Summary
In Woeppel, which was an executor's action to recover funds of the decedent held by the defendants, the defendants attempted to show the existence of an implied-in-fact contract so as to enable them to retain all or a portion of the money they held.
Summary of this case from Vogt v. HovanderOpinion
No. 34473.
October 9, 1958.
JUDGMENT — CONCLUSIVENESS — MATTERS CONCLUDED. Nothwithstanding the fact that certain issues might have been tried in a former case, if it affirmatively appears that they were not tried, the doctrine of res judicata will not apply as to them.
SAME — MATTERS CONCLUDED — BURDEN OF PROOF. A person relying upon the doctrine of res judicata as to a particular issue involved in a pending case bears the burden of introducing evidence to prove that such issue was involved and actually determined in the prior action, where this does not appear from the record.
APPEAL AND ERROR — PRESERVATION OF GROUNDS — ASSIGNMENT OF ERRORS — NECESSITY. A portion of a finding to which error is not assigned becomes an established fact of the case (Rule on Appeal 43).
JUDGMENT — CONCLUSIVENESS — MATTERS ACTUALLY LITIGATED AND DETERMINED. In an action by the executor of an estate for an accounting of funds belonging to the decedent which were in the possession of the decedent's former guardian prior to his appointment as guardian, a judgment entered against the former guardian in favor of a substituted guardian as a result of objections to the former guardian's final report and account was not res judicata and a bar to the accounting action, where, in the guardianship proceedings, the superior court did not exercise its jurisdiction to require the former guardian to account for funds coming into his possession prior to his appointment as guardian.
WITNESSES — COMPETENCY — TRANSACTIONS WITH PERSONS SINCE DECEASED. Testimony by a party in interest as to the performance of labor or the rendition of services for a decedent is not prohibited as a transaction with the decedent under RCW 5.60.030 providing that ". . . in an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person. . . a party in interest or to the record shall not be admitted to testify in his own behalf as to any transaction had by him with . . . such deceased . . . person. . . ."
SAME — WAIVER OF BAR. In an action by the executor of an estate for an accounting of funds belonging to the decedent which were in the possession of the decedent's former guardian prior to his appointment as guardian, a finding by the trial court that the former guardian and his wife did not establish any contract right, or other right conferred by law, to retain such money was sustained, where the court properly determined that testimony by the former guardian, as an adverse witness for the plaintiff, relating to the amount of money he had received as partial payment for the decedent's board and room did not constitute a waiver of the bar of RCW 5.60.030, and, hence, properly excluded further testimony by the former guardian relating to further consideration that he and his wife were to receive for the decedent's care under an alleged agreement with the decedent.
See 30A Am. Jur. 506.
Appeal from a judgment of the superior court for Spokane county, No. 145785, Edgerton, J., entered May 24, 1957, upon findings in favor of the plaintiff, in an action for a money judgment. Affirmed.
Leroy C. Kinnie, for appellants.
Cheadle, Clanton Woeppel and Fred E. Woeppel, for respondent.
Defendants William N. Simanton and Louphelia Simanton, his wife, appeal from a money judgment for $1,720 entered against them in favor of Fred E. Woeppel, as executor of the estate of Josephine C. Johnson, deceased.
The action springs from the following facts:
Mr. Simanton, in 1955, acquired possession of funds belonging to Mrs. Johnson. On May 19, 1955, by virtue of a power of attorney, he executed and delivered his check as "Trustee for Josephine C. Johnson" for $1,813.27 to his wife.
June 14, 1955, Mr. Simanton was appointed and, thereafter, qualified as the guardian of the person and estate of Mrs. Johnson. Upon the request of Mrs. Johnson and her nephew, the court relieved Mr. Simanton of his duties as guardian, directed him to make a final accounting, and appointed Mr. Woeppel.
Objections to Mr. Simanton's amended final report and account as guardian resulted in a judgment of $935.38 against him and in favor of the substituted guardian, in addition to the funds already surrendered to the new guardian. We note that in his reply to the objections filed to his amended final report and account Mr. Simanton recognized his trusteeship of Mrs. Johnson's fund, prior to his appointment as guardian, but alleged "that it is his duty to keep these two accounts separate and not commingle them."
Mrs. Johnson died testate December 1, 1955. Mr. Woeppel was appointed executor of her estate and was, thereafter, authorized to commence the present action for an accounting of decedent's funds expended by Mr. Simanton as trustee, prior to his appointment as guardian of Mrs. Johnson. The judgment from which this appeal is prosecuted is based upon the check for $1,813.27, given by Mr. Simanton to Mrs. Simanton on May 19, 1955. Defendants contend that $1,720 of the amount of the check was for additional room, board, and services they furnished Mrs. Johnson from January 1, 1954 to May 9, 1955. During this period, defendants received $55 per month for Mrs. Johnson's room and board. The balance of $93.27 was waived by plaintiff.
By appropriate assignments of error, defendants urge that the judgment of $935.58 is res judicata and operates as a bar to the present action. This judgment was entered against Mr. Simanton as guardian after the hearing upon his amended final report and account and has been satisfied.
