Defendants, James and Frances Spillane, appeal from the trial court's judgment ordering reconveyance of real property and awarding damages in favor of respondent.
The subject matter of the present litigation is the validity of a gift deed executed by respondent on December 18, 1964. By this deed respondent, the sole owner of residential property located at 87 States Street, San Francisco, created a joint tenancy in said property vesting a one-third undivided interest to appellants James Spillane and Frances Spillane
In July 1960 respondent lost her sister, her only living relative. The death of her sister wrought an unusually profound emotional strain upon respondent and triggered a downward mental and emotional trend in her life. As a consequence, respondent, an aging and lonely woman, became increasingly dependent upon a few friends upon whom she felt she could rely. Among these friends were appellants.
Toward the end of 1964 respondent asked Mr. Spillane to find an attorney to draft her will so that upon her passing she might reward some of those who had helped her during her lifetime. Mr. Spillane enlisted the services of his longtime friend, Mr. Sullivan, an attorney. Mr. Spillane spoke to Mr. Sullivan, asking him to prepare a will leaving the real property in question to his wife and himself. Mr. Sullivan relayed this information to his wife, Mrs. Sullivan, also an attorney. Thereupon, without first consulting respondent, Mrs. Sullivan drafted a will containing the provisions requested by Mr. Spillane. The next day, Mrs. Sullivan, accompanied by her husband and Mr. Spillane, visited respondent in her home taking a will ready to be signed. After a half-an-hour interview with Mrs. Sullivan, respondent signed the will and was convinced that she also ought to execute a deed of joint tenancy with the Spillanes. In an apparent belief that nothing would be taken from her, the following day respondent signed a gift deed giving two-thirds of her property to the Spillanes in joint tenancy.
Following the signing of the deed, everything continued almost the same as it had been before with a few exceptions. Thus, while respondent paid the taxes on the home, appellants paid the taxes on the adjoining vacant lot. Also, at respondent's request, Mr. Spillane made a few repairs around the property, such as fixing broken windows, roof leaks and removing a garage which constituted an encroachment. There was ample evidence from which the jury could infer that the fact that appellants owned two-thirds of the property was concealed from respondent, and that she honestly believed that the presence of appellants' names on the tax bills was only for the purpose of avoiding probate.
When she discovered that appellants were actual owners, respondent requested an immediate reconveyance of the property to her. When appellants refused to comply, respondent attempted to break the joint
After a lengthy trial, in which testimonial and documentary evidence was introduced, the jury rendered both special and general verdicts. Although in the special verdict appellants were found guilty of undue influence only, and not guilty of fraud, oppression or actual malice, in its general verdict the jury awarded respondent not only rescission and compensatory damages, but punitive damages as well. Both during and after the trial appellants made several motions to eliminate the punitive damages. Thus, they moved for a directed verdict, which was denied. Thereafter, appellants filed a motion for an order vacating judgment under Code of Civil Procedure, section 663, subdivision 2, and when that proved unsuccessful they moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. In the latter procedure the trial court eliminated the $10,000 punitive damages and granted a new trial unless respondent accepted a reduction of the $10,000 compensatory damages to $2,500. Respondent accepted the remittitur, whereupon the motion for new trial was denied. The present appeal followed.
On appeal, appellants seek reversal mainly on the ground that the finding of undue influence is not supported by sufficient evidence. In addition, they press the argument that the judgment at hand should be overturned also on account of certain procedural errors, misconduct of respondent's counsel, and erroneous jury instructions. We discuss appellants' arguments seriatim.
Sufficiency of Evidence: Pursuant to section 1575 of the Civil Code,
"1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;
"2. In taking an unfair advantage of another's weakness of mind; or,
"3. In taking a grossly oppressive and unfair advantage of another's necessities or distress."
The record is similarly clear that it was due to appellants' activity that the deed in dispute was prepared, executed and recorded. The transaction no doubt resulted in a definite detriment to respondent who was thereby deprived of her primary asset providing her security and livelihood, and yielded a substantial benefit to appellants. In this type of
But the finding of the jury is sustainable also on the ground that by inducing respondent to part with her property and to vest an immediate interest in them, appellants took an unfair advantage of respondent's weakness of mind within the meaning of section 1575, subdivision 2. The record is replete with evidence that respondent was greatly afflicted, both mentally and emotionally, by her sister's death. This, in combination with her age and solitariness, resulted in a gradual loss of her mental vigor and susceptibility to imposition and influence.
At the same time the record is persuasive that respondent did not actually know what she was doing and was led to believe that she did not part with any part of her property by signing the deed in dispute. This proposition is supported not only by respondent's own testimony but also by Mr. Spillane, who stated that respondent was advised that nothing would be taken away from her by the transaction and that she, in fact, did not believe that she had transferred any portion of her property to appellants.
Appellants' assertion that in order to prove undue influence respondent had the burden of showing that her mind was overpowered and her volition was borne down by appellants at the time the deed was made is rooted in an apparent miscomprehension of law.
The rule proposed by appellants has applicability only to will contest cases where the testamentary capacity and the freedom of will of a testator are questioned. In such cases the test of proving undue influence is indeed whether the legatee exercised "`a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made,'" and that "`the influence was such as, in effect, to destroy the testator's free agency and substitute for his own another person's will.'" (Estate of Dobrzensky (1951) 105 Cal.App.2d 134, 143 [232 P.2d 886]; see also: Estate of Arnold (1940) 16 Cal.2d 573, 577 [107 P.2d 25]; Goldman v. Goldman (1953) 116 Cal.App.2d 227, 234 [253 P.2d 474]; italics added.) However, the cases make it evident that in order to prove that one is in a mentally weakened condition within the meaning of section 1575 it is not necessary to show total incapacity to contract, but only that the grantor is lacking in such mental vigor as to enable him to protect himself against an imposition (Peterson v. Ellebrecht (1962) 205 Cal.App.2d 718, 721-722 [23 Cal.Rptr. 349]). In accordance therewith, the law makes a clear distinction between the proof of the existence of undue influence necessary to set aside a will and that which is required to cancel a deed of gift or conveyance inter vivos (Stewart v. Marvin, supra).
