Opinion
No. 14891
4-25-1952
LOVINGER v. ANGLO CALIFORNIA NAT. BANK OF SAN FRANCISCO.
Gavin McNab, Schmulowitz, Sommer & Wyman, Nat Schmulowitz, Peter S. Sommer and Sidney F. DeGoff, San Francisco, for appellant. J. Oscar Goldstein, Marvin E. Lewis, P. M. Barceloux and Burton J. Goldstein, San Francisco, for respondent.
LOVINGER
v.
ANGLO CALIFORNIA NAT. BANK OF SAN FRANCISCO.
April 25, 1952.
As Corrected on Denial of Rehearing May 24, 1952.
Hearing Granted June 19, 1952.
Gavin McNab, Schmulowitz, Sommer & Wyman, Nat Schmulowitz, Peter S. Sommer and Sidney F. DeGoff, San Francisco, for appellant.
J. Oscar Goldstein, Marvin E. Lewis, P. M. Barceloux and Burton J. Goldstein, San Francisco, for respondent.
BRAY, Justice.
In a bitterly contested, protracted trial, the transcript of which is 1923 pages, consisting more of arguments between counsel than testimony (the briefs total 688 pages), a jury rendered a verdict in favor of plaintiff in the sum of $35,000 as the reasonable value of services rendered decedent. Defendant appeals from the judgment thereon, the order denying defendant's motion for new trial, and a number of other orders, all of which are reviewable on the appeal from the judgment and are not separably appealable.
Questions Presented.
1. Sufficiency of evidence.
2. Alleged error in instructions.
3. The statute of limitations.
4. Alleged error in refusal of evidence.
5. What was the effect of Coplin's interference in the Maier marriage?
6. Can a party impeach the adverse party called under section 2055 of the Code of Civil Procedure by showing a felony conviction?
Summary.
The plaintiff, Betty Lovinger, was the mistress of Jacob Coplin, deceased. This relationship started in 1933 and continued with the exception of certain interruptions due to plaintiff marrying a couple of times, until Coplin's death in December, 1947. Plaintiff practiced housewifery such as cooking, cleaning, laundering small items, and acted as Coplin's hostess. She also cared for him as a sort of a nurse when he became ill, for he was not in good health. Coplin made no attempt to hide the fact that Betty was his mistress and stated that he would never get married. But he often stated that he would see that Betty was well taken care of in his will, so that she would not have to worry. (However, there was no provision for her in the probated will.)
The plaintiff sued on an oral agreement to pay the reasonable value of such services and also on an alleged indebtedness arising out of work, labor and services rendered by plaintiff at Coplin's request in the amount of the reasonable value of $62,388. Defendant pleaded that the agreement was illegal because in furtherance of a meretricious relationship and was barred by the statute of limitations.
1. Sufficiency of the Evidence.
In considering this subject we must, of course, take the evidence and the reasonable inferences therefrom, most strongly in favor of plaintiff. Plaintiff admits and defendant concedes that plaintiff was Coplin's mistress. For that reason we are not detailing the evidence showing cohabitation. In actions of this kind plaintiff must prove (1) an express contract to pay for services, which contract must be completely free of any agreement of meretricious relationship, (2) the rendering of the services, and (3) their reasonable value.
1. The Contract.
Plaintiff, barred by section 1880, subdivision 3, Code of Civil Procedure, was incompetent to testify. Plaintiff met Coplin, a bachelor, in 1933. He operated a social card club, and resided in a Pine Street apartment where he lived until his death, December 29, 1947. At the time of their meeting plaintiff was about 25 years old and Coplin about 42 or 43. Betty had been married and divorced from a man named Lovinger and had gone through a ceremonial marriage in January, 1933, with a man named Brassey. Whether she was ever divorced from Brassey does not appear. She 'never considered it a marriage.' She was using the name Betty Lovinger. In September or October, 1933, according to Irene Digier, Betty's sister, Coplin asked plaintiff 'to move up there with him. Being a bachelor, he wanted someone to take care of him and be his hostess, cook some home-cooked meals. * * *' She consented. Shortly thereafter Betty moved to Coplin's apartment. Just prior to Thanksgiving Day there was a conversation between Coplin, Betty and Irene in which Coplin said that now that Betty had moved there and would do the things he wanted her to do, he would see that 'she was going to be taken care of, that she would not want.' Around Christmas time he said 'that he was going to live up to the promise that he had made when she came up there that she would be well taken care of, either before his death if she left him for good, or after his death.' Irene said that at various times he repeated that statement and also said that 'his arrangement was still standing that she was going to be well taken care of'; 'That he had promised to take care of her, pay her well for her services that she would render'; '* * * He was finally living like a man should, except that he said that he would never want to get married and be tied down to a wife. He was going to remain a bachelor. * * * But he was making good money, he was putting a lot of it away in stocks and bonds and different things, that he would be sure that Betty would be taken care of. * * * That he would take care of her after his death, or if she ever left him for good, why, it would be terminated, but he was going to pay her well for the services that she was doing and performing. She was taking good care of him.' In describing the services Betty was to render, Coplin said on one occasion that she was going to keep the apartment for him, act as hostess, cook his dinners, take care of his laundry and his clothes, 'and be in the same circumstances as a wife would be, but he said that he would never marry, he was going to stay a bachelor.'
