Opinion
11-26-1958
Harry TRABIN, doing business under the fictitious firm name and style of Trabin's Upholstery, Plaintiff and Respondent, v. TITLE INSURANCE & TRUST COMPANY, a corporation, and Thomas C. Webster, Executors of the Last Will and Testament of Milton Kauffman, Deceased (Substituted as parties defendant); Helen Kauffman; et al., Defendants and Appellants. * Civ. 23094.
Clement H. Jacomini, Los Angeles, for appellants Title Insurance & Trust Co. and Thomas C. Webster, Executors. Lever & Anker and Sidney Dorfman, Beverly Hills, for appellant Helen M. Kauffman. Samuel Duskin and David S. Smith, Los Angeles, for respondent.
Harry TRABIN, doing business under the fictitious firm name and style of Trabin's Upholstery, Plaintiff and Respondent,
v.
TITLE INSURANCE & TRUST COMPANY, a corporation, and Thomas C. Webster, Executors of the Last Will and Testament of Milton Kauffman, Deceased (Substituted as parties defendant); Helen Kauffman; et al., Defendants and Appellants. *
Nov. 26, 1958.
Rehearing Denied Dec. 24, 1958.
Hearing Granted Jan. 21, 1959.
Clement H. Jacomini, Los Angeles, for appellants Title Insurance & Trust Co. and Thomas C. Webster, Executors.
Lever & Anker and Sidney Dorfman, Beverly Hills, for appellant Helen M. Kauffman.
Samuel Duskin and David S. Smith, Los Angeles, for respondent.
FOURT, Justice.
This is an appeal from a judgment for the plaintiff arising out of the sale and delivery of certain merchandise by the plaintiff to Milton Kauffman and his wife, Helen Kauffman.
The plaintiff in his complaint in four causes of action sought to recover $15,913.12. In the first cause of action it is alleged, in effect, that about September 1, 1955, the plaintiff and defendants, and each of them, entered into an oral contract whereby the plaintiff was to furnish to the defendants certain furniture and furnishings which the plaintiff was to order especially, custom construct and custom upholster for use by the defendants at their home in Carlsbad, California, and further that the agreed total price was $18,245.42.
It was further alleged that on about December 31, 1955, and on January 31, 1956, the oral contract was reduced to writing, and then there followed a reference to certain exhibits consisting of signed statements or invoices, which were attached to and made a part of the complaint. It was also set forth that all of the merchandise ordered by the defendants was delivered to them and that $2,332.30 was paid on account, and that there was a balance due of $15,913.12.
The second, third and fourth causes of action were in common counts of goods sold and delivered, an account stated and an open book account, respectively, for the identical merchandise and the identical price and balance due.
The defendants answered the complaint and alleged, in effect, that the total agreed upon price was not $18,245.42, or any other sum in excess of $10,000, and further that the parties had agreed that the cost of the items would not exceed $10,000. They denied the execution of the statements or invoices, and denied that 'all' of the items described in the invoices were delivered to their home at Carlsbad. They admitted to paying $2,332.30, and claimed that the balance due did not exceed the sum of $7,667.70, and generally denied the remaining allegations in the plaintiff's complaint. After the filing of the defendants' answer Milton Kauffman died on or about November 4, 1956, and thereafter the action was revived and continued against the named executors in his last will.
Helen Kauffman was called as a witness by the plaintiff under section 2055, Code of Civil Procedure, and she testified that she and her late husband were living together on December 31, 1955 and on January 31, 1956, in Los Angeles, and that they had a piece of real property in Carlsbad, California. She stated that the signature on the invoices was that of her husband; that she saw the items listed in the invoices at the home in Carlsbad, which was occupied by her and her husband. She further testified that she and her husband had talked with Harry Trabin, the plaintiff, about furnishing the Carlsbad home and that they had requested him to visit the place before he started to construct the furnishings for it, and that they further requested of the plaintiff that he not exceed a cost of $30,000 in connection with such furnishings. That thereafter Bernard Trabin, the son of the plaintiff, went with Mr. and Mrs. Kauffman to the Carlsbad home where she pointed out to Bernard Trabin the rooms which she desired furnished, and the type of furnishings, draperies and rugs which she desired.
