text:
    [S. F. No. 15906.
    In Bank.
    April 22, 1938.]
    CALIFORNIA CANNING PEACH GROWERS (a Nonprofit Cooperative Association), Appellant, v. FRANCES O. WILLIAMS et al., Defendants; A. D. POGGETTO et al., Respondents.

      Agnew & Boekel, Carroll Single, Stanley J. Cook and G. F. Good for Appellant.
    Richard W. Young, Floyd B. Cerini and F. X. Kerner, as Amici Curiae, on Behalf of Appellant.
    Hadsell, Sweet, Ingalls & Lamb, Brown & Rosson and Vernon F. Gant for Respondents.
   THE COURT.

This action was commenced by the California Canning Peach Growers against Frances 0. Williams and E. R. Williams (husband and wife) and A. D. Poggetto to recover from them $21,333.12 (reduced at the time of trial by stipulation to $21,226.66) alleged to be owing to the association by these parties. In addition the association seeks to recover liquidated damages for failure on the part of defendants to deliver to the association their 1935 crop from the Empire ranch. The complaint sets forth the entire theory of plaintiff’s cause of action in detail. Poggetto is sued as a silent partner, coadventurer or undisclosed principal of the Williams. The action covers all of Williams’ activities with the association for many years, covers many separate contracts and many different ranches.

The action has been tried twice. At the end of the first. trial judgment was entered in Mrs. Williams’ favor, but against Mr. Williams and Poggetto in the sum of $21,226.66. On the issue of liquidated damages for nondelivery from the Empire ranch for 1935 the court found in favor of all defendants. The basis of the trial court’s decision was that Poggetto was a partner of Williams in the various transactions described in the complaint; that the only contracts held by Williams and Poggetto were regular marketing agreements; that the evidence tending to show that the parties intended to enter into renter member contracts was inadmissible for the reason that it violated the parol evidence rule; and that the resolution of January, 1924, purporting to authorize the renter member contracts was ultra vires and illegal. Thereafter, on motion of Mr. Williams and Poggetto, the trial court granted a new trial as to them. A new trial, before the same judge, was thereafter had, the parties stipulating that the cause could be tried on the record of the first trial. This second trial resulted in the judgment now appealed from that the association take nothing from defendants Mr. Williams and Poggetto.

The judgment in favor of Mrs. Williams has become final. The association did not move for a new trial after judgment was entered in her favor at the conclusion of the first trial. No appeal has been taken from that judgment. The rights of the association as against her are therefore not involved on this appeal.

No necessity exists for reviewing in detail each of the contracts between Williams and the association involved on this appeal. Williams was one of the organizers of appellant, was a director from 1922 to 1935, and was at one time vice-president. Poggetto during all of the times here involved was general manager of appellant. From 1922 to 1928 Williams owned several peach orchards. As to each of such orchards he signed a regular marketing agreement with the association, became an owner member, and was paid for his fruit accordingly. In 1928 he lost the ownership of his various ranches through foreclosures. Beginning in 1929 and continuing thereafter he rented various orchards and signed them up with the association under what he and the association believed were renter member contracts. It is appellant’s theory that all of the deals subsequent to 1928 were regular marketing contracts, and that payments made in excess of the amounts called for by such contracts are recoverable by the association.

The evidence shows that in 1929 the association was badly in need of peaches, a heavy frost having destroyed a large portion of the expected crop. Williams discovered that the Empire ranch in Stanislaus. County was unaffected by the frost, contained a large acreage of growing peaches, and was for sale. Being unable to finance the deal himself Williams asked Poggetto if he would like to buy the Empire ranch, Williams to operate it. Poggetto agreed and purchased the ranch. Williams then entered into a renter member contract with the association, Schmitt signing on behalf of the association. The procedure followed was substantially that described in the Williams case, ante, p. 221 [78 Pac. (2d) 1154], decided this day—that is, a regular marketing agreement was executed with the words "Renter Member ’ ’ written on the cover, the understanding being that the renter member was to receive market price less 25 cents per ton for his fruit. Poggetto financed operations.

During the years 1929 to 1934 (1932 being excepted) Williams rented or leased other orchards not owned by Poggetto, and as to each of them entered into similar contracts with the association. In all of these deals he was financed largely by Poggetto. On most of these deals he was paid on a renter member basis as defined in the 1924 resolution. After the new directors were elected in 1935, and the change in policy at least as to some renter members adopted, this action was brought. The major portion of the $21,226.66 sued for ($14,101) is for the recovery of alleged overpayments paid to him on the theory that he was a renter member. $5,268.55 is for an amount owed by Williams to the association for the year 1927 growing out of the operation of the Sunnydale ranch then owned by him, which amount was apparently written off as a bad debt by mistake. The balance is for smaller items not necessary to enumerate.

The trial court made elaborate findings. It found the facts in reference to the difficulties facing the association in 1923, and the circumstances surrounding the passage of the renter member resolution of January 15, 1924, substantially as such facts were found in the other three cases involving this association and already disposed of. These facts need not be recounted here. The court found that this resolution was in fact passed in that year and has never since been amended, rescinded or repealed. Appellant challenges this finding, contending that the evidence introduced by it indicates that the resolution was never passed and that the minutes purporting to show its passage are forgeries. Evidence was introduced by appellant that the minutes purporting to cover the January 15, 1924, meeting of the board of directors had been recently retyped, but this was admitted and fully explained by respondents’ witnesses. Several of the members of the board of directors who were supposed to have voted for the 1924 resolution testified that they ‘1 could not remember ’ ’ having voted for the resolution. Respondents introduced considerable evidence on this issue, and the trial court has found in accordance therewith. In our opinion the overwhelming weight of the evidence establishes that the resolution was in fac| passed and that the minutes correctly state the proceedings of the board of directors on January 15, 1924.