After he was ill, either in 1940 or 1944, Coplin told Irene that he had made his will in Betty's favor; 'She will be well taken care of * * * she is going to be well off one of these days.' In the fall of 1945 Betty married a man named Maier. During 1946, according to Irene, Betty stayed at the Coplin apartment about three times for a period of about a week to ten days, such time. On one of these occasions, about November, Coplin said, '* * * you come back and take care of me like you did before, take care of the house. The same thing stands that I told you before, that you will be well taken care of, you won't have to worry.' From then on Betty stayed with Coplin until his death.
Kathleen O'Daniel testified that Coplin told her in July, 1942, referring to Betty, 'She is doing fine, she will be all right, because I am always going to take care of her. She won't have a thing to worry about.' In February of 1944 Coplin was ill, and said, * * * the doctors had told him that he must have more quiet, more care and he stated then that Betty must stay with him. He again mentioned the fact that she would be secure in her future, that he needed her now more than he ever had. He wanted her to stay there, he expected her to stay there, and that she would be well compensated for taking care of him, that she had always been doing--again I felt assured _____' In January of 1947, Coplin stated to Kathleen, referring to Betty's marriage to Maier, 'I intend to break it up. I have already talked with her about it. I told her that I would pay for anything to get her back here, because I have to have her to take care of me. I want her to take care of me. I never needed her as much as I need her right now.' He also said, 'Every promise I have ever made to Betty is still good. She will be well taken care of, just as I have always said she would be.'
Mrs. Margaret Brilliant testified that in November, 1944, Coplin said 'he would take care of her in case anything happened to him, because he really was sick--he realized he was a sick man; and he said, 'If anything happens, I will take care of Betty,' so that she would not have to worry.' Coplin stated on one occasion that he was giving Betty 'so much a week.'
Coplin told Mrs. Anna Lloyd in 1935 that Betty 'was working for him and that he was paying her * * * and that she was well paid for her services.' He made a similar statement in 1940, and said, 'I promised I will take care of her.' In 1941 he said, 'I told you before Betty is going to be well taken care of * * * She is getting well paid and I am going to provide for Betty, you don't need to worry about that.' In September, 1947, Coplin said to Betty in Mrs. Lloyd's presence, 'You will have plenty.'
Dr. Housman testified that on one occasion he asked Coplin why he did not marry Betty and Coplin replied, 'The minute you marry a woman, then she demands things; when you aren't married to her, you split up, you pay them off and that's the end of it.' In 1940 Dr. Housman asked if Coplin had taken care of Betty if he should die, and he replied, 'Yes, Betty will be taken care of * * *' Several times between 1935 and December 1, 1941, Coplin stated 'he was going to take care of Betty if anything happened.' Between December, 1942, and December, 1945, Coplin told him on many occasions 'she would never want for anything and she knew that, and she knew he was not going to marry her, but she would never have to worry as long as she lived.' During the time of Betty's marriage to Maier, Coplin asked Housman to get her back to him and said that if she came back 'She will be taken care of, she won't have to worry about anything if she comes back and anything happens to me.' Coplin also stated that he had given Betty $2,000 and taken a note and mortgage from her 'to protect myself,' but 'when it is all over' he would tear them up. Housman asked, "Have you drawn a will?' and he said, 'Never you mind, I will take care of her.' So the next I heard, Betty was back with him.'
Thelma Mendenhall testified that in June, 1947, during a period when Betty was temporarily staying at Coplin's apartment, Coplin stated that he hoped she would stay permanently; 'if she came back, that he would see that she was well taken care of.' August 21, 1947, Coplin said, 'Believe me, I am going to see that Betty is going to be taken care of.'
Dorothy Akeroyd, daughter of Mrs. Brilliant, testified that from the spring of 1935 to January, 1941, Coplin stated many times, referring to Betty, that 'he was taking good care of her, and saw that she had everything she wanted and it would always be that way.' He further said 'he was taking care of her, paying her for her services and he made no bones about it, everybody knew it.' After August, 1947, Coplin stated that Betty was in charge and that he was taking very good care of her. He said 'about a thousand times' that 'he was paying her for her services.'
David Coplin, brother of the deceased Jacob Coplin, testifying for defendant, stated that Coplin had told him that he was giving Betty $200 per month. There does not appear to be any record of such payments. Mrs. David Coplin testified that Betty told her that she and Coplin had been playing house and if Coplin did not marry her she knew some one else who would.
