IN RE: ESTATE of Carlo FRANCO (1975)

MODIFICATION OF OPINION ON DENIAL OF REHEARING

Both sides have petitioned for a rehearing; in their petitions each side has alleged that we have misstated the facts. Caterina alleges that we incorrectly stated that Carlo Franco did not consult with her regarding the investment of proceeds derived from the stock dividends. The Francos assert that Caterina was Carlo Franco's half sister, not his sister, as is stated in the opinion.

The Francos are correct in asserting that Caterina was Carlo's half sister and not his full sister. However, we have searched the record, and while the testimony of Caterina's daughter suggests that Carlo and her mother did ‘converse’ about the stock dividends, the daughter also stated that ‘. . . he would tell her that he was going to get more stock (a)nd this is all she would know.’ Caterina's son testified that as far as he knew his mother just signed the dividend checks and Carlo kept the proceeds. The jury was not compelled, as a matter of law, to find that Caterina actively participated in the decision making process as to how the proceeds of the dividend checks were to be used.

In any event, we have reviewed the opinion carefully and are satisfied that any misconception we may have had as to some of the facts was not a significant factor in the decision.

Caterina also objects to our statement that the record does not show that she objected to the form of the interrogatories submitted to the jury or requested a crucial instruction she claims was not given. All the record shows is that in her points and authorities submitted in support of her motion for a new trial Caterina alleged that the interrogatories were confusing and that she had requested the instruction in question; there is nothing in the record to show that Caterina objected to the interrogatories before the case was submitted to the jury; nor does the record show, affirmatively, that the instruction in question was proffered by Caterina and refused by the Court.

We note that in the petitions for rehearing each side has recited the evidence most favorable to that side's position. For example, Caterina maintains that there is evidence in the record to show that she was fully aware that she had a joint tenancy interest in the stock on, or soon after, the initial purchase. This ignores Caterina's own daughter's testimony that her mother did not even know her name was on the stock until after the wrong name appeared on one of the dividend checks ten years or so after the initial purchase. The Francos point out that John Franco testified that Carlo came to Merced for the Thanksgiving holidays at his own request; however, the reasonable inference drawn from the testimony of other witnesses is to the contrary.

As previously stated, in reviewing the granting of a motion for judgment notwithstanding the verdict the function of the appellate court is to review the record by resolving all conflicts in favor of and giving the benefit of all reasonable inferences to the jury's verdict. (Quintal v. Laurel Grove Hospital, 62 Cal.2d 154, 159, 41 Cal.Rptr. 577, 397 P.2d 161.)

Accordingly, the opinion is modified as follows:

In line 11 from the top of the page, on page two of the typewritten opinion heretofore filed on jury 1, 1975, the word ‘half’ is inserted between the words ‘decedent's' and ‘sister’.

In all other respects the opinion is approved

The petitions for rehearing are denied.

GARGANO, Acting Presiding Justice.

FRANSON and THOMPSON,* JJ., concur.