The trial court also found that after the passage of the resolution, pursuant thereto, the field men of the association were instructed to solicit renter members; that during the period 1924 to 1935 many such members were solicited and signed with the association as renter members; that such members, during such period, were paid in accordance with the 1924 resolution; that during this period the renter member situation was frequently discussed by the members of the board of directors; that the fact that the association would and did make contracts with renters in accordance with the 1924 resolution “was generally known among renters of peach orchards ’ ’. The court also found that many important benefits accrued to the association by reason of these renter member contracts. Those benefits have been commented on in the prior decisions and need not be repeated here. All of the findings above discussed find ample support in the record.

The court found that after 1928 Williams did not own any peach orchards, and that all of his outstanding owner contracts were terminated in that year. The court then made specific findings as to each of the many ranches rented by Williams during 1929 to 1934 and signed up by him with the association. With the exception of the Empire ranch, these many ranches and contracts do not require separate consideration. They are all controlled by substantially the same facts and the same principles of law. The Empire ranch, for reasons hereafter appearing, requires separate consideration.

First as to the ranches other than the Empire. As to each of them the trial court found that Williams rented them from their owners; that he.then entered into renter member contracts with the association as to each ranch, substantially in the manner fully described in the Williams case, supra; that as to each of said contracts, except as limited in the findings they “have been fully executed, settled and discharged”; that in the operation of said ranches “defendant A. D. Poggetto was a co-partner with the defendant E. R. Williams”. Respondents denied the existence of the partnership, and claimed that Williams rented the ranches from Poggetto, but the trial court on substantial and conflicting testimony found against them on this contention. Respondents, of course, on appellant’s appeal cannot question the correctness of this finding.

As to each of the contracts dealing with these ranches appellant urges that the only legal contract between the parties was a regular marketing agreement; that the renter member arrangement was entirely oral; that to show the existence of such oral contract violates the parol evidence rule; and that respondents have therefore been overpaid in excess of the amount called for by the written contracts.

This identical contention as to substantially similar facts has been fully discussed in the Williams case, supra. Everything that was said in that ease is equally applicable here. Not only did the admission of the oral testimony not violate the parol evidence rule for the reasons pointed out in the Williams case, but as also pointed out in that case, even if the renter member arrangements were entirely oral, inasmuch as such arrangements have been fully performed, the written contracts must be deemed to have been modified by the execution of the oral contracts.

Appellant also urges that the resolution of 1924 was ultra vires, and that all contracts entered into pursuant thereto must be held to be void and illegal. This contention has been discussed at length and disposed of adversely to appellant’s contention in the Harkey, Stafford and Williams cases, decided this day (ante, pp. 188, 212, 221 [78 Pac. (2d) 1137, 1150, 1154].) On the authority of those cases, and for the reasons therein stated the point is held to be without merit.

Appellant also urges that in view of the fact that Williams was a director and former officer of the company, and that his partner Poggetto was general manager of the company, even if renter member contracts entered into by the association with third parties could not be successfully challenged by it, such contracts entered into with its officers and directors can be so challenged. Substantially the same point is involved in the Williams case, supra, and decided adversely to appellant. The same reasoning is here applicable. The transactions now under discussion were not special transactions, but were normal ordinary transactions entered into pursuant to a formal resolution of the board of directors. Similar transactions were entered into with many other renters to the benefit of all concerned. Williams and Poggetto were under no legal or moral obligation to sell the fruit from these rented orchards to the association. They had complete freedom of choice, and were as free as any other renter to bargain with the association as to these orchards. There is no evidence that either Williams or Poggetto abused their position of trust in consummating the contracts now under discussion. As to these contracts it is our holding that they were renter member contracts within the meaning of the 1924 resolution, and that respondents were properly paid as therein provided.

An entirely different situation exists as to the Empire ranch. This ranch was purchased by Poggetto in 1929, and from that date until May of 1935 he owned this ranch. As to the year 1929, the court below made no finding as to whether Poggetto and Williams were partners in the operation of this ranch, but simply found that in that year Williams operated the ranch for Poggetto under an agreement to split the gross profits equally, Williams to bear the expenses. For the years 1930, 1931, 1933 and 1934 the court expressly found that as to the operation of this ranch “A. D. Poggetto was a co-partner with the defendant E. B. Williams”. The reason for the failure to make a similar finding as to the year 1929 does not clearly appear, although there is some evidence of a different arrangement between the two defendants as to this year than existed in the later years. As to the years 1930, 1931, 1933 and 1934 the finding is amply supported. As to these four years, therefore, Poggetto was the owner of the Empire ranch and Williams was his partner. Under the provisions of the resolution of January 15, 1924, the privileges therein granted were restricted to renters of orchards. Owners of ranches not renting their orchards were not qualified to come under the resolution. Owners were admissible to the association only under a regular marketing agreement. This Poggetto, as general manager, and Williams, as director, well knew. To permit them, as owners, to use their confidential position with the association to secure the benefits of the 1924 resolution open only to renters and not open to owners would be to countenance a fraud upon the owner members of the association. The cases cited by appellant—California Canning Peach Growers v. Downey, 76 Cal. App. 1 [243 Pac. 679]; California Canning Peach Growers v. Harris, 91 Cal. App. 654 [267 Pac. 572]; California Canning Peach Growers v. Bardell & Oregoni, 132 Cal. App. 153 [22 Pac. (2d) 764], holding that, as to owner members all must stand upon an equal basis are directly in point on this phase of the ease. Those cases clearly establish that as to owner members the interests of every member rest upon the same foundation, and no such member can secure an advantage to the injury of any other member. Clearly Poggetto and Williams were not entitled to the renter member price for the Empire peaches in the years 1930, 1931, 1933 and 1934. Having elected to deliver the fruit from the Empire ranch—an owned orchard—to the association they must be held to the same price received by other owner members. The error in allowing respondents renter member price for their Empire peaches for. these years materially affected the judgment. This is made clear by a consideration of other findings.

