Tanzola v. De Rita

• Decision Date: 12 July 1955
• Citation: 45 Cal.2d 1,285 P.2d 897
• Court: California Supreme Court
• Parties: Joseph TANZOLA, Plaintiff and Respondent, v. John DE RITA, Executor of Last Will and Testament of Angelo Pipolo, deceased, Defendant and Appellant. L. A. 23642.

Page 897

285 P.2d 897

45 Cal.2d 1

Joseph TANZOLA, Plaintiff and Respondent, v. John DE RITA, Executor of Last Will and Testament of Angelo Pipolo, deceased, Defendant and Appellant.

L. A. 23642.

Supreme Court of California, In Bank.

July 12, 1955.

Arnerich, del Valle & Sinatra and Bernard J. del Valle, Los Angeles, for appellant.

George J. Tapper and Jack D. Most, Los Angeles, for respondent.

SCHAUER, Justice.

Defendant executor appeals from a judgment rendered by the court without a jury, by which plaintiff was awarded recovery of money allegedly loaned to defendant's decedent, Angelo Pipolo, and evidenced by two checks. Plaintiff's claim therefor had been rejected by defendant executor. We have concluded that the trial court did not err in admitting certain testimony of decedent's surviving wife, claimed by defendant to be a privileged marital communication; that other claims of error are likewise without merit; and that the judgment should be affirmed.

Plaintiff alleged and the trial court found that on November 10, 1949, plaintiff loaned Pipolo $6,000 by delivering plaintiff's personal check to Pipolo in that amount; on December 16, 1949, plaintiff loaned Pipolo another $6,000 by delivery of a second check. Meanwhile, on November 26, 1949, Pipolo and his surviving wife, Olga, intermarried. She endorsed the two checks with Pipolo's name and deposited them in the Pipolo bank account.

At the trial Mrs. Pipolo, as plaintiff's witness, testified that the decedent, Pipolo, had operated two prescription pharmacies; that she had been his employe for some seven or eight years prior to their marriage and as such had done, among other duties, 'all of his book work. * * * Shortly after I went to work for him, I should say in 1942 or '43 * * * He said he couldn't be bothered with the trivial book work and he wanted me to handle all of his deposits, all of the transactions pertaining to the bank. * * * (H)e gave me permission to (endorse his name and said that) * * * Rather than to trouble him when he was busy, he wanted me to sign his name and make his deposits for him.' Thereafter 'I handled all of his banking for him, and all of his book work,' including 'signing his name * * * On all occasions * * * Particularly in endorsing his name on checks and making his deposits. * * * (He said) That if he wasn't present at any time, I was to sign his name * * * (to) Anything pertaining to the pharmacy or anything pertaining to his personal business. * * *' The witness and decedent first became engaged to be married in 1945, and in 1949 they commenced building a home. Decedent lacked money to complete the home, and in October or November, 1949, before the marriage, decedent in the presence of the witness asked plaintiff 'if he could lend him $12,000 in order to complete the home, and Mr. Tanzola agreed. * * * He said he would lend it to him with the understanding that if he needed the money, that Mr. Pipolo would pay it back on demand, and Mr. Pipolo said he would then borrow the money on the completed home, if it became necessary. * * * Mr. Tanzola agreed to let him have it, when he needed it, which Mr. Pipolo explained would be very soon, in the next few weeks.' Thereafter, on November 11 or 12, 1949, the first $6,000 check from plaintiff arrived in the mail at one of the pharmacies. The check, payable to decedent, bore the word 'loan' on its face, and after endorsing decedent's name on the back, the witness deposited the check in decedent's checking account at the bank.

Subsequently, on November 26, 1949, the witness became Mrs. Pipolo. Over objection by defendant on the ground that matters thereafter occurring constituted privileged communications between husband and wife within the provisions of subdivision 1 of section 1881 of the Code of Civil Procedure, the trial court permitted the witness to further testify as follows: 'Mrs. Pipolo, did you see a check which I now show you, dated December 16, 1949, in the sum of $6000? A. I did. * * *

'What and where did you see this particular check dated December 16, 1949? A. My husband brought it to me. He had called on Mr. Tanzola and picked it up * * *

'Q. By Mr. Most (Plaintiff's attorney): Let me caution you to forget what your husband did. Where did you first see this check? A. It was placed on my desk at the pharmacy.