[1] In International Development Co. v. Clemans, 66 Wn. 620, 623, 120 P. 79 (1912), this court observed:
"It is against the policy of the law to encourage litigation or the trial of two cases where one would suffice. The old familiar rule was that everything is presumed to have been adjudicated under the issues in the prior action. This rule has been modified by this and many other courts, to the effect that, notwithstanding the fact that certain questions might have been tried in the former case, if it affirmatively appears that they were not tried, the doctrine of res adjudicata will not apply as to them." (Italics ours.)
[2] In the recent case of Rufener v. Scott, 46 Wn.2d 240, 245, 280 P.2d 253 (1955), this court said:
"The majority rule is stated in 30 Am. Jur. 997, Judgments § 283:
"`The general rule is that a person relying upon the doctrine of res judicata as to a particular issue involved in the pending case bears the burden of introducing evidence to prove that such issue was involved and actually determined in the prior action, where this does not appear from the record.'" (Italics ours.)
The trial judge in this action also presided over the contested hearing on Mr. Simanton's final report as guardian. In addition to Mr. Simanton's pleading in the guardianship "that it is his duty to keep these two accounts separate and not commingle them," the trial court found as a fact in the instant case
"That in the said Amended Final Report filed in the guardianship proceedings, defendant William N. Simanton, who was at that time the prior guardian making his final report, mentioned therein a trustee account established in the Old National Bank under a Power of Attorney from Josephine C. Johnson and expressly stated that said trustee account had no bearing on this guardianship proceeding. That there was no evidence in the said hearing on the said Amended Final Report and objections thereto relating to the disbursement of this $1,720.00 to defendant Louphelia Simanton, and by reason of the disclaimer of defendant William N. Simanton, that said trustee account was a part of the guardianship proceeding, the Court did not consider it and the objecting guardian did not present any evidence pertaining to the said $1,720.00 payment." (Italics ours.)
[3] Defendants have not assigned error to this portion of finding No. 6, so it becomes an established fact of the case. Rule on Appeal 43, 34A Wn.2d 47, as amended, effective January 2, 1953.
[4] In re Williamson, 75 Wn. 353, 134 P. 1066 (1913), upon which defendants rely, held that the superior court, under its general equity powers, had jurisdiction to require a guardian to account for funds of the ward that came into her possession prior to her appointment as guardian. In the instant case, it is an established fact that such jurisdiction was not exercised in the guardianship proceedings; hence, the judgment entered in the guardianship is not res judicata and a bar to the present action.
Did the trial court err when it found
"That defendants have not established any facts which give rise to any contract right or any other right conferred by law to retain the said sum of $1,720.00."
To resolve this issue, it is necessary to determine defendants' contention that plaintiff waived the exclusionary provisions of RCW 5.60.030, which provide
". . . in an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person . . . a party in interest or to the record, shall not be admitted to testify in his own behalf as to any transaction had by him with, or any statement made to him, or in his presence, by any such deceased . . . person, . . . Provided further, That this exclusion shall not apply to parties of record who sue or defend in a representative or fiduciary capacity, and have no other or further interest in the action."
The situation, upon which defendants rely to establish a waiver of the statute by cross-examination, arose as follows:
Plaintiff called Mr. Simanton (one of the defendants) as an adverse witness. Upon examination, he testified:
"Q. Now during the year 1954 you received from her [decedent] the sum of $55 per month for room and board, did you not? A. Partial payment, yes, on her room and board, according to our agreement. Q. Just a moment. You received that sum did you not? A. Yes, that is right. Q. And that is what you received per month during 1954? A. Yes. Q. And for a part of the time in 1955, up to sometime in the month of June, probably the middle of the month of May, 1955, you received a like sum of $55 per month from her? A. Yes. Q. And at no time during the year 1954 and 1955 did you present a bill to her for an additional sum for each month's room and board? A. No."
Throughout the trial, counsel for defendants asked Mr. Simanton to explain what was meant by "partial payment" and to state what further considerations, by agreement with decedent, were to flow to them for decedent's care. Each time, an objection was sustained upon the ground that the testimony would violate the provisions of RCW 5.60.030, quoted supra. [5] The factual situation is close to the one we considered at some length in Boettcher v. Busse, Jr., 45 Wn.2d 579, 277 P.2d 368, 49 A.L.R. 2d 191 (1954), wherein we held that testimony by a party in interest, as to the performance of labor or the rendition of services for decedent, is not prohibited under the statute as a transaction with decedent. The court said:
"Evidence of the work which appellant did for decedent and the pay received for it did not tend to prove that a contract had been made, under which decedent agreed to will property to appellant. Hence, such evidence does not constitute a waiver of the bar of the statute. See Blodgett v. Lowe, 24 Wn.2d 931, 167 P.2d 997 (1946)." (p. 583) (Italics ours.)
[6] We agree with the trial court that the quoted testimony and the circumstances in which it was given did not constitute a waiver by plaintiff of the bar of the statute. It was not error to refuse to admit defendants' proffered evidence; hence, the trial court's finding "that defendants have not established any facts which give rise to any contract right or any other right conferred by law to retain the said sum of $1,720.00" must stand.
The judgment is affirmed.
HILL, C.J., DONWORTH, ROSELLINI, and FOSTER, JJ., concur.