Bergren v. Berggren

• Decision Date: 12 November 1957
• Docket Number: No. 2786,2786
• Parties: May BERGREN, Plaintiff and Respondent, v. John L. BERGGREN, Defendant and Appellant.
• Court: Wyoming Supreme Court

Page 1101

317 P.2d 1101

77 Wyo. 438

May BERGREN, Plaintiff and Respondent, v. John L. BERGGREN, Defendant and Appellant.

No. 2786.

Supreme Court of Wyoming.

Nov. 12, 1957.

R. G. Diefenderfer, Sheridan, for appellant.

Marvin L. Bishop and Thomas A. Nicholas, Casper, for respondent.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

This action was brought by May Bergren against John L. Berggren to cancel and annul certain deeds, and a trust agreement and a power of attorney executed by May Bergren to John L. Berggren. The deeds involved were dated February 17, 1955, and conveyed land subject to a life estate in the grantor. One of the deeds was filed for record on February 17, 1955, and recorded in book 23, page 237 of the records of the County Clerk and Register of Deeds of Campbell County, Wyoming. The other deed was filed in the same office on March 26, 1955, and recorded in book 23, page 417. This should suffice to identify the lands which are involved. The trust agreement and the power of attorney were dated February 22, 1955. Judgment was rendered in favor of May Bergren, the plaintiff, against John L. Berggren, the defendant. The parties will hereafter be referred to in the same manner as in the court below.

It does not definitely appear when this action was commenced. It was probably in the month of May 1955. The original and first amended petition or the date of filing are not in the record. On August 19, 1955, the plaintiff filed her second amended petition. In the petition, plaintiff alleged that she was the owner of the described real estate of the value of $80,000; that on February 17, 1955, she was infirm physically and mentally; that she was 93 years of age and had been an invalid for many years; that she was unable to read and that her hearing was greatly impaired and she as unable to understand the legal documents involved herein; that she was entirely dependent upon others for her physical needs and in connection with her business affairs; that defendant was employed by her to look after her properties at $10 per day; that he, knowing of the incapacity and infirmity of plaintiff, by means of trickery and fraud and undue influence, caused her to execute the deeds and power of attorney heretofore mentioned; that she did not understand the documents and never intended to convey the property in the deeds to the defendant. She prayed that the instruments above mentioned be canceled. We think in view of the fact that no attack was made on this pleading, that the statements above made are sufficient for the purposes of this case.

For a second cause of action, the plaintiff demanded an accounting from the defendant, but this cause of action was abandoned during the trial of the case and no further mention need be made thereof.

Defendant denied the essential allegations of the second amended petition and trial of this case was held in Campbell County, Wyoming, before the court without a jury commencing on June 26, 1956, the case having been referred to the Honorable Franklin B. Sheldon, Judge of the Seventh Judicial District. Judgment was rendered in favor of the plaintiff and the defendant has appealed, alleging that the findings of the court were contrary to the evidence and contrary to law, and that the court erred in sustaining objections to certain evidence offered by the defendant in the case.

I. John F. Raper, an attorney at law living at Sheridan, Wyoming, had been acting as attorney for the plaintiff and the deeds and the power of attorney were drawn up by him, submitted to the plaintiff, and acknowledged by him as notary public. He voluntarily offered himself as a witness in the case. After having been permitted to testify to preliminary matters, objection was made that he acted in a confidential relation existing between attorney and client and that he should not be permitted to testify further. The court sustained this contention. The defendant, through his attorney, thereupon offered to prove by Mr. Raper that the witness read the deeds to the plaintiff, explaining to her the meaning and purport of the deeds; that this was done in the presence of Dr. Pratt and Dr. Laxson of Sheridan; that she fully understood and comprehended all that was contained in the deeds and the effect of executing and delivering them; that he acted as notary public in taking the acknowledgment and again asked her whether or not she executed the deeds of her own free will and that she fully understood and comprehended the effect of the deeds. The court excluded the offer and that is assigned as error.

