author: THE COURT. EDMONDS, J., Dissenting. SEAWELL, J., Concurring.

text:
    [Crim. No. 4134.
    In Bank.
    July 28, 1938.]
    THE PEOPLE, Respondent, v. CHARLES O’DONNELL, Appellant.

      Wm. L. Southwell, Peter J. Mullins and P. J. Murphy for Appellant.
    U. S. Webb, Attorney-General, and Seibert L. Sefton, Deputy Attorney-General, for Respondent.
   THE COURT.

This case was heard and decided by the District Court of Appeal, First Appellate District, Division One. Thereafter a hearing was granted by this court, and we now adopt portions of the opinion of Mr. Presiding Justice Tyler, with certain additions, as the opinion of this court:

“Appellant was originally charged with a violation of section 288 of the Penal Code, relating to crimes against children. To this charge he pleaded not guilty and not guilty by reason of insanity. At the time set for trial appellant withdrew his plea of not guilty and went to trial on his plea of not guilty by reason of insanity. On this trial the jury disagreed. Thereafter the district attorney amended the information and added a second count charging the offense of rape. To both counts of this amended information appellant pleaded not guilty and not guilty by reason of insanity. Subsequently he withdrew his plea of not guilty by reason of insanity. After trial the jury found appellant guilty on both counts. In its verdict of guilty on the rape charge it recommended that the appellant be punished by imprisonment in the county jail. Motions for a new trial and in arrest of judgment were made and denied, whereupon appellant was sentenced to San Quentin on the charge of violating section 288 of the Penal Code and to the county jail for one year on the rape charge, the sentences to run concurrently. This is an appeal from the final judgment and the order denying a motion for a new trial. It is conceded there is sufficient evidence in the record to support the conviction on the rape charge, but it is claimed there is none to support the charge under count one relating to lewd or lascivious acts against children. The further claim is made that the trial court by its conduct stripped appellant of a fair and impartial trial and erred in admitting the declarations of the child in evidence and in its instructions to the jury.
“The evidence reveals a heinous crime of the most loathsome and sordid character. Such of the facts as are necessary for a discussion of the case show that on the 5th day of September, 1936, appellant, a man sixty-two years of age, visited the home of Mr. Jannsch for dinner. There were present, Jannsch, his wife, a Mrs. Pedersen and her infant daughter three years of age. Shortly after 9 o’clock the child was put to bed. Later Mrs. Pedersen complained of a headache and she, accompanied by Jannsch and his wife, went to a drug store to obtain some aspirin. When the party returned home about half an hour later they heard the Pedersen child crying frantically in the bathroom. Mrs. Pedersen pounded on the front door and called upon appellant to open it. Eeceiving no response, Mrs. Jannsch requested her husband to hurry and open the door. When opened, Mrs. Pedersen accompanied by Mrs. Jannsch proceeded to the bathroom where they found the baby. She was bleeding between her legs and from her crotch. Mrs. Pedersen then went to the living room, where appellant was sitting in a chair with his eyes closed apparently asleep. She shook him and asked him what he had done to the baby. He replied that she must have fallen and cut herself. Mrs. Pedersen then returned to the bathroom and the child still crying, informed her in her simple language that appellant had put his finger into her vagina and rectum. Mrs. Pedersen took the child to the emergency hospital and notified the police. They went to the house and found appellant still in the chair with his eyes closed. When accused of having harmed the child he denied the charge. He was then taken to the bathroom by the officers and his clothes examined. The front of his trousers, at the fly, were stained with a whitish substance mixed with blood. He was returned to the living room, where one of the officers asked the little child in the presence of appellant who had injured her, and she pointed to appellant. He was then taken to his home and his clothes were taken charge of by the officers. Upon examination by a physician the child’s vagina was found torn and bleeding, and inside the vaginal cavity were found male procreative germs. Appellant’s trousers and the cushion of the chesterfield in the living room, where he had been, were examined, and blood and spermatozoa were found on both. Blood was also found on the slip which had been worn by the child. This in substance constitutes the evidence in the case.
“ It is difficult to understand why the jury, having found defendant guilty of rape, could have made the recommendation it did. It is admitted that the evidence is sufficient to sustain that charge, but it is claimed there is no evidence tending'to show that appellant violated section 288 of the Penal Code. In this connection it is claimed that the lewd and lascivious acts were part of and became merged in the rape charge, for which reason appellant could not be punished under the provisions of section 288 of the Penal Code. The fact that appellant was convicted upon the charge of rape does not necessarily prevent him from being punished under section 288 for any of the acts committed prior thereto. If any one of the antecedent acts of lewd and lascivious conduct was committed without the intent to commit rape, but simply to gratify appellant’s lustful passion, and then later, emboldened by his success and further inflamed with passion, he conceived the further nefarious intent to penetrate the body of the child, the antecedent acts prior to the rape are punishable under the section involved. This question is fully discussed in People v. Parker, 74 Cal. App. 540 [241 Pac. 401], and need not be pursued further here. In People v. Lind, 68 Cal. App. 575 [229 Pac. 990], it was held that one who had committed lewd and lascivious acts leading up to the consummation of the crime of sodomy might be punished for his preliminary acts under section 288 of the Penal Code. So, also, in People v. Bronson, 69 Cal. App. 83 [230 Pac. 213], it was held that acts committed upon the body of a child immediately preceding the accomplishment of the act of sexual intercourse would bring such conduct within the condemnation of the section. (See, also, People v. Agullana, 4 Cal. App. (2d) 34 [40 Pac. (2d) 848]; People v. Meyer, 94 Cal. App. 696 [271 Pac. 751]; People v. Piburn, 138 Cal. App. 56 [31, Pac. (2d) 470].)”

The statement made by the child to her mother should not have been admitted in evidence. It was not a part of the res gestae but a declaration of a past event. In People v. Perkins, 8 Cal. (2d) 502 [66 Pac. (2d) 631], this court recently said that to be within the rule of res gestae “the declaration must be ‘the natural and spontaneous outgrowth of the act or assault’, and not a mere narration of a past transaction”. In the earlier case of People v. Mahoney, 201 Cal. 618 [258 Pac. 607], the court laid down the requirement that to come within the rule allowing declarations to be admissible as part of the res gestae they must possess the characteristics defined in Underhill’s Criminal Evidence as follows: “First, they must have been uttered contemporaneously with and grow out of the act upon which they have a bearing so as to be spontaneous and not narrative; second, they must qualify, illustrate, explain and unfold its character or significance, so as, third, to be connected with it in such a manner that the declaration and the act form a single and indivisible transaction.” These eases state and apply a fundamental rule which has long been part of the law of evidence. Measured by that rule the declaration of the child was inadmissible as evidence against the defendant.

However, aside from the testimony relating the statement of the child, there is other evidence directly connecting him with the commission of the offense. To have accomplished the act of rape he must have exposed his private parts and those of the child. Such acts constitute a violation of section 288 of the Penal Code and were independent of the rape. (People v. King, 65 Cal. App. 306 [223 Pac. 1001].) The evidence challenged by the defendant was, therefore, fully covered by other evidence which was properly admitted and an examination of the entire record shows that there has been no miscarriage of justice. The error complained of does not, therefore, entitle the defendant to a reversal of the judgment. (Art. VI, sec. 4%, Const.)

“ Numerous' charges of misconduct on the part of the court during the presentation of the evidence are assigned as prejudicial error. To many of these remarks no assignment of error was claimed, nor was a request made that the jury be instructed to disregard them. Complaint is also made that the district attorney was guilty of prejudicial misconduct in the examination of appellant’s brother. The witness was asked if he ever had any difficulty with appellant concerning his, conduct toward his daughter. Appellant claims that the question was propounded in bad faith, and that it was prejudicial to him. Assuming the question to have been improper, the answer was favorable to appellant and could not have been to his prejudice. (8 Cal. Jur., p. 628.) Moreover, no assignment of misconduct was made, and in the absence thereof the question cannot be raised for the first time on appeal. (People v. Fodera, 33 Cal. App. 8 [164 Pac. 22].) The record shows that the trial judge was impatient with counsel for the defense and also with the district attorney as to the manner in which the trial was being conducted and made many remarks that may well have been left unsaid. We do not deem a recital of these remarks to be necessary. We have considered them and no doubt some of them were improper and beyond the privilege of the court. A trial judge is rigorously prohibited from action or words having the effect of conveying to the jury his personal opinion as to the truth or falsity of any evidence. This rule should be strictly adhered to. We cannot say, however, considering the conclusiveness of the evidence, that any of them resulted in a miscarriage of justice. At the conclusion of the case the court instructed the jury to disregard any remarks that were made from which it might gain the impression that the court had an opinion concerning any fact, and it was instructed that the facts were for its exclusive consideration. And finally, complaint is made of certain instructions which it is claimed were prejudicial to the rights of appellant. We have carefully examined the instructions and see no error therein. ’ ’

The judgment and order are affirmed.