After several visits of Bernard Trabin all of the furnishings described in the invoices were furnished by the plaintiff to the Carlsbad home and a bill was received for the same, totaling $18,245.42. The bill was received about a month after the items were installed. Mrs. Kauffman also stated that she knew that only $2,332.30 had been paid on the account.
There were proper objections made to all of the testimony and motions to strike were likewise made, each of which was denied.
There was no cross-examination of the witness. Counsel for the appellant Helen Kauffman stated that in his judgment she was not a competent witness because of the 'Dead Man's Statute,' and that he was not going to waive and such claim by asking any question of cross-examination. Counsel for the executors stated no reason for not cross-examining.
Bernard Trabin, a son and employee of the plaintiff, testified that he had no interest in the business, excepting as an employee, and stated that Mr. and Mrs. Kauffman picked him up one Saturday morning at the shop of the plaintiff and drove with him to the Carlsbad home, where they took him through the place and where Mr. Kauffman said, in substance, '* * * we have decided not to sell our home but to make this our summer home.'
'And we have been very pleased and happy with the work you have done for us in our Olympiad home, and therefore we would like to have you decorate our home for us.' He also stated that Mrs. Kauffman said substantially the same thing. Further, that Mr. Kauffman had said 'that he didn't wish this home to be furnished as costly as the one on Olympiad, but he wanted it done nicely, and he did not want us to go over $30,000 to furnish the home;' that Mrs. Kauffman said, "Of course, * * * I want it done very nicely;" to which the witness replied, 'And I told both Mr. and Mrs. Kauffman that I was quite sure I would be able to decorate the home so that they would be happy and keep it under $30,000.'
The witness stated further that he explained to Mr. and Mrs. Kauffman that he would have to return to the house in order to take measurements and prepare floor plans and to make certain diagrams, etc., and that the Kauffmans had stated they would be satisfied with such an arrangement and that he would be doing the home just as he had their Olympiad home.
The witness Trabin did make several trips to the home in Carlsbad, and on at least one occasion thereafter Mrs. Kauffman asked Bernard Trabin how he was coming along with the decorating plans of the home. At a later occasion the witness was at the home of Mr. and Mrs. Kauffman on Olympiad Street and presented the plans he had made for the decorating of their Carlsbad home, along with certain samples and a color scheme. Mr. and Mrs. Kauffman stated at that time that they were very happy with what had been submitted to them. Later, at another meeting, Mrs. Kauffman introduced her daughter to Bernard Trabin and stated to the daughter, 'Mr. Trabin is decorating our home in Carlsbad.'
Furthermore, Trabin testified that Mr. and Mrs. Kauffman came to the plaintiff's place of business during the time the furniture was in the course of construction, and the items being so constructed were pointed out to them. He said that the merchandise was, at a date subsequent to their visitations, completed and delivered to the Carlsbad home where it was completely installed. The witness also stated that he had prepared the invoices, that the total price amounted to $18,245.42, and that $2,332 and some change had been paid thereon. The statements or invoices apparently enumerated all of the items furnished and showed the prices therefor. Objections were properly made to the testimony of the son, and motions to strike the same were also made.
The court gave judgment as prayed for by the plaintiff.
Appellant executors now contend that the court erred in admitting evidence given by Helen Kauffman as to any matter occurring before the death of Milton Kauffman; that the court erred in receiving the invoices into evidence; that the evidence does not support the allegations of the complaint or the findings of fact and conclusions of law; that the judgment is erroneous.
The executors assert that Helen Kauffman was incompetent as a witness under section 1880, subd. 3, Code of Civil Procedure, which reads as follows: 'The following persons cannot be witnesses: * * * * * * '3. [Actions against estates.] Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim, or demand against the estate of a deceased person, as to any matter or fact occurring before the death of such deceased person.'