Defendant contends that the foregoing evidence on the question of whether there was an express contract to pay plaintiff for her services conclusively shows that (a) there was no contract; (b) the contract, if there was one, contemplated and included the meretricious relationship and hence was void as against public policy; (c) the contract, if any, was to make a testamentary disposition in plaintiff's favor and the action is not brought on that theory; (d) the contract, if any, was merely to take care of plaintiff and Coplin did that by providing food, shelter, clothing, etc. It is true that the evidence would have supported any of such conclusions had the jury drawn them. But it is obvious that the evidence likewise supports the conclusion that (a) there was an agreement to pay plaintiff for her services; (b) that such agreement was apart and independent of the meretricious relationship; (c) that it was not to make testamentary disposition, and (d) that it was not merely to take care of plaintiff as Coplin did.
2. The Services.
While there is evidence on the part of defendant that the services rendered by plaintiff were primarily those involved in the meretricious relationship, and so far as cooking, housework, nursing, etc., were concerned were very minor, there is ample evidence to support the implied finding of the jury that plaintiff, independent of the meretricious relationship, did render Coplin valuable services. It is not necessary to detail it all. Mrs. Digier testified that plaintiff cleaned the apartment, did the marketing and buying of food, cooked the dinner (Coplin customarily, except when ill, ate breakfast and most meals at a restaurant), took care of his small personal laundry, acted as his hostess in entertaining at the apartment. There was a colored woman who came in for an hour or so a day to do dusting and cleaning. During the times when Coplin was ill plaintiff prepared special diets for him, ran errands for him while he was in the hospital, nursed him when he returned from the hospital, drove an automobile for him on his trips to and from his place of business. Kathleen O'Daniel testified that plaintiff did cooking and household duties at the apartment, drove the car, did the shopping, took care of him while ill. Mrs. Margaret Brilliant testified that from 1934 to 1945 she would be at Coplin's apartment every couple of weeks; that plaintiff did all of the cooking, watched Coplin's diet and kept him on it as best she could. In November, 1944, Coplin told Mrs. Brilliant that plaintiff was 'his hostess, his housekeeper; she entertained his friends, and he didn't want anybody but Betty when he was sick * * *' Coplin, on other occasions, said that plaintiff was taking care of him, doing everything he wanted her to do. Mrs. Lloyd testified that in 1935 Coplin told her 'that Betty was working for him * * * keeping house for him, being hostess to him * * *' She prepared the meals, including breakfast. Dr. Housman testified that he had meals many times at the Coplin apartment and that plaintiff cooked and served them and washed the dishes afterwards. In 1940 Coplin was in the hospital and stated that he wanted to go home, that plaintiff could nurse him better than the people in the hospital. Coplin said she was an excellent cook and kept the place clean. James Brown testified that in 1945 Coplin borrowed his car for a ten day trip, stating that plaintiff would drive. Thelma Mendenhall testified that from 1934 to 1936 plaintiff was doing the regular duties of any housewife, changing the shelf papers, and buying linens, doing the shopping and cooking. Between March, 1938, and the middle of September, 1945, she saw plaintiff at Coplin's apartment, doing the cooking, cleaning the apartment, making the bed, changing shelf paper, cleaning out cupboards, shopping. From March, 1940, to the end of the year plaintiff was trying to minister to the wants and desires of Coplin who was ill. Coplin told Mrs. Mendenhall, 'Betty could take better care of him than all the nurses in the world.' In 1940 Dr. Chamberlain treated Coplin for a heart condition, visited him frequently at his apartment. A woman whom he believed to be plaintiff was always there and he gave her instructions as to the patient's diet.
Thus it appears that plaintiff did render substantial services. Whether these were merely services ordinarily rendered by a mistress or were those of a combination housekeeper-nurse-driver, etc., were matters for the jury. We cannot say as a matter of law that the inferences are either way.
3. Reasonable Value.
Defendant contends that there is no evidence of the reasonable value of the services. It uniformly has been held that services of the type here being considered are within the common knowledge of courts and jurors alike and no expert testimony, nor evidence of value, is necessary. "When, upon the trial of the general issue in an action upon quantum meruit for services of a domestic character, the plaintiff offers evidence showing the fact from which the promise to pay may properly be inferred, and also showing the nature and extent of the services rendered, the case should be submitted to the jury, although no witness expresses an opinion as to the value of the services." Nylund v. Madsen, 94 Cal.App. 441, 445-446, 271 P. 374, 376. '* * * the jury were entitled to consider the nature of the services rendered as shown by the evidence and draw upon their own judgment and experience in determining the reasonable value thereof * * *.' Seedborg v. Lakewood Gardens Civic Ass'n, 105 Cal.App.2d 449, 454, 233 P.2d 943, 946.
