Whitney v. Canadian Bank of Commerce

374 P.2d 441, 232 Or. 1, 1962 Ore. LEXIS 405

• Court: Oregon Supreme Court
• Decided: September 6, 1962
• Status: Published

Opinions

ROSSMAN, J.

This is an appeal by the State of Oregon, intervenor, from a part of a decree of the circuit court. Before quoting the part of the decree challenged by the appeal, we state that ORS 19.023 authorizes appeals from parts of judgments and decrees (see also ORS 19.005 (2)). Hall et al v. Dolph et al and Watkins et al, 184 Or 319, 198 P 2d 272, illustrates the operation of partial appeals and indicates that the appellant is not handicapped by the fact that he appeals from only a part. The decree ruled that the defendant, Canadian Bank of Commerce:

“* * * pay over to W. Stanley Welbom as administrator of the Estate of Victor Molin, deceased, moneys now on deposit in said bank in the name of Victor Molin, that is, both the sayings and commercial accounts * * * with any balance remaining after such payments to be paid * * * to Palma J. Whitney * *

The plaintiff is the aforementioned Palma J. Whitney; she instituted this suit against the bank upon averments that shortly prior to his death the fore-named Victor Molin made to her a gift causa mortis of the two bank accounts. After the suit had been instituted Dr. W. Stanley Welborn, mentioned in the quoted passage, was appointed administrator of the deceased’s estate and then leave was granted to him to become an intervenor. Later, when the State Land Board heard of the estate and became apprised that Molin had no heirs, the circuit court permitted the state to become an intervener so that it could claim an escheat. The pleading of the state, as well as that of the administrator, denied the plaintiff’s averments that the gift had been made. The decree, as we have seen, sustained the plaintiff’s complaint.

Molin, the deceased, possessed the two accounts with the defendant bank. One in the sum of $6,000 was a commercial account. The other in the amount of $6,364.34 was of the savings kind.

After Molin had been a patient for some time of Multnomah County’s hospital he became a paying guest of a hotel which the plaintiff operates for elderly incapacitated persons. The plaintiff claims that a few days after Molin had become a guest he became seriously ill and was taken at once to Physicians and Surgeons’ Hospital in Portland.

The plaintiff gave two accounts of the purported gift which contradict and impeach each other. The two accounts cannot be true. They differ in such matters as time, place and persons present. The plaintiff made no effort to account for the serious contradictions. One of her accounts is stated in her complaint. It is, of course, under oath and over her signature. The other account was given by her as a witness. Upon appeal the plaintiff does not contend that the contradictions do not exist, nor does she undertake to explain them. Her attorney argues, however, “admissions in a pleading that have been amended are extra-judicial,” and states that the “original” complaint containing one of the versions of the purported gift was amended. He claims that it was succeeded by an amended complaint and that the original complaint thereupon ceased to be a pleading. According to him, it was necessary to introduce the “original pleading” into evidence in order to enable the court to look at it and that it was not introduced. The truth is that the complaint was never amended. It was not succeeded by an amended pleading or by anything else. It was not even amended by interlineation. The record contains no order permitting an amendment. Accordingly, the two contradictory accounts of the purported gift are before us. They are unexplained. If either of the two is accepted, the other is impeached. That being true, since both accounts were given by the plaintiff, her credibility as a witness is seriously impaired.

The plaintiff’s story stands virtually alone. She produced no witness who said he saw the delivery of the two books. The plaintiff’s acquaintanceship with Molin was based upon Ms few days’ stay in her hotel. If she had any conversations with him. in that period of time she did not mention them. She expressed her relationship with Molin in this way: “I was simply his landlady, that is all.”

If the plaintiff told the truth, not less than three persons saw or knew something concerning the making of the alleged gift. One of the three was an employee of the plaintiff. Another of the three was a nurse in the employ of Physicians and Surgeons’ Hospital. And the third was an employee of the defendant bank whom the plaintiff consulted about the purported gift. The plaintiff did not call any one of those three persons and gave no explanation of her failure to have done so.

When evidence is within the power of a party to produce and he does not produce it, the evidence which he has produced “should be viewed with mistrust.” OES 17.250 (7). And that which he fails to produce should be presumed to be “adverse” to him. OES 41.360 (5), (6).

Grignon v. Shope, 100 Or 611, 197 P 317, in referring to gifts causa mortis, stated:

“* * * They are liable to occasion fraud and are subject to many mistakes. They are made with-cut the safeguards cast by the ¡law around the execution of wills. Care should be taken in scrutinizing the evidence of such a gift * *

The plaintiff was at full liberty and subject to a duty to reveal the full truth about the alleged gift. The duty was hers and not that cf someone else. Nc one silenced her or curtailed her time as a witness. It was the duty of this plaintiff to have cleared the alleged gift of circumstances that cast reasonable discredit upon it. A claimant to a gift causa mortis is not entitled to it as long as there lingers in the transaction out 'of which it arose misgivings that cause reasonable minds to hesitate and to doubt its fairness and voluntary character. The plaintiff has made no attempt to explain even the contradictory accounts for which she herself is responsible. Each of her accounts was made under oath. Since both accounts cannot be true, one or both of them must be false.

The foregoing is brief. The court has studied the record with extreme care. The above represents its reaction to it. Since we view the issues of fact adversely to the plaintiff, it is unnecessary for us to express an opinion as to whether or not the delivery of a commercial bank book in the course of a purported gift causa mortis suffices to carry the gift. Therefore, we express no opinion whatever upon that phase of the case.

The part of the decree from which the appeal is taken is reversed.