text:
    [L. A. No. 16435.
    In Bank.
    March 24, 1938.]
    ROBERT F. HOLLAND, Respondent, v. M. C. KODIMER, Appellant.

      Irwin H. Roth and Horace W. Danforth for Appellant.
    H. A. I. Wolch and Thomas A. Reynolds for Respondent.
   WASTE, C. J.

Defendant appeals from an order denying his motion to set aside and recall an execution issued and levied under a judgment entered against him in this action for damages.

Stripped of unnecessary and burdensome detail, the sole issue here presented is whether a judgment in the sum of $2,174.39 for damages growing out of the negligent operation of an automobile may be enforced against the adult owner of said automobile when the operator thereof, and codefendant in the action, disaffirms the judgment and has the same and the execution issued and levied thereon against him set aside because of his minority. The action was brought under former section 1714]4 of the Civil Code (the counterpart of the present section 402 of the Motor Vehicle Code), which at the time of the accident provided, in part, as follows: “Every owner of a motor vehicle shall be liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle ... by any person using or operating the same with the permission, express or implied, of such owner provided . . . [amount of recovery limited] . . . and provided that in a,ny action against an owner on account of imputed negligence as imposed by this section the operator of said vehicle whose negligence is imputed to the owner shall be made a party defendant provided personal service of process can be had upon said operator within this state, and upon recovery of judgment, recourse shall first be had against the property of said operator so served; . . . and provided, further, that in the event a recovery is had under the provisions of this section against an owner on account of imputed negligence such owner shall be subrogated to all the rights of the person injured or whose property has been injured and may recover from such operator the total amount of any judgment and costs recovered against such owner; ...”

Though personally served with summons, the owner and operator, who were father and son, defaulted and judgment was entered against each in the amount specified. Thereafter, upon a showing that the son was but 19 years of age, the father was appointed his guardian ad litem and, following disaffirmance on behalf of the minor, the judgment and execution issued thereon, upon motion duly noticed, were set aside and recalled as to said minor. This, the defendant owner now contends is fatal to the enforcement of the judgment against him. His argument proceeds largely on the erroneous assumption, so prevalent in his opening brief, that the judgment entered against an owner and a negligent operator of an automobile is a joint judgment which, prior to its enforcement against the owner must, in effect, be extant against the negligent operator, from whom payment must first be sought. In this, the appellant owner is in error. It is now well settled that “In eases which predicate liability of an owner defendant under this section [1714%, Civ. Code] when ownership of the automobile and permission to operate the same has been proved, the owner becomes directly liable for damage suffered in an amount limited by the statute, and this liability is direct and several, as well as joint, and is not dependent upon a judgment against the operator.” (Milburn v. Foster, 8 Cal. App. (2d) 478, 480 [47 Pac. (2d) 1106]; Guberman v. Weiner, 10 Cal. App. (2d) 401, 404 [51 Pac. (2d) 1141]; Brush v. Kurtstin, 11 Cal. App. (2d) 258, 262 [53 Pac. (2d) 777]; Sayles v. Peters, 11 Cal. App. (2d) 401, 404 [54 Pac. (2d) 94]; Pascoe v. Payne, 124 Cal. App. 528 [12 Pac. (2d) 1091].)

In his reply brief the appellant owner alters his position to the extent of recognizing, as he must, that under the authorities such a judgment is joint and several. He maintains, however, that the respondent should be precluded from satisfying the judgment against him because by failing to have a guardian ad litem appointed for the minor defendant operator the respondent has assertedly deprived him, as the nonnegligent owner, of the benefit of the restrictions on the liability imposed upon him by section 17141/4, supra. A somewhat similar contention was advanced in Pascoe v. Payne, supra, in response to which it was declared: “However, the right to have a guardian ad litem appointed was available to said appellant [owner], as well as to the respondent, and, upon application by said appellant to the trial court, such a guardian, no doubt, would have been appointed. . . . Said appellant should not, therefore, be heard to complain on appeal because a guardian ad litem was not appointed. ’ ’ Moreover, it is stated in respondent’s brief herein that he was unaware of the minority of the defendant operator until after the entry of judgment, when proceedings were prosecuted on behalf of the minor to disaffirm and set aside the judgment and the execution issued thereon.

In our opinion, the decision in Broome v. Kern Valley Packing Co., 6 Cal. App. (2d) 256, 261, 262 [44 Pac. (2d) 430] (hearing denied by this court), accurately analyzes and applies section 171414, supra, and the reasoning therein appearing, satisfactorily answers the arguments of the appellant in the present case. In the cited case the jury brought in a verdict for $5,000 against the defendant owner and rendered no verdict as to the defendant operator. There, as here, it was urged, in effect, that in the absence of a judgment against the operator, it was improper to enter and enforce a judgment against the owner. After pointing out that the failure to find against the operator was not the equivalent of finding in his favor, in which latter event there would be no negligence to impute, the court declared:

“While the liability imposed by this section of the code upon the owner of an automobile may be secondary as between such owner and the person operating the car with his permission, it is a primary and direct liability and not a secondary one in so far as the injured party is concerned. It would seem that the main purpose of this section is to make such an owner directly responsible to a person injured through the negligence of an operator driving the car with the owner’s permission, although the section also contains provisions calculated to protect the owner from the results of the operator’s negligence in so far as this may be done between those parties without interfering with the rights of the injured party. After imposing a direct liability on the owner in favor of the injured person certain provisions are added. One of these is to the effect that the operator shall be made a defendant when personal service may be made upon him in this state. The fact that the operator need not be made a defendant in all cases strongly indicates that the liability of the owner is primary and is not dependent upon whether or not the operator is made a defendant.
‘‘ Coupled with the provision last referred to is a subproviso that, upon the recovery of a judgment, recourse shall first be had against the property of an operator who has been served. This must have been intended for the benefit of the owner and not only can it be waived by him but the same can only apply where a judgment is recovered both against the operator and the owner. If the injured party has complied with the terms of the section and has made the operator a defendant in the action and served him, the fact that no judgment is subsequently entered against the operator should not free the owner from the direct liability otherwise imposed by the statute. To give this benefit to the owner in case judgment is entered against both is far from providing that a judgment against the owner alone, without mentioning the operator, is void and may not be enforced. To thus interpret this clause would, at least in part, nullify the subrogation clause which follows.
“The next provision in the section is that in the event recovery is had against such an owner he shall be subrogated to the rights of the injured party and may himself recover from the operator the amount of any judgment which has been recovered against him. This clause is not limited to cases where the operator is not made a party but expressly applies to any recovery under the section. The right of contribution does not rest upon the existence of a judgment against the operator in the same action but applies in the event a recovery is had against such owner and covers ‘any judgment and costs recovered against such owner’. Where an operator is made a party to the action and no judgment is entered against him this provision still gives the owner a right of subrogation and a right to ‘recover from such operator’ the amount of any judgment entered against the owner. Under this provision an owner may bring an independent action in the nature of an action for contribution and it may not be said, as argued by appellant, that the other remedy afforded by this section, that of proceeding against the property of the operator on the judgment entered in the original action, is a complete or exclusive remedy.
“While this section is not as clear as could be desired, we think it imposes a primary and direct liability upon such an owner, with secondary provisions to enable him to protect himself as against the operator of the car. Under these latter provisions the owner would have the right to demand that the jury be directed to pass upon the issue as to the liability of the operator, to the end that he may take advantage of the provision that recourse shall first be had against the property of the operator, or he may proceed under the other clause giving him the right of subrogation.
“Under the authorities above cited we think the appellant here waived his right under the ‘recourse’ clause by failing to ask that the jury be sent back to complete its verdict and that he was then limited to his right under the ‘subrogation’ clause.” (Italics added.)

So it is here. In the present case the respondent made both the operator and the owner a party defendant and both were personally served with summons. There was no finding or judgment favorable to the defendant operator. In fact, by his default, the implied findings are against him and his negligence is imputable to the appellant owner, with whose permission he was operating the automobile. As in the Broome case, supra, where the owner was held to have waived his right of “recourse”, but not his right of subrogation against the operator, by failing to demand that the jury also pass upon the liability of the operator, so here, by his failure to request the timely appointment of a guardian ad litem for his minor son and operator of the automobile, as was his privilege, the appellant must be held to have waived his right of “recourse”.

The italicized language in the Broome decision, supra, to the effect that the “recourse” provision of'section 171414, supra, “can only apply where a judgment is recovered both against the operator and the owner”, serves to distinguish and dispose of the case of Cook v. Superior Court, 12 Cal. App. (2d) 608, 612 [55 Pac. (2d) 1227], relied on by the appellant owner, for there a judgment had been entered against both the operator and owner, necessitating that “recourse” first be had against the property of the operator.

What has been said sufficiently disposes of the appellant’s contentions.

In concluding, we desire to state that we express no opinion upon a factual situation wherein it is charged and proved that a judgment against an owner alone is the result of collusion or fraud between the injured party and the operator. Such issue is not here involved and we refrain from determining the same.

The motion to dismiss, noticed when the cause was pending in the District Court of Appeal of the Second Appellate District, Division Two, is denied and the order appealed from is affirmed.

Houser, J., Shenk, J., Curtis, J., Edmonds, J., Seawell, J., and Langdon, J., concurred.


source: Caselaw Access Project

author: SEAWELL, J.

license: Public Domain

text:
    [L. A. No. 16474.
    In Bank.
    March 24, 1938.]
    JACK SCHALLER, etc., Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION, etc., and JOHN BARR, a Minor, etc., Respondents.

      Jerome H. Kann for Petitioner.
    Everett A. Corten for Respondents.
   SEAWELL, J.

