L. A. No. 6064.
August 3, 1920.
APPEAL from a judgment of the Superior Court of Los Angeles County. Dana R. Weller, Judge. Affirmed.
The facts are stated in the opinion of the court.
E.E. Rogers and Richard Kittrelle for Appellant.
John G. Harrah and Rush M. Blodget for Respondent.
This action was brought by plaintiff against the executrix of the estate of Alfred E. Blake, deceased, to recover the sum of five thousand five hundred dollars. The complaint contains two counts. The first count is based upon a promissory note for five thousand dollars, alleged to have been "made, executed and delivered" by decedent; the second count seeks to recover the sum of five hundred dollars, alleged to have been loaned to decedent by plaintiff. The trial court rendered judgment in favor of the defendant and against the plaintiff on both counts of the complaint, and plaintiff appeals upon the ground that the findings and judgment of the trial court are not supported by the evidence. The position of appellant is predicated upon the proposition that there is no conflict whatever in the evidence, and that all of the evidence supports the allegations of the complaint.
The promissory note for five thousand dollars is written on the back of an old photograph of the mother of decedent and is in the following words:
" July 13, "1917
" I, Alfred E. Blake, do hereby acknowledge a debt for loans and very kind services, from Lordy Rolland to me, the debt I owe is $5,000 thousand dollars gold American coin to be paid at my death. Alfred E. Blake."
It is an admitted fact in the case that the words above italicized are in a different handwriting from that of the rest of the note. In support of the allegations of the execution and delivery of this note, two witnesses testified that the following events occurred in their presence. On the evening of July 13, 1917, the date of the note, the witnesses were, together with decedent, at the home of plaintiff. Decedent requested a piece of paper, pen, and ink, which were brought. Instead of using these, however, he took up the photograph of his mother, which was standing on the table, removed it from its frame, and, after erasing, with a moistened handkerchief, some writing on the back of the photograph, handed it to plaintiff with directions to write on the back thereof at his dictation. When plaintiff had finished writing, decedent signed his name on the back of the photograph, returning it to plaintiff with instructions to keep it. It was also stated that decedent did not request plaintiff to do the writing until he had himself started to write and found there was insufficient ink in his fountain-pen, thus accounting for the first few words of the note in decedent's handwriting. One of these witnesses, Clinton Marr, a boy employed to wheel decedent about in a wheel-chair, testified that, about a month later, plaintiff gave him the same picture, which had, in the meantime, been replaced in its frame, and told him to take it to decedent. According to the further testimony of this witness, decedent, upon receiving the photograph, called plaintiff on the telephone, telling her that she should have kept the picture, because it was her only protection, and that she must come over and get it. The picture remained at the home of decedent until his death, October 31, 1917. Thereafter it was given by defendant to plaintiff upon the latter's request. Three other witnesses testified that decedent had told them, at different times, that he had borrowed quite a sum of money from plaintiff and that he had given her a note therefor. One of these witnesses stated that plaintiff was worried about some loans she had made to decedent, and, at her suggestion, he mentioned the matter to decedent. During the ensuing conversation, so the witness stated, decedent said that he had borrowed five thousand dollars from plaintiff but that she was protected by a note. In response to an inquiry from the witness as to why decedent had borrowed money from the plaintiff when he had property of his own, the answer of decedent was, as quoted by the witness: "Well, you borrow it from the bank, something happens to me if this gangrene sets in on me again, they will take my property and everything away from me; that is the reason. Why should I go to the bank and borrow money when I have friends to help me out of my difficulty."
The above testimony in favor of plaintiff may be resolved into the three following fundamental factors, namely: (1) that two witnesses saw plaintiff write on the back of the photograph on July 13, 1917, in the presence of decedent and at his dictation; (2) that thereafter the same witnesses saw decedent sign his name on the back of the photograph and deliver the same to plaintiff; (3) that decedent made statements to certain persons that plaintiff had loaned him five thousand dollars and that she was protected by a note from him.
As stated in Hoppe v. Robb, 1 Cal. 373, and repeated in nearly every subsequent volume of the California Reports, the findings of the trial court upon conflicting evidence are conclusive, and all reasonable inferences are to be indulged to support the findings. It therefore remains to be determined whether there was any conflicting evidence on these salient points to support the finding of the trial court that: "It is not true that within the county of Los Angeles, state of California, on the thirteenth day of July, 1917, or at any other place, or at any other time, or at all, that the said decedent, Alfred E. Blake, made, executed, and delivered, or made, executed, or delivered, his promissory note in words and figures as set out in paragraph II of plaintiff's complaint in this action."