The trial court found that in 1927 Williams as owner operated the Sunnydale ranch under a regular marketing agreement; that the association (deducting certain credits) overpaid Williams for the peaches delivered from this ranch in that year the sum of $5,268.55; that Poggetto was not interested in the operations of this ranch; that the above mentioned sum was written off the books of the company as a bad debt (apparently by mistake); that Williams has never repaid the sum thus owing to the association. Although the court found that Williams owed this sum to the association, it also found that this debt was offset by various sums found owing to Williams by the association. One of the claims found to partially offset Williams’ debt to the association was the sum of $223.39, that the association owed to Williams under his 1927 contract covering the El Camino ranch, and has not paid. Poggetto had no interest in this ranch. This is a proper credit against the debt owed by Williams to the association, and appellant so concedes. The court also found that in the year 1930 when Williams and Poggetto were operating the Merci ranch as partners the association improperly deducted from the purchase price of the peaches the sum of $1,089.48, which sum was in fact due from one Ross Dennison. The court found that neither Poggetto nor Williams had any interest in Dennison’s operations. This finding is challenged by appellant, but finds ample support in the record. It is clear therefore that the allowance of this sum was also a proper offset against Williams’ debt to the association. The balance of the offsets allowed by the trial court were in connection with the Empire ranch operations. The court found that in 1930 Williams had been paid $1314.25 less than was due him for peaches from this ranch; that in 1931 he was underpaid $2,456.50; and in 1934 in the sum of $467.50. These sums were all held to be proper credits against the sum owing to the association by Williams. The amounts are predicated on the theory that for those years Williams was entitled to be paid as a renter member, while as a matter of fact he was paid as an owner member. Inasmuch as we have already held that as to this ranch he and Poggetto are not entitled to the renter member preference, it follows that the above sums, representing such preference, are not in fact owing by the association, and should not have been allowed as an offset.

For the year 1933, as to the Empire ranch, the court found that Williams had been paid as a renter member. In the amount the renter member price exceeds the owner member price, in accordance with the views already expressed, this constituted an overpayment. Williams and Poggetto should be required to repay to the association such overpayment received by them.

For the year 1929, as to the Empire ranch, the court found that Williams had been paid as a renter member; but, as already indicated, did not find whether or not Williams was a partner of the owner Poggetto in this year. On the retrial if it should develop that they were partners for that year, they should be required to repay the overpayment.

Another credit allowed by the trial court was in the sum of $533.81 for freestone peaches found to have been delivered by Williams to the association in 1933 and for which he has not been paid. The evidence in reference to this item is highly unsatisfactory. In view of the necessity for a retrial in reference to other issues, this issue should also be retried. '

Appellant objects to the finding that the indebtedness of $5,268.55 above mentioned was owed solely by Williams, and not also by Poggetto. That finding is amply supported by the record.

The appellant also objects to the findings and conclusions that deny it the right to liquidated damages for respondents’ failure to deliver to the association from the Empire ranch for the season of 1935. The court found that this ranch was sold by Poggetto to Mrs. Williams in May of 1935, and that thereupon the contract between Mr. Williams and the association was terminated in accordance with the terms of the contract. The judgment in favor of Mrs. Williams, as already pointed out, has become final.

Appellant urges that the sale to Mrs. Williams was not bona fide. The evidence demonstrates that Mrs. Williams purchased the ranch in 1935 with borrowed money and that Mr. Williams did not contribute one cent towards its purchase. The evidence supports the trial court’s findings on this issue. It should also be pointed out that the evidence shows that the association accepted the cancellation of this contract.

In addition to the main item of $5,268.55 found to be owing from Williams to the association, above discussed, the trial court also found that Williams owed some small sums for fertilizer purchased by him. These items, as well as the amount of the judgment in the Williams case, supra, should be taken into consideration on the new trial in arriving at a proper accounting.

From what has been said it is obvious that a new trial must be had as to some of the issues involved herein. No necessity exists for the retrying of any issue held in this opinion to have been properly decided. Those issues decided upon conflicting evidence which evidence has been held herein sufficient to support the findings, should not be retried. A new accounting must be had in order to determine the proper amount owing by Williams, particularly because of his operation of the Empire ranch, and to determine the proper amount of the offsets that should be allowed him. The status of the Empire ranch for the year 1929 must be determined. The validity of Williams’ claim for an allowance for freestone peaches in 1933 must be passed upon. It must be determined what debts are owing solely by Williams, and those that are owing by Williams and Poggetto as partners, and also what credits are properly allowable to Williams and what ones are allowable to the partnership.

For the foregoing reasons the judgment appealed from is reversed with instructions to the trial court to proceed as herein indicated. Bach side to bear its own costs on this appeal.

Houser, J., and Langdon, J., deeming themselves disqualified, did not participate herein.

Rehearing denied.


source: Caselaw Access Project

author: SEAWELL, J.

license: Public Domain

text:
    [S. F. No. 15968.
    In Bank.
    April 22, 1938.]
    R. McCOLGAN, Appellant, v. JONES, HUBBARD & DONNELL, INC. (a Corporation) et al., Respondents.

