Roy v. Salisbury , 21 Cal. 2d 176 ( 1942 )

TRATNOR, J.

— I dissent. Section 1880 of the Code of Civil Procedure provides: “The following persons cannot be witnesses : . . . 3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim, or demand against the estate of a deceased person, as to any matter or fact occurring before the death of such deceased person.” The wisdom of such a statute has been a matter of controversy for so long that it may well be time for the Legislature to make a re-examination that will freshly evaluate the protection of estates from false claims and the ensuing risk of defeating just claims. (See Wigmore on Evidence (3d ed.) §§ 578, 1576, 2165.) In any event the section should be amended or repealed only by the Legislature. Its revision cannot properly be undertaken by the court, which could resort only to quibbles over words, as it does in the present case by labelling the agreement between the husband and wife a relinquishment rather than an assignment.

Perkins v. Sunset Tel. & Tel., 155 Cal. 712 [103 P. 190], upon which the majority opinion relies, in no way concerned section 1880(3) of the Code of Civil Procedure. Moreover, ten years before the cause of action for the injuries to the wife arose the husband and wife agreed that all community property acquired in the future should be the separate property of the wife, and the reference to the agreement succeeding the cause of action was therefore dictum unnecessary to the decision.

In the light of all the evidence it is not improbable that a different judgment would have been reached had the erroneously admitted evidence been excluded. Since the error is therefore prejudicial the judgment should be reversed.

Edmonds, J., concurred.