This proceeding in certiorari was instituted by petitioner Jack Schaller to secure the annulment of an award made against him by the Industrial Accident Commission for the death of Sue Alric Marrion, an aerialist who was fatally injured on May 7, 1936, during the performance of her act in a Canadian showhouse, when one of the ropes gave way at a height of eighty feet. The question is whether decedent was an independent contractor at the time of the accident, or whether she was an employee of petitioner.

For a number of years, so the record shows, petitioner, operating under the name of Jack Schaller Attractions, has conducted the business of theatrical or free attraction contractor. He maintains a place in Los Angeles furnished with acrobatic and aerial equipment which performers are permitted to use without charge in order to build up or rehearse an act, or maintain physical fitness. Petitioner does not supervise or direct the creation of an act, but he secures bookings, or contracts for the performance of certain acts which are ready for the stage.

On December 29, 1935, petitioner entered into a written contract with the manager of the Conklin and Garrett All Canadian Shows. This contract provided that in consideration of $225 a week to be paid to petitioner or his representative, petitioner would furnish to the Conklin Shows in Canada, for a period of nine weeks, with option for the remainder of the season, an act known as the 4 Queens of the Air, which act would be performed twice daily at a time designated by petitioner ; that the troupe would put up and take down its own rigging; that after the act joined the show, transportation would be furnished; that the manager of the act would be either Eddie Kunze or Milo L. Jones; that the manager would act as a substitute performer in the absence of any member of the troupe; that petitioner would hold the show “harmless1 on account of any accident or injury occurring to . . . (petitioner) or any of his employees, during' any and/or all of said performances while engaged under the employment as provided in this contract”; and that where conditions were not suitable for a standard performance without serious injury or loss of life to petitioner’s “performers and employees”, there should be no reduction in the salary or monies due from the show.

At the time this agreement was executed, petitioner believed that he would be able to secure the services of either the troupe of aerialists managed by Kunze, or that managed by Jones. Later he found that neither the Kunze nor the Jones troupe would go to Canada. Meanwhile an aerial specialty act had been originated and organized by four women aerialists who had contacted each other while rehearsing at petitioner’s place. Sue Alric Marrion was one of these four women. The aerialists called their act the “Four Aerial Queens”, and they selectéd the husband of one of them to act as rigging man and substitute performer for the troupe. Petitioner told the troupe of the Canadian opening and they signified their willingness to fill the engagement. The Conklin Shows agreed orally to accept them as a substitute for the Kunze or Jones troupe under terms substantially as set forth in the written contract with petitioner. Petitioner thereupon made a separate oral agreement with each of the five members of the troupe; he did not contract with the troupe as a unit. His agreement with Sue Alric Marrion, similar to his agreement with the other troupers, was that she would perform her specialty act for twenty weeks for the sum of $600, performing to the best of her ability. Petitioner furnished a truck containing two bunks and equipment, and oil and gas sufficient to transport the troupe to the point where they joined the show. By mutual agreement it was arranged that payment of compensation would be handled in the following manner: The Conklin Shows had contracted to pay petitioner $225 a week for the act. The rigging man was selected to receive and disburse this sum as follows: $42.50 to petitioner for rent of equipment; $22.50 to petitioner as a 10 per cent commission; $30 to each of the four women aerialists; $40 retained by the rigging man.

Petitioner testified that he did not consider the members of the troupe as his employees and that he carried no compensation insurance.; that the performers were independent contractors; and that he acted only as their booldng agent. He stated that he did not direct or supervise the formation of their act in any manner; that he exercised no control whatsoever over any detail of its performance; that Sue Alric Marrion, and each other trouper, performed her specialty as she saw fit, directed the installation of equipment for her use, and directed the manner in which the other performers were to assist her; that no member of the troupe controlled or directed any other member; that each performer made her own decision as to the duration of her act, the number of loops to be made, the kind, the height, and the tricks to be exhibited. Petitioner testified that the rigging man was not managing the act as his agent; that he was merely chosen by the troupe to perform certain duties for them, including the disbursement of compensation.

Petitioner stated that intoxication would be ground for breaking his contract with a performer, but otherwise he was without power to discharge where a performance was satisfactory according to the performer’s own judgment. Petitioner gave as his reason for making a separate oral agreement with each performer, rather than a contract with the troupe as a unit, his desire to retain control over any change of personnel in the troupe; if one performer left, he could substitute another performer of his own choice. He stated that the troupe was bound to perform at the Conklin show-houses during the designated period, giving a specified number of daily performances at the times indicated by the show, and he could not have changed the troupe to other shows except by mutual agreement. Petitioner further testified that he was obligated to pay the aerialists according to his guarantee of $600 ($30 a week for 20 weeks), and that regardless of what might happen to the Conklin shows, bankruptcy, for example, he would still have to pay.

The testimony given by other witnesses at the hearing, including members of the troupe, was of like import to that of petitioner. From this evidence the commission concluded that Sue Alric Marrion was petitioner’s employee, and that her death resulted from injury sustained in the course of that employment.

Where findings made by the commission are supported by substantial evidence, or by inferences which may fairly be drawn from the evidence, even though,the' evidence be susceptible of opposing inferences, those'findings will not be disturbed by an appellate tribunal. (Schramm v. Industrial Acc. Com., 15 Cal. App. (2d) 475, 481 [59 Pac. (2d) 858]; Hartford v. Industrial Acc. Com., 202 Cal. 688, 693 [262 Pac. 309, 58 A. L. R. 1392]; Archbishop v. Industrial Acc. Com., 194 Cal. 660 [230 Pac. 1]; Western P. R. R. v. Industrial Acc. Com., 193 Cal. 413 [224 Pac. 754].) The question of whether a worker is an employee within the mean-11 ing of the Compensation Act (Act 4749, Deering’s Gen. Laws, vol. 2, p. 2272 et seq.), is referred to as a question of mixed law and fact to be proved like any other question. (Hillen v. Industrial Acc. Com., 199 Cal. 577 [250 Pac. 570]; La Franchi v. Industrial Acc. Com., 213 Cal. 675 [3 Pac. (2d) 305].) It is a question of fact upon which the judgment of the commission is conclusive where the facts are in dispute. It becomes a question of law only when but one inference can reasonably be drawn from the facts. Where two opposing inferences may be drawn from the evidence, and the inference accepted by the commission is reasonable, and is supported by evidence in the record, that inference must be sustained: (Schramm v. Industrial Acc. Com., supra; Western P. R. R. v. Industrial Acc. Com., supra; Archbishop v. Industrial Acc. Com., supra.) Moreover, in cases of this character the burden of proof rests upon an alleged employer to establish “that an injured person claiming to be an employee is an independent contractor or otherwise excluded from the protection of (the) act, where there is proof that such injured person was at the time of his injury actually performing service for the alleged' employer”. (Compensation Act, supra, sec. 19d [1]; Hillen v. Industrial Acc. Com., supra; Murray v. Industrial Acc. Com., 216 Cal. 340 [14 Pac. (2d) 301]; York Junc. etc. Co. v. Industrial Acc. Com., 202 Cal. 517 [261 Pac. 704]; Metropolitan etc. Co. v. Industrial Acc. Com., 117 Cal. App. 369 [4 Pac. (2d) 190].)

In this case the finding of the commission that Sue Alric Marrion was an employee of petitioner, and not an independent contractor, must be sustained. Although petitioner repeatedly testified that he hired Sue Alric Marrion as an independent contractor, this was merely a statement of petitioner’s own conclusion from the facts. Ostensibly certain features of the employment indicated a relationship of independent contractor, but these factors only served to create a conflict of evidence and opposing inferences to be drawn therefrom, which conflict the commission chose to resolve adversely to petitioner. If this court had been sitting as the trier of the facts, it is possible that an opposite conclusion might have been reached. On review, however, it cannot be said that the evidence established the relation of independent contractor as a matter of law. The-conflicting evidence was clearly susceptible of two opposing inferences. The inference accepted by the commission was reasonable and amply supported, and therefore the commission’s finding will not be disturbed.

We may add that the evidence in this record has been reviewed in the light of various tests used in determining whether a relationship is one of employee or of independent contractor, such as the test of ‘1 complete and unqualified control”, of ‘‘payment of wages”, or of ‘‘right of discharge”. While these tests are recognized as helpful, yet no special test, or fact, or circumstance has been found to give a conclusive answer to the question, and in the last analysis each case must turn upon its own peculiar facts and circumstances. (Washko v. Stewart, 20 Cal. App. (2d) 347, 351 [67 Pac. (2d) 144]; Hillen v. Industrial Acc. Com., supra; Murray v. Industrial Acc. Com., supra; George v. Chaplin, 99 Cal. App. 709 [279 Pac. 485]; May v. Farrell, 94 Cal. App. 703, 710 [271 Pac. 789]; Metropolitan etc. Co. v. Industrial Acc. Com., supra; Bait v. San Diego Sun, 21 Cal. App. (2d) 429 [69 Pac. (2d) 216]; Bohanon v. James McClatchy Pub. Co., 16 Cal. App. (2d) 188 [60 Pac. (2d) 510]; Winther v. Industrial Acc. Com., 16 Cal. App. (2d) 131 [60 Pac. (2d) 342]; Curcic v. Nelson Display Co., 19 Cal. App. (2d) 46 [64 Pac. (2d) 1153]; 75 A. L. R., note, p. 725 et seq.) Petitioner relies strongly upon the case of Brosius v. Orpheum Theater Co., 16 Cal. App. (2d) 61 [60 Pac. (2d) 156]. That ease could properly be cited in support of a contention that decedent’s relation to the Conklin Shows was that of an independent contractor, and not of an employee, but the holding is inapplicable to the situation here under review.

