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District Court of Appeal, Second District, Division 1, California.


Civ. No. 18479.

Decided: November 15, 1951

Emmet E. Patten, Glen A. Duke, Monrovia, for appellant. Hugh E. Macbeth, Hugh E. Macbeth, Jr., Los Angeles, for respondent.

The instant action is founded on a claim for $10,000 against the above entitled estate, which was rejected by defendant administrator. It was made a part of the complaint and reads: ‘For services rendered decedent from about August 15, 1930, to date of death, by Minnie Westbrook, consisting of keeping house for him during all of said time, living with him as man and wife during all of said time, and during said time bearing decedent two children, namely * * *; performing the usual duties of a housewife during all of said time, and earning a salary from time to time during said period, all of which was turned over to decedent * * * $10,000.00.’

The complaint also alleged the performance of services by claimant in the management of decedent's rooming house.

The amended answer denied generally all the material allegations of the complaint and set up affirmative defenses of (1) the statute of limitations; (2) payment for the services; (3) that the complaint did not state facts sufficient to constitute a cause of action.

This case has been tried twice. The first trial resulted in a judgment for plaintiff for $3,000, which was reversed on appeal because it included the value of services for which recovery was not allowable. Hill v. Westbrook's Estate, 95 Cal.App.2d 599, 602, 213 P.2d 727, 729. The court there stated: ‘When a man and woman knowingly live together in a meretricious relationship—in the absence of an express agreement, oral or written, that she be compensated for services performed—there is no implied obligation on the part of the man to compensate the woman for household services rendered by her. Lazzarevich v. Lazzarevich, 88 Cal.App.2d 708, 719, 200 P.2d 49, and cases cited therein * * *.

‘Although the parties live together in illicit relationship during the time the services are performed, an express contract to compensate for services performed as a housekeeper has been held valid and enforceable unless made in contemplation of such illicit relationship. * * * Whether the contract was dependent upon the illicit relationship is a question of fact. Trutalli v. Meraviglia, 215 Cal. 698, 12 P.2d 430; Lytle v. Newell, 68 S.W. 118, 120, 24 Ky.Law.Rep. 188.

‘When a man and woman live together ‘under an agreement to pool their earnings and share equally in their joint accumulations, equity will protect the interests of each in such property. Bacon v. Bacon, 21 Cal.App.2d 540, 69 P.2d 884; Mitchell v. Fish, 97 Ark. 444, 134 P. [S.W.] 940, 36 L.R.A., N.S., 838; see Feig v. Bank of America etc. Ass'n, supra (5 Cal.2d 266, 54 P.2d 3); Bracken v. Bracken, 52 S.D. 252, 256, 217 N.W. 192; Hayworth v Williams, 102 Tex. 308, 116 S.W. 43, 132 Am.St.Rep. 879. Even in the absence of an express agreement to that effect, the woman would be entitled to share in the property jointly accumulated, in the proportion that her funds contributed toward its acquisition. Hayworth v. Williams, supra; Delamour v. Roger, 7 La.Ann. 152.’ Vallera v. Vallera, 21 Cal.2d 681, 685, 134 P.2d 761.'

During the instant trial it was disclosed that plaintiff was not seeking to recover for housekeeping and those services contemplated by the illicit relationship, but only for her services rendered in the business of decedent and for sums advanced to decedent in his lifetime from salary earned by plaintiff while working in a shirt factory in 1944, 1945 and 1946.

Accordingly, plaintiff produced several witnesses, who testified that decedent made statements to them that he bought the Monrovia house for plaintiff, because she suffered from asthma; that if anything happened to him she was to have it; that she would be well fixed; that he and plaintiff were ‘working together making the payments on the home’; that decedent had money in a safe deposit box in the bank; that Minnie had a key to the box and he wanted her to have everything in it; that he had made a will in her favor and that of the two children and was leaving $5 each to his older sons, Buford and Edward. Those witnesses who saw the will testified that it ‘provided two-thirds to Minnie and the children.’