EDMONDS, J., Dissenting.

I dissent. The record in this case shows that the defendant was convicted upon a trial during which the judge was guilty of misconduct which no appellate court should either excuse or ignore. The fact that the evidence points very conclusively to the defendant’s guilt does not take from him his right to a fair and impartial trial. One charged with crime is presumed to be innocent until the contrary is proved. The privilege of a trial judge to comment upon the evidence does not authorize him to either assume the role of prosecutor or to convey to the jury his personal opinion concerning any question of fact. (Peo pie v. Talkington, 8 Cal. App. (2d) 75 [47 Pac. (2d) 368]; Hunter v. United States, 62 Fed. (2d) 217, 220.) It is his duty to insure the defendant his constitutional rights, and to maintain an attitude of unswerving impartiality between the prosecution and the defense, regardless of the seriousness of the crime or his own certainty of the defendant’s guilt. (People v. Sheffield, 108 Cal. App. 721, 732 [293 Pac. 72]; People v. Brady, 56 Cal. App. 777, 789 [206 Pac. 668]; People v. Hartman, 103 Cal. 242, 245 [37 Pac. 153, 42 Am. St. Rep. 108].)

Throughout the trial of this ease the judge showed intense animosity toward the defendant and his counsel. Thirty-five instances of asserted misconduct are cited as grounds for reversal of the judgment. Apparently the nature of the offense with which the defendant was charged improperly influenced the judge and caused him to make rulings which have no legal support. Upon the hearing of a motion for a new trial he very frankly stated that having a belief in O’Donnell’s guilt, “perhaps the Court was incapable of concealing entirely his strictly personal sentiments toward the defendant”. A more accurate statement would be that from the beginning of the trial to its conclusion his “sentiments toward the defendant” were expressed by statements made to or before the jurors which could only mean that he expected and desired them to return verdicts of guilty. Moreover, his comment upon the conduct of defendant’s counsel was both intemperate and unjustified. It indicated that he believed they were presenting a defense which was' entirely without merit.

For example, in a discussion concerning the proceedings upon a former trial of the defendant, it was stated that he had entered a plea of not guilty by reason of insanity to the information as originally filed. “And that,” said the judge, “implies guilt upon his part”. In his instructions to the jury the judge again referred to this plea. After stating that the defendant had been tried upon the original information to which the defendant pleaded not guilty by reason of insanity, he said that “the jury were unable to agree as to whether the defendant was sane or insane at the time he committed the offense of violating section 288 of the Penal Code”. The record also shows that the defendant was asked about this plea when he testified as a witness in his own behalf. He explained that he entered it upon the advice of his then counsel “not knowing that when I made that plea of not guilty by reason of insanity* that I was making a plea of guilty, until I heard the judge make the assertion here, and when I tried to get my attorneys to contradict the judge they said ‘Sit down and shut up’ ”. The deputy district attorney then stated he had no further questions, whereupon the judge said, “Yes, get away. I do not know whether he has attorneys any more. Do you gentlemen still appear for him?” The reply of Mr. Mullins to this question was, “Yes, your Honor, and will continue to.” The judge concluded with the remark, “I sympathize with counsel for the defendant now.”

The defendant also cites as misconduct many remarks of the trial judge which were made during the examination of witnesses. During the cross-examination of an expert who testified concerning the result of certain chemical tests the judge said, “I am not going to permit the character of the testimony of a perfectly disinterested expert to be questioned, • not when there is very good reason for it. ’ ’ Another expert witness for the prosecution, the examining physician for the San Francisco juvenile court, testified that she had thrown away the slides containing smears which had been analyzed. On cross-examination she was asked: “You do not consider there is any further value to these smears?’.’ The deputy district attorney objected to this question, whereupon the judge said: “Objection sustained. I said yesterday, counsel, that I am not going to permit counsel, even by inference, to throw discredit upon the testimony of public officials who come here to testify, who are perfectly disinterested, and testify to facts within their own knowledge.” At another time he said: “That is a silly theory, counsel. You are so subtle that you are over my head altogether.”

Although many of the statements made by the judge were not assigned as error at the time of their occurrence, the record shows that with one exception, every claim of misconduct which was made during the trial was disregarded by him. The general rule that remarks which are relied upon as misconduct must be objected to .at the time they are made and the court requested to admonish the jury concerning them or they will not be considered as ground for reversal of the judgment upon appeal, has one well-recognized exception to it. Where an examination of the entire record shows a persistent course of conduct from which it is apparent that objection would have been useless, or, if the acts complained of are of such a character that no admonition to the jury would have removed their effect, then the absence of an assignment of error at the time the remark was made will not preclude one from raising the point upon appeal. (People v. Mahoney, 201 Cal. 618, 622 [258 Pac. 607]; People v. Frank, 71 Cal. App. 575, 585 [236 Pac. 189].) The present case clearly comes within the exception and is a striking example of the necessity for it.

Nor does the fact that a record shows evidence which, if believed, points unmistakably to the defendant’s guilt, save the judgment from reversal under article YI, section 4%, of the Constitution. Even convincing proof of a defendant’s guilt does not necessarily mean that there has been no miscarriage of justice. (People v. Mahoney, supra; People v. Patubo, 9 Cal. (2d) 537 [71 Pac. (2d) 270, 113 A. L. R. 1303].) A defendant is presumed to be innocent until conviction and is entitled to a fair trial. When that right is violated it amounts to a denial of due process of law. (Powell v. Alabama, 287 U. S. 45, 52 [53 Sup. Ct. 55, 77 L. Ed. 158, 84 A. L. R. 527].) The purpose of a trial is to present the facts in a given case. From those facts and the law applicable to them, the determination of guilt or innocence is to be reached.

When a trial judge persists in statements before the jury which plainly indicate his belief in the defendant’s guilt, extols the prosecution’s witnesses, forbids their cross-examination, belittles defendant’s counsel by frequent comments concerning the presentation of the defense and generally discredits their efforts, every principle of law demands a new trial.

' For these reasons both the judgment and the order denying a new trial should be reversed.

Houser, J., concurred.

SEAWELL, J., Concurring.

It is my view of the law that the errors pointed out in the main dissenting opinion are not curable under any remedial provisions of the statute or Constitution and compel a reversal of the order and judgment. I therefore join in the views expressed by my associates that the order and judgment appealed from should be reversed.

Rehearing denied.

Seawell, J., Edmonds, J., and Houser, J., voted for a rehearing.


source: Caselaw Access Project

author: THE COURT.

license: Public Domain

text:
    [L. A. No. 16274.
    In Bank.
    July 28, 1938.]
    UNION BANK & TRUST CO. OF LOS ANGELES (a Corporation), as Executor, etc., Plaintiff, v. COUNTY OF LOS ANGELES et al., Defendants; ALFRED E. DAVIES, as Trustee in Bankruptcy, etc., Intervener and Appellant; L. E. LAMPTON et al., Respondents.

      A. I. McCormick and Guy Richards Crump for Appellant.
    Everett W. Mattoon, County Counsel, J. H. O’Connor, County Counsel, S. V. O. Prichard, Deputy County Counsel, Hill, Morgan & Bledsoe, Kenneth K. Wright, Joe Crider and A. F. Mack for Respondents.
    John J. O’Toole, City Attorney (San Francisco), as Amicus Curiae, on Behalf of Respondents.
   THE COURT.