The commission found that there was left surviving decedent, John Barr, her five-year-old son, a total dependent, and it awarded $4,446 for his benefit. Petitioner questions this finding of total dependency. Petitioner refers to evidence that since birth the boy had been cared for by his grandfather, who represents him herein as guardian ad litem and trustee, and petitioner complains that no proof was offered to show that the boy’s father, who was legally liable for his support, was unable to provide adequately for him. The commission contends that the minor was entitled to the presumption of total dependency under section 14a (2) of the act, or that in any event the facts showed a total dependency under section 14 (b).

We are of the view that there is to be found, in the conflicting evidence in the record, sufficient support for the commission’s finding of total dependency. In support of the finding there was evidence that decedent had been divorced from the child’s father; that the father had never contributed to the child’s support; that in fact his whereabouts were unknown, and efforts to locate him had proved fruitless. There was further evidence that although decedent and the child had been on relief, and that when decedent was out of work they stayed with her parents, yet when decedent did have work she contributed to the child’s support, and the child was dependent upon her.

The award is affirmed.

Shenk, J., Waste, C. J., Curtis, J., and Langdon, J., concurred.


text:
    [L. A. No. 16496.
    In Bank.
    March 25, 1938.]
    ROY MEHOLLIN, Appellant, v. T. YSUCHIYAMA et al., Respondents.

      E. B. Drake for Appellant.
    George L. Greer for Respondents.
   SEAWELL, J.

Plaintiff prosecutes this appeal from a judgment for defendants entered upon a jury verdict. The action was brought by plaintiff, forty-three years of age, to recover damages for the wrongful death of his mother, sixty-three years of age, upon whom he was dependent for support by reason of his physical infirmities.

The plaintiff’s mother received the injuries from which she died in the Grand Central Public Market in the city of Los Angeles. Defendants Ysuchiyama and Tanobe lease a stall in said market in which they sell fruit and vegetables. Decedent had purchased tomatoes at said stall. As she was leaving the stall she fell and sustained injuries consisting of a fractured left humerus (bone of the upper arm), a fracture of two dorsal vertebrae, and a bruise on the head. She died about a month after the accident from a pulmonary embolism, which, it was stipulated, resulted from said injuries. It was the theory of plaintiff that decedent fell by reason of boxes negligently left in the aisle adjoining the stall by an employee of defendants, or because of boards protruding from beneath said boxes. As grounds for reversal plaintiff urges errors in instructions. No claim is made that the floor was wet, or that there was any foreign matter on it, other than said boxes and boards.

The stall of defendants occupies a rectangular space 18y2 by 23 feet. Produce is displayed in sloping counters as commonly used in vegetable markets. Sales are made from within the stall, where the produce is kept. There was testimony on hehalf of defendants that by reason of the width of the counters it is impossible to arrange the displays from the back of the counters. Boxes of fruit and vegetables to be arranged for display 'are carried from the stall into the adjoining aisles. The produce is then taken from the boxes and placed in the display counters. The market opens at 8 A. M. Employees of defendants customarily arrive between 7 and 8 A. M., and commence the work of arranging the displays, which is completed about 9 o’clock. The market is brightly lighted at all times.

The accident took place at about 8 :30 A. M. Defendants admit that in the aisle adjoining their stall on the east, near the northeast corner of the stall, there were three piles of lug boxes. One pile contained nine boxes, and the other two, three boxes each. These boxes, containing peas, had been taken into the aisle from the stall to arrange the counter for display by employee Kiyoshi. He had finished arranging the peas, leaving the boxes, empty or partially filled, in the aisle, and at the time decedent came to the stall he was arranging a display of cherries. He testified that he had not finished decorating with the peas more than ten minutes before the accident took place. According to his testimony, decedent stood between two of the piles of boxes while he waited on her. He sold her a pound of tomatoes and then turned to continue arranging the cherries. He next saw decedent lying prone on the concrete floor by the boxes.

The only person who saw decedent fall was Mr. Brown, an employee of a meat market which occupied space north of defendants’ stall. From the meat market he observed decedent complete her purchase, turn, take “a step or two”, and fall. The presence of the boxes barred his view of her feet, and he did not observe what her feet had struck. This witness testified that on the concrete floor beneath one of the piles of boxes were several boards, about % of an inch thick, being the'top boards removed from lug boxes, and that these boards protruded about a foot and a half or two feet from beneath the pile of boxes. He “thought” decedent stumbled on these boards. Tanobe, one of the defendants, and Kiyoshi, the employee who had brought the boxes into the aisle, denied that there were any boards under the boxes or on the floor.

The rules and regulations of the Grand Central Public Market, which were incorporated in the lease to defendants, contained the following: “Lessor will keep the aisles clean but tenants must not throw or place dirt, boxes or garbage or anything else whatsoever in the same. ’ ’

Plaintiff complains of the refusal of the court to give an instruction to the effect that defendants were without right to place boxes in the aisle, and their failure to keep the aisle clear was negligence. It was not error to refuse said instruction. A violation of the above provision between lessor and lessees would not be germane as between the lessees and a third party on the question of general negligence. Furthermore, it cannot be said as a matter of law that the above-quoted provision would absolutely preclude the placing of boxes in the aisle temporarily for the purpose of arranging displays, in view of the testimony that by reason of the width of the stationary counters it was impossible to decorate them except from the front or aisle side. Whether the defendants’ employee was negligent in failing to take the pea boxes inside the stall before proceeding to arrange the cherry display, upon which he had been working ten minutes when the accident took place, was a question for the jury.

The court gave plaintiff’s requested instruction to the effect that if the boxes were left in the aisle for the purpose of placing the vegetables upon counters “then it was the duty of said defendants to use ordinary care in rendering the aisle where the deceased was walking or moving in a reasonably safe condition, and a failure, if any, on the part of said defendants in this behalf was negligence”.

The court gave instructions on the issue of decedent’s contributory negligence, including an instruction that deceased had a right to assume that the aisle “was in a reasonably safe condition, and did not have to make any particular examination to determine the same, and she had a right to indulge this presumption until she knew, or hy the use of ordinary care could have known, to the contrary”.

The court also gave the following instruction: “A storekeeper, and in this case T. Tsuchiyama and T. Tanobe, must use ordinary care to see that his premises are not made unsafe for the use of customers. He is held, however, only to the use of ordinary care and to the care usually exercised by others in the same business and under the same circumstances, and defendants T. Tsuchiyama and T. Tanobe are not required to use or exercise the highest degree of care nor are they insurers of the safety of their patrons. Ordinary or due care is all that is required of them in the maintenance of their stall and the aisleways adjoining, and if you find that such due and ordinary care was exercised by them in this regard, then plaintiff may not recover and your verdict should be for the defendants.”

The reference in the second sentence of the above instruction to the care “usually exercised by others in the same business” is not a correct statement of the law. A person cannot justify his failure to use ordinary care by showing that others in the same business practice a similar want of care. (Anstead v. Pacific G. & E. Co., 203 Cal. 634 [265 Pac. 487]; Foster v. Fernandes, 200 Cal. 274 [252 Pac. 726]; Ales v. Ryan, 8 Cal. (2d) 82, 100 [64 Pac. (2d) 409].) Furthermore, there was no evidence introduced as to the practice and custom of other persons operating vegetable markets. But an instruction, erroneous or correct, which relates to matters as to which there is no evidence will not justify a reversal unless it has misled the jury to the prejudice of the appellant. (Estate of Budan, 156 Cal. 230, 234 [104 Pac. 442]; Lawrence v. Southern P. Co., 189 Cal. 434, 444 [208 Pac. 966]; O’Meara v. Haiden, 204 Cal. 354, 369 [268 Pac. 334, 60 A. L. R. 1381]; 24 Cal. Jur. 830; 10 Cal. Jur. 10-Year Supp. 700-702.) In the case herein, we are of the view that plaintiff was not prejudiced by the above statement, which was preceded and followed by a correct statement of the law, and which had no application to any facts in evidence.

Considering the instructions as a whole, we are of the view that the charge to the jury does not contain error which will authorize a reversal. It was for the jury to resolve conflicts in the evidence and to determine the issues of defendants’ negligénce and plaintiff’s contributory negligence. Although said evidence in the light of the instructions given would have sustained a verdict for the plaintiff, it cannot be said as a matter of law that the judgment for defendants is without support in the record. In this situation, as an appellate court, we cannot disturb the judgment.

The judgment is affirmed.

Shenk, J., Curtis, J., Edmonds, J., Langdon, J., and Waste, C. J., concurred.


author: WASTE, C. J.

text:
    [L. A. No. 16531.
    In Bank.
    March 25, 1938.]
    IDA M. MONTGOMERY, Respondent, v. WILLIAM E. BULLOCK et al., Appellants.

      W. K. Dial for Appellants.
    G. M. Grant and B. F. Tyler for Respondent.
   WASTE, C. J.

On September 8, 1930, defendant William E. Bullock committed an assault and battery upon this plaintiff, Ida M. Montgomery. In May, 1931, she sued him for damages, and on April 26, 1932, had judgment in the sum of about $2,200. She caused execution to be issued and levied upon certain real estate which William E. Bullock and his wife, Orpah Bullock, had acquired in 1927 as community property, and at execution sale on January 30, 1933, she purchased the property for $1200. There being no redemption, she received a sheriff’s deed thereto on February 15, 1934. On April 4, 1934, she commenced the present action to determine her right to the property and to quiet title. A verified answer to the complaint was filed by the Bullocks, alleging that Orpah Bullock had sold the property to defendant Grace A. James, sister of William E. Bullock. Mrs. James filed a separate answer, alleging her purchase of the property and praying that her title thereto be quieted. On issues so joined the cause went to trial. Thereafter the trial court made findings and gave judgment for plaintiff. The three answering defendants, the Bullocks and Mrs. James, appealed. The cause is now under submission on motion of plaintiff to dismiss the appeal or affirm the judgment, and on the merits. A meager bill of exceptions prints less than a page of the evidence adduced upon the trial, and the appeal is therefore presented virtually as an appeal on the judgment roll.

