#### Trosper Coal Company v. Rader.

(Decided November 18, 1915.)

Appeal from Knox Circuit Court.

1. Appeal and Error — Jury—Panel—Motion to Discharge — Review.— Where, on motion to discharge the jury panel on the ground that a sheriff summoned more bystanders than the statute authorizes, the facts appear only in the motion itself and are not supported by affidavits properly made a part of the record, or verified by order of court, or certified to in the bill of exceptions, the action of the trial court in overruling the motion is not subject to review.

2. Witnesses — Attorneys—When Competent to Testify. — An attorney cannot testify concerning any communication made to him by his client in that relation, or his advice thereon, without his client’s consent. In all other cases he is a competent witness for or against his client. ■

3. Damages — Evidence.—In an action for damages, evidence examined and held sufficient to sustain the verdict.

4. Trial — Instructions—Where the real issues are properly covered by a given instruction, it is not prejudicial error to refuse to give certain instructions offered by the defendant.

P. D. BLACK and BLACK, BLACK & OWENS for appellant.

J. M. ROBSION for appellee.

*798Opinion op the Court by

William Rogers Clay, Commissioner.

Affirming.

This is the second appeal of this case. The opinion on the former appeal may be found in 154 Ky., 671. The first judgment was reversed because of indefiniteness in the proof of damages. On the second trial plaintiff recovered a judgment for $900.00. Defendant appeals.

The defendant made a motion to discharge the jury panel, on the ground that the sheriff, in violation of section 2247, Kentucky Statutes, summoned fifteen bystanders to try the case. The motion was overruled and defendant insists that this was error. The facts on which the motion is predicated appear only in the motion itself. No affidavit accompanies the motion. There is m> order • of court showing that fifteen bystanders were summoned by the sheriff; nor are the facts certified to-in the bill of exceptions. This court cannot assume that facts appearing only in a motion are true. For aught that the record shows, the trial court may have overruled the motion because the facts stated were not true. Unless the facts relied on to obtain the discharge of a jury panel are supported by an affidavit which is made a part of the record, or are verified by an order of court, or are certified to in the bill of exceptions, the action of the trial court in refusing to discharge the jury panel is not subject to review.

The point is again made that plaintiff failed to show,. with reasonable certainty, the amount of damages he sustained. Under his version of the contract, he was to get the water out and keep it out of a certain entry in defendant’s mine. For this service defendant was to pay him 9 cents a ton on the coal mined from this entry, if taken out by the company, but, if taken out by him, 45 cents a ton. According to plaintiff’s- version, the contract included the coal left in the pillars and stumps of the entry, while defendant claims that the stumps and pillars were not included. Rader says that the cost of getting and keeping the water out of the entry was about 3 cents a ton, and that he could have made a clear profit of 6 cents a ton. Plaintiff’s witnesses estimate the amount of coal left in the entry at from 25,000 to 37,000 tons. While it may be true that the estimates of his witnesses are excessive, we conclude, from an examination of all the evidence in the case, that it is sufficient *799to sustain the verdict of the jury, which is based on a finding of 15,000 tons.

Complaint is made of the fact that H. H. Owens, one of defendant’s attorneys, who is also a graduate of Harvard and a mining engineer of considerable experience, was called by plaintiff and testified, over defendant’s objection, to the number of tons of coal in an acre. It is the rule that an attorney cannot testify concerning any communication made to him by his client in that relation, or his advice thereon, without his client’s consent, but that in all other cases he is a competent witness for or against his client. Hall & Co. v. Renfro, 3 Met., 51; Southard v. Cushing’s Admr., 11 B. Mon., 344; Section 606, Civil Code; Milan v. State, 24 Ark., 346; Loomis v. Norman Printers’ Supply Co., 81 Conn., 343, 71 Atl. 358; Wilkinson v. People, 226 Ill., 135, 80 N. E., 699, 40 Cyc., 2233. Here Mr. Owens did not testify concerning any communication made to him by his client, or with reference to any advice that he gave his client. His evidence related only to certain scientific facts and he was, therefore, a competent witness.

The real issues between the parties being covered by the instructions given by the trial court, we find no prejudicial error in the refusal of the trial court to give any one of the instructions offered by the defendant.

Judgment affirmed.