There was also testimony to the effect that plaintiff helped decedent in the liquor store and managed it in his absence, ordering, buying and selling; that she did the cooking in the hamburger stand and the cleaning in the rooming house.

Some of defendant's witnesses testified similarly. Defendant denied that he saw plaintiff working in the rooming house or the hamburger stand, but his testimony was impeached by the record of the previous trial. Other witnesses stated that when they observed plaintiff at the rooming house, she was suffering from asthma and was unable to work.

The trial court found that any work or services performed by plaintiff in the business of decedent, or any sums advanced by her for the joint use of herself, decedent and their children, were gratuitous and voluntary, in contemplation of and dependent upon the meretricious relationship, and denied recovery of their easonable value.

From the judgment entered in accordance with such findings, plaintiff appeals.

Appellant here urges that the judgment is against the evidence because it was established that she rendered services in reliance on decedent's promise to reward her after death. In other words, that the evidence is insufficient to support the findings and the judgment.

We believe this contention must be sustained. The testimony of the many witnesses at the instant trial was sufficient to prove an express agreement that appellant should be rewarded for services rendered by her in decedent's business projects and that she be reimbursed for moneys contributed from her earnings. While the illicit relationship is admitted, there is no testimony in the record even tending to support the trial court's findings that such services were rendered or the moneys contributed gratuitously or in contemplation of the relationship.

It is further urged that the trial court erred in prohibiting appellant from testifying regarding her earnings, because such evidence was given without objection in the first trial and ‘a waiver in one trial is a waiver in all subsequent proceedings in the same case.’

Section 1880, Code of Civil Procedure reads as follows:

‘The following persons cannot be witnesses: * * *

‘3. Actions against estates. Parties or assignors of parties to an action or proceeding * * * against an executor or administrator upon a claim, or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person.’

At the instant trial, when respondent's objection to appellant's competency as a witness under the statute was sustained, it was explained by her counsel that ‘we merely want the earnings and her contributions toward this estate. They were admitted at the previous hearing and by inadvertence we omitted the year 1944, and that is the only one I wish to add to the previous testimony.’

At the previous trial, the following took place:

‘Mr. Patten: Would the question of her earnings be objected to—her earnings at the shirt factory?

‘The court: Is there any question about the earnings?

‘Mr. Macbeth: I will stipulate as to that. * * * We will stipulate that in this one package, $787.27, that is for the year 1946.

‘The Court: What do the earnings show for 1945?

‘Mr. Patten: $249.20 plus $700.79 for the year 1945.’

In Moul v. McVey, 49 Cal.App.2d 101, 106, 121 P.2d 83, 86, appellant took the position that the introduction of his testimony, although given in another proceeding, lifted the bar of the statute prohibiting him from testifying in support of his claim against the estate. It was there stated: ‘The limitations of the statute may be waived by the personal representative by calling the survivor as a witness and going into the transaction had by him with the decedent. In so doing he waives the benefit of the statute and opens the door to the witness to testify in his own behalf fully as to the transaction gone into. Kinley v. Largent, 187 Cal. 71, 200 P. 937. Likewise the door is opened to the survivor when his deposition is taken in the action by the executor or administrator whether it is read in evidence upon the trial or not. McClanahan [McClenahan] v. Keyes, 188 Cal. 574, 206 P. 454; Borgess Inv. Co. v. Vette, 142 Mo. 560, 44 S.W. 754, 64 Am.St.Rep. 567.

‘If the testimony given in evidence had been taken from a deposition given by the plaintiff in the case, or had been given by him from the witness stand herein, there would be no room for discussion as to his right to testify in explanation of the subject matter of his examination. No substantially different situation exists when the testimony of the survivor given in a previous proceeding is put in evidence. * * *

‘In other states the courts have uniformly held that the introduction in evidence of testimony previously given lifts the bar of the statute. (Citation of authorities.) The ruling of the trial court in not permitting the plaintiff to testify in his own behalf is a denial of a substantial right and warrants a reversal of the judgment.’

In the circumstances here presented, this rule appears applicable.

For the reasons stated, the judgment is reversed.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.

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