Whether the services were trivial or valuable, whether plaintiff received full compensation in the form of money and gifts and whether there was an account stated between plaintiff and Coplin when he gave her $2,000 and accepted a promissory note secured by a deed of trust, were all matters concerning which there was a conflict in the evidence and therefore for the jury to decide.
4. Breaks in Continuity.
For a short period after plaintiff went to live at Coplin's apartment, she worked at a local store. On two separate occasions of short duration in 1935, for short periods in 1933, in 1938 or 1939, 1940, and 1941, she was employed in a store. These employments apparently lasted only a couple of weeks at a time. August 30, 1939, she married Jack Wagner in Nevada. Although her divorce complaint gave the period from marriage to separation as over eight months, apparently it only lasted a month or two and she returned to Coplin. During the entire period of the marriage she would go to Coplin's apartment and do the cooking and household duties. For a period of about 73 days between October, 1942, and March, 1943, she attended a secretarial school. There is no evidence that during the periods of employment and attending school plaintiff was not also looking after Coplin. About June, 1942, she met Maier, who was in the Navy. When his ship was in port he saw her. On one occasion he saw her in Long Beach, where she had gone to visit her brother. In 1945 on a trip with Coplin to Cal-Neva, it appears that plaintiff wanted Coplin to marry her. This was probably August or September. From then on until her marriage to Maier in November plaintiff apparently did not live at the Coplin apartment. During this marriage plaintiff and her husband lived at Paradise. During 1946 and 1947, however, plaintiff on several occasions returned to San Francisco, staying at Coplin's apartment for periods of approximately a week to ten days each. She finally returned to Coplin in June, 1947.
Defendant contends that the continuity of service was broken by the above-mentioned acts of plaintiff. Again, this was a matter for the jury, as the acts of plaintiff in obtaining temporary daytime employment and attending school are completely consistent with her rendering services to Coplin. Even during her marriage to Wagner she continued to perform such services. Whether her residence in Paradise broke the continuity is, at least, debatable, and depends principally upon the jury's determination of the circumstances. On the trip to Reno Coplin said, 'You been wanting a home and wanting me to marry you * * * All right, you go out and get somebody else to marry you. * * * Go ahead, I am tired of this,' and after comments, he said, 'All right, go ahead * * * You will be back, I will get you back, if you do.' While, of course, under the contract Coplin had the right to discharge plaintiff at any time, either with or without reason, the jury could have interpreted this language as permission for a temporary discontinuance of the services. The whole history of the relationship between the parties shows that Coplin did not object to temporary discontinuance of services. He made no objection to plaintiff's marriage to Wagner, nor to Maier, nor to the trips she took. He stated, in effect, that he knew she would come back when he wanted her. Whether there was a complete termination of the services relationship or whether it was merely a temporary one was, under the evidence here, susceptible to either conclusion. We are bound by the jury's determination thereof.
2. Instructions.
In examining the sufficiency of the instructions it is necessary to bear in mind the law applicable to a case involving a meretricious relationship.
1. '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. [Citations.] One reason for the rule is the illegality of the relationship where it enters into the alleged agreement. [Citation.] Another reason is the presumption of gratuity arising from the family relationship of the parties, which family relationship repels the implication of a promise to pay that would otherwise arise from the performance and acceptance of valuable services. [Citations.]' Hill v. Estate of Westbrook, 95 Cal.App.2d 599, 602, 213 P.2d 727, 729. Plaintiff stated at the beginning of the trial that she was not claiming an implied contract.
2. '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. [Citiations.] Whether the contract was dependent upon the illicit relationship is a question of fact. [Citations.]' Hill v. Estate of Westbrook, supra, 95 Cal.App.2d 599, 602, 213 P.2d 727, 729.
In view, then, of the admitted meretricious relationship in this case, and that there can be no implied contract for services, plaintiff had the burden of showing (a) that there was an express agreement (oral as there is no claim of a written one) by Coplin to compensate plaintiff for household services, and (b) that such agreement was not in contemplation of or dependent upon the illicit relationship. Therefore, it was important that the jury be so instructed.
