Opinion
[Modification for Publication]
For modification of opinion, see 57 P. 1008.
Department 1. Appeal from superior court, city and county of San Francisco.
In the matter of the estate of Charles A. James, deceased. From a decree of distribution, and from an order denying a new trial, Laura Milen James and Milen James, also called Theodore Milen James, appeal. Reversed. COUNSEL
[124 Cal. 655] W. H. H. Hart and Geo. W. Fox (Aylett R. Cotton, of counsel), for appellants.
Geo. D. Shadburne, for respondents.
OPINION
GAROUTTE, J.
The appellants, claiming to be the widow and son of Dr. Charles James, deceased, appeal from a decree of distribution made and entered in the matter of his estate, and from an order denying their motion for a new trial. Dr. James died leaving quite a large property, and Laura Milen James now claims to be his widow, and Theodore Milen James, the infant son of Laura, claims, by guardian, to be his son. The marriage relation relied upon is commonly called a ‘contract marriage,’ and is evidenced by an agreement in writing purporting to be signed by both parties named therein. The lower court, after an extended trial, found as a fact that there never was a marriage between Dr. James and Laura Milen, and that her infant son was not his son.
It is first contended upon the part of the respondents that there is sufficient evidence in the record, which came before the court without objection, to support the findings of fact, and that, therefore, even conceding the admission of evidence under objection which should have been denied admission, still a new trial for the aforesaid reasons should not be ordered. This position cannot be sustained. If improper evidence under objection has been admitted, it is impossible for this court to say how much weight and influence it had in the mind of the trial court in framing its findings of fact. The improperly admitted evidence may have been all-powerful to that effect. As far as this court knows, it may have been that particular evidence which turned the scale, and lost the case to the appellants. This must, of necessity, be the rule wherever improper evidence has been admitted, which, upon its face, tends in any degree to affect the final conclusion of the court. Counsel for appellants present an elaborate brief, wherein they discuss the claimed errors of law committed by the trial courtt in the admission of evidence. Counsel for respondents present an elaborate reply brief, wherein they discuss at great length the sufficiency of the evidence to support the findings, and devote but little time and space to the discussion of the alleged errors of [124 Cal. 656] law relied upon by the other side. It would have been more satisfactory to this court if they had devoted more labor to the questions of law raised by appellants in their brief.
Before passing to an examination of the merits of the motion for a new trial, let us look at the parties directly and indirectly connected with this litigation, their situation and relations. Dr. Charles James, 60 years of age, was the owner of a large apartment house, situated upon Howard street, in the city of San Franscisco. Dr. Milen, a traveling vendor of drugs; his second wife, Jessie Milen; his daughter by his first wife, and her husband (Mr. and Mrs. Dickman); and Laura Milen, his unmarried daughter, sister to Mrs. Dickman, and 19 years of age,— rented rooms of Dr. James in his apartment house on December 13, 1894. Prior to this event the family of Dr. Milen were strangers to Dr. James. Little time was devoted to the courtship, for the contract of marriage between Laura Milen and Dr. James is dated January 6, 1895, and according to the testimony of Laura it was executed at that date, and the marriage relations thereupon immediately assumed. Dr. James died at his rooms in this house January 28, 1895, after a very short illness. An infant,— Theodore Milen,— joint defendant and appellant with his mother, Laura, was born to her September 16, 1895.
During the examination of Dr. Milen he identified a book entitled ‘Was He to Blame?’ as written by his wife, Mrs. Jessie Milen. This book was highly immoral, and was introduced in evidence under objection. This evidence was thereafter followed by respondents with evidence that Laura Milen had read the book, and also the additional evidence that it had been subsequently suppressed by the Society for the Suppression of Vice. As evidence tending to besmirch the character of the author, and also that of the daughter, these facts were well calculated to serve that end. And in serving that end it necessarily had the effect of weakening the credibility of these two witnesses,— the two most important witnesses to the fact of marriage. It therefore goes without saying that it was prejudicial to the appellants’ side of the case. To support the admissibility of this evidence upon the ground that it tends to weaken or impeach the credibility of these two aforesaid witnesses, no authority [124 Cal. 657] can be cited. The book was a separate, distinct, independent piece of evidence, and all authorities agree that independent, specific acts of immorality may not be