Cullen v. Spremo

• Decision Date: 14 June 1956
• Citation: 298 P.2d 579,142 Cal.App.2d 225
• Court: California Court of Appeals Court of Appeals
• Parties: Olga CULLEN, as Administratrix of the Estate of Luka Vujovich, Deceased, and Elena Vujovich, an Incompetent, by Olga Cullen, as Guardian ad litem, Plaintiffs, Cross-Defendants and Appellants, v. Risto J. SPREMO and Eleanor Spremo, his wife, Defendants, Cross-Complainants, and Respondents. Civ. 16623.

Page 579

298 P.2d 579

142 Cal.App.2d 225

Olga CULLEN, as Administratrix of the Estate of Luka Vujovich, Deceased, and Elena Vujovich, an Incompetent, by Olga Cullen, as Guardian ad litem, Plaintiffs, Cross-Defendants and Appellants, v. Risto J. SPREMO and Eleanor Spremo, his wife, Defendants, Cross-Complainants, and Respondents.

Civ. 16623.

District Court of Appeal, First District, Division 2, California.

June 14, 1956.

Frank J. O'Brien, San Francisco, for appellants.

Vladimir Vucinich, Joseph A. Kiernan, San Francisco, for respondents.

DEVINE, Justice pro tem.

Olga Cullen is the administratrix of the estate of her deceased father, Luka Vujovich, and is guardian ad litem of her mother, an incompetent person. She is referred to herein as plaintiff, although the incompetent person herself also is a plaintiff, by her guardian. Plaintiff brought an action to set aside a deed made by her father on the grounds, first, that the property was community property, and that the deed by the single spouse, her father, was ineffective to convey title, and second, that the defendants held a confidential relationship towards the grantor and that they obtained the deed without consideration and by undue influence. By their answer, defendants generally denied these allegations and by cross-complaint, they alleged their ownership of the property and sought to have title quieted in them. The allegations of the cross-complaint, in turn, were met by general denial in answer to the cross-complaint. At the trial, upon conclusion of plaintiff's case, the court granted defendants' motion for nonsuit, granted a motion for summary judgment for cross-complaints, and granted their motion to reform the deed in question, which admittedly contained an error in description of the property.

The first ground of appeal from the judgment of nonsuit is that no grounds were specified in defendants' motion. The grounds for nonsuit must be stated. Lawless v. Calaway, 24 Cal.2d 81, 94, 147 P.2d 604. It is argued by respondents that the record shows that there was 'argument' preceding the granting of the motion; that it must be inferred that the grounds were specified in the motion; that the defects in plaintiff's case were such that plaintiff could not have cured them even though they had been specifically stated; and that no motion to re-open was made between the time the motion for nonsuit was made and the time of the granting thereof. We cannot tell what specific grounds, if any, for the nonsuit were stated in the unreported argument, and because grounds not specified in a motion will be considered on appeal only if it is clear that the defect is one which could not have been remedied if it had been called to the attention of plaintiff by the motion, Lawless v. Calaway, supra, 24 Cal.2d at page 94, 147 P. 604, we believe the judgment of nonsuit must be reversed on this ground. The fact that plaintiff did not move to re-open does not help respondents in the absence of a showing that the asserted legal deficiencies of her cause were so described to her counsel on the motion for nonsuit that he could make the motion to re-open with a view to remedying, if possible, the stated inadequacies of his pleading or proof.

So far as the nonsuit is concerned, we might stop with the above, but we think that, the case being remanded, it is appropriate for us to observe that even if the grounds relied on by respondents on this appeal had been fully stated at the time of the motion for nonsuit and if plaintiff did not present any additional evidence, the judgment of nonsuit should not have been granted. This we do in part by way of giving an additional reason for our decision and in part for use at another trial.

We proceed to a review of the evidence in the light of the law that the rules as to nonsuit are the same when a case is tried by the court as when it is tried by a jury. Szopieray v. West Berkeley, etc. Co., 194 Cal. 106, 109, 227 P. 720; Hale v. Safeway Stores, 129 Cal.App.2d 124, 131, 276 P.2d 118. However, we shall consider only the major items of claimed contributions of community property to the deeded estate.

The mother of plaintiff and wife of decedent grantor had been adjudged incompetent since February 9, 1931, and was an incompetent person at all times relevant to this case. Thus, she was unable to dispose of any interest in the property of the community or to make any agreement with respect thereto, and if the property purportedly conveyed by the husband's deed to defendants was community property, it was ineffective to convey his spouse's interest, section 172a, Civil Code; although the disposition even of community property by a husband who has deceased since the conveyance is equivalent to a valid testamentary disposition of his interest therein, Britton v. Hammell, 4 Cal.2d 690, 52 P.2d 221.

The land itself was acquired by the husband by inheritance from his brother, and was his separate property. If, however, improvements on the property were made from community property, they would not become separate property of the husband by his action alone, with no assent or agreement of his wife, Wheeland v. Rodgers, 20 Cal.2d 218, 222, 124 P.2d 816; Provost v. Provost, 102 Cal.App. 775, 780-781, 283 P. 842; Estate of Chandler's Estate, 112 Cal.App. 601, 604, 297 P.2d 636; Long v. Long, 88 Cal.App.2d 544, 548, 199 P.2d 47, and the wife was incompetent to make any agreement.

Decedent received a pension from United States Steel Corporation, where he had worked for 30 or 35 years during all of which time he was married to Elena, now incompetent. The pension was community property. French v. French, 17 Cal.2d 775, 112 P.2d 235, 134 A.L.R. 366; Crossan v. Crossan, 35 Cal.App.2d 39, 94 P.2d 609. Plaintiff testified that this money 'went into the land.' When she was asked if she had knowledge of this herself she replied she had none except what her father told her. The statement 'what he told (her)' was stricken upon a motion which was not accompanied by any stated reason, but the testimony that the pension went into the land remains in the record. Moreover, we believe it would not be hearsay (if that was the unrevealed basis of the motion to strike), because it would be a declaration against interest in favor of his spouse made by a deceased grantor, and thus admissible against his successor in interest. Sections 1849-1853, Code of Civ.Proc.; In re Estate of Hill, 167 Cal. 59, 65, 138 P. 690; Wright v. Best, 19 Cal.2d 368, 379, 121 P.2d 702.

A life insurance policy was paid for largely, if not completely, it may be inferred, from community founds and, therefore, was community property. Union Mutual Life Ins. Co., v. Broderick, 196 Cal. 497, 238 P. 1034. This was paid up in 1943. In 1947, the house which had stood on the land was destroyed by fire, and was rebuilt by decedent in 1947. Plaintiff testified without objection that the money for rebuilding came from cashing the life insurance. Although she admitted on cross-examination that she did not see the life insurance check cashed nor disbursed, her testimony as given on direct examination stands, and here again, it may be that her conclusion thus testified to, is the result of statements made to her by her father. Even evidence which is legally inadmissible, whether objected to or not, if it is in the record is to be considered, if it is relevant, in favor of plaintiff on motion for nonsuit. Gregg v. Western Pacific Ry. Co., 193 Cal. 212, 216, 223 P. 553.

The same holds true as to the proceeds of the sale of a home in San Francisco which belonged to both spouses. In presenting her case, plaintiff testified without objection that the proceeds went into the land. Although this may have been weakened by cross-examination nevertheless, a conflict remained which would have to be resolved...