As to the right to recover on an implied contract there is some confusion in the instructions. The trial court referred to the two causes of action in the complaint, stating that the first alleged a contract made on or about October 1, 1933, for the reasonable value of services to be paid at termination, and the second alleged that within two years prior to his death Coplin became indebted to her for the same work, labor and services referred to in her first count. In referring to the second count the court made no mention of an express contract (although the second cause alleges one). The court's language would indicate that under the second count plaintiff could recover on an implied contract. Then followed several pages of instructions on the difference between an express and an implied contract, the presumption which follows from proof of services rendered and the resulting implied contract, that it does not necessarily follow that 'if plaintiff became a member of decedent's household' her services were intended to be gratuitous, whether there was an intention to pay by decedent and an expectation of compensation by plaintiff 'or that the circumstances under which the services were performed were such that such expectation was reasonable and natural' and 'if you believe from the evidence that the plaintiff rendered the services alleged to decedent, then the burden of proving that she has been paid for her services devolves upon defendant,' that if plaintiff and Coplin were strangers to each other, there is no presumption that her services, if any, were gratuitous and in the absence of an agreement to the contrary they should be paid for. After stating that it was not necessary that there be a written agreement on order for plaintiff to recover, the court said: 'It is sufficient for proof of her claim to compensation if she establishes to your satisfaction the fact that she rendered services to the time of the death of Mr. Coplin, with the understanding and expectation that payment was to be made at the termination thereof * * *' The 'understanding and expectation' is apparently plaintiff's, and does not tell the jury that the understanding must be also that of Coplin. This instruction is probably based upon language in Lloyd v. Kleefisch, 48 Cal.App.2d 408, 120 P.2d 97, where the court said concerning services that an express contract need not be proved but "* * * 'it is sufficient if from the facts and circumstances it reasonably can be inferred that compensation was in the view and contemplation of the parties.' * * *" 48 Cal.App.2d at page 412, 120 P.2d at page 99 and used the language that the evidence supported the conclusion that the 'services were rendered with the expectation and understanding that they would be paid for.' That rule, however, does not apply where there is a meretricious relationship. Moreover, even in cases of the Lloyd type, the 'expectation and understanding' must be that of both parties. The same vice attaches to the instructions immediately following, where the court stated that if the services rendered by plaintiff were continuously performed, with or without any express agreement as to compensation, but with the expectation and understanding that at some time in the future, at the termination of the services or upon the death of Coplin, she would be paid their reasonable value then plaintiff could recover; also that where a person performs for another, with the other's knowledge, a useful service of a character usually charged for, and the latter expresses no dissent, or avails himself of the service, a promise to pay the reasonable value of all of the services is implied by law. Further, the court instructed that if the parties by mutual agreement lived and cohabited together in a meretricious relationship without any previous promise by Coplin to pay plaintiff for her services, she could not recover; that while the question is one of intention, the relationship may rebut the presumption of a contractual intention and if the evidence shows such meretricious relationship that fact should be considered in determining whether any contract to pay for services is to be implied; that an implied promise to pay does not arise where services are rendered by persons living together in a meretricious relationship; that the law presumes that such services are merely gratuitous favors.
So far there is still no instruction that there can be no implied contract where the illicit relationship is concerned. These last instructions merely state that the relationship may be considered in determining whether or not there was a contract. Later, when instructing concerning the statute of limitations the court gave the period of limitation on actions upon an oral agreement 'express or implied.' (Emphasis added.) The only reference to the fact that there can be no implied contract in this case follows: 'Therefore, if you find * * * that the plaintiff * * * [and] Coplin, lived together in a meretricious relationship, and that there was no express agreement, oral or written, that plaintiff be compensated for services performed, I instruct you that there is no implied obligation on the part of the decedent, J. Coplin, to compensate the plaintiff for household services rendered by her, and your verdict must be for the defendant on that issue.' It is extremely doubtful if that one reference would offset in the minds of the jury the pages if instructions concerning implied contracts. As plaintiff was not claiming an implied contract, it is difficult to understand why the court instructed so long on the subject, as though she were.
An even more serious question arises concerning the failure to instruct the jury concerning the character of the agreement between plaintiff and Coplin. As pointed out heretofore, not only must there be an express contract but it must not be in contemplation of or dependent upon the illicit relationship. With the exception of an instruction hereafter mentioned that barely mentions this, the court did not discuss this subject at all. It gave, in addition to the instructions on implied contract hereinbefore detailed, many instructions concerning an express contract, the burden of proving it, the fact that plaintiff was entitled to a verdict if there was such contract for services, etc. At no time, with the single exception hereafter set forth, did the court instruct the jury that it must concern itself with the character of that contract, whether it included the illicit service, or contemplated or was dependent upon that relationship. This exception was the following instruction: '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 is valid and enforceable unless made in contemplation of such illicit relationship.' (Emphasis added.)
The beneficial effect of this instruction was obviated by the sentence which immediately followed it: 'Therefore, if you find from the evidence that the plaintiff in this case and the decedent, Jacob Coplin, lived together in a meretricious relationship, and that there was no express agreement, oral or written, that plaintiff be compensated for services performed, I instruct you that there is no implied obligation on the part of the decedent, J. Coplin, to compensate the plaintiff for household services rendered by her, and you verdict must be for the defendant on that issue.'
