Miller v. Hepner, 18009

• Decision Date: 12 August 1957
• Docket Number: No. 18009,18009
• Parties: O. L. MILLER, Plaintiff in Error, v. Lillian HEPNER, Executrix of the Estate of A. J. Hepner, deceased, Lillian Hepner and W. & W. Inc., a Colorado corporation, Defendants in Error.
• Court: Colorado Supreme Court

Page 604

314 P.2d 604

136 Colo. 48

O. L. MILLER, Plaintiff in Error, v. Lillian HEPNER, Executrix of the Estate of A. J. Hepner deceased, Lillian Hepner and W. & W. Inc., a Colorado corporation, Defendants in Error.

No. 18009.

Supreme Court of Colorado, En Banc.

Aug. 12, 1957.

Rehearing Denied Sept. 9, 1957.

Solomon Girsh, Denver, for plaintiff in error.

James D. Doyle, Carl H. Seeliger, Jr., Denver, for defendants in error.

MOORE, Chief Justice.

This action was commenced on May 21, 1954, by plaintiff O. L. Miller against A. J. Hepner, Lillian Hepner and W. & W. Inc. On March 21, 1956, plaintiff filed an amended complaint, and the defendant A. J. Hepner having died in the meantime, his executrix Lillian Hepner was substituted as a party defendant.

The amended complaint contained two counts. In count 1 it was alleged that A. J Hepner, as an officer and director of defendant corporation, made unauthorized withdrawals from the corporation as alleged salary. Plaintiff prayed for an accounting. Count 2 was as follows: '1. That sometime after May 1, 1949, Plaintiff, defendants, A. J. Hepner and Lillian Hepner, entered into an agreement whereby defendant, A. J. Hepner, would pay unto each of the others such amounts received by him each month from the corporation as salary which was in excess of that which corporation would have been required to pay for management of the apartment house which is and was the sole property of the corporation. 2. That under the agreement defendant, A. J. Hepner, was obliged to pay unto plaintiff the sum of Forty-Seven Dollars and Eighty-Three Cents ($47.83) per month. That defendant, A. J. Hepner, has failed and refused to pay unto plaintiff the amounts due plaintiff under the terms of the agreement from and after March 31, 1951, despite repeated requests therefor. * * *'

Defendants filed general denials and alleged affirmatively that Count 1 was inconsistent with Count 2 in law and in fact.

On March 27, 1956, at a pretrial conference the trial court required plaintiff to elect between the counts of the amended complaint. Plaintiff elected to rely upon Count 2. Trial was to the court without a jury, and resulted in judgment of dismissal. Plaintiff, seeking reversal of the judgment brings the cause here on writ of error.

Plaintiff urges three propositions for reversal of the judgment: (1) That at the pretrial conference plaintiff was improperly required to elect between Count 1 and Count 2 of his amended complaint; (2) that upon the trial plaintiff's proffered testimony under C.R.S. 1953, 153-1-2(6) was improperly excluded as incompetent by the court; (3) that after plaintiff had been permitted to introduce in evidence a deposition of the deceased A. J. Hepner, plaintiff's proffered testimony in explanation of the deposition was improperly excluded as incompetent by the court. The factual situations pertinent to the question requiring our determination will be set forth in our discussion thereof. The disposition hereinafter made makes it unnecessary to consider the first point mentioned above, other than to say that ordinarily an election of counts should not be required of plaintiff prior to presentation of evidence offered by him upon the trial.

Question for Determination

Did the court err in excluding as incompetent the testimony of the plaintiff O. L. Miller, offered under C.R.S. 1953, 153-1-2(6)?

The question is answered in the affirmative. At the start of the trial the testimony of plaintiff was offered as to agreements, conversations and matters which took place in the presence of, by and with deceased, and also in the presence of his wife, now widow, Lillian Hepner, executrix and beneficiary of his estate and defendant in this action. Mrs. Hepner was present in court. Plaintiff's testimony was offered under C.R.S. 1953, 153-1-2(6). Defendants' counsel objected that plaintiff was incompetent to testify, citing Norris v. Bradshaw, infra. The trial court ruled, after reciting Count 2 of the amended complaint: 'That under the alleged agreement the said Lillian Hepner was a party to the agreement and thereby had an interest in the agreement. For that reasons under the cases cited by counsel for the defendants the objection is sustained.' The competency or incompetency of plaintiff's proffered testimony in his own behalf is determined by C.R.S. 1953, 153-1-2(6) which provides:

'In any such action, suit or proceeding, any adverse party or parties in interest may testify as to any conversation or admission, or as to all matters and things connected with the subject matter of said action, suit or proceeding, and which conversation and admission and matters and things, occurred before the death and in the presence of such deceased and also in the presence of any member of the family of such deceased person over the age of sixteen years, or in the presence of any heir, legatee or devisee of such deceased person over the age of sixteen years; provided, that such member of the family, heir, legatee or devisee as the case may be, is present at...