Curtis v. Mendenhall

• Decision Date: 24 October 1962
• Citation: 208 Cal.App.2d 834,25 Cal.Rptr. 627
• Court: California Court of Appeals Court of Appeals
• Parties: John F. CURTIS, Plaintiff and Appellant, v. Marit B. MENDENHALL, as Administratrix, etc., Defendant and Respondent. Civ. 26107.

Page 627

25 Cal.Rptr. 627

208 Cal.App.2d 834

John F. CURTIS, Plaintiff and Appellant, v. Marit B. MENDENHALL, as Administratrix, etc., Defendant and Respondent.

Civ. 26107.

District Court of Appeal, Second District, Division 2, California.

Oct. 24, 1962.

William C. Hiscock, Los Angeles, for appellant.

James A. Poore, Los Angeles, for respondent.

FOX, Presiding Justice.

This is an action by plaintiff on an account stated arising out of the purchase of life insurance. Plaintiff appeals from an adverse judgment.

The defendant, Marit B. Mendenhall, is the administratrix ¹ of the estate of Dr. conditions which were poor throughout 1956 and 1957. Mr. John Curtis presented in a gambling casino (the Boulder Club) in Las Vegas, Nevada. Only one of the group, Ernest Amante, had any experience in this field and the investors, consequently, were concerned as to what would happen to their funds in the event of Amante's death. Decedent, on behalf of the investors, contacted plaintiff, an insurance for the Boulder Club, Las Vegas, Nevada the investors in the sum of $250,000. Apparently to obviate certain problems in obtaining a Nevada license to operate the club, the license was issued solely in Amante's name. ²

John Suckling, an attorney then representing plaintiff, testified that decedent came up with the suggestion that he (decedent) buy the insurance on the basis that decedent had made a loan to Amante, and after the insurance was issued, create a trust and assign the insurance policies to the trust with decedent as trustee. The policies were issued but never delivered to either decedent, the beneficiaries, or the insured. The trust, however, was subsequently executed and the assignment made. ³

Plaintiff's secretary testified that the plaintiff paid the premium by having it charged to his (plaintiff's) account and that she prepared and mailed an original invoice for the sum of $3,106.79 and subsequently several duplicates to Dr. Mendenhall. She further stated that it is her duty to open all incoming mail in plaintiff's office and that she never saw any writing from decedent stating that he would not pay the amount of the invoice. ⁴ It is this invoice and the subsequent lack of disclaimer thereof that constitute the basis of plaintiff's claim for an account stated. ⁵

The trial court found, inter alia, 'it is not true that on December 3, 1957, the deceased ARTHUR J. MENDENHALL was indebted to the plaintiff in the sum of $3,106.79 or any other sum or at all, and such allegation is not supported by the evidence. In connection therewith, the Court finds that the billing of December 3, 1957, was not an account stated based upon a prior indebtedness or agreement of the parties, but was a billing to the deceased ARTHUR J. MENDENHALL for a premium payment voluntarily made in advance by plaintiff, and such advancement was not made at the request of the said named deceased or under an agreement with the deceased to pay the same.'

Plaintiff argues on appeal that the above finding is not supported by the evidence since 'no evidence was offered by respondent.' He further contends that since 'the evidence of appellant both oral and documentary was uncontradicted, clear and not inherently improbable', 'such evidence must be accepted by the court and the judgment [therefore] was contrary to the evidence.'

In T.V. Wire Products v. Osipow Electric Supply Company, 204 A.C.A. 567, pp. 570-571, 22 Cal.Rptr. 384, p. 386 this court state: 'The general rule to be applied court stated: 'The general rule to be applied evidence is set out in Overton v. Vita-Food Corp., 94 Cal.App.2d 367, 210 P.2d 757. The court stated (p. 370, 210 P.2d p. 759): '[W]here the findings are attacked for insufficiency of the evidence, our power begins and ends with a determination as to whether there is any substantial evidence to support them; we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.' (Estate of Teel, 25 Cal.2d 520, 526-527, 154 P.2d 384; Estate of Bristol, 23 Cal.2d 221, 223-224, 143 P.2d 689; Standard Realty & Development Co. v. Ferrera, 151 Cal.App.2d 514, 516, 311 P.2d 855; 3 Witkin, Calif. Proc. sec. 84, pp. 2245-2246.) 'The critical word in the definition is 'substantial'; * * *' (Estate of Teel, supra.) In Estate of Bristol, supra, the court stated (23 Cal.2d pp. 223-224, 143 P.2d p. 690): 'Appellate courts, therefore, if there be any reasonable doubt as to the sufficiency of the evidence to sustain a finding, should resolve that doubt in favor of the finding; and in searching the record and exploring the inferences which may arise from what is found there, to discover whether such doubt or conflict exists, the court should be realistic and practical.''

While it is true that no witnesses were presented by the defendant, this is partially explained by the fact that Dr. Mendenhall (whose liability is sought to be established) was deceased at the time of the trial. Defendant, however, did cross-examine one of plaintiff's witnesses--his (plaintiff's) secretary, and defendant also introduced documentary evidence in the form of the two insurance policies. In Isham v. Trimble, 5 Cal.App.2d 648, p. 651, 43 P.2d 581, p. 582, the trial court pointed out: 'At the trial no evidence whatever was presented by respondent and he was not called to the stand by appellants. But this did not require the trial court to accept appellant's theories; nor does it support their assertion that there was no conflict in the evidence. Substantial conflicts may, and often do, arise when all of the evidence is produced by one party and it is then the sole province of the jury to determine the questions in issue. [Citation.]'

Although the court may not disregard uncontradicted, credible evidence, '[a]n appellate court cannot control a finding or conclusion denying credence, unless it appears that there are no matters or circumstances which at all impair the accuracy of the testimony, and a trial judge has an inherent right to disregard the testimony of any witness, or the effect of any prima facie showing based thereon, when he is satisfied that the witness is not telling the truth or his testimony is inherently improbable due to its inaccuracy, due to uncertainty, lapse of time, or interest ⁶ or bias of the witness. All of these things may be properly considered in determining the weight to be given the testimony of a witness although there be no adverse testimony adduced. The trial judge is the arbiter of the credibility of the witnesses. A witness may be contradicted by the facts he states as completely as by direct adverse testimony, and there may be so many omissions in his account of particular transactions or of his own conduct as to discredit his whole story. * * * [Citations.] Where conflicting inferences may be drawn from testimony, this court is bound by the findings of the trial...