Again, a reading of that instruction with the sentence immediately following it, in view of the voluminous instructions on the subject of whether or not there was a contract, would still leave the jury believing its only duty was to determine the latter fact. In this case, the determination of the character of the contract was extremely important. The evidence on the subject is well susceptible of either the conclusion that Coplin was agreeing to compensate a mistress rather than a housekeeper or that the contract for services was independent of the illicit relationship. It is a close question. Hence, the jury should have been clearly and unequivocally instructed that they must find not only that there was an express contract but one of a character that the law permits. Defendant offered full and fair instructions on this subject and on what were illegal considerations in a contract, etc., all of which were refused. After pages of instructions on implied and express contracts, to refer to this important subject by repeating that an express contract is valid, and then qualifying the statement by remarking more or less in passing that 'unless made in contemplation of' the illicit relationship, is not calling the attention of the jury clearly and unequivocally to one of the most important elements of the case. In reciting to the jury the contents of the pleadings the court stated that, among other defenses, defendant alleged that the agreement was void and contrary to good morals in that it was predicated upon unlawful cohabitation between the parties and that any services rendered by plaintiff were incidental to or in contemplation of the meretricious relationship. Plaintiff contends, in effect, that this instruction and the one last mentioned sufficiently informed the jury of the necessity of their determining the character of the agreement. Unfortunately the court did not state whether or not such a defense was a valid one, nor did it tell the jury definitely that if the facts were as alleged in this defense plaintiff could not recover. Moreover, the evidence on this subject raises the most debatable element in the case. The evidence that there was an express contract is far stronger than the evidence that its character made it legal. The necessity for clearly instructing on this subject is emphasized by the fact that frequently throughout the trial the court stated, in effect, that the question to be determined was whether it was contemplated by both parties that plaintiff was to be compensated for her services, but made no mention of the character of the agreement on the subject. We dislike to reverse a case on error in instructions, but we must do so here because it is clear that the one reference to this most important subject, buried as it was in a profusion of instructions on the question of express or implied contracts, did not give the jury to understand that they had a positive and definite duty to determine the character of the contract.
3. Statute of Limitations.
Under the first cause of action based on a contract alleged to have been made in 1933 under which the compensation was to be payable upon the termination of her services, the statute would not begin to run until there was such termination. Defendant contends that there were a number of terminations but particularly her marriage to Maier when she went to Paradise to live, constituted a definite termination. Hence, says defendant, the statute of limitations started to run, at least, from then, and that was more than two years prior to the suit. As pointed out in '4. Breaks in Continuity,' the evidence is susceptible to the inference that this interlude constituted merely an agreed temporary cessation of services and the statute would not start until the final termination, which was the death of decedent. A similar contention concerning a somewhat similar situation (except for the question of meretricious relationship) was made in Lloyd v. Kleefisch, supra, 48 Cal.App.2d 408, 120 P.2d 97, 98. There plaintiff brought an action against the administrator for services rendered the decedent, consisting of acting as chauffeur, nurse, cooking meals, etc., with 'the understanding, expectation and agreement between' him and her that she would be paid the reasonable value thereof upon the termination of the services at or before his death. Defendant in appealing from a judgment in plaintiff's favor entered upon a jury verdict, contended that the services were not continuous. The agreement and start of the services was in 1929. In December, 1934, plaintiff married. Decedent opposed this marriage. Although she was willing and able to act, for the first six months of 1935 he refused to allow her to perform services for him. At the end of that time he asked her to continue with the services. The court instructed the jury that if the cessation was caused by a wrongful temporary discharge by decedent and that if he requested a resumption of such services and the plaintiff complied, this temporary cessation of services did not break the understanding and her services are to be taken as having been continuously rendered. This instruction was held to embody a complete and correct statement of the law. Almost the identical instruction was given in our case. 'Where a person is to render services and is to be paid upon the death of the person benefited, cessations in service caused by the capricious or wrongful act of the person obligated to pay do not operate to prevent the contract from being a continuous one within the rule that the statute of limitations starts to run from the date of termination.' 48 Cal.App.2d at pages 413-414, 120 P.2d at page 100.
In Seib v. Mitchell, 10 Cal.App.2d 91, 52 P.2d 281, the same contention was made that the statute of limitations applied because the continuity of services was broken as 'The court further found that on a number of occasions, some of which were for extended periods, plaintiff did not render services to Mrs. Herbst * * *. Defendant contends that the larger part of the sum claimed is barred by the statute of limitations, basing this contention upon the finding of the court that during part of the time plaintiffs did not render services and that 'such cessation of services was without fault of the plaintiff and was caused by the wrongful temporary discharge by the deceased.' This contention cannot be upheld. The contract was for continuous services from 1917 until the death of Mrs. Herbst. The court found that plaintiffs were at all times ready, able, and willing to perform the services. The finding of 'the wrongful temporary discharge' was tantamount to a holding that deceased, during the periods of cessation of services, did not desire the assistance of plaintiffs, especially in view of the fact that after each cessation of services plaintiffs were again requested by deceased to resume their ministrations to her, and they did in fact on each occasion render further services. The statute of limitations did not begin to run until the death of Mrs. Herbst.' 10 Cal.App.2d at page 94, 52 P.2d at page 282.