In behalf of defendant, a handwriting expert testified, giving in full the reasons upon which his opinion was based, that the words above italicized could not have been written on July 13, 1917, and that they had, in his opinion, been written approximately ten years ago. In derogation of this testimony appellant cites the statement in Grigsby v. Clear Lake Water Co., 40 Cal. 405, to the effect that expert witnesses "are generally but adroit advocates of the theory upon which the party calling them relies, rather than impartial experts, upon whose superior judgment and learning the jury can safely rely."  Whatever the individual opinion as to the value of expert testimony, it has been clearly settled in this state that, as regards the preference or weight to be given the testimony in any particular case, the law makes no distinction between expert testimony and evidence of other character, and that, when there is a conflict between scientific testimony and testimony as to the facts, the jury, or trial court, must determine the relative weight of the evidence. ( Estate of Blake, 136 Cal. 306, [89 Am. St. Rep. 135, 68 P. 827]; Watson v. Watson, 58 Mich. 507, [25 N.W. 497].) Moreover, the note itself, which was offered and received in evidence, affords, by reason of the relative position and condition of its parts, intrinsic evidence amply sufficient to warrant a person, even in the absence of any scientific testimony on the question, in concluding, from ordinary observation, that the name of decedent and the words "July 13" were written on the back of the photograph before the rest of the writing was placed there.
Appellant contends that, in view of the fact that there is no dispute that the signature appearing on the back of the photograph is the signature of decedent, and in view of the direct testimony that decedent delivered the note to plaintiff in the presence of two witnesses after the plaintiff had written thereon, the note must be held binding upon the estate of decedent and the time when the signature was placed on the back of the photograph is immaterial. This assumes that the testimony as to the delivery of the note under the above-mentioned conditions is uncontradicted and entirely trustworthy, which is not the case.  If the evidence adduced by defendant as to the relative date of the signature of decedent was sufficient, in the mind of the trial judge, to disprove the direct and positive statements of the two witnesses in behalf of plaintiff that they saw decedent sign his name on the back of the photograph under the described circumstances, it was exclusively within the province of the same judge to determine to what extent the falsity of this part of the testimony of the two witnesses affected the credibility of the other statements of the same witnesses concerning contemporaneous occurrences, namely, the writing by plaintiff at decedent's direction and the delivery of the note to plaintiff by decedent. (Code Civ. Proc., sec. 2061, subd. 3; Robinson v. Robinson, 159 Cal. 203, [ 113 P. 155].) Furthermore, the testimony of plaintiff's witnesses on this phase of the case is not entirely uncontradicted by defendant's witnesses, for a witness for defendant testified that, four nights before decedent's death, she examined this particular photograph, among others on decedent's desk, and, although she had the picture out of its frame and looked at the back of it, she noticed no dark writing, such as that claimed to have been written by plaintiff, but only light writing, such as the name of decedent. She also testified that all of the other pictures of decedent which she saw at that time bore his name on the back, and that her attention would have been attracted by any heavy writing such as that now appearing on this photograph. Counsel for appellant observe that this testimony is indefinite and unsatisfactory, in that this witness did not testify that there was, in fact, no writing on the back of the photograph other than the name of decedent. It may be pointed out, in reply, that the testimony in behalf of plaintiff in identification of the handwriting other than decedent's was equally indefinite and uncertain, for there was no testimony that the words claimed to have been written by plaintiff and now appearing on the back of the photograph were the ones which were written at decedent's dictation. On the other hand, both of plaintiff's witnesses who claim to have seen the delivery of the note testified that they did not hear what decedent dictated to plaintiff and that they never saw what was written by plaintiff. One of these witnesses stated that she did not know whether or not the writing which is now on the back of the photograph is the same writing that was there when she saw decedent sign his name; the testimony of the other witness is silent on this point. There must also be taken into consideration the testimony of defendant that her attention was not called to the writing on the back of the photograph at the time that plaintiff asked defendant for the picture, but that, subsequent to decedent's death and a few days after she had given the photograph to plaintiff, the latter for the first time showed her the writing on the back thereof and, upon being told by defendant that it was not in decedent's handwriting, said: "I know it is not; I have just written that. . . . It is just a copy of what was on there."
In contradiction of the testimony of witnesses as to statements made by decedent that he had given a note to plaintiff for money borrowed by him, there stands the testimony of defendant that decedent had stated to her that he did not owe anyone a cent and that there were no debts against his estate.
From the foregoing analysis of the evidence adduced upon the whole case it is evident that the finding of the trial court, if not unavoidable, was at least justifiable. ..
Upon the issue of the loan of five hundred dollars there was simply the testimony of the boy, Clinton Marr, that, when plaintiff told him to take the photograph to decedent, she also gave him a handkerchief, which, plaintiff stated to witness, contained five hundred dollars. When this was delivered to decedent, he remarked that he had not seen so much money for a long time. There is an entire absence of testimony as to the purpose for which this money was sent to decedent.  "It is a presumption that money paid by one to another was due to the latter," and such a presumption is satisfactory if uncontradicted. (Code Civ. Proc., sec. 1963, subd. 7; Fox v. Monahan, 8 Cal.App. 707, [ 97 P. 765].) The testimony of witnesses as to decedent's statements that he had borrowed money from plaintiff cannot be considered as relating to the five hundred dollar loan, for they all include the statement that decedent had given plaintiff a note for the money borrowed, whereas the five hundred dollar loan is claimed to have been unsecured by note. Obviously these statements were introduced in support of the action on the five thousand dollar note. Even if this evidence could be considered as relating to the five hundred dollar loan, it is contradicted by the testimony of defendant above referred to, namely, that decedent told her he owed nothing.
The evidence supports the findings, which, in turn, support the judgment. The judgment is affirmed.
Wilbur, J., and Sloane, J., concurred.