Upon further consideration of this case on rehearing we adopt the former opinion as modified:

“This action was brought against the defendant Lampton, as county clerk of Los Angeles County, and the sureties on his official bond, to recover certain money deposited with the said clerk and embezzled by his chief deputy.
“In 1930 a criminal trial was in progress in Los Angeles County, in which two persons were charged with an attempt to extort $75,000 from Charles H. Crawford. With his consent, 75 bills of $1,000 denomination were received in evidence at the trial. Thereafter the deputy clerk of the trial department delivered them to Liberty A. Hill, chief deputy in the county clerk’s office. The practice of the defendant Lampton was to have such exhibits kept in a bank safe deposit box. He entrusted the keys of the box to his chief deputy, and delegated to him the care and custody of the exhibits. Hill put the bills in the box, but later withdrew them and embezzled the money.
“Thereafter plaintiff, executor of the estate of Crawford, brought this action. Prior to his death, Crawford had assigned the sum of $10,000 out of such fund, and plaintiff in intervention seeks the recovery of that sum. The trial court held that neither the defendant Lampton, county clerk, nor his sureties, could be held liable for the loss. Prom this judgment plaintiff in intervention appealed.
“The first theory advanced to absolve defendants from liability is that the bond of the county clerk does not cover dereliction of duty in the separate office of clerk of the superior court, held ex officio. It is contended that these are separate and distinct offices; that defendant Lampton received the money in question as clerk of the superior court and not as county clerk; that, therefore, the bond which he furnished as county clerk does not cover the present loss. (See San Bruno v. National Surety Co., 119 Cal. App. 27, 31 [5 Pac. (2d) 951]; People v. Burkhart, 76 Cal. 606 [18 Pac. 776].)
“In examining this contention, it may be well to bear in mind the consequences thereof. Defendant Lampton has given but one official bond, the only one required of him by law, that as county clerk. It appears, however, that in his capacity as ex officio clerk of the superior court he received during 1929 and 1930 over $3,000,000 in trust funds, fees and fines. Under defendants’ theory this large sum was handled by a public officer with no security whatever for his faithful performance. In the case of defendant Lampton, this would be true for some eighteen years. Moreover, plaintiff points to section 996 of the Political Code, providing that an office becomes vacant upon the refusal or neglect of an officer to file his official bond within 30 days after notice of his election or appointment. The view of defendants, therefore, leads inevitably to the conclusion that either the office of clerk of the superior court in and for the county of Los Angeles is wholly without the protection of a surety bond, or the office is vacant. These alternatives are so startling, and the results so manifestly contrary to the public interest, that they must be rejected if it is possible to do so, and a brief examination of our Constitution and statutes makes it clear that the law is not as defendants assert it to be.

“ The county clerk is by the Constitution made ex officio clerk of the superior court (art. VI, sec. 14), and the legislature is given power to prescribe the duties of the county clerk. (Art. VI, sec. 5; see, also, Pol. Code, sec. 4152.) These duties are set forth in the Political Code. In section 4178 of said code, the duties of the county clerk are stated, and it is therein provided that he must act as clerk of the superior court. Specific duties as clerk of the superior court are thus described as duties of the county clerk. Elsewhere the Political Code provides for the giving of a bond by the county clerk. (Pol. Code, sec. 4022.) The condition of an official bond is that the principal will faithfully perform ‘all official duties then required of him by law and also such additional duties as may be imposed on him by any law of the state of California. ’ (Pol. Code, sec. 954.) Defendant Lampton filed a bond providing that he should faithfully perform all official duties ‘imposed upon or required of him by law, ordinance or the charter of the county of Los Angeles. . . . ’

“ It follows that in his activities as clerk of the superior court defendant Lampton was carrying out the duties imposed by law upon him as county clerk, and for any dereliction in such activities, his surety is responsible. This conclusion is compelled by the terms of the statute, and needs no citation of other authority. However, there is support for the general doctrine that where a surety becomes responsible for the defaults of a principal with respect to a particular office, and the principal also holds a second office, the duties of which are by law made a part of the duties of the first, the surety is responsible for defaults in performing the duties of the second. (See Redwood City v. Grimmenstein, 68 Cal. 512 [9 Pac. 560]; Mechem, Public Officers, sec. 285; Throop, Public Officers, sec. 236.)

“The second theory of defendants is that since the county clerk did not himself commit any wrongful act, it is necessary, as a basis of liability of the surety, to establish liability of the clerk for the wrongful act of his deputy; and they argue that the said clerk is not liable generally for torts of his deputies, who are themselves public officers, holding offices created by the charter adopted pursuant to constitutional authority, and serving under civil service regulations.

“ It may be conceded that in the absence of statute the modern view is opposed to making public officers civilly liable for torts of deputies, where the latter are themselves statutory officers and not under the superior’s unrestricted control or right of hiring and discharging. (See Michel v. Smith, 188 Cal. 199 [205 Pac. 113] [municipal police officer]; Van Vorce v. Thomas, 18 Cal. App. (2d) 723 [64 Pac. (2d) 772] [deputy marshal of municipal court]; Pavish v. Meyers, 129 Wash. 605 [225 Pac. 633, 34 A. L. R. 561] [police officer]; note, 43 Harv. L. Rev. 327.) The other view is usually grounded upon the identity of the officer and his deputy or the unrestricted right of control. (See Foley v. Martin, 142 Cal. 256 [71 Pac. 165, 75 Pac. 842, 100 Am. St. Rep. 123]; Duluth v. Ross, 140 Minn. 161 [167 N. W. 485]; New York v. Fox, 232 N. T. 167 [133 N. E. 434].) In the instant case the clerk’s deputies are independent statutory officers within the rule of such cases as Michel v. Smith, supra, and Van Vorce v. Thomas, supra. But this does not dispose of our problem. We are satisfied that defendant Lampton and his sureties are not liable under common law principles of tort or agency. But liability may exist by reason of the language of the statute and the surety bond. (See Grays Harbor Const. Co. v. Paulk, 179 Wash. 300 [37 Pac. (2d) 584]; Chicago v. Southern Surety Co., 239 Ill. App. 628, 640.) And upon an examination of the statute and the bond, it becomes clear that defendants are liable under their terms.

“Political Code section 958 requires all official bonds to contain ‘such conditions as required by this chapter, or the law creating or regulating the duties of the office’. Section 959 provides: ‘Every official bond executed by any officer pursuant to law is in force and obligatory upon the principal and sureties therein for any and all breaches of the conditions thereof committed during the time such officer continues tó discharge any of the duties of or hold the office, and whether such breaches are committed or suffered by the principal officer, his deputy, or clerk.’ In defendant Lamp-ton’s bond one of the conditions reads: ‘and further that if all deputies, assistants, clerks and employees appointed by him, or otherwise, and all and each of them, shall faithfully perform all of the duties that are now, or hereafter may be lawfully imposed upon or required of them, and all and each of them as such deputies, assistants, clerks or employees, then this obligation to be void; otherwise to remain in full force and effect’. And the bond recites, in conformity with the statute, that ‘we, L. E. Lampton’ and the named surety, ‘are jointly and severally bound’.

“The purpose and effect of these provisions are entirely clear; the liability imposed upon Lampton and his surety is one expressly required and fully contemplated by the parties; and the defendant surety has been compensated for the assumption thereof. Defendants suggest that section 959 of the Political Code was adopted at a time when the deputies of a public officer were not statutory officers but were employed by him and subject to his personal control, and that consequently the words ‘his deputy’ must be deemed to refer only to persons so controlled. There is no force in this argument. If the present ‘deputies’ of the county clerk are not ‘his deputies’, then what positions do they hold! His deputies did not cease to be such when they came under civil service regulations. The express terms of the statute are clearly applicable here, and the language requires no construction.

“It is true that in Lorah v. Biscailuz, 12 Cal. App. (2d) 100 [54 Pac. (2d) 1125], the court held that neither the sheriff nor his surety was liable for torts of a deputy, even though the bond expressly covered acts of the deputies. The opinion is based upon two theories: first, that the plaintiff’s right of action was derived solely from Political Code section 961 which mentions the officer but not his deputies; and second, that since the sheriff is not liable in tort for acts of his deputies, the bond was in this respect given without consideration. Upon careful study we are convinced that neither theory is sound. Political Code section 961 was not intended to limit liability, but rather to give a right of action; and it does not nullify the express provisions of section 959, placing the liability for acts of deputies upon ‘the principal and sureties’. Under section 959 and the joint and several bond executed by defendant Lampton and his sureties, defendant Lampton is liable for the acts of his deputies in the sum mentioned in the bohd. And the surety, having expressly assumed the liability of its bond for the premium demanded, cannot claim that any condition of the said bond is without consideration.” We are therefore of the opinion that the case of Lorah v. Biscailuz, supra, was, on the question of liability under the bond, wrongly decided, and it is disapproved.

