WHITLOW v. DURST

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District Court of Appeal, Third District, California.

WHITLOW v. DURST.

CENTRAL & SOUTHERN PAC. R. EMPLOYES' MUT. BEN ASS'N v. DURST ET AL.

Civ. No. 6713.

Decided: January 22, 1942

J. Everett Barr, Tebbe & Correia, and Samuel Friedman, all of Yreka, for appellant. Daniel S. Carlton, of Redding, for respondent.

These actions were brought to recover the proceeds from two policies of life insurance. In the first, the insurance carrier paid the amount of the policy, $4,000, to defendant, who was named beneficiary therein. In the second, the amount of the policy, $1,000, was paid into court by plaintiff insurer, who disclaimed any interest therein. The actions were consolidated for trial. Findings were made in favor of Mrs. Ben Whitlow, and judgment entered accordingly. The appeal is from the judgment.

The complaint in the first action was filed by Mrs. Ben Whitlow, executrix of the estate of Charles W. Durst, deceased. It alleges that Charles W. Durst and defendant were at all times husband and wife. It further alleges that said decedent took out a policy of life insurance for $4,000, naming Carrie E. Durst, defendant, as beneficiary therein. It is further alleged that on July 6, 1938, the parties to the action executed a property settlement agreement, in view of immediate separation, and that, under said agreement, Carrie E. Durst transferred to her husband all her right, title and interest in and to said insurance policy, and the amount payable thereunder. It is further alleged that upon the death of the husband, which occurred on August 11, 1938, the insurer paid the amount of the policy to defendant, and that the latter has no right or interest in the same.

The second action is in interpleader. The complaint alleges the issuance of a policy of insurance by plaintiff, Central and Southern Pacific Railroad Employes' Mutual Benefit Association, upon the life of Charles W. Durst, and in the sum of $1,000; that the beneficiary designated therein was the wife of the insured, Carrie E. Durst; that due proof of the death of the insured had been made; that the will of the insured was filed for probate, in which the proceeds from said policy, and a policy issued by Central and Southern Pacific Railroad Employes' Mutual Benefit Association were bequeathed and devised to the sister of the testator Mrs. Ben Whitlow, and that demand for the payment of said policy had been made by the beneficiary named therein. Pursuant to an interlocutory decree, the amount of said $1,000 policy was paid into court. Thereafter, in said action, Carrie E. Durst filed an answer and cross–complaint. By the latter pleading she seeks to have her title to said money quieted. Mrs. Whitlow also filed an answer and cross–complaint, setting up as a defense the property settlement agreement mentioned above, wherein the wife assigned both of said policies to her husband. Mrs. Durst filed an answer to the said cross–complaint, alleging that after the execution of said agreement, the parties thereto became reconciled.

The court found that the parties to said agreement were never reconciled. It also found that the husband did not make a gift of said policies to his wife.

It is the contention of the wife, appellant herein, that the evidence is insufficient to support either of said findings. She also claims reversible error in the admission of certain declarations made by the husband just prior to his death.

The general rule governing the situation is thus stated in 9 Cal.Jur., section 165, pages 827 and 828: “Subsequent reconciliation coupled with cohabitation in pursuance thereof operates to avoid an agreement for separation, at least, as to all features remaining executory. The law attaches such consequence upon the theory that the consideration for the deed has failed, inasmuch as the maintenance of the wife thereupon becomes obligatory upon the husband. But to avoid a contract of separation, the reconciliation must be permanent and be followed by cohabitation. It must be a reconciliation that restores the former relations of the parties. Mere copulation without occupying the same habitation and dwelling there as husband and wife is by no means sufficient to sustain such a conclusion.”

Another statement of the rule is found in 30 C.J., section 847, page 1066: “Strictly speaking, a contract of separation is annulled and avoided, not solely, or necessarily as a matter of law, by a subsequent reconciliation, cohabitation, or resumption of the marital relation, but rather by the intentional renunciation of the agreement which the reconciliation and resumption of the marital relation sometimes evidences. Subsequent cohabitation has the effect of avoiding the contract so far, and only so far, as it establishes an intention to renounce the agreement.”