We are of the opinion that the executors' contentions must be sustained. The testimony of Helen Kauffman related to matters or facts occurring before the death of Milton Kauffman. She said she saw the invoices in January or February of 1956 (Mr. Kauffman's death occurred November 4, 1956); that she saw the items in the home before she saw the invoices; that she recognized the signature of Mr. Kauffman on the invoices; that before Mr. Kauffman's death a request was made of plaintiff's son that the cost of the furnishings not exceed $30,000, and that she saw a bill from plaintiff for $18,245.42.
In 4 U.C.L.A.Law Review, at page 175, there appears an excellent article based upon studies made by the author for the California Law Revision Commission, and which traces the common law background of the California Dead Man Statute, the early reforms, early California legislation and later legislation with reference thereto. The author points out (at page 185): 'Thus in less than a decade (1861-1870) California shifted from one extreme to the other as respects the competency of a party to testify against the estate of a decedent. Each choice was in terms of clear-cut alternatives, and carried the chosen alternative to its logical conclusion. Protecting the estate by disqualifying the adverse party was to be the rule in all cases or it was to be the rule in none. Electing initially to try the first alternative, the legislature soon shifted to the second. Each solution was, of course, rational in its own way. Each involved the choice of a basic premise which, being chosen, dictated the result without compromise or equivocation. This was the era of going all out in one direction or all out in the other, of boldly making a basic decision and accepting all of the implications of that decision.'
The author then proceeds to analyze the more recent legislation and decisions by what he refers to as 'the era of compromise, the era of half-way legislation and patch work decisions construing it, from which was evolved the present Dead Man Statute. * * * This era begins in 1874 when the Legislature revised and re-enacted the Dead Man Statute in terms which, as amended in 1880, supply the Dead Man Statute which is in force today.'
As we analyze the statute and the decisions interpreting it we believe that at least the following parties are barred from testifying: (a) parties to the action; (b) persons in whose behalf the action is brought; (c) assignors of parties to the action.
In the case at hand there can be no doubt that the 'claim or demand' is within the statutory prohibition (it was not to establish a trust, a family allowance or to make a deed absolute in form a mortgage, or for an accounting, or to recover for anything fraudulently appropriated by decedent, or for anything other than an ordinary money judgment). Further, it is clear, as heretofore related, that all of Helen Kauffman's testimony of any importance to the outcome of the lawsuit had to do with facts which occurred before the death of her husband, Milton Kauffman.
There was no claim or contention that there was any waiver of the provisions of the statute.
As pointed out by numerous writers on the subject, Blood v. Fairbanks, 1875, 50 Cal. 420, was the first case, since the statute was in substantially its present form, where the court determined that the letter of the statute should control and that there should be a strict interpretation thereof. The plaintiff in that case called the co-defendant of the defendant estate as a witness. It was conceded that the co-defendant had no interest adverse to the estate. The court said, among other things (at page 422): 'It is said that Hewitt is not a party against an executor, and that he has no claim against the estate. But the statute does not merely exclude parties who have or are supposed to have an interest adverse to the estate of the decedent, but by its terms, renders all the nominal parties to the action incompetent.'
In Chase v. Evoy, 1877, 51 Cal. 618, at pages 619-620, the court held to a liberal interpretation in determining that the defendant estate could call a co-defendant as a witness for the estate, and among other things said: 'The language of the statute is very broad, and if literally construed, might exclude all parties to the action, whether called to testify for or against the estate. But to give it this construction would defeat the manifest purpose of the act, and we think the language is capable of a different interpretation. Parties to the action, or in whose behalf it is prosecuted, are not allowed to testify against the estate in a suit to establish a demand against it. One of the parties to the transaction out of which the demand originated being no longer in esse, it was deemed unwise to permit the other party to it to testify to his version of it, when called by the plaintiff in a proceeding against the estate to establish the demand. The statute, it is true, provides in general terms that 'the parties to an action or proceeding' against the estate shall not testify; but the obvious meaning of this provision is that a party to the action shall not testify against the executor or administrator. This was the point decided in Blood v. Fairbanks, 50 Cal. 420; and though the language of the opinion in that case is somewhat broad, it must be interpreted with reference to the facts of the case. But in view of the evil to be remedied, the legislature could hardly have intended to prohibit the executor or administrator from calling a party to the action to testify in behalf of the estate. On the opposite theory, the defendant, representing the estate, would not be permitted to call the plaintiff himself to prove that the demand was fraudulent or had been fully paid. Such a construction of the statute is wholly inadmissible, and would be at variance with its manifest intent.'
