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


Civ. 17251.

Decided: February 15, 1950

Mason & Howard, Los Angeles, by C. Loy Mason, Los Angeles, for appellant. David Silverton, Los Angeles, for respondents.

From a judgment of nonsuit entered against her in an action to recover damages for money obtained under undue influence, plaintiff appeals.

Facts: Defendant Emily Smith was an ordained spiritualist minister from Detroit. Plaintiff's incompetent, Mrs. Moberly, was referred to in the evidence as the mother of Mrs. Smith. A number of transactions relative to the real property of Mrs. Moberly were entered into with Mrs. Smith and others. After Mrs. Moberly was declared incompetent, her guardian filed the present suit for the purpose of recovering from defendants the value of the property conveyed by Mrs. Moberly to them. At the trial, in addition to the facts hereinbefore set forth, numerous witnesses testified that Mrs. Moberly was a shrewd business woman and competent; that she knew what she was doing at the time of the transactions she had entered into. Defendants' motion for a nonsuit on the ground of the insufficiency of proof was granted by the trial judge.

Question: Was there a total absence of material evidence on any essential allegations of plaintiff's complaint as amended?

This question must be answered in the affirmative. There was a total absence of any evidence that (a) a confidential relationship existed between Mrs. Moberly and the defendants or either of them; (b) defendants or either of them had gained control of Mrs. Moberly; or (c) Mrs. Moberly was incompetent at the time of the transactions which are questioned. Therefore there was a total failure of proof upon the part of plaintiff as to material allegations of their complaint as amended, and the trial court properly granted the motion for a nonsuit.


McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.

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