Also, the burden of proving that there was a reconciliation was upon appellant, and “Before a court may indulge in a presumption of revocation, however, the evidence offered to establish full resumption of marital relations must be sufficient to satisfy the mind of the court that such was the intent of the parties. (Emphasis added.)” Estate of Boeson, 201 Cal. 36, 42, 43, 255 P. 800, 802.

Appellant and her husband had lived a tempestuous married life. He evidently had used intoxicating liquor to an excessive degree and his relations with other women had been anything but platonic. With this background, they decided to separate, and on July 5th the wife filed suit for divorce. The following day they executed a property settlement, to which we have referred. On August 11th following, Durst took his own life. The question is: What took place in respect to the marriage relations between them from the date of the agreement to the time of his death? Was there a resumption of such relations, with intent to live again as husband and wife? These are questions of fact for the sole determination of the trial judge. In support of her contention, appellant testified that on the evening of July 16th, her husband came to their home and promised to mend his ways. Appellant said that she would give him another chance, and she further testified that between that date and July 25th, they lived together as man and wife, occupying the same bed and having sexual intercourse. On the latter date appellant was called away from her home by his duties in connection with the Forest Service. She next saw her husband August 2nd, and he slept with her that night, and the nights of the 3rd and the 4th. He left the home on August 5th for Fort Bragg. She never saw him alive again. She discussed property matters with her husband on August 3rd, and her testimony in respect to what took place on that occasion is as follows: “The evening of the 5th of August before he left for a trip to the Coast, he discussed his insurance policies, and he asked me if I had made any change in mine, and I told him no, that they remained as they were made out to him as beneficiary. And he said that he wanted no change made in his; that he wanted them to remain as they were; that before he left that evening he would give me his policies. They were in his possession. He said that he would get his policies out of the car and give them to me; that he wanted me to have them. * * * He gave me an envelope, a large, manila envelope, and in it was an insurance policy from the New York Life Insurance Company and the other from the Employees' Mutual Benefit Association.”

Another witness testified that the husband told him he was living at home after July 16th. Another testified that the parties seemed to be normal in their relations when she saw them subsequent to July 17th.

As opposed to the foregoing, there is the impeaching evidence of witness Korst, clerk in the Clarendon Hotel at Yreka. That witness testified that the husband registered at the hotel on August 2nd, and stayed at the hotel for the period of August 2nd, 3rd, and 4th; that he saw the husband go to his room on each of these nights, and that he knew that he slept in said room. He produced a registration card with Durst's signature thereon. He also testified that the husband registered at the hotel and stayed there on the night of August 10th. There was also introduced in evidence the official fire–log of the Forest Service, showing that Durst was fifty miles from Yreka on July 18th, having left that city at 5:15 p.m., and that he did not return until 2:00 p.m. on July 19th; that he was twenty miles away from Yreka on the night of July 19th, returning at 5:30 a.m., and that he rested at the barracks until 9:00 a.m. The record also shows that Durst moved to the Forest Service Barracks at the time of his separation from his wife, taking his bed with him, and that this bed remained there until he left on his vacation on July 27th.

Over the objection of appellant, a number of statements and declarations made by Durst after July 16th, were admitted in evidence. These declarations were to the effect that he and his wife were separated, and that there would never be a reconciliation. Seven witnesses testified to such statements, four of them being members of the husband's family, and three of them intimate acquaintances. Between August 5th and August 10th, witness Nixon testified Durst told him that Mrs. Durst was keeping company with another man. Witness Owens testified that Durst repeatedly told him, during July and August, that he and his wife were separated. He also complained to Owens that his wife was having an affair with another man. Witness Dunphy testified that Durst had asked him if he could share Dunphy's hotel room as a permanent residence. This was approximately one week before his death. On July 25th, ten days after the alleged reconciliation, Durst, according to the testimony of his sister, Mrs. Whitlow, declared that he and his wife were separated, and that there was no possibility of a reconciliation.