affirmatively shown to impeach a witness. It has been declared by this court that such acts may not even be shown upon the cross-examination of the witness himself; and even those cases which go to the length of holding that such an examination of the witness may be gone into upon cross-examination still declare that the answer of the witness is final and conclusive, and its truthfulness beyond all attack by independent evidence. We cite numberous cases to support the foregoing propositions: Sharon v. Sharon, 79 Cal. 633, 22 P. 26, 131; Hinkle v. Railroad Co., 55 Cal. 629; People v. Hamblin, 68 Cal. 101, 8 P. 687; People v. Elster (Cal.) 3 P. 884; Evans v. De Lay, 81 Cal. 105, 22 P. 408; People v. O’Brien, 96 Cal. 180, 31 P. 45; People v. Un Dong, 106 Cal. 88, 39 P. 12; People v. Wells, 100 Cal. 462, 34 P. 1078; Jones v. Duchow, 87 Cal. 109, 23 P. 371, and 25 P. 256; Pyle v. Piercy, 122 Cal. 383, 55 P. 141; People v. Silva, 121 Cal. 668 54 P. 146; Code Civ. Proc. § 2051. This section of the Code expressly forbids the impeachment of a witness ‘by evidence of particular wrongful acts.’ Respondents’ counsel claim that this evidence was offered to contradict the testimony of Dr. and Mrs. Milen as to the pure surroundings and education of their daughter Laura. All the testimony of Dr. Milen in chief upon this point is as follows: ‘I have bestowed all I could in the way of care over her books and education. I have not been able to provide all the books I have wished for them at home. I do not know that I ever gave my wife any instructions about the moral culture of my children. I considered that she was competent to care for them in that respect, so I did not consider it necessary to leave any instruction.’ Mrs. Milen gave no testimony whatever on the subject. Respondents claim that there was neither a marriage between this man and woman, nor meretricious relations, and that the whole thing was without any semblance of truth, and was a corrupt scheme, pure, and simple, concocted after the old man’s death, by which to secure the possession of his property. Aside from the question of impeachment, which we have already considered, this evidence is wholly inadmissible from any standpoint. The fact that the stepmother wrote an immoral book, and that appellant, the daughter, read it, shed no light [124 Cal. 658] upon the all-important issue in the case, namely, marriage or no marriage. There is nothing in the record to indicate that Dr. James, prior to his death, had any knowledge as to the authorship of the book, or that Laura had read it, or that there was such a book. Therefore, as in any way bearing upon the question of marriage, this evidence failed to reach the mark. It does not even contradict the testimony of her father which we have quoted above.
The trial court admitted in evidence the declarations of Mrs. Milen and Mr. and Mrs. Dickman, made after the death of Dr. James, to the butcher, the baker, and the coal dealer, to the effect that Laura was engaged to be married to the doctor at the time of his death. This evidence was not offered for impeachment purposes, for no foundation had been laid for it when the respective witnesses were testifying upon the stand; but, upon the contrary, it was offered and received as independent and affirmative evidence tending to show the nonexistence of a marriage between the parties. Under well-settled rules of law, the evidence was objectionable. It was hearsay of the purest character, and does not come within any of the exceptions recognizing the admissibility of that character of evidence. These appellants could not be bound to the extent of a hair by the declarations of third parties. It is claimed by respondents that these witnesses were members of the Milen family, and that declarations of any member of the family are admissible as part of the res gestae. This claim, as presenting a rule of evidence, is untenable. What third parties may say as to the character of a past occurrence, or as to the actual happening or nonhappening of an occurrence, will not be stamped by the law as res gestae. The fact that these parties may all be said to have been members of the Milen family gives no additional support to respondents’ position. Declarations of members of a family, who are not parties to the litigation, as to matters similar to those before us, are no more admissible than the declarations of strangers. The rule of law as to the admissibility of declarations of certain described persons, when those declarations bear upon matters of pedigree and kindred subjects, cannot be invoked here, for the reason that the parties making the declarations are neither deceased nor [124 Cal. 659] beyond the jurisdiction of the court. People v. Mayne, 118 Cal. 516, 50 P. 654. It is also claimed that these witnesses were coconspirators with the appellant Laura, and that as such conspirators their declarations were admissible. There is not the slightest evidence in the record of a conspiracy between these parties, and the admission of the evidence upon that ground cannot be justified. As to the declarations of Laura, the appellant, they were admissible against her, at least.