Procedural Errors: Appellants next assail the judgment on procedural grounds. Thus, for the first time on appeal, they raise the defense of the statute of limitations contending that the complaint below failed to allege when respondent learned of the facts giving rise to fraud or undue influence. Appellants also maintain that the judgment is subject to reversal because the complaint did not state sufficient facts upon which undue influence could be premised. Both contentions of appellants are devoid of any merit.
Appellants' second contention is likewise meritless.
As a preliminary matter, we observe that the same wrongful act may constitute both a breach of contract with the resultant contractual remedy of rescission and an invasion of an interest protected by the law of torts calling for tort remedies (4 Witkin, Summary of Cal. Law (8th ed. 1974) § 3, p. 2305; 2 Witkin, Cal. Procedure (2d ed.) § 89, p. 959). The undue influence here charged and found by the jury unquestionably possesses a double feature. While it has been frequently said that undue influence is a species of constructive fraud (Faulkner v. Beatty, supra; Stewart v. Marvin, supra; cf. § 1573), the redress provided by law is a contractual one, namely, rescission pursuant to section 1688 et seq. However, regardless of whether damages for undue influence are being sought under sections 1692 or 3343,
The remaining contentions of the parties deserve just brief consideration. Respondent's insistence that the punitive damages should be reinstituted cannot stand for two main reasons. One, in order to award punitive damages under section 3294,
The judgment is modified by deleting the provision awarding $2,500 compensatory damages. As so modified, and in all other respects, the judgment is affirmed. Respondent is awarded costs on appeal.
Taylor, P.J., and Rouse, J., concurred.
A petition for a rehearing was denied March 7, 1975, and the judgment was modified to read as printed above. Appellants' petition for a hearing by the Supreme Court was denied May 1, 1975.
"At the aforesaid time and place, defendants, and each of them, fully intended by their misrepresentations, and by their undue influence, and by duress, to deceive plaintiff, and induce her reliance on their misrepresentations, so as to unlawfully obtain her signature to the aforesaid `GIFT DEED.'" (Par. VI.)
"At the aforesaid time and place, plaintiff, as the result of her great age, which is in excess of eighty (80) years, her bereavement and great mental distress resulting from the loss of her beloved sister, and due to the undue influence, fraudulent misrepresentations, and deceit of the defendants, relied on their said misrepresentations as to the nature and effect of the instrument which she allegedly executed." (Par. VII.)
"As a result of the aforesaid intentional misrepresentations, fraud, undue influence, and deceit, exercised by defendants, and each of them, against plaintiff, as aforesaid; plaintiff suffered the loss of her fee simple interest in the aforesaid property located at 87 States Street, and further suffered great mental and physical distress." (Par. VIII.) (Italics added.)
"If in an action or proceeding a party seeks relief based upon rescission and the court determines that the contract has not been rescinded, the court may grant any party to the action any other relief to which he may be entitled under the circumstances.
"A claim for damages is not inconsistent with a claim for relief based upon rescission. The aggrieved party shall be awarded complete relief, including restitution of benefits, if any, conferred by him as a result of the transaction and any consequential damages to which he is entitled; but such relief shall not include duplicate or inconsistent items of recovery.
"If in an action or proceeding a party seeks relief based upon rescission, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require and may otherwise in its judgment adjust the equities between the parties." (Italics added.)
Section 3343 sets out in pertinent part that "(a) One defrauded in the purchase, sale or exchange of property is entitled to recover the difference between the actual value of that with which the defrauded person parted and the actual value of that which he received, together with any additional damage arising from the particular transaction, including any of the following:
"(1) Amounts actually and reasonably expended in reliance upon the fraud.
"(2) An amount which would compensate the defrauded party for loss of use and enjoyment of the property to the extent that any such loss was proximately caused by the fraud.
"(3) Where the defrauded party has been induced by reason of the fraud to sell or otherwise part with the property in question, an amount which will compensate him for profits or other gains which might reasonably have been earned by use of the property had he retained it....
"(b) Nothing in this section shall do either of the following:
"(1) Permit the defrauded person to recover any amount measured by the difference between the value of property as represented and the actual value thereof.
"(2) Deny to any person having a cause of action for fraud or deceit any legal or equitable remedies to which such person may be entitled." (Italics added.)
"Now, if under the Court's instructions, you find that plaintiff is entitled to a verdict against the defendants, you must then award plaintiff damages in an amount that will reasonably compensate her for each of the following elements of claimed loss or harm, provided that you find it was or will be suffered by her and was proximately caused by the act or omission upon which you base your finding of liability.
"It should include reasonable compensation for any pain, discomfort, fears, anxiety and other mental and emotional distress suffered by the plaintiff and of which her injury was a proximate cause."
"No definite standard is prescribed by law by which to fix reasonable compensation for pain and suffering. Nor is the opinion of any witness required as to the amount of such reasonable compensation.
"Furthermore, the argument of counsel as to the amount of damages is not evidence of reasonable compensation. In making an award for pain and suffering you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in the light of the evidence." (Italics added.)