We are of the opinion that the court erred in admitting in evidence the declarations of the husband as outlined in the preceding paragraph. We might here take occasion to observe that the case of appellant is not a “weak” one. There is abundant evidence in the record which would support a finding in her favor, provided that a trial court was satisfied with the credibility of her witnesses. On the other hand, and exclusive of the questioned evidence, the court might properly have found that there was no reconciliation. The declarations were manifestly self–serving in their nature. Of such testimony, it is said in Jones' Commentaries on Evidence, vol. 2, pages 1636, 1637, 1638 and 1639, par. 895: “It is repeatedly said that ‘the declarations of a party in his own favor can never be received in evidence.’ The danger of such expressions lies in their partial truth. Ordinarily, it is true, such statements are not admissible. It would obviously be unsafe if parties to litigation, without restriction, were allowed to support their claims by proving their own statements made out of court. Such a practice would be open to all the objections which exist against the admission of hearsay in general, and would also open the door to fraud and to the fabrication of testimony. It is accordingly a general rule of broad application that the declarations of a party, made out of court and in his own favor, are not admissible in his behalf. Almost endless illustrations of the rule might be given, for it is one of constant application. It serves not only as a preventative of fraud and of the fabrication of evidence for the purposes of a particular controversy, but also as the nominal reason for the exclusion of much other matter, some of which, to the lay mind, might be considered of logical probative value and weight.”

A case directly in point is Carter v. Younger, 123 Ark. 266, 185 S.W. 435, 437. There, in passing upon the identical question, the court said: “Appellants offered to prove by several witnesses certain declarations of Younger made during and a short time subsequent to the time when it was claimed by appellee that the separation agreement had been abrogated, tending to show that there had been no abrogation of such agreement. These were in the nature of self–serving declarations, and the ruling of the court in excluding them was correct. The appellants' heirs are privies in blood and estate with Samuel Younger, deceased.” (Emphasis ours.)

In 9 Cal.Jur. pages 828 and 829, section 165, the rule is thus stated: “Declarations of party refusing reconciliation.––It has been held that a declaration made by a deceased husband, a short time prior to an alleged reconciliation, to the effect that he did not want to have anything more to do with his wife is admissible in evidence for the purpose of showing the attitude of the decedent and as going to the probability of such reconciliation and was not self–serving. A different rule, however, is applicable where the declarations of the decedent are made after the alleged agreement of reconciliation and are offered in evidence as proof that no such reconciliation had occurred.” (Italics ours.)

The Supreme Court of this state has approved the holding in the Carter case, (In re Clover's Estate, 179 Cal. 313, 176 P. 452.) The case of Steinberger v. Young, 175 Cal. 81, 83, 165 P. 432, while it did not involve a property settlement, follows the same rule. The court stated at page 90 of 175 Cal., at page 436 of 165 P.: “The appellant assigns as error certain rulings on the admission and rejection of evidence. The only ones which call for particular notice are those relating to the declarations of Mrs. Ross. The declarations offered by the plaintiff, as a part of her case, were properly admitted as the declarations of a decedent against her pecuniary interest. Code Civ. Proc. § 1853. On the other hand, the court was right in rejecting evidence offered by the appellants to show declarations of Mrs. Ross in favor of the position assumed by the appellants, who claim under her in this litigation.”

In Hausman v. Hausling, 78 Cal. 283, at page 286, 20 P. 570 at page 571, it is said: “A litigant is not permitted to strengthen his case by his own declarations, whether written or verbal. They may be used against him, but not for him. Code Civ. Proc. § 1870, subd. 2.”

It is contended by respondent that the question here is primarily one of intent, (Gump v. Gump, 42 Cal.App.2d 64, 108 P.2d 21), and the rule in the foregoing authorities is therefore not applicable. She states that: “Since reconciliation involves a state of mind, evidence of the declaration of the parties, either before or after the act in issue, are admissible in California as long as they are not too remote.”