“It may be observed that the legislature in 1933 recognized the problem arising from unbonded subordinates and provided that appointed deputies may be required by the officer to give individual bonds, or be covered by a ‘master official bond’. (See Pol. Code, see. 985.) This statute offers the innocent officer a means of protection against such liabilities as considered herein.”

Defendants also raise the defense of estoppel based upon evidence showing that in September, 1930, Crawford’s attorney examined the bills which were then in the custody of Lampton and found that 70 of those which the court had ordered held as exhibits were in the safe deposit box with five different ones of the same denomination. The explanation made by Hill, who took the bills from the box for the attorney’s examination, was that $5,000 had been placed in a bank account for the purpose of earning enough interest to pay the rental of the box. Two months before this time Lampton had been served with a restraining order issued out of the United States District Court in an action brought by the predecessor in interest of the appellant seeking a judgment for $40,000 against Crawford. The order of the federal court restrained Lampton from delivering the money in his custody to any one pending the further order of the court. The final decree in that case adjudged intervener to be the owner of and entitled to the payment of $10,000 of the amount held by Lampton.

It was stipulated that the appellant had no notice of the acts or conduct which it is charged constitute an estoppel. On the other hand, from the time the restraining order was served upon Lampton he knew that the appellant’s predecessor in interest claimed the money in his possession. Under these circumstances, the subsequent acts or omissions of Crawford or his attorney do not bar a recovery by the appellant.

The judgment is reversed.


author: CURTIS, J.

text:
    [S. F. No. 15994.
    In Bank.
    July 28, 1938.]
    A. A. BROCK, as Director of Agriculture, etc., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.
    U. S. Webb, Attorney-General, Walter L. Bowers, Deputy Attorney-General, for Applicant.
    Lewis D. Collings, Edward M. Selby and Cupp & Cupp for Respondents.
   CURTIS, J.

Petitioner seeks a writ of prohibition to issue out of this court directed to the Superior Court of the County of Los Angeles and the Honorable Emmet H. Wilson, a judge thereof, “commanding the said superior court and the Honorable Emmet H. Wilson, as judge thereof, to immediately cease and desist from any further proceeding in connection with the restraining order” or the preliminary injunction in a certain action pending before said court and instituted by G. S. Ray, and others against A. A. Brock, the petitioner herein, as director of agriculture of the state of California. The action of Ray, and others, versus Brock was instituted for the purpose of enjoining the petitioner from enforcing chapter 1,0 of division IV of the Agricultural Code of this state. (Stats. 1935, chap. 241, as subsequently amended, Stats. 1937, chaps. 3, 57, 413 and 710.)

In the action of Ray, and others, versus Brock, the plaintiffs asked for a restraining order and a temporary injunction, pending the trial of said action, against Brock as director of agriculture of the state of California, and upon the trial of the action, for a permanent injunction to restrain him from enforcing any of the terms and provisions of said chapter 10 of division IV of the Agricultural Code as amended by the legislature of 1937. After a hearing, the court on February 8, 1938, granted a restraining order against the defendant, as director of agriculture of the state of California, in which said director of agriculture was enjoined and restrained until the further order of said court from in any manner enforcing as against the plaintiffs, or either of them, any of the terms or provisions of chapter 10 of division IV of the Agricultural Code of the state of California, or “of said amended Stabilization and Marketing Plan” of the Los Angeles area as amended, or of the order of the said A. A. Brock, as such director, “for the Establishment of Minimum Wholesale, and Minimum Retail Prices for Fluid Milk” for said Los Angeles County Marketing Area.

Prior to the issuance of any temporary injunction, but after the issuance of said restraining order, this proceeding was instituted in this court for a writ of prohibition commanding said c.ourt and the judge thereof to cease and desist from any further proceeding in connection with said restraining order, except to dissolve said restraining order. While an alternative writ of prohibition was issued by this court it was subsequently set aside, and thereafter said superior court issued said temporary injunction of date, February 18, 1938. At the date of the filing of the petition herein, said temporary restraining order was in force, and there was pending before said superior court an order to show cause why a temporary injunction should not issue. It was to restrain the trial court from further proceeding in either of these matters that this proceeding was commenced.

Chapter 10 of Division IV of the Agricultural Code, together with its amendments, is frequently referred to as the Milk Control Act, and for the sake of brevity we will use that designation as we may have occasion to refer to the chapter in the course of this opinion. It is not necessary for our present purpose to set out in any detail the various provisions of the Milk Control Act. The title of the Milk Control Act is as follows: “An Act to add Chapter 10 to Division IV of the Agricultural Code, relating to the stabilization and marketing of fluid milk and fluid cream, declaring the urgency of this Act, to take effect immediately.” In general, the act provides for the establishment of market areas in the several sections of the state by the director of agriculture, the fixing by the director of minimum wholesale and retail rates at which fluid milk may be sold in any certain marketing area after its establishment, and the enforcement of the orders of the director general fixing such rates within said areas. Acting upon the purported authority conferred upon him as director of agriculture by the terms of the Milk Control Act, said director had established the Los Angeles County Marketing Area, and under a Stabilization and Marketing Plan of date, May 15,1937, had fixed the minimum wholesale and retail rates for the sale of fluid milk and fluid cream to be charged in said marketing area, and was proceeding to enforce said rates against all persons engaged in the sale of milk and cream within said area, including the plaintiffs in the action of Ray et al. v. Brock, hereinbefore referred to. As stated before, this last named action was instituted to enjoin A. A. Brock, as director of agriculture, from enforcing the terms of the Milk Control Act.

In support of their demand for an injunction against the director of agriculture, the plaintiffs allege that the director of agriculture failed to comply with the provisions of the Milk Control Act in the formation of said area and in the establishment of the amended Stabilization and Marketing Plan for the sale of milk and cream within said area. The allegations to that effect are set forth in Paragraph X of their complaint as follows:

“That defendant did not prior to the formulation of said Amended Stabilization and Marketing Plan for the purported area, conduct a hearing in said area, or at all, for the purpose of determining whether or not the producers who produce sixty-five per cent of the fluid milk for said area and whose major interest is in the production of fluid milk for said area, or of the producers who produce sixty-five per cent of the fluid cream for said area and whose major interest is in the production of fluid cream for said area, desire that a stabilization and marketing plan as to fluid milk or fluid cream be formulated for such area. That there was not prior to the formulation of said Amended Stabilization and Marketing Plan, or at any time, presented any petition for a Plan by the producers who produce sixty-five per cent of the fluid milk for said purported area, or for any area in or including the County of Los Angeles, or any part, thereof, and whose major interest is in the production of fluid milk for said area, or by the producers who produce sixty-five per cent of the fluid cream for said purported area, or for any area in or including Los Angeles County, or in any part thereof, and whose major interest is in the production of fluid cream for the area.”

In said complaint, other grounds are advanced, some legal and some based upon certain alleged facts in support of their claim that the defendant was acting illegally in attempting to enforce said Stabilization and Marketing Plan, but the allegations of fact set forth in Paragraph X of said complaint are sufficient for our present purpose. The defendant in said action, the director of agriculture, was present both upon the application for a restraining order, and at the hearing of the order to show cause why a temporary injunction should not issue. His contention on these occasions, and his contention now, is that the Milk Control Act is presumed to be valid, and that the defendant as a public officer is presumed to have regularly performed his official duty in the organization of said area and in the establishing of said stabilization and marketing plan, and, therefore, no injunction may be issued to prevent the execution of said statute by him as such public officer without the establishment, after due hearing, of the invalidity of his acts, and that until such hearing and the final determination that his acts are illegal, the courts are without jurisdiction to issue an injunction restraining him from attempting to enforce the statute.

On the other hand, the trial court was of the view that, even conceding the constitutionality of the statute, there -were still questions of fact tendered by the complaint as to whether the director of agriculture had regularly followed the provisions of the statute in the formation of the area and in the establishment of the marketing plan, and that until these questions of fact were determined by a trial of the ease, the court might properly restrain the director from putting said plan in force.

Petitioner relies upon section 526 of the Code of Civil Procedure and section 3423 of the Civil Code. The fourth subdivision of each of these sections provides that an injunction will not lie to prevent the execution of a public statute by an officer of the law for the public benefit. But petitioner concedes, as we understand his position, that if it be determined after a trial that the officer is acting illegally, then it is within the power of the court to restrain his acts. These code sections therefore do not answer our present inquiry.

