Rouse v. Underwood

• Decision Date: 19 May 1966
• Citation: 242 Cal.App.2d 316,51 Cal.Rptr. 437
• Court: California Court of Appeals Court of Appeals
• Parties: Lewis Earl ROUSE, individually and as Administrator, etc., Plaintiff and Appellant, v. Norvell B. UNDERWOOD et al., Defendants and Respondents. Civ. 257.

Page 437

51 Cal.Rptr. 437

242 Cal.App.2d 316

Lewis Earl ROUSE, individually and as Administrator, etc., Plaintiff and Appellant, v. Norvell B. UNDERWOOD et al., Defendants and Respondents.

Civ. 257.

District Court of Appeal, Fifth District,

California.

May 19, 1966.

Staniford, Harris & Loomis, and John E. Loomis, Fresno, for appellant.

Conron, Heard, James & Hamilton, and Wayne M. Hamilton, Bakersfield, for respondents.

CONLEY, Presiding Justice.

This is an appeal from a judgment for defendants in a suit brought by Lewis Earl Rouse, individually and as administrator of the estate of Elizabeth B. Rouse, his deceased wife, the ultimate aim of which is to recover certain personal property which he claims is community in nature and which allegedly was transferred by his spouse during her lifetime without his knowledge or consent. After a 26-day trial in which there were 350 exhibits for plaintiff, 50 exhibits for defendants and almost 3,000 pages of testimony, the judge presiding determined that the claims of the plaintiff were barred by laches, estoppel and acquiescence.

The defendants are Norvell B. Underwood, the decedent's sister, Herbert A. Underwood, her husband, and Elizabeth Jane White, a daughter of Norvell and Herbert, and hence a niece of the decedent. At times in this opinion the defendants are referred to for convenience by their Christian names.

The notice of appeal, prepared and filed by plaintiff's trial counsel (now deceased and replaced on this appeal by other attorneys), recites that the appeal is on 'the issues raised by Paragraphs II, III and IV of the Third Cause of Action, relating to the corporate shares; a certain automobile and certain monies in bank, held in joint tenancy by Elizabeth B. Rouse, deceased and certain of the defendants at the time of her death, and to that part of the judgment adjudging that the plaintiffs own no portion of said property, and denying recovery to the plaintiffs of any portion of such jointly held property.'

'It is, of course, proper for an appellant to appeal only from a severable portion of a judgment. (American Enterprise, Inc. v. Van Winkle, 39 Cal.2d 210, 216, 246 P.2d 935; * * ' (Page v. Bakersfield, etc., Towel Supply Co., 239 A.C.A. 847, 853, 49 Cal.Rptr. 46, 50.)

In view of this express limitation in the notice of appeal, numerous issues mentioned in appellant's briefs are not within the legitimate scope of review and must necessarily be disregarded or merely mentioned in passing. Our inquiry is limited to the issues raised by paragraphs, II, III and IV of the third cause of action of plaintiff's first amended complaint. Paragraph II alleges that the defendants entered into an effective plan, without the knowledge or consent of the plaintiff, to convert funds and property of the Rouse community, consisting of (1) various bank accounts opened and maintained in the names of the decedent and Norvell, or in the names of the decedent, Norvell and Elizabeth, as joint tenants; (2) a 1951 Dodge automobile registered in the joint names of the decedent, Norvell and Elizabeth; and (3 certain described shares of the capital stock of Standard Oil Company of California and of Procter & Gamble Company, some standing in the names of the decedent and Norvell, as joint tenants, and some in the names of the decedent, Norvell and Elizabeth, as joint tenants. ¹ In paragraph III of the third cause of action it is alleged that the facts of the various transaction between the decedent and the defendants were concealed from the plaintiff and that he had no knowledge thereof until the period beginning December 15, 1955, and ending about March 1, 1956. Paragraph IV asserts that the defendants hold said property in trust for the plaintiff and that defendants have failed to account therefor or to deliver the property to the plaintiff.

The prayer of the first amended complaint seeks to impress a trust upon the personal property above mentioned and demands an accounting from the defendants.

The answer denies the material allegations of paragraphs II, III and IV of the third cause of action and raises numerous affirmative defenses, only two of which are relevant here, laches and estoppel. The judgment is predicated upon these two affirmative defenses, plus an incidental finding of presumed acquiescence.