Defendant claims that plaintiff's stipulation that there was a 'hiatus' in services during the time plaintiff was at Paradise shows a termination of services. The stipulation, however, does nothing more than show, as does the evidence, that there was an interruption of service. Its character and effect were for the jury to determine. The evidence shows that immediately prior to her marriage to Maier, Coplin was disagreeable and angry. The jury had the right to consider whether if Coplin was not agreeing to a temporary discontinuance of service, he was actually forcing her out. Whether her evident desire that he marry or build a home for her justified his action was also for the jury to determine. In either event, when he requested her to resume the services under the same agreement, and she did so, under the ruling in Seib v. Mitchell, supra, 10 Cal.App.2d 91, 52 P.2d 281, and Lloyd v. Kleefisch, supra, 48 Cal.App.2d 408, 120 P.2d 97, the statute of limitations would not begin to run until his death. Cases like Belletich v. Pollock, 75 Cal.App.2d 142, 171 P.2d 57, where there was a four year interruption of services, and Roberts v. Roberts, 64 Wyo. 433, 196 P.2d 361, 197 P.2d 697, where the interruption was for six or seven years, are not in point as in both cases there was a complete and definite cessation of services with no understanding that it was temporary and entirely due to the desires of the one performing the services and through no fault of the one to be charged. In the Belletich case the court distinguished its facts from those in Seib v. Mitchell, supra, 10 Cal.App.2d 91, 52 P.2d 281, by pointing out that the interruptions of services in the Seib case were caused by the wrongful temporary discharge by decedent, while there was no such element in its case. Laven v. Cowan, 108 Cal.App. 628, 291 P. 877, merely holds that the statute begins to run from the date when services were last rendered. Corato v. Estate of Corato, 201 Cal. 155, 255 P. 825, holds that where there is no agreement as to time or rate of payment or term of service, the hiring is presumed to be by the month and the statute runs from each month. Obviously neither of these cases is in point. The fact that the agreement as alleged in plaintiff's complaint 'was subject to termination by either party at any time', see also Union Labor Hosp. Ass'n v. Vance Redwood Lumber Co., 158 Cal. 551, 112 P. 886, 33 L.R.A.,N.S., 1034; 56 C.J.S., Master and Servant, § 31, page 412, does not make any less wrongful in the sense mentioned in the Seib and Lloyd cases, supra, Coplin's terminating it without compensating plaintiff at the time of termination. Defendant's contention that there could not be a wrongful termination which would prevent the statute from running overlooks the decision in the Lloyd and Seib cases, supra, where either side had the right to terminate the agreement, as here, but it was held that the termination was wrongful for statute of limitations purposes.
4. Refusal of Evidence.
As the case is to be retried, the question of whether plaintiff was divorced from Brassey at the time of the agreement will undoubtedly be raised again. Defendant offered certificates from all California county clerks showing that no divorce had been obtained by plaintiff from Brassey in California in 1935, the year that in her application for a license to marry Maier she stated she was divorced in California. Defendant's offer was to show that when she went to live with Coplin plaintiff was still married to Brassey, and hence her relationship with Coplin was adulterous. The court properly sustained objections to the introduction of this evidence. The fact that plaintiff was married would not make illegal an agreement to perform household services for Coplin, if that was all the agreement contemplated. If it contemplated cohabitation then it would be no more illegal if plaintiff were married than if she were unmarried. It was conceded that plaintiff became Coplin's mistress. The meretricious relationship was established, and it made no difference if in addition to being meretricious, it was adulterous.
5. The Maier Marriage.
Defendant contends that Coplin broke up the Maier marriage in consideration of plaintiff's return to him, paid for the divorce, and that made the agreement to compensate plaintiff for her services void. Under the first cause of action, assuming that there was an agreement to pay for the divorce if plaintiff returned, such illegality would not make the original agreement in 1933 illegal. However, it might make an agreement in 1947 so tainted with illegality as to be void as against public policy. The second cause of action is based on this agreement. The court should have instructed the jury that if it believed that there had been a termination of the original agreement and that the 1947 promise for compensation was based partly on the consideration that plaintiff would get a divorce, return to Coplin, and render services, provided he would pay for her divorce, then plaintiff could not recover under the second count.