Petitioner cites us to no authority in support of his contention that the courts will presume the statute valid and that the officer has regularly pursued his authority thereunder and therefore no injunction will issue until it has been determined that his acts are illegal and unauthorized. He cites in support of his claim that prohibition is the proper remedy the following eases: Reclamation District v. Superior Court, 171 Cal. 672, 681 [154 Pac. 845], Glide v. Superior Court, 147 Cal. 21, 27 [81 Pac. 225] , Richardson v. Superior Court, 138 Cal. App. 389 [32 Pac. (2d) 405], and Brock v. Superior Court, 9 Cal. (2d) 291 [71 Pac. (2d) 209, 114 A. L. B. 127]. But in none of these cases, was there any issue of fact tendered in the proceeding before the tribunal before which the proceeding was pending. The issues were all legal, and the ruling of the courts was uniform in holding that in such cases the trial court had no jurisdiction to enjoin an officer when the facts before it showed that he was acting within his legal authority. In the ease of Brock v. Superior Court, supra, an express stipulation was entered into eliminating all issues of fact, and in the other cited cases it clearly appeared that no issues of fact were involved. Such was not the case in the pending action before the trial court when the application for a restraining order or a temporary injunction was before that court. Specific issues of fact had been tendered by the complaint in that action. If these issues should be determined in favor of the plaintiffs, then it would be the duty of the trial court to issue an injunction restraining the officer from attempting to enforce the statute. The case before the trial court in that instance was precisely like that involved in a recent case decided by this court where we held that as there were issues of fact tendered by the complaint in an injunctive proceeding, the trial court had jurisdiction to try these issues of fact, and that prohibition would not lie to restrain the trial court from issuing an injunction against an officer in an attempt to enforce a public statute, until these issues of fact were determined. (Agricultural Prorate Com. v. Superior Court, 5 Cal. (2d) 550 [55 Pac. (2d) 495].) In that case our decision upon this point is as follows: “In the injunction suit before the respondent court the plaintiffs therein made the claim that the prorate district in which the applicants were purporting to act as officers was never legally formed or organized in that the petition for the formation of said district was never signed by the necessary two-thirds of the lemon producers residing in said proposed district or zone, and therefore the commission had no authority to make its order organizing said district without an election being held therein to pass upon the question of the formation of said district. This claim on the part of said plaintiffs was set forth in paragraph XX of their complaint in which it is alleged among other things that ‘said petition was not signed by two-thirds or more in number of the producers of lemons in California, nor by the owners of two-thirds or more of the producing factors of lemons in California. ’ If that allegation is true, then the district was not legally formed or organized, and if it was not so organized, an injunction against the applicants restraining them from executing the terms of said act would lie. On the hearing of the application for a temporary injunction, an affidavit was filed which purported to deny the allegations of paragraph XX of the said complaint. There is nothing, however, in the record before us to indicate that the respondent court has ever passed upon the issue tendered by the allegations of said paragraph XX. In fact, it would be rather unusual for the court to finally pass upon an issue of fact on an application for a temporary injunction. This issue of fact, however, was presented by the plaintiffs in the injunction suit and the court had jurisdiction to decide it. So far it has never done so. The injunction suit is still in the respondent court, and the court has exclusive jurisdiction to hear and determine all undecided issues of facts presented by the pleadings in said suit. Should it determine that said district was legally organized and that the orders which the plaintiffs in said action seek to restrain are valid and binding upon those to whom they are directed, then it would be the duty of said court to deny the injunction and dismiss the suit. On the other hand, should the trial court find in favor of the plaintiffs in said suit upon the allegations of said paragraph XX, then it would necessarily follow that said orders would have no legal support and the defendants in said suit should be enjoined from enforcing them. For this reason the application for a writ of prohibition directed to respondents restraining them from proceeding in said action should be denied. ’ ’

We see no reason to recede from the position taken in the decision of that case. It appears to us to be the only reasonable conclusion that can bo reached in proceedings of that nature. To hold otherwise would be to tie the hands of the court in cases in which great and irreparable injury might be done private citizens by officers acting under a mistaken belief of their authority. The issuance of a temporary injunction growing out of a factual situation is usually one within the sound discretion of the trial court.

The constitutionality of the Milk Control Act is also raised by the respondents. In view of our conclusion that the trial court still has jurisdiction of the injunction suit, and therefore the petition herein must be denied, it is not necessary for us to pass upon the constitutionality of said act, and a majority of this court deem it improper to do so. We, therefore, express no opinion upon the constitutional question raised by respondents.

The petition is denied.

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

Rehearing denied.


author: WASTE, C. J. EDMONDS, J., Concurring.

text:
    [S. F. No. 15938.
    In Bank.
    July 29, 1938.]
    NATIONAL AUTOMOBILE INSURANCE COMPANY (a Corporation), Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION and J. J. PACKER, Respondents.

      S. Norman Hays for Petitioner.
    Everett A. Corten for Respondents.
   WASTE, C. J.

This is a petition to review an award of the Industrial Accident Commission.

On May 25, 1936, L. E. Sherbert was operating a restaurant under the fictitious name of “Dixie Club Restaurant”. J. J. Packer was employed as dishwasher. On that date a policy of workmen’s compensation insurance was issued by petitioner, National Automobile Insurance Company, in the name of “L. E. Sherbert, an individual, doing business as Dixie Club Restaurant”. On August 19, 1936, Sherbert took in Dixie Henry, his sister, as a partner, the business continuing in name as before. On August 23, 1936, Packer sustained a compensable injury. The commission made an award against petitioner as insurer of Sherbert, and against Dixie Henry, as an uninsured employer, in the total amount of $185.28.

Petitioner attacks the award on the ground that the policy did not cover the liability in question. Reliance is placed on the following provision of the policy: “If this policy is issued to an individual, it shall cover only his liability as an individual émployer and not any liability as a member of a copartnership or any other organization.” Petitioner’s theory is that it insured the liability of Sherbert, an individual ; that the liability here involved is that of the partnership of Sherbert and Henry; that liability is imposed upon Sherbert because he is a “member of the copartnership” composed of the named persons, and hence that such liability is not covered by the policy.

We see no escape from the logic of petitioner’s reasoning. It was found by the commission that the injuries were incurred while the employee was in the employ of the assured and his sister doing business under the above-mentioned fictitious name. This finding can only be construed as a finding of employment by the partnership made up of the named persons. There can be no doubt, therefore, that under the circumstances here present, liability fastened upon the assured solely because he was a “member of a copartnership” that employed the injured person. But, as shown, the quoted provision of the policy clearly and concisely declares that it covers the liability of the assured only as an “individual employer” and does not cover “any liability as a member of a copartnership”.

The fact that the assured’s liability to employees of the copartnership was no greater than that which would have attached to him had he retained the status of “individual employer ’ ’ contemplated by the policy, is of no moment in our determination of the coverage thereunder. A contract of insurance, like any other contract, is to be construed so as to effectuate the intention of the parties. Of course, if any ambiguity exists in its terms it is to be interpreted against the insurer and in favor of the assured. But where, as here, the provisions of the policy are definite and certain there is no room for interpretation and the courts will not indulge in a forced construction in order to east a liability upon the insurer which it has not assumed. (Maryland Cas. Co. v. Industrial Acc. Com., 209 Cal. 394, 397 [287 Pac. 468].)

In our opinion, it is obvious from the above-quoted provision of the policy that it was the intention of the insurer and the assured to limit the coverage of the policy to such liability only as was imposed upon the assured as an “individual employer” as distinguished from that which would arise by reason of being a “member of a copartnership”. The right of an insurer to limit its contract of coverage may not be questioned. (Zurich Gen. Acc. Ins. Co. v. Stadelman, 208 Cal. 1,51 [280 Pac. 687]; Ocean Acc. etc. Co. v. Industrial Acc. Com., 208 Cal. 157 [280 Pac. 690].)