      George D. Collins, Jr., for Appellant.
    Ackerman, Weyland & Mathews and Theodore M. Monell for Respondents.
   SEAWELL, J.

This is a motion to dismiss an appeal on the ground that it was taken too late. The appeal is from an order of the court granting defendants’ motion for a non-suit. Said order was entered in the clerk’s minutes.

The question involved is whether under section 581, Code of Civil Procedure, an appeal may be taken from an order of nonsuit entered in the clerk’s minutes and noted in his register of actions, or whether a judgment of dismissal must thereafter be entered on said order and the appeal taken from said judgment. If the order is appealable, the appeal herein was taken too late, and must be dismissed. If the order was inoperative as a final judgment, then the appeal is premature, since no judgment has been entered on said order. In such event, the appeal should be dismissed as premature, without prejudice to the right of the parties to take further steps in the trial court and to appeal from any judgment thereafter entered.

It would extend this opinion unduly to quote section 581, Code of Civil Procedure, in full. The section commences as follows: “An action may be dismissed, or a judgment of nonsuit entered, in the following eases ...” The instances referred to by the code, briefly, are: (1) By the plaintiff before trial. (2) By either party upon the written consent of the other. (3) By the court when either party fails to appear at the trial and the other party asks for “the dismissal”. (4) By the court when the plaintiff abandons the case upon the trial. (5) “By the court upon motion of the defendant when upon the trial the plaintiff fails to prove a sufficient case. ’ ’

After listing the cases in which “an action may be dismissed, or a judgment of nonsuit entered”, the section concludes as follows:

“The dismissals mentioned in subdivisions one and two hereof, when written consent of the attorney of record of the party requesting the dismissal is filed, must be made by entry in the clerk’s register or in the justice’s docket, as the case may be, and are effective for all purposes when so entered.
“The dismissals mentioned in subdivisions one and two hereof, when written consent of the attorney of record of such party is not filed, and the dismissals mentioned in subdivisions three, four and five of this section, must be made by order of the court entered upon the minutes thereof, or in the justice’s docket, as the case may be, and are effective for all purposes when so entered; but the clerk in superior and municipal courts, must note such orders in his register of actions in the case. ’ ’

It is to be inferred in the case herein that the motion for nonsuit was granted under subdivision 5, section 581. It is the contention of plaintiff that under section 581 a “dismissal” is effective for all purposes when the court’s order is entered in the clerk’s minutes, but that this provision does not apply to a “judgment of nonsuit”.

This contention is in conflict with a line of well-considered cases of our appellate courts, including this court. (Brown v. Sterling Furniture Co., 175 Cal. 563 [166 Pac. 322]; Commins v. Guaranty Oil Co., 29 Cal. App. 139 [154 Pac. 882]; Henry v. Lingsweiler, 81 Cal. App. 143 [253 Pac. 357]; Bengel v. Traeger, 100 Cal. App. 526, 527 [280 Pac. 538]; Lewis v. Hammond Lumber Co., 114 Cal. App. 390 [300 Pac. 49]; Finch v. Ekstrom, 115 Cal. App. 381 [1 Pac. (2d) 516]; Tromanhauser v. Grisemer, 123 Cal. App. 153 [11 Pac. (2d) 32]; 2 Cal. Jur. 402; 9 Cal. Jur. 565.) Appellant’s plea is, in effect, that said cases should be repudiated. By virtue of said eases it has become a settled rule of practice that an order granting a motion for nonsuit is effective for all purposes when entered in the clerk’s minutes, and an appeal must be taken within sixty days from such entry. The rule is clearly stated in Tromanhauser v. Grisemer, supra, as follows:

"The entry of the order (granting motion for nonsuit), therefore, is equivalent to a final judgment and it finally disposes of the matter to which it relates. It is not necessary that a formal judgment of dismissal follow the order granting the motion for a nonsuit. The order of nonsuit, when entered m the minutes of the court, constitutes the judgment of nonsuit and is a dismissal of the action, or those causes of action to which it relates, since the statute declares that such an order so entered in the minutes is ‘effective for all purposes’.” (Italics supplied.)

Said cases properly declare the law. A nonsuit is but a form of dismissal of an action. The only reference to a "non-suit” is in the opening sentence of the section. The word "dismissal” appears in several places. If the provisions of the concluding portion of the section applied only to dismissals which were not in terms nonsuits, there would be an omission in the section to make any provision whatsoever with regard to nonsuits granted under the section.

The section provides for a dismissal or judgment of nonsuit in each of the five instances enumerated in the section. The term nonsuit in this state is no doubt now most commonly applied to dismissals under subdivision 5 of the section, when plaintiff fails to prove his case, but its application is not so limited by the section. The definition of the term nonsuit, as given in legal dictionaries by means of reference to cases where the term has been considered, indicates that it is broadly applied to a variety of terminations of an action which do not adjudicate the issues on the merits. (Bouvier’s Law Dictionary; Black’s Law Dictionary; Words and Phrases.) The effectiveness for all purposes of orders entered in the clerk’s minutes under section 581, Code of Civil Procedure, should not depend on whether the dismissal is in terms a "dismissal” or uses nonsuit terminology. In either event there is a dismissal within the meaning of the concluding paragraphs of section 581.