After briefing, argument and submission relative to special findings, the trial judge filed a 'Memorandum Re Findings,' which illuminates the theory employed by him. (Estate of Bernard, 206 Cal.App.2d 375, 23 Cal.Rptr. 828. He declares that two fundamental principles are applicable: (1) Generally speaking, the findings should be on ultimate facts and not on the details of proof (Hayward Lbr. & Investment Co. v. Construction, etc., Corp., 110 Cal.App.2d 1, 241 P.2d 1054); and (2) the findings as adopted defeat a plaintiff's right of recovery, and the trial court is not required to make additional findings upon other issues. (Aguirre v. Fish & Game Commission 151 Cal.App.2d 469, 311 P.2d 903.) The trial court stated:

'I am convinced that findings covering the following matters in a brief, succinct manner would present a clear picture of the reasons for this court's decision. The plaintiff and the decedent were married on July 10, 1918 and lived as husband and wife until the decedent's death on April 25, 1951. Each was employed during substantially all of this time and their earnings constituted community property. Each also acquired other property which, initially, would be considered to be separate property. This property, or the proceeds thereof, was commingled with community property so as to lose its status as community (separate?) property. Throughout the marriage, decedent and her sister commingled certain of the community property of the two marital communities and acquired personal property in their joint names or jointly with the other defendants. In addition, decedent made certain gifts, principally to the defendant White, from community property. Plaintiff was aware of certain of this activity on the part of his wife and sister-in-law and made no objection thereto. In addition, plaintiff was in possession of information which would put a reasonably prudent person on inquiry as to the entire course of conduct of decedent. Decedent died testate. * * * By reason of plaintiff's delay in asserting his claim, death, age and the loss of physical evidence (have) acted to prejudice defendants in the presentation of their defense.'

In accordance therewith, the trial court then made express findings, including the following:

'6. Plaintiff, probably as early as 1923 and certainly by or before 1945, by personal observation and otherwise, obtained actual knowledge of the fact that his spouse and her sister were commingling funds that were the community property of the two marital communities, of the fact that his spouse and her sister had acquired personal property in their joint names, and of the fact that his wife had made gifts to her niece Elizabeth Jane White and to her sister Norvell B. Underwood. Such actual knowledge notwithstanding, with the exception of one occasion which occurred at the latest before midsummer of 1924, plaintiff never objected to this conduct on the part of the sisters collectively or his spouse individually but remained wholly silent concerning the same.

'7. In addition to the actual knowledge referred to hereinabove in finding No. 6, slight though it may have been, at all times during the course of the dealings between the sisters plaintiff also possessed knowledge of a host of other and further facts and circumstances sufficient to put an ordinarily prudent person on inquiry concerning the disposition being made by his deceased spouse of her earnings and of other funds and property that from time to time came into her possession; that such inquiry could easily have been pursued by the plaintiff; that, had such inquiry been pursued with diligence, plaintiff would have discovered the existence of the joint bank account being kept and maintained by the two sisters and the commingling of funds that were in origin the community property of the two separate marital communities, would have discovered the source of the funds being deposited in the joint bank account kept by the sisters, would have discovered the use being made of withdrawals therefrom, would have discovered the joint dealings in stocks and other personalty being carried on by the sisters, Norvell B. Underwood and Elizabeth B. Rouse, and would have discovered that from time to time his deceased wife had made gifts to her niece, the defendant Elizabeth Jane White.

'8. That from and after 1945 plaintiff was chargeable with knowledge, either actual or constructive, of all of the transactions occurring between his deceased spouse and these defendants, both before 1945 and subsequent thereto.

'9. That plaintiff's continued silence after he was chargeable with full knowledge of all the transactions was reasonably interpreted by the defendants as consent thereto, and that these defendants did change their position to their detriment in reliance thereon.

'* * * the

'16. The above-entitled action involved and concerned transactions between plaintiff and the decedent from and after 1918 and 1954, a period of thirty-six years, and between the decedent and the defendants covering the same period. Only the decedent and plaintiff were wholly and fully acquainted with all the details of their transactions. Only the decedent and defendant Norvell B. Underwood were wholly and fully acquainted with all of the details of the dealings between the said Elizabeth B. Rouse and the defendants. Elizabeth B. Rouse died approximately seven years before this trial commenced, and two years before this action was filed. At the time of trial defendant Norvell B. Underwood was aged more than seventy years and was failing in physical health and mental powers. The whole of the written records that were...