'Q. Approximately when? A. I believe on the same date that his check was picked up * * *

'Q. Where did you see this * * * (check) immediately before it came into your possession? A. In the hands of my husband * * * At the pharmacy * * *

'Q. I show you a signature on the back, 'Angelo Pipolo', and ask you who wrote that signature? A. I did. * * *

'Q. What did you do with that check after signing it? A. I took it to the Citizens National Bank and deposited it into Mr. Pipolo's (personal) account.'

Mrs. Pipolo further stated that the word 'loan' also appeared on the face of this second check when she first saw it; the check was payable to Angelo Pipolo.

Deposit of two $6,000 items in the Pipolo checking account on approximately the dates of the two checks was confirmed by testimony of a back employe; the employe also stated that on February 2, 1949, decedent 'gave a power of attorney to Olga Metrovitsch,' the witness who later became Mrs. Pipolo. The power of attorney, addressed to the bank and signed by decedent, bore a sample signature of Olga Metrovitsch and stated that 'with reference to my checking account' she 'is hereby authorized to sign and endorse checks, notes and drafts, and transact all business with your bank in my name, as my attorney.' There was no evidence that the power of attorney was revoked during Mr. Pipolo's lifetime. However, following the marriage and on December 7, 1949, the name of the account was changed from that of Angelo Pipolo only, to 'Angelo or Olga Pipolo.'

Defendant's first contention on appeal is that the testimony of Mrs. Pipolo concerning the check of December 16 (i. e., as to events occurring after the marriage) was admitted in violation of the provision of subdivision 1 of section 1881 of the Code of Civil Procedure that neither husband nor wife can, 'during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage * * *' The view of the trial court as expressed in ruling upon defendant's objections to such testimony was that it was admissible so long as it did not involve a communication between husband and wife, and that the wife can testify to matters she knows of her own knowledge in the absence of communication. In this view the court was correct.

In discussing the attorney-client privilege, likewise found in section 1881 of the Code of Civil Procedure, this court observed in City & County of San Francisco v. Superior Court (1951), 37 Cal.2d 227, 234-235, 231 P.2d 26, 25 A.L.R.2d 1418, that 'This privilege is strictly construed, since it suppresses relevent facts that may be necessary for a just decision. (Citations.) It cannot be invoked unless the client intended the communication to be confidential (citations) * * *

'The privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence * * *

'The privilege embraces not only oral or written statements but actions, signs, or other means of communicating information by a client to his attorney. (Citations.) '(A)lmost any act, done by the client in the sight of the attorney and during the consultation, may conceivably be done by the client as the subject of a communication, and the only question will be whether, in the circumstances of the case, it was intended to be done as such. The client, supposedly, may make a specimen of his handwriting for the attorney's information, or may exhibit an identifying scar, or may show a secret token. If any of these acts are done as part of a communication to the attorney, and if further the communication is intended to be confidential * * *, the privilege comes into play.' (8 Wigmore, supra, § 2306, p. 590.)'

It is further established that the burden is upon the party seeking to suppress the evidence to show that it is within the terms of the statute. (Sharon v. Sharon (1889), 79 Cal. 633, 677, 22 P. 26, 131; see also Dwelly v. McReynolds (1936), 6 Cal.2d 128, 131, 56 P.2d 1232; Collette v. Sarrasin (1920), 184 Cal. 283, 288-289, 193 P. 571; Samish v. Superior Court (1938), 28 Cal.App.2d 685, 695, 83 P.2d 305.) Any contrary implications found in People v. Mullings (1890), 83 Cal. 138, 140, 23 P. 229, must be deemed overruled.

As pointed out by defendant himself it was declared in In re De Neef (1941), 42 Cal.App.2d 691, 693-694, 109 P.2d 741, that 'The privilege relating to testimony disclosing confidential communications between husband and wife is like that stated in the other subdivisions of section 1881 relating to attorney and client, physician and patient, and a clergyman and one making a confession. * * *'

It has also been held that the fact of communicating, as distinguished from the substance thereof, does not fall within the privilege. Thus, in Poulson v. Stanley (1898), 122 Cal. 655, 658, 55 P. 605, the court declared that 'The delivery of a deed is not a 'communication' within the meaning of' section 1881. A wife, however, may not testify as to her husband's intent or purpose in making a conveyance. (Emmons v. Barton (1895), 109 Cal. 662, 669, 42 P. 303; Haller v. Haller (1929), 102 Cal.App. 370, 374, 283 P. 94.) In Estate of Pusey (1919), 180 Cal. 368, 374, 181 P. 648, a wife's testimony as to conversations between herself and her husband before as well as after t...