Section 3-2602, W.C.S.1945, provides as follows, prohibiting certain testimony:

'The following persons shall not testify in certain respects:

'1. An attorney, concerning a communication made to him by his client in that relation, or his advice to his client; or a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient; but the attorney or physician may testify by express consent of the client or patient; and if the client or patient voluntarily testify, the attorney or physician may be compelled to testify, on the same subject.'

Plaintiff in this case had testified to the execution of the deeds at considerable length and had stated that she did not hear any reference to any deed on February 17, 1955, and that she never intended to execute any such deeds. It is stated in 97 C.J.S. Witnesses § 310, pp. 861, 862, speaking of testimony of a privileged person, as follows:

'Where, however, the penitent, spouse, or client has first testified as to such matters voluntarily, or at least without objection, the privilege is lost; and the same is true of testimony of a patient or other privileged person. Also, in some jurisdictions statutory provisions make the voluntary testifying by the privileged person a waiver of the privilege as to the subject about which he testifies. However, the waiver extends only to the subjects on which the privileged party has testified on direct examination, and a general waiver cannot be predicated on the privileged person having testified as to certain particular matters.'

In this case, as already stated, the plaintiff testified at some length on the subject as to whether or not she executed the instruments voluntarily and whether she understood the effect thereof. The substance of her testimony will be set forth hereafter. So, without saying anything about the ethics involved, it would seem that, under the authority above mentioned, the court erred in not permitting Mr. Raper to testify. Since the trial of the case, Mr. Raper has died. His testimony has not in any manner been preserved so that the situation herein is a peculiar one. We need not determine what the rule should be if Mr. Raper's testimony had been so vital as to render the judgment herein unjust. The deeds in question were executed in the presence of three witnesses, namely, Dr. Pratt, Dr. Laxson and the defendant. All three of them testified substantially to what John F. Raper would have testified if he had been permitted to do so. Under these circumstances, the testimony of Mr. Raper was merely cumulative. It is stated in 53 Am.Jur. § 106, p. 94:

'Generally, however, a judgment will not be reversed because of the refusal of evidence which is cumulative or tends to establish a fact which is conceded.'

We think that rule should apply here and the error above assigned is overruled.

A similar offer of proof was made in connection with the so-called trust agreement and power of attorney. However, there is no dispute between the parties over this agreement. It was revoked by the plaintiff, as well as in the judgment of the trial court and no prejudice resulted to the defendant by reason of the ruling of the court in this connection.

II. The Court made the following findings:

'1. On February 17, 1955, plaintiff made, executed and delivered two warranty deeds, copies of which are attached to the plaintiff's petition, conveying her ranch property in Campbell County and the ranch property of her late son in said county to the defendant, reserving to herself a life estate therein.

'2. On said date plaintiff was a senile, old lady 93 years of age or thereabouts, crippled and unable to walk, hard of hearing and unable to read because of failing eyesight, and was doubtless in failing health due to a chronic uremic condition for which she was hospitalized within a period of six months thereafter, and has been under constant doctor's care since that time. She was at the time of said conveyances entirely helpless physically and wholly dependent upon others to look after her business affairs and personal needs and had been dependent upon her late son to look after her until his death on October 20, 1954.

'3. On February 17, 1955, the defendant was acting as the personal advisor of the plaintiff and as her agent and attorney in fact in the care and management of plaintiff's business and personal affairs and assisting her in the administration of her late son's estate, which arrangement was confirmed and reduced to writing by document dated February 22, 1955, designated 'Trust Agreement and Power of Attorney' and appearing in the record as Plaintiff's Exhibit No. 3. Because of the confidential relationship existing between the plaintiff and the defendant at the time of the conveyances in question it is incumbent upon the Court to scrutinize said conveyances with great severity.

'4. The confidential relationship between the plaintiff and defendant having been established by the plaintiff's evidence, the conveyances in question are voidable as constructively fraudulent or the result of undue influence unless the defendant on the trial of the case has established by competent and sufficient evidence that the transactions were fair, equitable and honest and for an adequate consideration in the event of a...