Declarations made by the deceased, Dr. James, within a few weeks prior to his death, and within the time within which the appellant Laura claims she was his wife, were admitted in evidence under objection. These declarations were testified to by various neighbors and friends of the doctor, and covered a wide field. The most important ones were to the effect that he was a widower, that he had dropsy, catarrh, and symptoms of Bright’s disease, and that he was important. We are satisfied that the rules of evidence forbid the introduction of this kind of evidence. It is not res gestae; neither does it belong to that class of hearsay which the law recognizes as competent and admissible evidence. This evidence is not res gestae. Section 1850 of the Code of Civil Procedure fairly covers those cases where declarations form part of the res gestae, and here we have no such case. That section provides: ‘Where, also, the declaration, act or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act or omission is evidence, as part of the transaction.’ These declarations are no part of a transaction. They are substantive, independent statements of the existence of certain facts. The unsworn statement of Dr. James that he had Bright’s disease, or dropsy, or catarrh, cannot be held to prove that fact. If such were the law, a man being dead, the flood gates for perjured testimony would be raised to their fullest extent. These declarations of James as to his various bodily afflictions were in no sense those of a patient to his physician. Neither were they those involuntary and spasmodic exclamations of an injured man as to his physical pains, made at the time of the injury. These declarations of the deceased were not involuntary exclamations. They were made deliberately and calmly, and necessarily [124 Cal. 660] covered the health of the deceased for a past period of time. The true rule upon this question is stated in Roosa v. Loan Co., 132 Mass. 439: ‘When the bodily or mental feelings of the party are to be proved, his exclamations or expressions indicating present pain or malady are competent evidence; and in Bacon v. Inhabitants of Charton, 7 Cush. 581, 586, where this rule is stated, it was said by the court: ‘Such evidence, however, is not to be extended beyond the necessity on which the rule is founded. Anything in the nature of narration or statement is to be carefully excluded, and the testimony is to be confined strictly to such complaints, exclamations, and expressions as usually and naturally accompany and furnish evidence of a present existing pain or malady.’’ We find analogous principles discussed in many cases upon contest of the probate of wills, where contestants have claimed the testator never signed the instrument, or that he signed it under duress or menace. In such cases it has always been held that the declarations of the testator as to menace or duress, or as to the fact of his signature, are hearsay, and cannot be received in evidence. If the issue is will or no will, and the testator’s declarations may not be received to indicate the truth, how may the declarations of Dr. James be received upon the issue of marriage or no marriage, or potency or impotency? The cases appear entirely similar in principle. Such declarations are held to be ‘mere hearsay evidence, which, by reason of the death of the party whose statement is offered, can never be explained or contradicted by him.’ Griffith v. Diffenderffer, 50 Md. 480. One of the important questions in Boylan v. Meeker, 28 N. J. Law, 276, bore upon the matter of the forgery of a will, and the declarations of the alleged testator to the effect that he had never made a will were rejected as hearsay evidence. In the case of In re Calkins’ Estate, 112 Cal. 300, 44 P. 577, in speaking as to the declarations of a testatrix, as contest of the probate of her will being the matter in litigation, this court said: ‘But to the extent that they purported to be declarations of the acts of others or of her own acts, they were but matters of hearsay merely, whose truth rested in the veracity of the utterer, and upon which there was no opportunity of cross-examination, or of explanation by the party who had uttered them, and were not entitled to any weight by [124 Cal. 661] the jury, and cannot be considered for the purpose of sustaining their verdict.’
Section 1852 of the Code of Civil procedure provides: ‘The declaration, act, or omission of a member of a family who is a decedent, or out of the jurisdiction, is also admissible as evidence of common reputation, n cases where, on questions of pedigree, such reputation is admissible.’ It is now contended that the declarations of Dr. James that he was not married are admissible under the provisions of the foregoing section. But this cannot be so, for the reason that such declarations must come from a member of a family; and the whole case of respondents rests upon the claim that James was not a member of the Milen family. He was not a member of Laura Milen’s family unless he was her husband, and that is the sole point involved in this litigation. Pearson v. Pearson, 46 Cal 622, is much relied upon to support the admissibility of these declarations. But that was a case coming directly within the provisions of the section quoted, and the declarations were admitted by virtue of the law there declared. The declarations were there made by the testator in his will, to the effect that certain parties therein named were his wife and his children. These declarations comprised all the evidence upon the question, and were held by this court sufficient to prove the facts embodied therein. The entire opinion of the court concedes that the testator was a member of the family comprised in part of the parties named in the will. The admissibility of pedigree evidence by declarations has for its only basis the close and intimate relations existing between the declarant and the party to whom the declarations pertain. The declarations, to be admissible, must not only be made by a deceased member of the family, but they must be made of and concerning a member of the same family. Here we have nothing of the kind. If a family relation be assumed to have existed between this man and this woman sufficient to justify the admission of his declarations, after death, as to the marriage relation existing between them, then the respondents’ whole case falls to the ground; for there was no family relation between these two people unless it was that of husband and wife. There is no pretense of any other.
Evidence came from one Lewis, under objection, to the effect [124 Cal. 662] that some years prior to the date of the alleged marriage the appellant Laura had allowed herself to be fondled by him. Evidence of Mrs. Zollinger was also introduced, tending to show that appellant Laura had slept with a man at her house upon a certain night, some weeks prior to the alleged marriage. Nearly all that has been said as to the admissibility in evidence of the book entitled ‘Was He to Blame?’ is entirely applicable here. These matters could not have been inquired into upon the cross-examination of the appellant Laura. Much less may they be proven as affirmative, independent evidence tending to blacken her character, and thus impeach her credibility as a witness. Upon matters of impeachment se has the same rights as any other witness. In the Sharon Case, supra, it was held that questions calling for such evidence could not be addressed to the witness upon cross-examination. Specific acts of immorality cannot be proven to impeach a witness. We have already cited an army of cases to that effect. Even conceding the evidence of these two witnesses to be true, yet it in no way tends to prove that these parties did not enter into a marriage contract, and thereafter live together as husband and wife.
Aside from the declarations of the deceased, James, there is no evidence that he was afflicted with any sort or kind of disease prior to his death. Those declarations have been held inadmissible. It therefore follows that all the expert evidence of medical gentlemen based upon his physical condition as declared by himself must be rejected. This necessarily follows, for there is no proper evidence in the record upon which to base expert medical testimony. For the foregoing reasons, the judgment and order are reversed, and the cause remanded for a new trial.
We concur: HARRISON, J.; VAN DYKE, J.