6. Section 2055, Code of Civil Procedure.
Under that section plaintiff called David Coplin and examined him for the greater part of two days. After defendant rested plaintiff asked permission to call David again under section 2055, in rebuttal. No objection was made. After interrogating for about two pages of transcript plaintiff asked him if he had been convicted of a felony. Defendant objected on the ground that a witness called under section 2055 could not be so impeached. The court overruled the objection. Defendant relies on section 2049 of the Code of Civil Procedure which states, 'The party producing a witness is not allowed to impeach his credit by evidence of bad character * * *' and section 2051 of the Code of Civil Procedure, 'A witness may be impeached by the party against whom he was called * * * it may be shown * * * that he had been convicted of a felony * * *.' (Emphasis added.) These two sections, says defendant, only allow impeachment by a felony conviction of a witness by the party against whom he was called and therefore plaintiff having called David, plaintiff could not impeach him. This question has never before been determined in California. Labrie v. Midwood, 273 Mass. 578, 174 N.E. 214, held that in Massachusetts a party calling a witness under G.L. c. 233, § 22, providing 'A party who calls the adverse party as a witness shall be allowed to cross-examine him', could not impeach him by a felony conviction. Their section 23 provides, the 'party who produces a witness shall not impeach his credit by evidence of bad character * * *.' (The language is almost identical with that of our section 2049, Code of Civil Procedure.) The court stated that such impeachment was expressly prohibited by the above quoted portion of section 23 and was not admissible under section 22 as it 'was something more than cross-examination.' 174 N.E. at page 216.
Section 2055 provides that the party called thereunder 'may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses. The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted * * *.' Defendant contends that 'subject to the rules applicable to the examination of other witnesses' precludes this type of impeachment because, under section 2051 it can only be used by the 'party against whom he was called'. The second sentence is not in the Massachusetts section 22, although the decisions of the courts of that state hold that the party calling the adverse witness is not bound by his testimony. The Massachusetts ruling too narrowly restricts the meaning of the section. The very next words in section 2055, 'The party calling such adverse witness shall not be bound by his testimony,' (emphasis added) indicates that the cross-examination may be more than the strict interpretation of cross-examination put by the Massachusetts court on their section 22. While section 2051 limits impeachment to the party against whom the witness is called, and David was called by plaintiff, still as plaintiff is not bound by his testimony, the witness in a sense is called against plaintiff. However, the problem is not one of semantics but rather of the purpose to be served. Considering the fact that section 2055 contemplates that in the cross-examination of the adverse party the one calling him is not to be bound by his testimony and his testimony may be rebutted, we can see no reason why it was not intended that the one calling such an adverse witness may not be entitled to the type of cross-examination he could have conducted had the party taken the stand in his own behalf. In such event he could have been so impeached. It would seem that section 2055 contemplates that the party calling him thereunder would be entitled to consider him, adverse party as he is, as a witness called against him. Showing that the witness has been convicted of a felony adds an additional reason which the trier of the facts may accept for holding that the witness' testimony is not binding on the party examining him. In view of the broad interpretation of section 2055 by the courts of this state we see no reason for applying the Massachusetts rule. The fact that the impeachment was not brought in until rebuttal does not make it inadmissible. The court in its discretion may permit the introduction of evidence out of order. Here there was no objection before the trial court on the ground of the time element. It cannot be raised here for the first time. But if it could, we see no abuse of discretion by the trial court in permitting the question to be asked, where there was no objection as to the timing of the question. It should be pointed out that ordinarily this type of question should not be left until rebuttal. Unless there is some good reason for not using it on the first calling of the witness, it should not be permitted on rebuttal and particularly as the only or main subject of rebuttal. Later plaintiff asked permission to recall Alex Coplin, one of the heirs of decedent, for the purpose of asking him if he had been convicted of a felony. The court refused to grant the permission on the ground that the question should have been asked when he was on the stand before. Perhaps had defendant objected on this ground when David was questioned, the court might have sustained the objection. However, the court's action as to Alex did not demonstrate an abuse of discretion as to David.
In holding that conviction of a felony may be shown by the party calling the adverse party under section 2055, we desire to point out that the adverse party must never be called solely for that purpose. Unless the evidence testified to by the adverse party is of importance in the case, his conviction should not be shown. The trial court, before allowing it to be shown, should first determine whether the main purpose of the party calling the witness is to show the conviction.
Other Contentions.
The fact that the case will have to be tried again makes it unnecessary to consider a number of the contentions made herein, including the alleged misconduct of plaintiff's counsel. However, it may not be amiss to point out that it is almost unbelievable that counsel on both sides (who bear outstanding reputations for ability) would indulge in the childish, inexcusable tactics of which the record shows them both to have been guilty. We would suggest to the judge who presides at the retrial that no such conduct should be permitted in a courtroom.
The appeals from the various orders are dismissed. The judgment is reversed.
PETERS, P. J., and FRED B. WOOD, J., concur. --------------- * Dismissed Aug. 20, 1953. 1 He was the original defendant sued as executor of Coplin's will. Subsequently the bank was substituted as administrator with the will annexed.