The next case upon the same problem was Moore v. Schofield, 1892, 96 Cal. 486, 31 P. 532. The court there held that the plaintiff could not use as a witness a co-defendant joined with the decedent's estate and against which co-defendant a default had already been entered. The court said among other things (96 Cal. at pages 487-488, 31 P. at page 532): 'The precise question was presented in the case of Blood v. Fairbanks, 50 Cal. 420. In that case Blood and Hewitt, as partners, had taken sheep from the defendant to keep for the increase, etc., agreeing to share the profits with the owner. Hewitt had sold his interest in the partnership to Blood, who brought suit against the administratrix of the estate of Fairbanks, the owner of the sheep, for an accounting. As Hewitt had no interest in the proceeding, and asserted no claim against the estate, although made a party to the suit, it was contended that he was not incompetent, under section 1880, Code Civil Proc. But this court said: 'Section 1880 of the Code of Civil Procedure provides that 'parties to an action or proceeding, or in whose behalf an action or proceeding is prosecuted, against an executor or administrator, upon a claim or demand against the estate of the deceased,' cannot be witnesses. It is said that Hewitt is not a party against an executor, and that he has no claim against the estate. But the statute does not merely exclude parties who have or are supposed to have an interest adverse to the estate of the decedent, but, by its terms, renders all nominal parties to the action incompetent.''
The court in the Moore case, in referring to Chase v. Evoy, supra, said that it simply holds that the executor may waive the objection and make the party a witness in his own behalf. (Some writers assert that waiver was not even a theory intimated in that particular case .) In concluding the opinion in Moore v. Schofield, it is stated at page 490 of 96 Cal., at page 533 of 31 P.: 'But on another ground the contention of appellant must be overruled. If it be conceded that the court can look beyond the letter of the statute, and determine whether a given case is within the reason of the rule, it does not appear in this case that Chapman had no interest in establishing the claim against the estate. His own default had been entered, upon which judgment subsequently passed against him. He had an interest in having judgment rendered, thereby compelling the estate to contribute to the satisfaction of the claim.'
Then followed Todd v. Martin, 1894, 4 Cal.Unrep. 805, 37 P. 872, wherein it was held that the plaintiff was entitled to call the defendant administratrix. The court said, at page 810 of 4 Cal.Unrep., at page 874 of 37 P.: 'We think it is only parties who assert claims against an estate who are rendered incompetent to testify, and that the word 'parties' does not refer to the executor or administrator who is the party defendant.'
Roncelli v. Fugazi, 1919, 44 Cal.App. 249 at page 254, 186 P. 373 at page 375, then followed, which held that the administrator of the plaintiff estate was incompetent to testify, the court saying: 'We can neither abridge nor extend the scope of the terms of the section, nor should we concern ourselves with the philosophy of the rule established by the section, or speculate as to the motives which impelled the Legislature to enact it, except it be in aid of the discovery of the real meaning of its items. The very words of the statute must control. Moore v. Schofield, 96 Cal. 486, 31 P. 532. Its inhibitions have been held to apply to the testimony of a person who is merely a nominal party to an action. As stated in Blood v. Fairbanks, 50 Cal. 420: '* * * The statute does not merely exclude parties who have or are supposed to have any interest adverse to the estate of the decedent, but, by its terms renders all the nominal parties to the action incompetent.' * * * 'In framing the exceptions provided by section 1880 to the general enabling act (section 1879, Code Civ.Proc.) the Legislature must have intended to use the word 'parties' in its usual and appropriate meaning in law. (Section 16, Code Civ.Proc.) If it had been intended to render the testimony of a party to the record, suing in his representative capacity, admissible under the circumstances stated in the statute, it would have been a very simple matter to have so declared in the statute itself, as was done in the Washington statute, where it is provided that the exclusion of the testimony of a party to the record 'shall not apply to parties of record who sue or defend in a representative or fiduciary capacity and who have no further interest in the action.' Since our statute of exclusion uses the word 'parties' in its broad generic sense, we do not deem it proper to restrict its meaning to smaller compass, thus confining its application to parties to the record suing in their individual capacities.'