The real property in question consisted of a city lot in Los Angeles, 61 feet by 147% feet, upon which had been erected a dwelling with built-in garage, used as the Bullock home, and three separate dwellings and two double garages which the Bullocks rented to tenants. William E. Bullock had no assets, save his interest in the property, and he apparently made every effort to prevent its being taken to apply in satisfaction of plaintiff’s claim against him for damages. On September 15, 1930, which was about a week after the altercation in which he injured plaintiff, he deeded the property, without consideration, to his wife, who admittedly knew as well as he that plaintiff had a cause of action against him for tort. On November 21, 1931, while the tort action was pending, Orpah Bullock declared a homestead upon the property, and on April 6, 1932, about three weeks prior to entry of the judgment for damages, she deeded the property to Mrs. James, her sister-in-law. The trial court found that at all times the property had been under the control of William E. Bullock, and that the several transfers thereof were all made without valuable consideration, at his instance in contemplation of insolvency, in an attempt to delay and prevent the sale of the property under execution to satisfy his liability to plaintiff, and in fraud of her rights as an existing creditor, and that at all times up to January 30, 1933 (date of execution sale), the property continued to be community property of the Bullocks. The trial court further found that although the declaration of homestead contained a description of the property as a whole, the only portion thereof impressed with a homestead was the dwelling house occupied by the Bullocks and the land reasonably necessary for its use, i. e., the immediate land under the house, twenty feet in front to property line, half of seven feet between the house and house north, and half of fourteen feet east of the house; that all the rest of the property, with the houses and garages rented to tenants, was business property, not impressed with the homestead. From the fact that the Bullocks, in their verified answer, claimed no right to the property, alleging its sale to Mrs. James, the trial court concluded that they had disclaimed and waived all right, title or interest therein; and from the facts as a whole, the court further concluded that neither the Bullocks nor Mrs. James had any right to or interest in the property, but that plaintiff, by virtue of her sheriff’s deed, was the owner in fee simple thereof; hence the judgment for plaintiff.

In this action it was proper for the trial court to separate that portion of the property found to have been impressed with the homestead from the remainder of the estate, found to be business property. See Montgomery v. Bullock, 13 Cal. App. (2d) 196 [56 Pac. (2d) 564], which was a prior appeal in this cause from a judgment of nonsuit. The District Court of Appeal, in reversing the judgment, held that it is proper in a quiet title suit for a plaintiff to ask the court to determine what portion of land described in a declaration of homestead is needed for the convenient use of the claimant and what portion thereof is excess land. That holding has become the law of this case. See, also, Wagner v. Ulrich, 204 Cal. 452 [268 Pac. 629].

Considering first the status of that portion of the estate found to be business property, it is assumed in the absence of any showing to the contrary, that the evidence supported the trial court’s finding that the conveyances thereof, including the transfer from William E. Bullock to his wife, were all made without valuable consideration and with intent to defraud his creditors. Upon such finding it was proper to enter judgment quieting title to said property in plaintiff.

Considering secondly the status of that portion of the estate found to have been impressed with the homestead, we are of the view that the trial court erred in quieting title in plaintiff for the following reasons:

The conveyance of September 15, 1930, by William E. Bullock to his wife, found to have been made in contemplation of insolvency, with intent to defeat plaintiff’s claim, was void against plaintiff (secs. 3439-3442, Civ. Code), and the property remained the community property of the Bullocks. The portion of said community property which was used for the family home was subject to homestead by the wife (sees. 1238-1265, Civ. Code). She declared a homestead prior to the time plaintiff’s claim merged into a judgment. As the doctrine bearing upon conveyances made to hinder, delay, and defraud creditors has no application to the creation of a homestead, the homestead here was not invalidated by reason of the pendency of plaintiff’s tort action, and it was exempt from execution or forced sale in satisfaction of the judgment for damages later obtained by plaintiff in said action. (Schmidt v. Denning, 117 Cal. App. 36 [3 Pac. (2d) 322]; Beaton v. Reid, 111 Cal. 484 [44 Pac. 167]; Fitzell v. Leaky, 72 Cal. 477 [14 Pac. 198]; Sullivan v. Hendrickson, 54 Cal. 258; 13 Cal. Jur., pp. 477, 478, sec. 51; 12 Cal. Jur., p. 962, sec. 9; Civ. Code, secs. 1240, 1241.)

Furthermore, it has long been the rule that a gift, sale, or pledge of any part of a homestead cannot, under any circumstances, be with intent to defraud a creditor not having a lien upon the premises, for a creditor is not entitled to complain of the transfer by the debtor of an asset which he could not have reached, had the debtor retained it. (Nicholdson v. Nesbitt, 4 Cal. App. 585 [88 Pac. 725]; Estate of Fath, 132 Cal. 609 [64 Pac. 995]; Wetherly v. Straus, 93 Cal. 283 [28 Pac. 1045]; 13 Cal. Jur., sec. 72, pp. 503, 504.) Thus the validity of Mrs. Bullock's conveyance of the homestead to Mrs. James was not subject to attack by plaintiff on the ground that it was made in fraud of creditors or otherwise. If the conveyance was invalid, then the property remained impressed with the homestead and was not subject to plaintiff’s claim. If the conveyance was valid, then the property, in passing to the grantee, retained the exemption which it acquired by reason of the homestead. In either event the matter was no concern of plaintiff, for she could not reach the homestead or the fruits of sale thereof.

The record indicates that the effectiveness of the transfer of the homestead by Mrs. Bullock may be open to question because apparently Mr. Bullock did not join with her in executing and acknowledging the instrument by which she purported to convey it to Mrs. James. (See. 1242, Civ. Code; 13 Cal. Jur., secs. 62, 66, p. 491 et seq.) However, so far as this cause is concerned, Mr. Bullock was the only party who might have complained of the deficiency, and he joined with Mrs. Bullock in averring, in their verified answer, that they claimed no right, title, or interest in the property; that when they were unable to meet payments on the encumbrance upon it, it was conveyed by Mrs. Bullock for a valuable consideration to Mrs. James. This pleading constituted a disclaimer by the Bullocks in favor of Mrs. James, their non-adversary codefendant, but not in favor of plaintiff, and in view of Mrs. James’ prayer for affirmative relief, under the circumstances shown it would have been proper for the trial court to have quieted title to the homestead in her as against plaintiff. The validity of the transfer of the homestead, as between the Bullocks and Mrs. James, would not be affected by such adjudication, as no rights between said parties were at issue in this cause. We may add that it appears from the findings that prior to the trial of this action on December 4, 1936, the homestead was conveyed back to Mrs. Bullock.

The motion to dismiss or affirm is denied. The judgment is reversed, with instructions to the trial court to amend its findings and conclusions to conform to the views above expressed, and to enter a proper judgment quieting the title of defendant Grace A. James to that portion of the property impressed with the homestead, and quieting the title of plaintiff to the remainder of the property; each side to bear its own costs on this appeal.

Edmonds, J., Curtis, J., Langdon, J., Shenk, J„ Seawell, J., and Houser, J., concurred.


text:
    [L. A. No. 16462.

      In Bank.

    March 28, 1938.]
    WALTER A. ENGSTROM, Appellant, v. AUBURN AUTOMOBILE SALES CORPORATION (a Corporation) et al., Respondents.

      George B. Bush and Philip C. Farman for Appellant.
    Parker & Stanbury and White McGee, Jr., for Respondents.
    Bronson, Bronson & McKinnon, as Amici Curiae, on Behalf of Respondents.
   WASTE, C. J.

Plaintiff brought this action for damages against the operator and the owner of an automobile for injuries alleged to have been inflicted by reason of its negligent ' operation. The gravamen of the complaint as to the owner is the use of the car by the operator with the alleged consent and permission of the owner, an automobile sales agency, granted by its sales manager and a salesman, who were also made defendants. The jury returned a verdict in the sum of $10,000 against the operator of the car. However, on motion of the owner and its said two employees, the court directed a verdict in their favor upon which judgment was accordingly entered. It is from this judgment that the plaintiff prosecutes this appeal.

In an action of this character, the liability of the owner, if any, must be found in the provisions of section 1714]4 of the Civil Code, now section 402 of the Vehicle Code, which so far as material here provides, in part, that “Every owner of a motor vehicle shall be liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner ...”

In the instant case the respondent-owner was an automobile sales agency and the operator was a prospective purchaser who, at his request, coneededly had been given permission to use the car, for the purpose of showing or demonstrating it to members of his family prior to purchasing a similar model, a matter that ultimately failed to materialize. The appellant relies on the permission so given, and the inference of permission asserted to arise from the admission in the pleadings of respondent’s ownership of the car, as a showing under the provisions of section 171414, supra, sufficient to preclude the trial court from directing, as it did, the return of a verdict in favor of the respondent-owner and its named employees.