That the interpretation declared by the line of cases above cited is in accord with the legislative intent in the enactment of the section is further indicated by the fact that although the legislature has several times amended the section it has never made an amendment with the view of changing the rule frequently announced by the appellate decisions of this state. The legislature is presumed to know the decisions of appellate courts and to have them in mind when adopting amendments to statutes which the courts have construed. (Hoffman v. McNamara, 102 Cal. App. 280, 285 [282 Pac. 990]; Wiggins v. Pacific Indemnity Co., 134 Cal. App. 328, 334 [25 Pac. (2d) 898]; Robertson v. Langford, 95 Cal. App. 414, 424 [273 Pac. 150]; 23 Cal. Jur. 783.)

It is true that where the court’s oral pronouncement, entered in the clerk’s minutes, is not intended as the rendition of the order or judgment of nonsuit, but as a memorandum of an order of judgment thereafter to be rendered, the time for appeal does not commence to run until such order or judgment is entered. (Scrimsher v. Reliance Rock Co., 1 Cal. App. (2d) 382 [36 Pac. (2d) 688].) But this is not the situation in the instant case. Here the order was that the “motion for nonsuit be and the same is hereby granted”. In Lewis v. Hammond Lumber Co., 114 Cal. App. 390 [300 Pac. 49], the order was as follows: “Defendant’s motion for a nonsuit is by the court granted.” It was held that this order was final and that the time for appeal commenced to run from its entry in the clerk’s minutes, notwithstanding a more formal judgment, signed by the judge, was entered thereafter. (See, also, the orders in Bengel v. Traeger, supra; Brown v. Sterling Furniture Co., supra; Finch v. Ekstrom, supra.)

In Ferris v. Baker, 127 Cal. 520 [59 Pac. 937], the following entry was held to be a memorandum of an order or judgment thereafter to be rendered: “Defendants move the court for nonsuit on the grounds stated. Said motion is argued and thereupon granted.” A formal judgment was thereafter entered. There may be reasons of fact appearing in the record of said case and not fully stated in the opinion which justified the interpretation of the first entry as a memorandum merely. In so far as said decision and Stebbins v. Larson, 4 Cal. App. 482 [88 Pac. 505], are in conflict with the rule definitely announced in the later cases herein cited they must be regarded as overruled by them.

The meaning and effect of the language used in the instant case cannot be distinguished from the language used in Lewis v. Hammond Lumber Co., supra, and other cases herein cited. There is not to be found a fact or a word of intimation from which the inference may be drawn that the order was a memorandum merely or that the court in disposing of thp matter intended to make- any other or further order as a final determination of the action.

The appeal must be and therefore is dismissed.

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

Rehearing denied.


author: SHENK, J.

text:
    [Crim. No. 4148
    In Bank.
    April 28, 1938
    THE PEOPLE, Respondent, v. FRANCISCO AGUIRRE, Appellant.

      C. W. Benshoof and Thomas Clay for Appellant.
    U. S. Webb, Attorney-General, W. F. Cleary, Deputy Attorney-General, and Earl Redwine, District Attorney, Riverside County, for Respondent.
   SHENK, J.

This is an appeal from a judgment imposing the death penalty and from an order denying a motion for a new trial.

On Sunday, July 25, 1937, at 8:30 P. M., the defendant, a Mexican, 29 years of age, killed Gabriel Contreras, also a Mexican, 38 years of age, by shooting him in the head with a revolver. The homicide occurred at the ranch home of the deceased located in a sparsely settled section of the desert country about three miles from the town of Thermal in the Coachella Valley. The deceased was living at his ranch place with his four children, the oldest being twelve years of age, and with the mother of his children, Pilar Gonzales, also known as Pilar Contreras. The deceased and Pilar had lived together as husband and wife since 1925, although no civil marriage ceremony had been performed.

The deceased had moved with his family from Oasis to the ranch near Thermal about one year before the homicide. Shortly thereafter the defendant stopped at that ranch in search of a place to live, whereupon arrangements were made under which the defendant was to live with the deceased and his family while he worked for the deceased or in the vicinity. The defendant agreed to the payment of $3 a week for his room and board. After the defendant had lived at the Contreras home about eight months he left at the request of Contreras and went to live on the property of Fabian Salgado located about a third of a mile from the Contreras place. The defendant there lived in a habitation which he constructed for himself in the brush near the house of Salgado at whose place he ate his meals. The defendant was living on the Salgado place on July 25/ 1937, the date of the homicide.

Not long after the defendant moved into the home of the deceased he established an intimate relationship with Pilar, or Mrs. Contreras, as the mother of deceased’s children was generally known. This intimacy was carried on at the home of the deceased • commencing in January, 1937, and ending on the Friday before the Sunday of the homicide. In March Mrs. Contreras notified the defendant that she was pregnant. The defendant acknowledged responsibility for the woman’s condition. "When she was about five months’ pregnant he expressed to a near-by rancher his pleasure at the prospect of having offspring and planned with Mrs. Contreras to leave the home and children of the deceased and to depart for Arizona.

During the time that the defendant was living at the deceased’s place the defendant occasionally went to Indio with Salgado in the latter’s truck and there purchased provisions for the deceased, which provisions were hauled in that truck to the deceased’s home. On the late afternoon of the day of the homicide the defendant went to the deceased’s place and told the deceased that it would be only just and right that he, the deceased, should pay Salgado for hauling provisions from Indio to the Contreras house. The defendant did this on his own initiative, for Salgado had not requested or suggested that he do so, nor had Salgado ever claimed that any compensation was due him for such hauling. No reason appears why the defendant should have made such a request or demand on the deceased for such payment, except, as urged by the prosecution, that the defendant was looking for trouble. At any rate, trouble ensued. During the argument the deceased disclaimed any indebtedness to Salgado and upbraided the defendant with epithets for making such a claim, even going to the extent of chasing the defendant and striking him with a corn knife or machete, without however, causing any serious injuries. The defendant made his retreat by outrunning the deceased and went to the home of Salgado apparently for the purpose of arming himself for a return engagement with the deceased. In the house of Salgado the defendant first armed himself with a butcher knife. Salgado evidently knew or surmised the defendant’s purpose in thus arming himself, for Salgado immediately took the knife away from the defendant.