She relies upon the case of Piercy v. Piercy, 18 Cal.App. 751, 124 P. 561. There, however, in an action to set aside a deed, the inquiry was not directed to the intent of the grantor, but rather to her mental capacity and competency––matters which are not here in question. This is clearly pointed out by the following language, at page 764 of 18 Cal.App., at page 566 of 124 P.: “The principle is not that involved in the case of Bury v. Young, 98 Cal. 446, 33 P. 338, 35 Am.St.Rep. 186, and Ord v. Ord, 99 Cal. 523, 34 P. 83. In the former it was said that the declarations and acts of the grantor ‘made and done in his own interest months after the deed was delivered are not admissible as indicating his intentions in delivering the deed,’ and, in the latter, that a ‘grantor will not be permitted to disparage his deed by declarations made or acts done by him in his own interest subsequent to its execution.’ But in those and other similar cases there was no issue as to fraud or the mental condition of the grantor, and the testimony was offered as evidence of the truth of the facts asserted in it and was clearly self–serving and hearsay. In a case like this it is plain the witness is permitted to detail declarations which he has heard, not as evidence of the truth of the fact asserted, but of a spontaneous and unreflecting expression of the mental and emotional condition of the declarant. The distinction is marked and vital and recognized by the authorities.”

Our conclusion is that this case comes under the general rule that the declarations of a person, since deceased, not against, but in support of his own interest, are inadmissible in favor of those who claim rights which such declarations would uphold and sustain, and that proof of intent comes within that rule.

It is urged that the evidence erroneously admitted was not prejudicial, and that article VI, section 4 1/2 of the Constitution is applicable. Respondent points to a statement of the trial court to the effect that even though the evidence were excluded, plaintiff should prevail. It is our opinion that where prejudicial evidence is admitted, the effect thereof cannot be removed or obliterated by such a statement. Even though the court might have found for plaintiff, if such evidence were omitted, no one can say whether, consciously or unconsciously, the court may have been influenced by it in the final determination of the issues. The effect of the testimony of seven witnesses all in accord upon one point, would ordinarily be of considerable weight. We believe that, under the circumstances, it would result in a miscarriage of justice, if the judgment were allowed to stand. This is particularly true here, where the evidence of appellant might be justly characterized as “strong” in its probative effect.

Appellant seeks to invoke the rule stated in 2 Cal.Jur. page 848, par. 497, which provides that if a party introduces or calls out improper evidence, he is precluded from objecting to evidence of like character introduced by his adversary. Appellant introduced evidence of statements made by deceased after the alleged reconciliation. Such evidence was proper, the declarations being made against the interest of the declarant. Code of Civil Procedure, section 1870 subd. 2; sec. 1853. We do not believe that section 1870, subd. 4 of the Code of Civil Procedure, has any application to the case.

It is finally contended by appellant that the evidence is insufficient to sustain the finding that the husband did not make a gift of the said policies of insurance to appellant. We think that there is sufficient evidence in the record to uphold the finding, particularly in view of the rule relating to the proof of such an issue, which is found in 13 Cal.Jur. pages 46 and 47, section 12:

“When the claim of a gift is not asserted until after the death of the alleged donor, it should be sustained by clear and satisfactory evidence of every element requisite to constitute a gift. Gifts first asserted after the death of the alleged donor are always regarded with suspicion by the courts. The reason for the rule expressed in the language of the district court of appeals is:

“ ‘Mindful of the facility with which, after the alleged donor is dead, fraudulent claims of ownership may be founded on pretended gifts of his property asserted to have been made whilst he was living, it is but a salutary precaution which demands explicit and convincing evidence of every element needed to constitute a valid donation, whether it be a donation inter vivos or mortis causa. Even then fraudulent claims may prevail, but the rigid requirement of the clearest proof will at least diminish the number.’ (Italics added.)

“Whether a gift is clearly supported by the evidence is a question for the trial court, and its conclusion will not be disturbed unless the reviewing court can say that such conclusion is clearly unwarranted. The administrator of a deceased donor is in no better position to question a gift than the donor would be if alive.”

This finding would not establish title in the policies in the decedent, and hence would not entitle respondent to judgment. The other issues must still be determined to settle the rights of the parties.

The judgment is reversed.

TUTTLE, Justice.

THOMPSON, Acting P. J., and STEEL, Justice pro tem., concurred.