It is settled that a directed verdict may be granted only when, disregarding conflicting' evidence and giving to plaintiff’s evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given. (Estate of Lances, 216 Cal. 397, 400 [14 Pac. (2d) 768].) Measured by this rule, we fail to perceive any error in the action of the trial court. The accident in which appellant’s injuries were received occurred at about noon on July 26, 1935, on a main highway outside the city of Los Angeles and at a distance of approximately twelve miles from respondent’s salesroom. It is stipulated herein that the undisputed evidence adduced at the trial established the time and place of the accident. Such stipulation was prompted by the absence from the transcript of the evidence bearing thereon. In fact, the only testimony included in the reporter’s transcript, pursuant to appellant’s specific request, was that of the respondent salesmen detailing principally the circumstances and conditions under which the automobile was entrusted to the defendant Silkman who was operating it at the time of the accident. These witnesses, who appeared for the defense, testified without contradiction that after Silkman had presented himself as a prospective purchaser and had been given a demonstration of the car’s ability, he requested permission to drive the car unaccompanied to the Blaekstone Hotel, a distance of from two to three miles from the salesroom, in order that he might show it to “Ma and Sis”. After some consultation between the sales manager and salesman, it was agreed that defendant Silkman might take the car for the purpose specified. However, the evidence indisputably discloses that Silkman was expressly told he was to return the ear within an hour and a half or two hours at the outside. He agreed to this condition and promised to return the car within two hours. He departed the salesroom with the car at about 5 P. M. on July 25, 1936. He did not return the ear within the agreed time. In fact, he did not return it that day or night. On the contrary, he returned it the following day at approximately 4 P. M., the accident having occurred shortly prior thereto. Following the expiration of the period prescribed for the return of the car, the respondents made several efforts to locate the defendant Silk-man. Their efforts in this regard culminated shortly prior to its return in a report to the police department that the car had been stolen.

The appellant made no effort to controvert the evidence that the car had been entrusted to Silkman for the limited period of two hours or that the accident had occurred long-after the period had expired. The evidence in this respect is uncontradicted. Under the circumstances, we are of the view that the reasoning and conclusion in the case of de Rebaylio v. Herndon, 6 Cal. App. (2d) 567, 569 [44 Pac. (2d) 581], are applicable and determinative of the present cause. In the cited case, as here, the owner had granted permission to the operator to drive the ear for a prescribed period. There, as here, the ear was not returned as promised and the accident occurred subsequent to the expiration of the prescribed period. There, as here, the trial court directed a verdict in favor of the owner of the car. Upon appeal it was contended by the plaintiffs, as it is substantially urged herein, that the “facts concerning the ownership of the automobile and its use by the defendant Herndon raised an inference that such use was with the consent of the owner; that this inference was sufficient to establish a prima facie case for the plaintiffs; and that the jury should have been permitted to pass on the question of the permissive use of the automobile from a consideration of the inference on the one hand and the testimony of Herndon [operator] and Hamlin [president of the owner-corporation] on the other. ’ ’

In disposing of this contention it was declared: ‘ ‘ The mere fact that at the time of an accident one is driving an automobile belonging to another is not, of itself, sufficient to establish that the former was driving the car with the permission of the owner. (Bradford v. Sargent, 135 Cal. App. 324, 333 [27 Pac. (2d) 93].) Also, it is undisputed that the only permission given Herndon to use the ear was that he might have it for a particularly specified period. The accident happened a day after this time expired. To hold that Herndon was then driving the car with either the express or implied consent of the owner would require us to disregard the plain agreement of the parties. The time within which Herndon had permission to use the car having expired, he was not driving it thereafter with the permission, either express or implied, of the owner. (Union Trust Co. v. American Commercial Car Co., 219 Mich. 557 [189 N. W. 23].)” This court denied a hearing in the cause. We also denied a hearing in the case of Howland v. Doyle, 6 Cal. App. (2d) 311, 314, 315 [44 Pac. (2d) 453], wherein the owner of a truck granted permission to a prospective purchaser to try out the vehicle, which task, unknown to the owner, was thereupon delegated to a third person who was driving at the time of the accident. Plaintiffs were there nonsuited as to the owner. Upon appeal, they urged that a showing of ownership was sufficient under section 1714)4, supra, to preclude the granting of a nonsuit. In rejecting this contention, the opinion asserts that 11 Section 1714)4 places upon the owners of automobiles a statutory liability which otherwise would not exist. Before this section can be applied, it must appear by the proof that the vehicle was used or operated ‘with the permission express or implied, of such owner’. The existence of such permission cannot be .left to speculation or conjecture nor be assumed, but must be affirmatively proved as an essential element of the cause of action. Such proof must consist of facts and circumstances from which can follow the inference that the owner either expressly gave permission or that his acts and conduct were such that permission might be implied. Where. the evidence does not warrant either of such inferences section 1714)4 does not apply as a matter of law.” The opinion then goes on to point out that, from the granting of permission to a designated person to test the truck it may not be implied or inferred that the owner thereby consented to the operation of the truck by a third person to whom the task of testing the truck had been delegated unknown to the owner. Necessarily, the decision is very definite authority for the proposition that from a showing of ownership alone a permissive use may not be inferred so as to preclude a nonsuit as to the- owner.

Hoffmann v. Lane, 11 Cal. App. (2d) 655 [54 Pac. (2d) 477], and Boland v. Gosser, 5 Cal. App. (2d) 700 [43 Pac. (2d) 559], relied on by the appellant, are distinguishable for in each case, in addition to a showing of ownership, there was other affirmative evidence from which a permissive use might reasonably be inferred. In the instant case, the inference of permissive use must find support, if at all, in the fact of ownership alone. This is so, in view of our conclusion that at the time of the accident the car was being operated after the express permission theretofore granted by the owner had expired.

However, even if we assume for present purposes, that a showing of ownership alone is sufficient to give rise to an inference of permissive use within the meaning of section 171414, supra, we fail to perceive wherein appellant’s cause would be aided. Under the circumstances disclosed by the record now before us, we cannot accept appellant’s theory that such inference, based on ownership alone, may stand in the face of the uncontradicted testimony above outlined to the effect that the operator of the car at the time of the accident was driving it in violation of his agreement with and promise to the owner to return it a day prior to the accident. The rule governing the dispelling of an inference is materially different from that relating to the dispelling of a presumption. It should be kept in mind that an inference is a permissive deduction while a presumption is a deduction directed to be drawn by law. (Secs. 1958, 1959, Code Civ. Proc.) Some of the cases relied on by appellant in support of his contention that the inference of permissive use arising from a showing of ownership creates a prima facie case which precludes a trial court from granting a nonsuit or a motion for a directed verdict, are cases (notably Smellie v. Southern Pac. Co., 212 Cal. 540 [299 Pac. 529]) involving presumptions, as to which, as we have stated, the rule differs from that applicable to inferences, while others of the cases relied on by appellant have fallen into the all too prevalent error of using the terms “presumption” and “inference” interchangeably and synonymously, with a consequent confusion of the rules applicable thereto.

It is not our purpose to here attempt a ..detailed discussion, explanation or reconciliation of the many cases on the subject. Generally speaking, however, it may be said that a presumption is dispelled when a fact which is wholly irreconcilable with it is proved by the uncontradicted testimony of the party relying on it or of such party's own witness, when such testimony was not the product of mistake or inadvertence. (Smellie v. Southern Pac. Co., supra; Mar Shee v. Maryland Assur. Corp., 190 Cal. 1, 8 [210 Pac. 269]; Pitt v. Southern Pac. Co., 121 Cal. App. 228, 232-235 [9 Pac. (2d) 273]; Peters v. California Bldg.-Loan Assn., 116 Cal. App. 143, 154 [2 Pac. (2d) 439]; Fortier v. Hogan, 115 Cal. App. 50, 56, 57 [1 Pac. (2d) 23].) However, a presumption is not dispelled by evidence produced by the opposite party but remains as evidence in the case sufficient to support a judgment, except in rare cases in which the rebutting evidence is absolutely conclusive. (Smellie v. Southern Pac. Co., supra.) (Illustrative of such rare cases would be a situation, referred to in the Smellie case, supra, 552, wherein one party relies on the presumption that a person unheard of for seven years is dead and the other party to meet and overcome such presumption actually produces the person in court.) In passing, it should also be mentioned that the testimony of a witness called under section 2055 of the Code of Civil Procedure is not binding on the party calling him and for the purpose now under consideration he is not considered to be a witness of the party so calling him and therefore his testimony does not serve to dispel a presumption upon which such party relies. (Smellie v. Southern Pac. Co., supra, 555.)

On the other hand, an inference is dispelled as a matter of law when it is rebutted by clear, positive and uncontradicted evidence which is not open to doubt, even though such evidence is produced by the opposite side. (Maupin v. Solomon, 41 Cal. App. 323, 324-326 [183 Pac. 198]; Martinelli v. Bond, 42 Cal. App. 209 [183 Pac. 461].) Of course, if the opposition evidence is conflicting, vague or uncertain, or is weakened by contradictions or improbabilities, an inference is not dispelled as matter of law. A few of the many

cases applying this latter principle, are: Bushnell v. Yoshika Tashiro, 115 Cal. App. 563, 566, 567 [2 Pac. (2d) 550]; Wagnitz v. Scharetg, 89 Cal. App. 511, 517 [265 Pac. 318]; Grantham v. Ordway, 40 Cal. App. 758, 765 [182 Pac. 73]; Dierks v. Newsom, 49 Cal. App. 789, 794 [194 Pac. 578]. The Bushnell case, supra, was so distinguished in Bourne v. Northern Counties etc. Co., 4 Cal. App. (2d) 69, 71 [40 Pac. (2d) 583] (hearing denied here), while the Dierks and Grantham eases, supra, and other similar cases, were likewise so distinguished in Fahey v. Madden, 56 Cal. App. 593, 596-598 [206 Pac. 128], and Ransford v. Ainsworth, 196 Cal. 279, 286-288 [237 Pac. 747].