The defendant then repaired to the farmhouse of the Leach family about a quarter of a mile from Salgado’s place. He approached Herbert Leach, a young man about 24 years of age, and told him that Fabian Salgado sent him over to borrow a pistol and flashlight to watch for coyotes the next morning. This statement by the defendant to Herbert Leach was not true, for Salgado had not made such a request. Nevertheless Leach delivered to the defendant the pistol, with holster and ammunition, and the flashlight. Whereupon the defendant returned to the Contreras place and took a position on the bank of a large reservoir at a point about sixty-six feet from the Contreras house. At that place the defendant waited for Contreras to come out of the house, and was prepared to wait there all night, if necessary, in order to see Contreras. He testified that he returned to the Contreras place to see if everything was “peaceful”, but that if Contreras “was going to fight with me, we were going to fight”. Earlier in the evening Contreras had gone to bed in the house, clothed in shorts only. There were no toilet facilities in the house. At 8:30 o ’clock that night he arose and went out of the house and proceeded toward a small reservoir. When he was from fifteen to twenty feet from the defendant, the defendant fired two shots from the revolver which he had obtained from Leach. One of those shots struck Contreras full in the face, just beneath his nose, and after penetrating the head severed the spinal cord. Contreras fell and died immediately. There was no living witness of the event except the defendant. After the killing the defendant proceeded to the home of Salgado, entered the house alone, concealed the gun and holster, cartridge belt and flashlight under the mattress of Salgado’s bed, and departed. He went to the railroad track and traveled eastward with his intended destination Jerome, Arizona, where he had some relatives. Two days later he was apprehended at the town of Niland by a deputy sheriff of Riverside County. Upon his arrest the defendant at once admitted that he had shot Contreras and had seen him fall at about the place where the body was found.

The defendant contends on this appeal that the evidence was insufficient to establish the crime of murder in that there was no showing of malice or wilful, deliberate or premeditated killing. With this contention we cannot agree. There was sufficient evidence of ill will between the two men. The evidence of the illicit relationship between the defendant and Mrs. Contreras and their purpose.to go to Arizona as soon as the defendant could obtain adequate funds, was a disclosure of facts from which the jury could imply motive. It is true that the defendant testified that the deceased was the aggressor and pursued him with a machete when he emerged from his house at 8:30 on the night of the killing; that he, the defendant, attempted to flee while being pursued by the deceased wielding the machete, but was unable this, time to outstrip the deceased and shot only in his own defense. But the jury was not bound to believe his testimony in this regard, especially in the light of the evidence of his statements to Officer Vivian shortly after his arrest that “I didn’t run at all. That is the truth.” The many contradictory statements of the defendant as to why he returned to the Contreras place, and the facts and circumstances attending the affair and related by other witnesses placed with the jurors the power and responsibility of selecting the evidence which, in their judgment, conformed to the truth. We do not feel justified in disturbing their conclusions impliedly expressed by their verdict that the defendant desired to possess and take away the putative wife of the deceased; that ill will was engendered between the deceased and himself, at his instigation and without sufficient cause, on the afternoon of July 25th; that with evil purpose and deliberation he attempted openly but without success to arm himself with a butcher knife at the home of Salgado; that by cunning, misrepresentation and falsehood he later obtained the lethal weapon from Herbert Leach; that he then and after nightfall returned to the house of the deceased and there, at a convenient place, lay in wait for his victim, with the expressed intention of waiting all night if necessary to accomplish his purpose, and that the evidence in support of the defendant’s plea of self-defense was not so conclusive under all the circumstances as to preclude a denial of the plea.

The defendant complains of certain portions of instruction number 12. Particularly it is contended that error appears in the following language included in said instruction on self-defense: “In the effort to save his own [life], or to avoid the infliction of great bodily injury upon him, the person in danger, real or apparently real, may use so much force as is necessary to meet such danger and no more. If he goes beyond this limit, he transcends the law of self-defense, and becomes himself a wrongdoer.” It is claimed that such language requires the defendant at his peril to determine the amount of force necessary to meet the danger. The contention is that the instruction is fatal because it did not include the italicized words in the following sentence: “may use so much force as to the mind of a reasonable person, is necessary to meet such danger and no more”. The instructions might well have included the phrase which the defendant claims should have been included; but its omission did not constitute prejudicial error, when the balance of the instruction is taken into consideration, wherein it was very plainly indicated to the jury that the action of the defendant, on his plea of self-defense, should be tested by what a reasonable man would do under like circumstances.

Instruction number thirteen on the subject of self-defense, is also criticized, not as a misstatement of the lawq but as not applicable to the facts in this case. This instruction told the jury that whenever an assault is brought upon a person by his own procurement, or under an appearance of hostility which he himself creates, with a view of having his adversary act upon it, and he so acts and is killed, the plea of self-defense under such circumstances is unavailing. There was evidence that on the late afternoon of the day of the homicide the defendant engaged the deceased in a quarrel; that this quarrel was at the defendant’s own procurement and resulted in hostility which he himself created, and it was for the jury to say whether such action by the defendant was for the purpose of having the deceased act upon it.

