Owens v. Frank

Potter, Chief Justice. This was an action to recover possession of certain specific personal property, which the sheriff held under attachment sued out at the instance of certain creditors of one Robert S. Douglas, who had formerly been engaged in the mercantile business. Douglas had sold out his entire stock (including the attached property), fixtures, and accounts to the defendant in error, and thereafter the goods were attached as the property of Douglas, the sale being assailed, on the trial, as fraudulent and void, and as having been made to protect the debtor vendor. The cause was tried to the court, and j udgment was rendered for the defendant in error, the plaintiff below, the findings being that he was the owner and entitled to the immediate possession of the property. One assignment of error only is insisted on; viz, that the trial court erred in ruling that a certain witness produced by the plaintiff in error was not obliged to relate a conversation which had occurred between the witness and the defendant in error in reference to the sale by Douglas to him, the stock sold, and the financial condition of Douglas. After admitting that he had had a conversation of that character at about the time of the sale, the witness answered that he did not feel at liberty to relate it, for the reason that he received the communication in confidence as a Mason. The court asked him if the conversation was confidential, if it had been given and received in confidence, and if relating it would violate his obligation as a Mason, all of which questions were answered in the affirmative, and thereupon it was ruled that the witness would not be obliged to testify respecting it. Upon request of counsel who had offered the witness, the defendant in error in open court refused to release witness from his obligation not to divulge what had been said in the [462] course of the conversation. The ruling of the court was excepted to. The error assigned involves the question whether a witness may refuse to answer a material question in relation to a material conversation on the ground that, having been given and received as a Mason, it is a privileged communication. The question at issue on the trial was whether, as against existing creditors of Douglas, his sale to Frank was fraudulent or not. The witness testified that in the conversation the financial condition of Douglas was discussed, and that he thought the matter of the sale was mentioned, athough he professed some lack of recollection as to the matters which entered into the conversation. Counsel for defendant in error does not discuss the question as to' whether the conversation was privileged or not, nor does he cite any authority in support of the ruling of the court, but it is contended as there was no offer of proof, or statement of what fact the party producing him expected to prove by the witness, the error, if any, will not be regarded by this court, nor the conversation, whatever it may have been, assumed to have been material. It is perfectly clear that at common law the conversation would not have been privileged. (1 Greenleaf on Ev., 15th ed., Secs. 236-248; Hoffman v. Smith, 1 Caines, 157, 159.) In the case cited the court said in the course of the opinion, “Nor was there any weight in the objection to the competency of Mr. Troup’s testimony, his information being received in the character of a friend and not in that of counsel.” .In Greenleaf, at Sec. 248, the author says that the protection is not extended “to confidential friends, clerks, bankers, or stewards, except as to matters which the employer himself would not be obliged to disclose.” Neither does the statute include such a conversation among privileged communications, although the privilege is extended to certain communications which were not entitled to that protection at common,law. Rev. Stat. 1887, Sec. 2589. The ruling of the court was therefore erroneous. [463] However binding an obligation may be, as between members of the same society, secret or otherwise, not to divulge to others that which may be confidentially communicated to them, such an obligation must be understood to be subject to the laws of the country, and doubtless the societies themselves recognize that such a limitation attaches to the obligation; and therefore it can not be said that the obligation is violated when the disclosure is compelled in a court of justice, in the course of the administration of the laws. Should the error be disregarded in the absence of a statement showing what was expected- to be proven by the witness? A similar question was decided by this court in the case of McGrinness v. State, 4 Wyo., 115, and the principle there announced seems applicable to the circumstances in this case. It was held in that case that if the testimony of a witness has been rejected upon the sole ground of his incompetency, it will be presumed that the testimony of such witness would have been material without any statement to that effect in the record, and without an offer having been made of what it was expected to prove by him. In that case the witness had been rejected by the trial court, on the ground that as a co-defendant in a criminal case he was incompetent. The reason underlying that rule is that the question in such case is whether the witness shall be heard at all, though his testimony be. ever so relevant or important. In the case at bar the trial court did not regard as at all important whether the conversation was relevant or material, or whether in itself it would be competent upon any issue presented in the case, but the ruling was that, notwithstanding its materiality or competency, the witness would not be obliged to relate it. It is clear that no offer of proof could have affected the ruling or the court, or the reason which prompted it. It must therefore on the authority of McGrinness v. State supra, be presumed that the excluded testimony would have been material. The record, however, is not entirely silent respecting the character of the conversation, as understood by the party [464] attempting to establish it. In addition to the subject of it, which appeared by the testimony of the witness in question, Mr. Frank was asked on cross-examination if he had not stated to such witness, “ Tou know Bob’s condition,” meaning Robert S. Douglas, “as well as I do, and something will have to be done,” or words to that effect; and Mr. Frank, in answer thereto, testified that he had no recollection of anything of the kind. On the ground, however, that the testimony was excluded solely for the reason that the conversation was privileged, and as enough appears to indicate that it referred to a sale which was in controversy, and the financial condition of the debtor making the sale, we think it must be presumed that it would have been material without any statement of what it was claimed would be elicited thereby. For the error in the ruling excluding the testimony the judgment must be reversed and a new trial ordered. Reversed. Coen and Knight, JJ., concur.