Sufficient reference has been made to the cases to illustrate our point. As already indicated, to explain or attempt to reconcile all of the eases on the subject would be a futile task because of the confusion between a presumption and an inference that has crept into many of the cases and the varying circumstances of each case.

In denying a hearing in Maupin v. Solomon, supra, 326, we attempted to point out the distinction, too frequently overlooked, between a presumption and an inference. We there said that “we desire to point out that respondent’s prima facie case was based solely on an ‘inference’ and not on any ‘presumption’ declared by law. When we say that a certain inference is warranted by certain facts proved, we mean no more than that the jury is reasonably warranted in making that deduction from those facts. (Code Civ. Próe., sec. 1958.) In this case the direct uncontradieted evidence introduced in response to the prima facie case as to the circumstances under which the employee of appellant was driving appellant’s automobile was of such a nature as to leave no reasonable ground for an inference based solely on the fact of appellant’s ownership of the automobile and the further fact that the person driving was an employee of appellant, that the driver was acting within the scope of his employment at the time of the accident.” We had occasion to quote this language with approval in Crouch v. Gilmore Oil Co., 5 Cal. (2d) 330, 333-335 [54 Pac. (2d) 709], wherein we also attempted to distinguish or reconcile, as here, some of the many cases on the point now under discussion.

In the light of this summary of the subject, we are of the opinion that the inference of permissive use relied on by the appellant as arising solely from the ownership of the automobile (assuming such inference does so arise) has been fully and completely dispelled in this case by the positive, unequivocal and uncontradicted testimony produced by the respondents to the effect that the automobile had been entrusted to Silkman for a limited period only and that at the time of the accident such period had long since expired and Silkman was then operating the car in violation of his promise and agreement and against the express wish and desire of the owner. This undisputed testimony precludes any attempt to infer that Silkman’s use of the car was a permissive one. Appellant’s argument if carried to its logical extreme would permit an inference of permissive use from ownership alone even in the face of uncontroverted proof that at the time of the accident the car was being operated by one who had stolen it. Certainly, even appellant would not contend for such a result. Yet, Silkman’s failure to return the car within the time expressly limited by the owner, made his subsequent use thereof as much against the wish and desire of the owner as that of the thief in the supposititious case.

We find no merit in the contention that the trial court erred in refusing to reopen or continue the case to permit appellant to secure the testimony of the defendant-operator Silkman. Aside from the fact that appellant merely states the point without argument to support it, examination of the transcript discloses that the trial court acted well within its discretion in denying the requested relief. The trial consumed several days and it was not until after respondents had moved for a directed verdict and the judge had indicated his intention to grant said motion, that plaintiff and appellant moved to reopen the case in order to procure the defendant Silkman’s testimony. The trial court was correct in declaring that the motion to reopen 11 comes at the close of the testimony in the ease and after motions have been made upon which the court has indicated his probable ruling. The fact that Mr. Silkman was not expected to attend the trial was intimated on the first day of the trial, and was definitely stated on the second court day of the trial. Prior to this time no request has been made for a continuance or for any process or order of this court which might secure the presence of Mr. Silkman, nor has the plaintiff made any effort to secure the taking of the deposition of the defendant Silkman. ...”

It goes without saying that it was proper to direct a verdict in favor of the two salesmen involved.

The judgment appealed from is affirmed.

Shenk, J., Curtis, J., Edmonds, J., Langdon, J., Houser, J., and Seawell, J., concurred.

Rehearing denied.


author: THE COURT.

text:
    [S. F. No. 15931.
    In Bank.
    March 28, 1938.]
    JOHN W. AUSTIN, Petitioner, v. ROBERT B. LAMBERT, as Judge, etc., Respondent.

      Charles C. Crouch and George W. Crouch for Petitioner.
    Earl Warren, District Attorney, Alameda County, Ralph E. Hoyt, Chief Assistant District Attorney, and Stanley C. Smallwood and Cecil Mosbacher, Deputies District Attorney, as Amici Curiae, on Behalf of Petitioner.
    Thomas Scott and W. A. McGinn for Respondent.
    Charles H. Forward, James D. Forward, J. O. Reavis, Stearns, Luce, Forward & Swing, Fred Kunzel, Gilford G. Rowland, Claude Minard, Vernon M. Smith and William A. Monten, as Amici Curiae, on Behalf of Respondent.
   THE COURT.

This is a proceeding in mandamus to compel the respondent judge of the superior court to proceed with the hearing and determination of an action pending before said court entitled John W. Austin et al. v. Hallmark Oil Company et al. The cause had been duly assigned to the respondent judge for hearing and determination. Certain issues of law were noticed for hearing on October 1, 1937. Prior to 10 o’clock A. M. on that day counsel for certain defendants in said action served upon counsel for the plaintiffs therein and filed with the clerk of the court a notice that the named defendants “do hereby peremptorily challenge the Honorable Judge Robert B. Lambert according to the provisions of section 170.5 of the Code of Civil Procedure of the State of California”, whereupon the respondent judge refused to proceed further and transferred the cause to another department of the court, assigning as his sole reason for declining to go forward with the hearing the filing of the peremptory challenge against him pursuant to the provisions of section 170.5 of the Code of Civil Procedure. The present proceeding followed.

A general demurrer to the petition raises the question of the constitutionality of section 170.5, added to the Code of Civil Procedure in 1937, and providing in part as follows: “Any party or his attorney to any cause or proceeding of any nature pending in any superior or municipal court, except the people or district attorney in a criminal ease, may make and file with the clerk of the court in which the action is pending, and serve on the opposite party, a peremptory challenge in writing of the judge assigned to try or hear the cause or pending matter. Thereupon, without any further act or proof, the presiding judge in those counties where there is a presiding judge who assigns causes for hearing or trial, or the chairman of the judicial council in other counties, shall assign some other judge to try the cause or hear the pending matter, and such cause shall be continued on the calendar until the judge so secured or assigned can try the cause or hear the matter. If it is necessary to secure a judge from another county, the chairman of the judicial council shall assign such judge.” The remaining portions of the section provide for the time of making and filing the peremptory challenge, which must be before argument on questions of law or before evidence is taken, or before impanelment of a jury, at the trial on the merits. Other matters germane to the subject-matter of the section but not pertinent to this inquiry are also provided for.

It is the contention of the petitioner that the foregoing legislative enactment of 1937 is an unwarranted interference with the constitutional powers and duties of the respondent judge and therefore that it is the duty of said judge to disregard the peremptory challenge interposed in pursuance thereof and to hear and determine the cause presented to him.

Under the Constitution of this state a superior judge has certain powers and duties to perform. Upon assuming his office he takes and subscribes to an oath that he will support the state and federal Constitutions and that he will faithfully discharge the duties of his office as a judge of the superior court to the best of his ability. (Pol. Code, see. 904.) One of those duties is to hear and determine causes presented to him unless in a particular cause he is disqualified or unable to act. He may not evade or avoid that duty. In proceedings too numerous to need citation of authority a superior judge has been required to discharge that duty when no good cause appeared to justify a refusal to act.

The judicial department has recognized that reasonable regulations may be made by the legislative branch in the matter of prescribing certain disqualifications of a judge to act. Those regulations were laid down generally in sections 170, 171 and 172 of the Code of Civil Procedure as originally enacted. They provided for disqualification for bias, prejudice or interest and for the most part were a continuation of the civil law or the common law on the subject, and were based on the eternal verity that disinterest and impartiality are indispensable in the proper administration of justice. In this state, prior to the enactment of section 170.5 in 1937, the question of the existence of bias or prejudice on the part of the trial judge was one of fact to be alleged under oath and to be subject to judicial determination. Nothing is said in the new section about bias, prejudice, interest or any other recognized ground for disqualification. No showing, ex parte or otherwise, is required and no reason need be given for thus stripping the judge of his judicial functions. No more is required to accomplish that result than the arbitrary and undisclosed reason and purpose of the litigant or his attorney.

No statute has been brought to our attention or discovered by research which has gone to the length of section 170.5 in thus placing the exercise of judicial power, duty and responsibility subject to the whim and caprice of a lawyer or litigant, and no court decision has been cited or obviously could be cited upholding such an arbitrary provision. Nevertheless the petitioner and those in collaboration with him urge that in fifteen other states in the United States there are statutes providing for a so-called “peremptory challenge” of a judge and that those enactments have not been declared unconstitutional. A reading of those statutes discloses that without exception they provide for some showing of disqualification by affidavit. True, in many if not in most of them the affidavit, if made as provided by the statute, is effective, and no counter showing is required or permitted. Such an ex parte proceeding has been upheld on the ground that the charge of bias or prejudice under oath is at least an imputation of such disqualification sufficient to save the statute from successful attack on constitutional grounds.

The statutes in the other jurisdictions will be referred to by reference but without quotation. (Arizona, Revised Code 1928, sec. 3721; Florida, Compiled Gen. Laws, 1927, sec. 4341; Indiana, Burns Stats., Annotated, sec. 2-1401; Maryland, Bagby’s Annotated Code, art. 75, see. 111; Minnesota, 1936, Supplement to Mason’s Minnesota Stats., 1927, sec. 9211, p. 878; Missouri, Revised Stats., 1929, sec. 907; Montana, Revised Codes, 1935, sec. 8868, Code of Civ. Proc.; 4 Nevada Compiled Laws, 1929, Supplement 1934, p. 1; New Mexico, Laws 1933, chap. 184, p. 502; Ohio, Throckmorton’s Annotated Code, 1934, sec. 1527; Oregon, 1935 supplement to Annotated Code, Official Ed. 1930, p. 37; South Dakota, Compiled Laws, 1929, sec. 4455; Washington, Revised Stats., Remington, vol. 2, pp. 170-172; Wisconsin, Stats. 1931; Wyoming Revised Stats., 1931, Annotated, sec. 89-1101.)