It is insisted that the court erred in refusing the defendant’s proposed instruction to the effect that the law does not permit the taking of human life, or the inflicting of great bodily injury, in the resisting of a mere trespass on one’s property. This instruction was offered on the theory that the defendant’s presence on the bank of the large reservoir just before the fatal moment was no more than a trespass upon the deceased’s property and that the deceased had no right to pursue the defendant with the machete just before the fatal shot was fired. Assuming that the deceased did pursue the defendant in the dark just before he was killed (which the jury apparently believed did not take place), there is no evidence that he was pursuing the defendant because of any trespass by the defendant on the Contreras property. If the pursuit occurred at all, obviously it was because of the ill feeling engendered by the defendant in the late afternoon. The proposed instruction was not applicable to the facts.

It was also contended that the court erred in refusing to give the defendant’s proposed instruction number 15, relating to the subject of a confession. The instruction is set forth in full in appellant’s opening brief, but by inadvertence counsel had failed to note that this instruction was given by the court as instruction number 18.

The defendant was accorded a full and fair trial, was ably represented by counsel appointed by the court for that purpose. But we find no error in the record which would justify a reversal.

The judgment and the order are, and each is, affirmed.

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


author: THE COURT.

text:
    [S. F. No. 15918.
    In Bank.
    April 29, 1938.]
    VINCENT MEINCKE, Respondent, v. OAKLAND GARAGE, INC., et al., Appellants.
    Charles V. Barfield for Appellants.
    C. M. Walter and James R. Agee for Respondent.
    James C. Purcell, as Amicus Curiae, on Behalf of Respondent.
   THE COURT.

After the decision of this case by the District Court of Appeal a petition for hearing was granted by this court for the purpose of giving further consideration to the legal position of a person who is injured while violating'a city ordinance prohibiting “jay walking”, we now adopt the opinion written by Mr. Justice pro tempore Dooling as the opinion of this court:

“This is an appeal from a judgment for plaintiff entered pursuant to the verdict of a jury. Shortly after 1 o’clock in the morning plaintiff was walking across East Twelfth Street in the city of Oakland near the middle of the block between Sixth Avenue and Seventh Avenue. At a point near the center line of the street he was struck by an automobile driven by defendant Grant. An ordinance of the city of Oakland prohibited pedestrians crossing this highway except at a crosswalk and plaintiff was admittedly violating the ordinance at the time of his injury. The nearest crosswalk was at the intersection of Sixth Avenue and Twelfth Street, considerably over one hundred feet away. The automobile driven by Grant was proceeding easterly, had crossed Sixth Avenue and was continuing toward Seventh Avenue at the time of the impact.
“The principal question presented is whether plaintiff was guilty of contributory negligence as a matter of law. It is conceded by plaintiff that his violation of the ordinance constituted contributory negligence as a matter of law if it proximately contributed to the injury, but he earnestly contends that the question of proximate cause was one for the jury.

“ These facts are clear: 1. That plaintiff was violating an ordinance designed to prevent .the very character or type of injury which plaintiff received; 2. That the violation of this ordinance continued to the very moment of impact; and 3. That the injury would not have occurred if plaintiff had not been violating the ordinance. Under such circumstances there is no room for reasonable minds to differ and plaintiff’s violation of the ordinance becomes a proximate cause of his injury as a matter of law (Hopkins v. Galland Mercantile Laundry Co., 218 Cal. 130 [21 Pac. (2d) 553]; Cadwell v. Anschutz, 4 Cal. (2d) 709 [52 Pac. (2d) 916]; Leek v. Western Union Telegraph Co., 20 Cal. App. (2d) 374 [66 Pac. (2d) 1232]), unless there are facts which bring the case within the last clear chance doctrine. (Girdner v. Union Oil Co., 216 Cal. 197 [13 Pac. (2d) 915].)

“In Leek v. Western Union Telegraph Co., supra, plaintiff was struck while crossing a street against a stop signal. The court said:
“ ‘As plaintiff violated both of the foregoing provisions by attempting to cross Pine Avenue against the stop signal . . . she was guilty of negligence per se; and, since the accident would not have occurred, had plaintiff remained on the sidewalk in obedience to the requirements of the California Vehicle Code and city ordinance of Long Beach, her negligence was one of the proximate causes of the accident, and therefore she cannot recover for her injuries. ’
“Plaintiff points to testimony that defendant Grant saw him seventy-five or one hundred feet away, and turned in his direction just before the impact, as justifying a finding that defendants’ negligence was the sole proximate cause of the injury. Where plaintiff’s negligence continues to the moment of injury and the injury would not have occurred but for such continuing negligence, as here, plaintiff’s negligence is one of the proximate causes of the injury unless the doctrine of last clear chance applies. (Girdner v. Union Oil Co., 216 Cal. 197 [13 Pac. (2d) 915] ; Center v. Yellow Cab Co., 216 Cal. 205 [13 Pac. (2d) 918].)
“The Supreme Court states the rule clearly in Girdner v. Union Oil Co., supra:
“ ‘Whether or not, therefore, negligence is the proximate or remote cause is, as above stated, a question of fact in each particular case. The doctrine of continuing negligence has no application unless the negligence is the proximate cause of the injury. On the other hand, if all the elements of the last clear chance doctrine are present and plaintiff’s negligence becomes remote in causation then this doctrine applies. If any one of the elements of the last clear chance doctrine is absent, then plaintiff’s negligence remains the proximate cause, and bars recovery. But the continuous negligence rule does not apply to a situation in which the last clear chance rule, by the presence of its own elements, is brought into operation. Where these necessary elements are lacking, courts have declared and rightfully so, that plaintiff’s negligence being continuous and contributory with that of defendant bars a recovery. ...
“ ‘The element of continual negligence is present in all last-chance cases. If defendant is not able to avoid injuring plaintiff in the exercise of ordinary care, the plaintiff’s original negligence continues to be the proximate cause of his own injury, which bars recovery. If, on the other hand, defendant is able to avoid injuring the negligent plaintiff, and negligently fails to do so, plaintiff’s original though continuing negligence only remotely contributes to the injury and is not the proximate cause thereof, and hence the applied doctrine by its own principles, establishes the right of plaintiff to recover notwithstanding the fact that his original negligence would, by its continuing nature, bar a recovery if the doctrine were not applicable. . . .
“ ‘The real question to be determined in considering cases of the character of the one here involved is whether or not the so-called continuing negligence is the proximate or remote cause of the injury which question is determined by the application of the principles of the doctrine of the last clear chance itself. . . . When the doctrine applies, plaintiff’s negligence becomes remote rather than proximate in causation. If it does not apply, his negligence remains proximate in its causation and will bar his recovery. ’
“We have quoted thus at length from the Girdner case because some of the cases seem to leave in confusion the doctrine of proximate cause in cases where plaintiff is himself continuously negligent to the moment of injury.