The holdings in Reed v. Industrial Acc. Com., 10 Cal. (2d) 191 [73 Pac. (2d) 1212, 114 A. L. R 720], and Zimmerman v. Industrial Acc. Com., 119 Cal. App. 253 [6 Pac. (2d) 291], present no obstacle to the conclusion here announced. Neither of the cited cases presented a policy provision identical with or equivalent to that above quoted. In effect, the cited cases merely hold that the provisions of the policies there involved failed to sufficiently or clearly indicate an intention to cover only the respective assured’s liability as an “individual employer” to the exclusion of any liability imposed upon him by reason of being a “member of a copartnership”. Such intention is clearly and definitely evidenced in the policy now before us and “any liability as a member of a copartnership ’ ’ is expressly excluded from coverage. We have no alternative, therefore, but to give effect to the plain meaning of the terms of the policy.

In passing, it may be mentioned that upon the hearing before the commission, the petitioner tendered a return of the premium because of the lack of coverage under the policy resulting from creation of the partnership.

The award is annulled in so far as it purports to dismiss L. E. Sherbert from liability and in so far as it purports to hold the petitioner liable as his insurance carrier, and the matter is remanded to the commission for further proceedings consistent with the views herein expressed.

Shenk, J., Curtis, J., and Seawell, J., concurred.

EDMONDS, J., Concurring.

I concur in the decision, but I believe that the court should expressly overrule the case of Reed v. Industrial Acc. Com., 10 Cal. (2d) 1,91 [73 Pac. (2d) 1212,114 A. L. R. 720], and disapprove the holding in Zimmerman v. Industrial Acc. Com., 119 Cal. App. 253 [6 Pac. (2d) 291], These cases reach a conclusion directly contrary to the position now taken by this court. Although the policy here considered limits the coverage to the liability of the insured as an “individual employer” to the exclusion of “any liability arising by being a member of a copartnership”, the same restriction was at least impliedly made in the policies whose terms were construed in the two earlier cases.

In the Zimmerman ease, the insured was designated as an individual doing business under a fictitious name. He took in a partner and the court held the insurer liable for a compensable injury to an employee of the' copartnership. The decision was based upon the conclusion reached in the case of First Rational Trust & Sav. Bank v. Industrial Acc. Com., 213 Cal. 322 [2 Pac. (2d) 347, 78 A. L. R. 1324], although the facts in that case were entirely different. There the policy insured the liability of two individuals, doing business under a firm name and described in the declaration as a co-partnership. One of the named insured dropped out of the business and the other continued it as before but without having the policy changed. The court held the insurance carrier liable for a compensable injury to an employee which occurred after the retirement of the partner, stating as reasons therefor that the policy did not insure the partnership as an entity and also that in this state a copartnership is not usually considered a legal entity. The decision was also said .to be compelled by the mandate of section 2557 of the Civil Code, as then in effect, which provided: “A transfer of interest by one of several partners, joint owners, or owners in common, who are jointly insured, to the others, does not avoid an insurance, even though it has been agreed that the insurance shall cease upon an alienation of the thing insured.”

The policy in this case included a schedule of questions asked of the insured, one of which was “Individual, copartnership, corporation or estate Í” The answer to this question was “Copartnership”. It is difficult to understand why such a policy should not have been held to be one which insured the liability of the copartnership. At the time this decision was rendered the Workmen’s Compensation Act (Stats. 1917, chap. 586, sec. 7) required the term “employer”, as used in it, to be construed as including every firm and voluntary association. Although for some purposes a co-partnership may not be a legal entity, the Workmen’s Compensation Act expressly recognized it as such and the insurance contract disclosed that the individuals named were carrying on their business as a copartnership. The right of an insurer to limit its contract of coverage cannot be questioned (Zurich Gen. Acc. Ins. Co. v. Stadelman, 208 Cal. 151 [280 Pac. 687]; Ocean Acc. etc. Co. v. Industrial Acc. Com., 208 Cal. 157 [280 Pac. 690]) and courts must uphold the agreement of the parties.

The additional reason which the court gave for its decision is a doubtful one. The code section specifying that a transfer of interest by one of several co-owners does not avoid insurance might properly have been applied where there was “an alienation of the thing insured”. But the policy of workmen’s compensation insurance which the court was there considering covered the liability imposed by law upon an employer. Was the withdrawal of one member of a copartnership “an alienation of the thing insured” within the meaning of such a policy 1

Under the policy in the Reed case the liability of W. B. Mellott, designated as an “individual”, was insured. Later Irwin G. Gordon became interested in the insured’s business and it was thereafter conducted as “W. B. Mellott and Irwin G. Gordon, doing business as Gordon and Mellott”. The insurance company, so far as the record shows, had no knowledge of Mr. Gordon’s connection with the business but was held liable for a compensable injury to one who was employed by the copartnership of Gordon and Mellott. No distinction can properly be made between the liability of the insurer under that policy and the one issued to Mr. Sherbert in the present case.

Houser, J., concurred.


author: WASTE, C. J.

text:
    [L. A. No. 16578.
    In Bank.
    July 29, 1938.]
    NATIONAL AUTOMOBILE INSURANCE CO. (a Corporation), Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION, FRANK PARLAS et al., Respondents.

      C. W. Bowers for Petitioner.
    Everett A. Corten and Eldon B. Spofford for Respondents.
    Morrison, Hohfeld, Foerster, Shuman & Clark, as Amici Curiae, on Behalf of Respondents.
   WASTE, C. J.

This is a petition to review an award of the Industrial Accident Commission.

The employee, Lome E. Lackey, was a taxi driver employed in San Bernardino. On September 18, 1936, he sustained a compensable injury and filed a claim with the respondent commission. After hearing, the commission found that his employers were Frank Parias and Leslie Mohr, and that petitioner, National Automobile Insurance Company, was the insurance carrier. On rehearing, the commission found that the employers were “Frank Parlas, Leslie Mohr, The Airline Taxi Company, Merrill Parlas, Howard Crawthers, Donald Morris and George Riche”. The employers were released and discharged from liability and an award was made against petitioner as their insurance carrier.

The principal issue is whether petitioner is the insurance carrier of the employer or employers of Lackey. Frank Parlas originally commenced the taxi business under the fictitious name of Air Line Taxi, and later he and his associates also used the name of Red Top Cab Company. Other parties were eventually brought into the organization. Their association was not under any formal articles of partnership, nor was there ever a fixed group of partners directing a specific business. The new parties owned or purchased interests in cars which were operated by drivers under the above-mentioned fictitious names. The particular cab driven by Lackey, the injured employee, was owned jointly by Frank Parlas and Leslie Mohr, and the proceeds from its operation, after expenses were deducted, were divided between Parlas and Mohr. The other parties had no interest in this particular cab. Mohr also acted as general manager of the taxi business under Parlas. Lackey received instructions from Mohr, as well as from Parlas. His cab was marked with signs of “Air Line Taxi’’.

The insurance coverage was obtained through Walter W. Robinson, an authorized agent of petitioner. Only one application was made, in 1932; thereafter all policies were renewals obtained by the agent. Occasionally the agent inquired as to the persons composing the group doing business under the fictitious names and specified these as.the assureds under the policy. In a policy prior to that in force at the time of the accident, the parties were named as “Frank Parlas and Merrill Parlas, doing business as the Red Top Cab Company, the Yellow Cab Company, and Air Line Taxi”. On December 16, 1935, Frank Parlas told the agent that he had sold certain of the cars to others, and requested that the coverage be made to include them. The company then issued its endorsement in the names of “Merrill Parlas, Frank Parlas, Howard Crawthers, Donald Morris and George Riche, jointly and not severally, a copartnership doing business as Red Top Cab Co. and Airline Taxi Co.’’. This policy was renewed by one commencing May 1,4, 1936, with the same parties named. The agent testified that all his dealings were with Frank Parlas; that when he renewed the last policy he inquired as to any changes in the names, but that he had not specifically requested Parlas to let him know when changes occurred in the names of associates or car owners of the cabs.

We have discovered but one case dealing with a policy which insured two or more persons “jointly and not severally, a copartnership doing business as”, etc. In such case the petitioner here was involved. (National Automobile Ins. Co. v. Industrial Acc. Com., 27 Cal. App. (2d) 225 [80 Pac. (2d) 1024].) The decision in the cited case was handed down by the District Court of Appeal of the First Appellate District, Division Two, on June 22, 1938, since the filing of the briefs in the present cause. It is held in the cited ease, in substance, that a policy containing the above-quoted words insured against the liability of the then existing copartnership as employer and clearly provided that it did not insure against the liability of the named individuals as employer. In announcing this result, the District Court of Appeal referred to the case of First Nat. Bank v. Industrial Acc. Com., 213 Cal. 322 [2 Pac. (2d) 347, 78 A. L. R. 1324], wherein it was definitely indicated that by appropriate language a partnership entity may be covered and concluded that the policy appeared to be precisely the type of policy which the court there had in mind.

