Miller v. Dussault

• Decision Date: 23 June 1972
• Citation: 103 Cal.Rptr. 147,26 Cal.App.3d 311
• Court: California Court of Appeals Court of Appeals
• Parties: Bryce H. MILLER and Maxine L. Miller, his wife, Plaintiffs and Appellants, v. John A. DUSSAULT and Dorothy B. Dussault, his wife, individually and doing business as Capitol Trailer Sales of Redding and Capitol Trailer Sales of Redding, a California corporation, Defendants and Respondents. Civ. 12809.

Page 147

103 Cal.Rptr. 147

26 Cal.App.3d 311

Bryce H. MILLER and Maxine L. Miller, his wife, Plaintiffs and Appellants, v. John A. DUSSAULT and Dorothy B. Dussault, his wife, individually and doing business as Capitol Trailer Sales of Redding and Capitol Trailer Sales of Redding, a California corporation, Defendants and Respondents.

Civ. 12809.

Court of Appeal, Third District, California.

June 23, 1972.

Hearing Denied Aug. 16, 1972.

Clarence H. Pease, William H. Lally, by William H. Lally, Sacramento, for plaintiffs-appellants.

John N. Bach, Chico, and Williams, Van Hoesen & Brigham, San Francisco, by Mr. Bach, for defendants-respondents.

FRIEDMAN, Acting Presiding Justice.

In the nonjury trial of this case plaintiffs rested, and defendants successfully moved for judgment under Code of Civil Procedure section 631.8. ¹ Plaintiffs appeal from the judgment. ²

The principal problem is that in passing upon the motion the trial court did not exclude from consideration several exhibits which the defense had placed in evidence as adjuncts to defendant's redirect testimony during his appearance as an adverse witness under Evidence Code section 776. Two of these exhibits sharply discredited the testimony of the two plaintiffs. The exhibits turned out to be rather crucial because, in granting the motion, the trial court found that plaintiffs had not told the truth. May exhibits supporting the defense and introduced during the plaintiff's case in chief be weighed in the balance when the court determines the reliability of the plaintiff's evidence on a motion for judgment?

The action is primarily one for breach of contract. Plaintiffs Bryce Miller and Maxine Miller are husband and wife. Their basic claim is that defendant Capitol Trailer Sales, a corporation, and John Dussault, its president, engaged them for two years to manage a mobile home sales lot in West Sacramento; that they were to be paid salaries plus 50 percent of the gross profits; that they were given an option to buy the business at the end of the two years. Added to the breach of contract allegations of the complaint are counts for fraud and slander.

At the trial plaintiffs opened their case by calling John Dussault as an adverse witness under Evidence Code section 776. Dussault testified that on July 16 he met with the Millers and discussed their taking over as managers of the West Sacramento sales lot at salaries of $700 for Mrs. Miller in her role as bookkeeper and $500 for Mr. Miller as manager. He testified that there was no discussion relative to paying the Millers profits or commissions in addition to their salaries; that commissions were paid to salesmen working on the lot; that one previous manager had been paid a small percentage in addition to his $500 salary when he made a sale, but the arrangement with the two new managers was that each would receive a salary; that he did not promise either of the Millers commissions or profit percentages. According to Dussault, he had told plaintiffs that if the sales lot showed a profit at the end of six months the parties would then arrange a contract which would provide plaintiffs a 50 percent net profit split. He denied that he gave plaintiffs an option to purchase the sales lot.

Upon completion of Dussault's cross-examination, his own counsel had the prerogative of questioning him 'as if under redirect examination.' (Evid.Code, § 776, subd. (b).) His attorney exercised that prerogative. He not only examined his client orally, but requested that office copies of two letters be marked for identification. These were copies of typed letters apparently dictated by Dussault and mailed from his Anaheim office to plaintiffs in West Sacramento. One of the letters bore the date July 26, 1966 (shortly after the inception of the Millers' employment), the other bore the date November 21, 1966. Dussault testified that these were copies of letters written by him to plaintiffs. Plaintiffs objected that the letters were outside the scope of Dussault's examination under section 776. The objection was overruled and the copies were marked in evidence. During Dussault's 'redirect' examination, his attorney also brought forward the original of another letter, this one bearing date of November 15, 1966, written by plaintiff Maxine Miller to Dussault. This letter was marked in evidence as a defense exhibit. Dussault testified that his own letter of November 21, 1966, had been written in response to Mrs. Miller's letter of November 15.

