Beal v. Dunn

BRAY, J., pro tem. Defendant appeals from an order granting plaintiff a new trial. The action was brought by plaintiff to recover the physical possession of a $3,000 policy of insurance upon the life of the plaintiff, which, at the time the action was filed, was in the possession of the defendant, his daughter, and in which the defendant was named as the sole beneficiary. How the policy came into defendant’s hands is disputed. Defendant claims, and the court originally found, that the policy was given by the father, the plaintiff, to the daughter on Thanksgiving Day, 1927, under an oral agreement then entered into whereby, in exchange for the policy, defendant was to furnish and provide plaintiff with a home rent free in Sacramento. Plaintiff denies this or any agreement, and claims that the policy was in the safe deposit box of plaintiff’s wife, defendant’s mother, and that upon the mother’s death in 1927, the defendant took possession of the contents of that box, including the policy. The policy was issued in 1893 with the wife as beneficiary. Upon her death, under the terms of the policy, defendant, the sole child of plaintiff, became the beneficiary. It is conceded that defendant has had physical possession of the policy since [787192]7 and has paid the premiums thereon during all that time; also, that since that year plaintiff has occupied, rent free, defendant’s house in Sacramento, which house had come to defendant through her mother’s estate. The evidence also shows that plaintiff had, over the years, rented out rooms in this residence and retained the rents to his own use. Defendant, by counterclaim and cross-complaint, sought to recover the full rental value of this property for the eleven years subsequent to his wife’s death during which plaintiff had occupied it.

The lower court, at the end of the trial, gave an oral opinion ending up with the following statement: “Therefore the only thing I can do is to leave the parties in exactly the same position as they were when they came into this court: namely, I will give no judgment either way—no judgment for the plaintiff, no affirmative judgment—no affirmative judgment against the other side.” However, the court found that the oral agreement claimed by the defendant had been entered into and carried out, and that defendant was the owner and entitled to the possession of the policy, and then denied defendant any relief under the counterclaim and cross-complaint. After judgment was entered accordingly, plaintiff moved for a new trial on all the statutory grounds. Thereupon, the court, the same judge sitting who had tried the case, granted the motion for new trial “upon the ground of the insufficiency of the evidence to sustain the decision heretofore rendered in said action, and upon each and all of the other and further grounds enumerated and specified” in the notice of intention to move for a new trial.