We are satisfied that the policy involved in the present ease, insuring by its express terms “Merrill Parlas,' Prank Parlas, Howard Crawthers, Donald Morris and George Riche, jointly and not severally, a copartnership doing business as Red Top Cab Co. and Airline Taxi Co.”, covers such liability only as is imposed upon the named persons by reason of membership in the named copartnership and necessarily excludes from coverage any liability imposed on the named persons as individual employers or as members of a copartnership composed of persons other than those designated in the policy. As indicated at the beginning of this opinion, the cab driven by the injured employee was owned and operated jointly by Prank Parlas and Leslie Mohr, the latter not being designated in the policy as a member of the copartnership entity therein covered. It follows that the policy issued by petitioner does not cover any lia- • bility of Prank Parlas by reason of his individual interest in or ownership of the cab driven by the injured employee, and any status as an individual employer resulting therefrom, nor does it cover any liability of said Parlas arising out of the joint venture or separate or subsidiary partnership arrangement under which he and Mohr, joint owners of the cab, operated the same. The cab was not operated by the partnership composed of the five persons named in the policy, but, instead, was owned and operated jointly by only one of such persons' in conjunction with a person (Mohr) not therein designated.

The fact that from time to time changes in membership of the partnership entity intended to be covered were reflected in the policy, tends strongly to indicate that it was the intention of the parties that the coverage extended only to the entity made up of the parties so designated. The right of an insurer to limit its contract of coverage may not be questioned. (National Auto. Ins. Co. v. Industrial Acc. Com., S. F. 15938, (ante, p. 689 [81 Pac. (2d) 926]), this day filed; Zurich Gen. Acc. Ins. Co. v. Stadelman, 208 Cal. 151 [280 Pac. 687]; Ocean Acc. etc. Co. v. Industrial Acc. Com., 208 Cal. 157 [280 Pac. 690].) Mohr not being designated in the policy as a member of the partnership entity covered thereby is not entitled to the protection of the policy, and Merrill Parlas, Howard Crawthers, Donald Morris and George Riche having no interest or ownership in the cab driven by the injured employee at the time of the accident, and not having employed him to operate the same, do not require the protection thereof. As already indicated, any liability imposed upon Frank Parlas by reason of his employment of the injured person in conjunction with Mohr under a joint venture or separate or subsidiary partnership arrangement between them is likewise excluded from the coverage the policy which by its express terms covers only the partnership entity made up of the five persons named in the policy. (See Hartigan v. Casualty Co. of America, 227 N. Y. 175, 177-179 [124 N. E. 789].)

The award is annulled in so far as it purports to dismiss and release Frank Parlas and Leslie Mohr from liability and in so far as it purports to hold the petitioner liable as insurance carrier, and the matter is remanded to the commission for further proceedings consistent with the views herein expressed.

Edmonds, J., Shenk, J., and Seawell, J., concurred.

Houser, J., being disqualified, did not participate herein.

Rehearing denied.


author: THE COURT. LANGDON, J., Dissenting.

text:
    [S. F. No. 15929.
    In Bank.
    July 29, 1938.]
    In the Matter of the Petition of JOSEPH P. LACEY for Readmission to The State Bar of California.
    Edwin V. McKenzie, Leo B. Friedman, Walter E. Hettman, Edward P. Murphy and Joseph Scott for Petitioner.
    Philbrick McCoy and John A. Sutro for Respondent.
   THE COURT.

Application of Joseph P. Lacey for readmission to practice law in this state after his disbarment by this court on the ground of his conviction of a felony involving moral turpitude. The application for reinstatement is based upon the ground and claim that the applicant since his disbarment has rehabilitated himself and now possesses the necessary moral qualifications and mental attainments to entitle him to be restored as a member of the Bar and to practice as an attorney in all the courts of this state. The application was made in the first instance to the Board of Governors of the State Bar of California. Upon presentation of said application the Board of Governors of the State Bar appointed one of its members, Richard Belcher, Esq., as a committee to hold a hearing on said application and to take evidence both in support of and against said application. The committee held such a hearing which continued eight days at which a large number of witnesses were sworn and gave testimony as to the issues involved in said application. There were also filed with the committee numerous testimonials in support of said application: The applicant was present both in person and by counsel during the entire time of said hearing and the State Bar was represented by a duly appointed examiner during the last five days of said hearing. At the conclusion of said hearing the committee made findings of fact favorable to applicant and recommended his reinstatement to practice law in this state.

Before passing upon the report and recommendation of said committee and after said report had been filed with said board, it appointed one of its members, Newton M. Todd, Esq., as a “Reviewing Governor” to review the evidence and proceedings before said committee, and report his conclusions to the Board of Bar Governors. The “Reviewing Governor” complied with the order appointing him, and reported to the board his recommendation that the application of said Joseph P. Lacey for reinstatement and readmission as attorney at law be denied. After the receipt of this report and recommendation, the Board of Bar Governors held a hearing upon said application for reinstatement, at which hearing petitioner and his counsel and the examiner of the State Bar were present and presented arguments before the board for and against the reinstatement of petitioner. After argument of counsel, the matter before the board was submitted for decision. The vote upon this motion resulted in a tie, six members voting in favor of and six against said motion. Two members of the board deemed themselves disqualified and refrained from voting and one member of the board was absent. At a subsequent meeting of the board held one month thereafter, the previous vote upon the resolution to reinstate applicant was unanimously rescinded by .the board. Thereupon the board proceeded to again vote upon said motion to recommend the reinstatement of applicant, with the result that the motion was lost, nine members voting against said motion and four in favor. The two members who deemed themselves disqualified refrained from voting as they had done at the previous vote on said motion. This final action by the Board of Bar Governors was taken on March 19, 1937. On October 15, 1937, applicant filed in this court his petition to be reinstated to the practice of law notwithstanding the adverse action of the Board of Bar Governors upon his application for reinstatement made before that body. That this court has the inherent power and authority to admit an applicant to practice law in this state or to reinstate an applicant previously disbarred despite an unfavorable report upon such application by the Board of Bar Governors of the State Bar, we think is now well settled in this state. (Brydonjack v. State Bar, 208 Cal. 439, 446 [281 Pac. 1018, 66 A. L. R. 1507] ; Vaughan v. State Bar, 208 Cal. 740 [284 Pac. 909].) The recommendation of the Board of Bar Governors is advisory only but as that body has been provided by legislative enactment as an arm of this court for the purpose of assisting in matters of admission and discipline, the greatest deference should be, and always has been, accorded to its recommendation by this court. Nevertheless the final determination in all these matters rests with this court, and its powers in that regard are plenary and its judgment conclusive. (Fish v. State Bar, 214 Cal. 215, 225 [4 Pac. (2d) 937]; Brydonjack v. State Bar, supra.)

The reinstatement of applicant was resisted on two grounds, first, that the evidence showed that applicant since his disbarment had not become rehabilitated morally to such an extent as to entitle him to be restored to the practice of law, and secondly, that since his disbarment and while he was under the disability of disbarment he had practiced law contrary to the order of the court made in said disbarment proceedings.

In support of his application for reinstatement, and for the purpose of showing that he had rehabilitated himself morally since his disbarment, the applicant presented before the committee both oral and documentary evidence consisting of letters of recommendation from members of the judiciary, members of the bar and business men and personal friends. Many of these same persons appeared personally before the committee and gave oral evidence favorable to the applicant as to his moral fitness to again become a member of the Bar of this state. On the other hand, both the trial judge who presided at applicant’s trial and the prosecuting officer at said trial reported adversely upon applicant’s application. As we have before stated, the report of the committee appointed by the Board of Bar Governors was favorable to the applicant, while the “Reviewing Governor” made a contrary report. In this state of the record the application came before the Board of Bar Governors, with the result as stated above. We do not find it necessary to • pass upon the question thus presented, for we are satisfied that other considerations determined a majority of the Board of Bar Governors to refuse approval of applicant’s application. At the hearing before the Board of Bar Governors, different members of the board and the examiner appointed by the board, entered into an extended discussion with applicant’s attorney relative to the evidence bearing upon the question as to whether or not the applicant had practiced law during the period of his disbarment. It is apparent to us that the final action of the Board of Bar Governors in denying the petition of applicant for reinstatement was based to a large extent upon evidence before it that petitioner had practiced law during the period of his disbarment. We are of the opinion after a review of the entire evidence upon the issue as to whether petitioner violated the order of disbarment by practicing law thereafter, that the preponderance of such evidence is in favor of the final conclusion of the Board of Bar Governors.