Plaintiffs both testified to their joint employment to operate the West Sacramento sales lot for two years, commencing July 1966, at salaries totaling $1,200 per month plus 50 percent of the gross profit, with an option to buy the business at the end of the two years. Bryce Miller testified that upon concluding the oral arrangement the parties shook hands and Dussault said he would 'reduce it to writing.' Relative to Mr. Dussault's letter of July 26, 1966 (copy of which had been marked for identification), Mr. Miller testified that it was a 'phony letter;' that plaintiffs had never received the original; that he, Miller, had never seen the letter until his deposition was taken.

Plaintiffs then produced other witnesses and introduced exhibits which bore upon plaintiffs' operation of the business, the accounting methods and the production of profits under plaintiffs' management. While voluminous in the extreme, this evidence had little or no bearing on the primary issue, which was the terms of plaintiffs' employment. As to the slander count, plaintiffs produced no evidence whatever to support their allegation that John Dussault had called them thieves.

In the course of direct and cross-examination of plaintiffs' witnesses, both sides placed in evidence a number of documents. Defendant offered in evidence the copies of Dussault's purported letters on July 26 and November 21, 1966. Plaintiffs objected that these were not the originals and that plaintiffs had never received the originals. The court overruled the objection on the theory that these were office copies sent in the ordinary course of business. ³ The July 26 letter confirmed that Dussault had hired the Millers on a straight salary basis and that if, after six months, the sales operation showed a net profit 'we then will formulate a working agreement whereby you people will share in 50% Of the new profits . . ..' In Maxine Miller's letter of November 15, 1966, she indicated an understanding that the Millers were entitled to 50 percent of the gross profits and an option to buy at the end of two years. Dussault's letter of November 21, 1966, was a sharp rejoinder, reiterating the Millers' employment on a straight salary basis but with the possibility of a profit-sharing arrangement if their work produced profit. Shortly after admission of the two Dussault letters, plaintiffs rested. At that point defendants moved for judgment under section 631.8.

In arguing in support of the motion, the defense relied heavily on the two Dussault letters. In opposing the motion, plaintiffs argued that they had never received the two letters and that they had 'a great deal more evidence' concerning these letters. Nevertheless, the trial court granted the motion, declaring that there was a square conflict between the testimony of Mr. and Mrs. Miller and that of Dussault; that the court did not believe either of the Millers. On appeal plaintiffs contend that the two letters were counterfeits, manufactured after inception of the lawsuit; that, by granting the motion for judgment, the trial court denied plaintiffs an opportunity for rebuttal evidence concerning the two letters; that under the circumstances the order for judgment was an abuse of discretion.

Enacted in 1961, section 631.8 provides a substitute for the nonsuit motion formerly available in nonjury trials. It permits either party to move for judgment at the close of the other's case. It authorizes the court to weigh the evidence and make findings. In weighing the evidence, the court may exercise the prerogatives of a fact trier by refusing to believe witnesses and by drawing conclusions at odds with expert opinion; if it grants the motion, its findings are not reversible if supported by substantial evidence. (Trigg v. Smith, 246 Cal.App.2d 510, 515, 54 Cal.Rptr. 858; Greening v. General Air-Conditioning Corp., 233 Cal.App.2d 545, 550, 43 Cal.Rptr. 662.)

California cases provide no ready answer to the question whether, in weighing a motion for judgment at the close of the plaintiff's case, the court may consider defense evidence brought in under Evidence Code section 776. The latter, of course, permits a party to call the adverse party as a witness and to examine him 'as if under cross-examination,' then permits his own counsel to examine him 'as if under redirect examination.'

In Eddy v. Gallaway, 11 Cal.App.3d 185, 192, 89 Cal.Rptr. 491, this court held that defense exhibits received during cross-examination for the purpose of impeaching the credibility of the plaintiff's witnesses could be considered in weighing a section 631.8 motion. Eddy v. Gallaway did not involve evidence adduced by the defendant under Evidence Code section 776.

In weighing motions for nonsuit or directed verdict in jury trials, a court may not consider evidence unfavorable to the plaintiff which has come in under Evidence Code section 776 during the course of the plaintiff's case. (Smellie v. Southern Pacific Co., 212 Cal. 540, 559, 299 P. 529; Wilson v. County of Los Angeles, 21 Cal.App.3d 308, 315, 98 Cal.Rptr. 525; Goggin v. Reliance Ins. Co., 200 Cal.App.2d 361, 364, 19 Cal.Rptr. 446; Witkin, Cal.Evidence (2d ed.) § 1193.) The limitation is usually ascribed to the court's lack of authority to weigh the plaintiff's evidence. (Goggin v. Reliance Ins. Co., supra, 200 Cal.App.2d at p. 364, 19 Cal.Rptr. 446; see also, Crowe v. McBride, 25 Cal.2d 318, 319, 153 P.2d 727; Leonard v. Watsonville Community...