. When a party voluntarily takes the stand and testifies he may be cross-examined, under our statutes, concerning communications to an attorney on any subject pertinent to his cause or defense testified to by him in chief, even though the fact of communication between them has not been referred to in the direct examination, and the attorney may be compelled to testify as to the same communications. Judgment of the Court of Appeals affirmed.