The language in the foregoing statutes is not in all respects uniform, but without a single exception each enactment requires the filing of an affidavit or other statement under oath in support of a charge of disqualification of the judge. The rule in the United States courts is also asserted to be in harmony with section 170.5. But an examination of the federal statute and the decisions thereunder entirely refutes the claim. Section 21 of the Judicial Code (36 Stats, at Large, 1090; Title 28, United States Code Annotated, sec. 25), provides: “Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be designated in the manner prescribed in section 24 of this title, or chosen in the manner prescribed in section 27 of this title, to hear such matter. Every such affidavit shall state the facts and reasons for the belief that such bias or prejudice exists . . . and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. ’ ’

In applying the federal statute the Supreme Court of the United States has ruled that the trial court has the power and the duty to pass upon the sufficiency of the facts alleged in the affidavit charging disqualification, although it may not question the truth of the facts alleged. In 1912 a United States District Court held that if construed literally to mean that the mere filing of such affidavit was sufficient to disqualify the judge without a hearing or determination of whether the facts stated were true or showed disqualification, section 21 of the Judicial Code would be unconstitutional as depriving the courts of judicial power, vesting the same in the litigants to that extent. (Ex parte N. K. Fairbanks Co., 194 Fed. 978.) However, in 1921 the Supreme Court of the United States settled the question of the scope and effect of the section in the case of Berger v. United States, 255 U. S. 22 [41 Sup. Ct. 230, 65 L. Ed. 481], It was there held, first, that upon the filing of an affidavit in conformity with section 21 of the Judicial Code, averring the affiant’s belief that the judge before whom the case was to be tried had a personal bias or prejudice against him, and stating facts and reasons substantial in character and which, if true, fairly established a mental attitude of the judge against the affiant which might prevent impartiality of judgment, accompanied by the required certificate of counsel, it became the duty of the judge to retire from the case, and secondly, that the judge had the right to pass upon the sufficiency of the affidavit, but not upon the truth or falsity of the facts alleged. It was held, in other words, that the judge was clothed with the power and duty to pass upon the legal sufficiency of the affidavit, but in doing so must assume the truth of facts stated therein. The affidavit there under review was held to be sufficient but it was clearly indicated that facts alleged in order to be sufficient must not be based merely on rumor or gossip or adverse rulings, but that the facts and reasons stated must be substantial and formidable, not frivolous or fanciful. A mental bias as to the law was not sufficient. A personal bias or adverse opinion or leaning toward an individual without just cause was essential. It is therefore shown that in the states which have legislated on the subject and in the federal legislation some substantial showing, under oath, must be made before a judge can be held to be disqualified for bias and prejudice.

It is not contended by the respondent or by those appearing in his behalf that disqualification for other causes, such as interest or relationship is not amply provided for apart from section 170.5. But it is earnestly contended that good reasons are often present which should prevent a judge from trying a particular ease but that they are either not the proper subject of averment and proof or are not susceptible of proof. Mental incompetence, irascibility, arbitrariness, discourtesy to counsel, litigants and witnesses, . and other temperamental obliquity, are suggested as good causes for removing a judge from the trial of a cause, but are said to be well nigh impossible of proof sufficient to legally disqualify and that therefore the peremptory challenge is the only way of meeting the situation. It is regrettable that such causes seemed sufficiently grave to justify this legislation. That there is occasionally just cause for complaint of judicial conduct on the grounds advanced cannot be denied. The rule in force for so long a time in this state of permitting a judge to pass upon the question of his own disqualification was admittedly unsatisfactory and unjust. The later rule of having the question of his disqualification passed upon by another judge assigned to the task by the chairman of the judicial council, as provided by subdivision 5 of section 170 of the Code of Civil Procedure, is claimed to have proved likewise unsatisfactory.

But to put in the hands of a litigant uncontrolled power to dislodge without reason or for an undisclosed reason, an admittedly qualified judge from the trial of a case in which forsooth the only real objection to him might be that he would be fair and impartial in the trial of the case would be to characterize the statute not as a regulation but as a concealed weapon to be used to the manifest detriment of the proper conduct of the judicial department. The well-recognized limitations on legislative regulations of such matters in other jurisdictions, both state and federal, were available when section 170.5 was enacted. In none of them is the arbitrary method of administering the remedy adopted in enacting the statute under attack approved or countenanced. It must therefore be held to be unwarranted and unlawful interference with the constitutional and orderly processes of the courts.

It is urged by amici curiae in support of the respondent’s position that the analogy under our law between the peremptory challenge of a judge and the peremptory challenge of a juror is complete, citing section 600 et seq. of the Code of Civil Procedure. But the analogy does not exist, at least to the extent contended for. The juror challenge is not lodged against one sworn to try the case but only against one sought to become qualified to try the case. The peremptory challenge of a prospective juror within the limitations of section 601 of the Code of Civil Procedure results in the elimination from the trial without disclosed reasons or for no reason at all of those who might otherwise be sworn to try the case, and the challenges for cause must under sections 602 and 603 be tried by the court. When the prospective jurors are passed both under the peremptory provision of the statute and for cause, they are then sworn to try the ease. No one would be so bold as to say that when that state of the proceeding had been reached and passed it would be proper to permit a litigant then to challenge peremptorily and for no reason at all the right of the jury or any juror to sit in his ease. The litigant might prefer for many reasons that the case never be tried and go to judgment, but our system of jurisprudence would not permit the adjudication of eases ■to depend on any such considerations. When a cause is called for trial before a judge sitting without a jury the “court and jury” so to speak, have been sworn and are ready without further formalities to proceed with the trial of the case and should proceed unless for good cause known to the law, and not merely known in the secret recesses of the mind of the litigant, the trial should not go forward.

The District Court of Appeal, Third Appellate District, passed upon the validity of said section 170.5 in the case of Daigh v. Shaffer, 23 Cal. App. (2d) 449 [73 Pac. (2d) 927], wherein it was sought to enforce the peremptory challenge against a judge of the Superior Court in and for Merced County. The writ of prohibition was denied and the decision therein became final sixty days after November 16, 1937. After a full treatment of the subject the court, through Mr. Justice Plummer, properly came to the conclusion that section 170.5 was constitutionally ineffective. Reference is hereby made to the many authorities cited in that decision which bear on the question involved. It is not necessary, however, to go to the length of declaring the section in violation of section 21 of article I of our Constitution in that it grants to the defendant or his attorney in the criminal case the right peremptorily to challenge the judge and denies it to the counsel for the prosecution. Instances where legislation has accorded to an accused advantages which have been denied to the prosecution are numerous. The presumption of innocence (Pen. Code, sec. 1096), places upon the prosecution a greater burden of proof than that imposed upon a plaintiff in a civil suit. An automatic appeal is accorded a defendant in a criminal case and not to the prosecution. (Pen. Code, see. 1239.) Prior to 1927 the defendant was allowed more peremptory challenges than the people. (Pen. Code, sec. 1070.) The defendant in a criminal action is allowed a right to change the place of trial not given to the prosecution. (Pen. Code, sec. 1033.) Other instances might be mentioned but enough have been referred to to indicate that the section is not subject to attack based on this ground.

There is substance in the objection to the section that it violates section' 11 of article I of our Constitution which provides that “All laws of a general nature shall have a uniform operation”. The section provides that litigants in municipal and superior courts shall have the right peremptorily to challenge a judge of said courts, but makes no provision for a similar challenge by litigants in justices’ courts exercising the same powers and jurisdiction as municipal courts. In a justice’s court having jurisdiction of a civil case involving $1,000, no such challenge is allowed, while in a municipal court where the matter involved is also of the value of $1,000 such a challenge is allowed.

It is unnecessary to approve the additional ground on which the District Court of Appeal declared the section unconstitutional in the Daigh case, supra. Enough has been said to show that section 170.5 is ineffective for the purpose for which it was intended, and that it was and is the duty of the respondent judge to proceed with the hearing and determination of the matter pending before the respondent court.

Let the peremptory writ issue as prayed.


author: EDMONDS, J.

text:
    [Sac. No. 5184.
    In Bank.
    March 29, 1938.]
    WILLIAM W. WAHL, Respondent, v. A. R. WATERS et al., Appellants; JOHN WANNOP, Intervener and Respondent.

      Coyle E. Bybee and Dion R. Holm for Appellants.
    C. C. Carleton, Chief Attorney, Department of Public Works, Spencer Burroughs, Henry Holsinger, C. T. Waldo and Raymond S. J. Pianezzi, as Amici Curiae, on Behalf of Appellants.
    Grayson Price, Elliott, Atkinson & Sitton for Respondent.
    Devlin, Devlin & Diepenbrock for Intervener and Respondent.
   EDMONDS, J.

Upon the petition of the respondent, who is a qualified elector of, and property owner residing within, the Bidwell Municipal Utility District the superior court ordered that a peremptory writ of mandate issue, requiring the defendants, constituting the board of directors of the district, to call an election upon the question of its dissolution. The appeal is from this judgment.

The district was formed at an election held in 1934 pursuant to the provisions of the Municipal Utilities District Act (Stats. 1921, p. 245; as amended. See 2 Deering’s Gen. Laws, 1931 ed., p. 3650.) Its boundaries, which are not coterminous with those of any county or municipality, include approximately 400 square miles in the northern part of Butte County. The incorporated city of Chico and several unincorporated towns lie within it.