In a number of instances it was shown that applicant gave legal advice, consulted with attorneys representing interests opposed to those he represented, agreed to represent litigants in proceedings pending in court or which might be the subject of court action, and that he was paid for the services rendered by him. In none of these matters did applicant ever appear in court for any of the parties whom he agreed to represent but when it was necessary for a court appearance an attorney who is referred to in some instances in the record as Mr. Davis, although that was not his true name, acted for him in proceedings before the court, his retention as their attorney having been arranged by applicant.

The Sheldon Matter. In this matter, Mrs. Sheldon testified that Lacey told her he was an attorney and would take care of her legal troubles. Her father had died and she was concerned regarding the property belonging to his estate. She testified that she paid Lacey $100 for services to be performed in connection with her father’s estate. While she testified that Lacey accepted the money, she claimed that he failed to perform the services agreed upon. We are not particularly concerned with the claim in our consideration of the present issue. Applicant contended and testified that he received this fee for Mr. Davis, and that the legal services were to be performed by Mr. Davis and not by applicant. Applicant so testified and so did Mr. Davis. Applicant further testified that this fee was paid to Mr. Davis. It seems that Mr. Davis had been regularly admitted to practice law in this state, and thereafter had left the state for some considerable period of time. While out of the state he had failed to pay his dues as required under the State Bar Act and for such failure had been suspended from practice by order of this court. After such order of suspension, Mr. Davis returned to the state, but neglected to pay his dues and to be reinstated to practice. Some time subsequent to his return to the state, he was brought before the State Bar in a disciplinary proceeding in which he was charged with practicing law without a license. At the present hearing, after Mr. Davis had testified that this $1,00 was paid to Mr. Lacey and the latter paid it to Mr. Davis, for the purpose of impeaching him as a witness, he was shown a transcript of the proceedings in his own case before the State Bar. The transcript showed that he had represented himself in that proceeding, and that by questions propounded by him to Mrs. Sheldon, she testified that she never employed Mr. Davis to act as her attorney in the matter of her father’s estate; that she employed Mr. Lacey as such attorney; and that she never paid Mr. Davis any money, although Mr. Davis had given her a receipt for the $100 some six months after it had been paid. The transcript of the proceedings in that matter further showed that Mr. Davis, when asked, “Why did you sign a receipt for money you had never received!” answered, “Foolishly, to protect the fellow. I saw he was in trouble there.” There is no question that by the use of the term, “the fellow”, Mr. Davis referred to the present applicant. This is made apparent from further testimony given by Mr. Davis in liis own case, as shown by the transcript. He was asked the following question, “So your explanation is that you signed this receipt in order to help out Mr. Lacey?” to which he answered, “I did, but I had known the man for years. I knew he received the money, and probably spent it and I signed the receipt.” These prior statements made by Mr. Davis, not only served to completely impeach him aft a witness, but taken in consideration with other facts and circumstances surrounding the relations of these two men, place the applicant in a most unfavorable light and justify an inference that the use of Mr. Davis’ name in these legal proceedings was only a ruse and a subterfuge to escape the technical charge that he was practicing law.

It further appears without any contradiction that during a considerable part, if not the entire time, applicant claims that he was acting in these and other matters, hereinafter considered, as the clerk of Sir. Davis, the latter was under suspension for failure to pay his dues to the State Bar, that for that reason he had no right .to practice law at that time, that he had no office at which he held himself out as practicing law, and that he was then engaged as an employee in a local bank. Furthermore, it appears without conflict that when in the legal proceedings in which applicant was acting, it was necessary to state the place where notice should be sent to the attorney of the person for whom applicant was acting, the place so designated in one instance was not the office or place of business of Mr. Davis, but the home of applicant, and in another instance, the place where applicant was employed was given as Davis’ address. In no case was Davis’ home or place of business designated as the place where notice was to be sent to the attorney. To hold that these proven facts do not show that applicant was practicing law would be to sacrifice form to substance and to permit one, indirectly and by subterfuge to do that which he is prohibited from doing directly. He performed all legal services required, except appearing in court, and he was paid by these people for services rendered in their behalf.

The Mary Coghlan Matter. Mary Coghlan testified that she paid applicant $50, part of which was to cover costs and filing fee and the balance of his fee, in a proceeding pending in court. In that proceeding when it was necessary for a court appearance, Mr. Davis acted for Mr. Lacey. However, Mrs. Coghlau testified as to Mr. Davis’ court appearance. “Of course, Mr. Lacey did not go in court. Mr. Davis did, although I didn’t know at the time Mr. Davis was connected with me. I hadn’t employed him.” Mr. Davis was then under suspension for non-payment of dues, and, as stated before, had no established law office and was a bank employee.

In another case, Mr. Lacey wrote to the attorney for the plaintiff asking for additional time in which the defendants might appear, but subsequently when a court appearance was necessary, it was made either by Mr. Davis or in his name. Other instances are shown in which the applicant was consulted on legal matters, and in which he advised those seeking advice. According to his evidence he always referred these parties to Mr. Davis when court proceedings were required even though during all this time Mr. Davis was employed in a local bank, had no law office and was under suspension from practicing law.

The evidence shows without question that applicant acted as the attorney for Mrs. Sheldon and Mrs. Coghlan in legal matters involving court appearances. He did not personally appear in court for either of these parties but when court action was necessary, had Davis act for him. In the Sheldon matter while he and Davis contend otherwise, the evidence in our opinion shows that he received the entire fee of $100 for services performed for Mrs. Sheldon. In the Coghlan matter, the latter testified that she paid Lacey for the services rendered for her, and there is no credible evidence to the contrary. In the other instances, the proof is not as satisfactory as it is in the two matters just mentioned, but the evidence in these matters shows that he operated under a general system or plan the same as that followed by him in the Sheldon and Coghlan matters. It seems apparent to us that he for some years during the period of his disbarment carried on the practice of law using Davis as a subterfuge when the interests he represented required court action. The evidence will not support his claim that he was simply the clerk for Davis and that the services performed by him were that of a ministerial character as an employee of Davis. The great weight of the evidence is not only against this claim but is to the effect that he was the principal in these matters and employed, or at least arranged with, Davis to assist him. “If it were true that he has been in fact acting as an attorney and counselor at law, or by his conduct has been attempting to do under cover that which he could not lawfully do at all, then, of course, his application should be denied.” (In re McKelvey, 82 Cal. App. 426, 429 [255 Pac. 834].)

The evidence above shows that applicant has been guilty of such conduct, and, therefore, his present application should be denied. It is so ordered. When applicant can satisfy this court that he has in good faith hereafter refrained from the practice of law for a reasonable time, a further application by him may receive more favorable consideration by this court.

LANGDON, J., Dissenting.

I dissent. The applicant’s petition to the Board of Governors of the State Bar first resulted in an even division of the members thereof on the question of his right to readmission to practice. A subsequent vote showed four members in favor of the application. The chief issue was, as it must be in all such cases, whether the applicant had so rehabilitated himself as to warrant reinstatement. The majority opinion does not deal with this issue, and instead relies upon doubtful and conflicting evidence of his activities in recent years to hold that he was guilty of practicing law during the period of disbarment.

In my opinion this evidence is unsatisfactory and unconvincing. The real question, in my mind, is whether petitioner has, in addition to paying the price of his misdeeds, actually rehabilitated himself and proved that he possesses the necessary character and integrity to entitle him again to pursue the only profession for which he is fitted. On that question the opinion is silent, but the record is eloquent. An honor roll of nineteen judges, over one hundred prominent attorneys, including four former members of the Board of Governors of the State Bar, officials of the prison board, and other civic leaders, has been presented to us by letters and oral testimony, to show the widespread feeling among those who know the applicant that he may now be safely entrusted with the duties and responsibilities of the practice of law.

On such a record I believe that the application of Joseph Lacey should be granted.

Rehearing denied.