We are cognizant of the fact that such a determination in this case may ultimately result in an injustice to the plaintiff if he cannot, at the retrial hereof, produce proper and competent evidence with which to establish his claims. However, it appears to us that we are duty bound to take the law as we find it. We cannot, however, refrain from saying that at the trial certain testimony sought from the witness Bernard Trabin (son of the plaintiff) was apparently excluded because it was merely cumulative of that given by Helen Kauffman and which testimony was believed by the court. Upon a retrial, since the testimony of Mrs. Kauffman is inadmissible, the court may permit the witness Bernard Trabin to testify to the matters excluded at the first trial. Should such testimony be believed by the court, it may well be that plaintiff could prevail. This we say because while we are satisfied the judgment herein must be reversed, we are nevertheless remanding the cause for a new trial, to the end that in the interests of justice, any available additional testimony may be presented to the court.
The wisdom of the statute has repeatedly been questioned and learned writers in the law have declared the statute to be, in effect, unenlightened and archaic. (See Hale, 9 So.Cal.L.Rev. 35 (1935); Chadbourn, 4 U.C.L.A. Law Rev. 175; 2 Wigmore, Evidence, §§ 488, 575-580; McCormick on Evidence, Chapt. 7, § 65, p. 142, who refers to the matter as having bred injustice and uncertainty--intolerable absurdity, and cites Bentham as saying it is 'a blind and brainless' technique.)
Mr. Justice Traynor of the present Supreme Court has said: 'The wisdom of such a statute has been a matter of controversy for so long that it may well be time for the Legislature to make a re-examination that will freshly evaluate the protection of estates from false claims and the ensuing risk of defeating just claims.' Roy v. Salisbury, 21 Cal.2d 176, 187, 130 P.2d 706, 712.
Or, as Dean Hale put it: '[I]t is difficult to understand [the] wholly one-sided concern over the possible maintenance of an unfounded claim against the estate and no concern for the actual losses sustained * * * by survivors who find themselves unable to establish their valid claims against an estate. There should be some tears for the living as well as for the dead.' State Bar of California, Proceedings of the Fourteenth Annual Meeting 157 (1941).
The whole matter was succinctly and well stated in 9 Cal.Law Rev. 347, where the note recites: 'The rule excluding otherwise valid testimony has no sound policy to support it. It is merely a relic of the ancient common law maxim rendering incompetent the testimony of all parties in interest as potential liars, and survived as an exception when California accepted the general principle that 'all persons, without exception * * * may be witnesses.' The provision evidently aims to protect the estates of the dead from the claims of those who may be encouraged to falsify by the inability of the dead person to contradict. But is it any more important to protect the estates of the dead than the estates of the living, who by the instant rule are prevented from offering otherwise perfectly competent evidence in establishing their just claims? Is not cross-examination, not to speak of the oath and other safeguards, a sufficient protection against the fabrications of the unscrupulous? Excluding the truth should not be justified by reviving obsolete shibboleths.'
Coming then to the appeal of Helen Kauffman. She asserts, in effect, that the judgment is erroneous as to her in that the complaint specifically alleges that there was an express oral contract which was reduced to writing and that she did not sign the contract and no showing could be made of any authority in the husband to subject her separate estate to a personal liability for the furnishings. She also asserts all of the defenses heretofore mentioned in connection with the excess.
Neither defendant alleged the statute of frauds as a defense and we are not now impressed with their arguments that the contract was within the statute of frauds.
We are convinced, after a thorough reading of the transcript, that there is not enough evidence in the present record to sustain the judgment against either defendant if the testimony of Helen Kauffman was incompetent.
The judgment is reversed and the cause remanded for a new trial.
WHITE, P. J., and LILLIE, J., concur. --------------- * Opinion vacated 339 P.2d 136.