Apparently both the formation of the district and its acquisition of property have been vigorously opposed. The proceedings by which it was organized were challenged and finally upheld. (Morrison v. White, 10 Cal. App. (2d) 261 [52 Pac. (2d) 261] and Id., 10 Cal. App. (2d) 266 [52 Pac. (2d) 263].) In a later case the county auditor was required to deliver to the district a warrant for the amount of district faxes which had been collected. (Bidwell Mun. Utility Dist. v. Knott, 16 Cal. App. (2d) 432 [60 Pac. (2d) 588].) The present proceeding is based upon a petition which was filed with the secretary of the • district on December 6, 1935. The respondents claim that under the provisions of the Municipal Utilities District Act, supra, upon the filing of this petition it became the duty of the directors of the district to call an election upon the question of dissolution.

The Conditions under which the electors may require an election to be held are prescribed with particularity in section 28 of the act, which was added in 1933. (Stats. 1933, p. 2551; DBering’s 1933 Supplement, p. 2161.) It provides: “The board of directors of any district which operates no works or properties, or whose exterior boundaries are coincident with the boundaries of a single city or town, may call an election at any time for the purpose of submitting to the qualified electors of said district the question of whether the district shall be dissolved; and the said board of directors must, upon the filing with the secretary of such district of a petition signed by qualified electors of said district, equal in number to not less than twenty-five per cent of the votes cast within said district at the general State election next preceding, asking that the question of dissolution of the district be submitted to a vote of the electors of the district, call such election ...” (Sec. 28.) The respondent alleged that a petition signed by qualified electors in the district equal in number to more than 25 per cent of the votes cast within the district at the preceding general election and in the manner and form required by this act was filed with the secretary of the district, but that the directors failed and refused to call an election upon the question of the dissolution of the district although “said district has not at any time since the organization operated and does not now operate any works or properties”. Another taxpayer was allowed to intervene upon a petition presenting the same allegations. The directors demurred to the respondent’s petition upon both general and special grounds. After their demurrer was overruled, they answered, denying, among other allegations, not only that the petition had been signed by the number of qualified voters required by the act, but also that each of the persons who signed it had affixed his address, his occupation and the date of signing. They also denied the allegations of the petition that the district does not operate works or properties and as a separate defense alleged that the district “does now own and operate and ever since the 3rd day of December, 1935, has owned and operated works and properties consisting of a water plant serving numerous consumers in the Town of Durham”.

As a further and separate defense the appellants pleaded the pendency of another action brought against them by one F. L. Martenette, also a taxpayer and residing within the district, to compel the calling of an election upon the same question. It is alleged that the judgment entered in favor of the directors in the ease first brought is conclusive of the issues in the present action.

Upon these issues the court found that the petition filed with the secretary of the district on December 6, 1935, complies in all respects with the requirements of the act and that the district “did not on or before the 6th day of December, 1935, operate any works or properties within the meaning of the law under which the District was organized”. It, therefore, concluded that the respondent was entitled to judgment and ordered that a peremptory writ of mandamus issue forthwith commanding the appellants to call an election upon the question presented by the electors ’ petition.

The first contention of the appellants is that neither the petition of the respondent nor the one presented by the intervener states a cause of action against them and that their demurrer should have been sustained. They assert that the Municipal Utilities District Act, supra, makes no provision for the review by a court of the findings of the board of directors upon the sufficiency of an electors’ petition; hence, such findings cannot be challenged except upon allegations of extrinsic or collateral fraud. In support of that position they cite People v. Los Angeles, 133 Cal. 338 [65 Pac. 749]; Fresholtz v. Board of Trustees, 208 Cal. 502 [282 Pac. 501], and other cases where the power of a court to review the action of a board or council acting under similar statutes was passed upon. But the answer in the present case presents not only the determination of the board of directors that the electors’ petition was insufficient, but also the facts upon which that conclusion was made. If the facts presented by the appellants and conceded to be true do not justify the board’s determination, the rule contended for has no application.

The respondent filed his petition on February 20, 1936. The appellants’ answer includes as an exhibit the certificate of the secretary of the district that the petition contains 2,998 signatures of which 506 do not comply with the requirements of the law. He also certified that 1163 of the signatures also appear on a petition filed with him on October 10, 1935, which also demanded an election upon the question of dissolution and was the basis for the action brought by F. L. Martenette against the appellants. Another determination made by the secretary was “that there are 2218 names appearing on said petition after which a purported precinct appears which precinct was not written by the person signing said petition”.

It is admitted that the board of directors was not required to call an election unless the electors’ petition contained 1982 valid signatures. The act does not prohibit an elector from signing more than one petition and the 1163 signatures which the secretary found to be on both petitions must be counted upon the petition which is the basis of the present controversy. The fact that two electors’ petitions are on file at the same time does not warrant a refusal to act if either of them meets the statutory requirements. (Morrow v. Board of Directors, 219 Cal. 246 [26 Pac. (2d) 292].) Deducting the 506 challenged signatures from the total leaves 2,492 which is more than the required number unless the names of the 2,218 persons who did not write a precinct number cannot be considered.

The Municipal Utilities District Act does not require an elector signing a petition to place his precinct number thereon. It provides that an election upon the question of dissolution shall be governed by the general election laws of the state so far as they may be applicable. Section 1083a of the Political Code at one time provided that wherever any petition is required to be signed by qualified electors, each person “shall at the time of so signing . . . affix thereto the precinct” but since 1933, when this section was amended, the elector need only sign his name and “himself affix thereto his place of residence”. Therefore, under the facts found by the secretary of the district, the petition bears the signatures of more qualified electors than are required by the act and the board of directors should have called the election demanded if, on the day it was filed, the district did not operate any works or properties.

Although the appellants claim that upon the filing of the electors’ petition it was within their exclusive province to determine, as a question of fact, whether the district was operating works or properties, their principal contention is that the evidence is insufficient to support the findings. In support of the first proposition there is evidence that on December 4, 1935, the board of directors adopted a resolution establishing a schedule of rates for the sale and service of water by the district. This resolution includes in its preamble the statement that the district “owns and operates certain water works and properties known as Durham plant No. 1 for sale and service of water”. The electors’ petition was filed with the secretary of the district on December 6, 1935. At a meeting of the board of directors held on January 4, 1936, the secretary reported the filing of the petition “and it was decided that no action be taken because the District is now operating works and properties”. The present action was commenced February 20, 193'6. The following day the board of directors adopted another resolution reciting that prior to and on December 7, 1935, the district was operating works and properties. However, the adoption of either of these resolutions is not a conclusive determination of the question beyond the reach of judicial review if in fact the district was operating no works or properties at the time the electors presented their demand. If this were not the rule the election provisions of the act would be ineffective.

Upon the merits of the controversy the directors say that the district is the victim of forced interest and motives of a group which is not representative of the people. On the other hand, although the appellants may be thoroughly conscientious in their belief that the people of the Bidwell district should have municipal ownership of public utilities, until the district is actually operating works or properties its continuance lies within the control of the electors.

The minutes of the board of directors show that in September, 1935, the appellants learned of the movement to demand an election for the dissolution of the district. Up to that time they had been considering ways and means of acquiring a system for the distribution of electricity. But in the language of the respondent, they then became “water conscious”. Negotiations were undertaken for a lease of a water system at Durham then in private ownership. The directors of the district and the owners of the plant agreed on the terms of such a lease and an application was made to the railroad commission for permission to make the transfer. This application was subsequently withdrawn. Afterward the plant which the trial court found to be incapable of practical operation was built.

This was not a “plant” within the meaning of the statute. All of the evidence supports the finding of the trial court that upon the date when the electors’ petition was filed, this plant was incapable of practical operation as a revenue producing utility. And this court cannot take judicial notice of the fact, if it be the fact, that the original plant has now been enlarged and, with another system which has been leased, supplies the entire town of Durham with water. The sole question for decision in this case is whether the appellants were required to call an election under the facts existing in December, 1935. What has since been done cannot be here considered on appeal. Hence the order made by the railroad commission on October 7, 1937, is immaterial, and the subsequent motion of the appellants for leave to file a certified copy of it as part of the record upon this appeal must be denied.

Upon the argument of the appeal in this court, the appellants contended that the questions involved in this case have become moot because the district is now operating works and properties. ‘1 Ordinarily a writ of mandate will not issue to compel the performance of an official act if, when the writ is applied for, the time limited by law for action has expired; but this rule does not apply in a case like the one at bar, where the requirements and purpose of the law have been disregarded and defeated, of their own volition, by the very officers intrusted with the performance of a public duty which was clearly obligatory.” (Conn v. City Council, 17 Cal. App. 705 [121 Pac. 714].)

The Water Project Authority of the State of California has appeared herein as amicus curiae, urging a liberal construction of the phrase “operates no works or properties” in the interest of the Central Valley Project. It is argued that state agencies which form an integral part of the plan of that project should be fostered and encouraged in the interest of public welfare and policy of the state as declared by the legislature. But the legislature has also given the electors residing in a utility district the right under certain conditions to determine whether a district shall continue in existence. The language of the statute is clear and unambiguous ; hence there is no justification for any construction of it.

The judgment in the action brought by F. L. Martenette against the directors was not a bar to the present suit. The first case was brought by another taxpayer and presented issues concerning the status of the district on October 10, 1935, and the sufficiency of the petition presented by the electors on that day. The present action is based upon different facts and a petition presented at a later date.

The judgment is affirmed.

Waste, C. J., Seawell, J., Houser, J., Shenk, J., Curtis, J., and Langdon, J., concurred.