“The true rule would seem to be, as deduced from the above cited cases, that if plaintiff is himself guilty of continuing negligence without which the injury would not have occurred, and if as a person of ordinary prudence he should have foreseen that an injury of that character would be likely to result from his negligence, his continuing negligence is a proximate cause of his injury and will bar a recovery, unless the doctrine of last clear chance supervenes to make his negligence a remote rather than a proximate cause. (See on the question of foreseeableness as an element in proximate cause where the negligence of another concurs to produce the injury, Rauch v. Southern California Gas Co., 96 Cal. App. 250, 255 et seq. [273 Pac. 1111]; Sawyer v. Southern California Gas Co., 206 Cal. 366, 374, 375 [274 Pac. 544].) Where the negligence of the plaintiff consists in the violation of a statute or ordinance designed to prevent casualties of the very sort which follows, he must be held as a person of ordinary prudence to have foreseen that the violation of the law enacted to avoid the happening of such a casualty might reasonably result in the casualty’s occurrence. To hold otherwise would be to largely nullify laws which are adopted for the safeguarding of the public from types of injury which are of such frequent recurrence as to lead legislative bodies to adopt regulatory measures to prevent them.

“ No instructions were proposed in this' case, and hence none given, on the doctrine of last clear chance. Wanting such instructions the verdict cannot, under the facts, be supported on the ground that plaintiff’s continuing negligence in violating the ordinance was a remote cause rather than a proximate one. ’ ’

The judgment is reversed.

Rehearing denied. Houser, J., voted for a rehearing.


author: EDMONDS, J.

text:
    [L. A. No. 15551.
    In Bank.
    April 29, 1938.]
    In the Matter of the Estate of W. I. BURNETT, Deceased. LUCENA BURNETT, Appellant, v. G. C. BURNETT et al., Respondents.

      Robert B. Gaylord and W. R. Bailey for Appellant.
    Russell & Heid for Respondents.
   EDMONDS, J.

The controversy presented in this case concerns the effect of an order made nunc pro tunc purporting to amend a minute order and an order signed and filed the same day admitting two testamentary documents to probate.

W. I. Burnett died in 1929. His widow, the appellant here, and seven children, survived him. Shortly after his death, G. C. Burnett, a son, filed a petition for probate of a will dated December 24, 1915, and a codicil thereto made October 16, 1925, which were alleged to be “the last will and testament and codicil thereto of said decedent”. By the terms of this will and the codicil, which were filed with the petition, the appellant was given one-half of all her husband’s estate and G. C. Burnett was appointed “administrator”.

On August 16, 1929, another will dated May 5, 1927, was filed. This instrument recited that the testator had deeded to Ms wife a one-half interest in certain designated real property and the other one-half to “my ayers”, naming the seven children, and directed that all other property be divided equally between his wife and the heirs mentioned. No petition for the probate of this later will was filed. Upon a hearing, the petition for the admission of the will of 1915 and its codicil of 1925 was granted by an order in writing signed by the judge and endorsed “Piled Sep 3, 1929”.

By subsequent proceedings, administration of the estate was carried to a decree of final distribution which disposed of Mr. Burnett’s property'in accordance with the probate judge’s construction of the will of May 5, 1927. The testator’s widow took an appeal from this decree on the ground that the will on which it was based had never been admitted to probate. During the pendency of that appeal, the seven children, without notice to their mother, presented to the probate court an affidavit of the county clerk stating that the order of September 3, 1929, admitting the 1915 will and 1925 codicil to probate was incorrect, and that in fact the order made by the court on that day denied probate of the 1915 will and admitted the 1927 will. Upon this affidavit the court, on March 4, 1935, made an order correcting the minute order of September 3, 1929, and the signed order of the same date, nunc pro tunc to admit the instruments dated October 16, 1925, and May 5, 1927, to probate as the testator’s will and codicil. The signed order as corrected still recited that all the allegations of the petition for probate of the 1915 will were true.

This nunc pro tunc order was considered upon the appeal from the decree of distribution, and it was held that the portion of the order purporting to admit the 1927 will to probate was void, no petition having been on file for the admission of that will. (Estate of Burnett, 6 Cal. App. (2d) 116 [44 Pac. (2d) 435].) However, the effect of the order upon the 1915 will and the 1925 codicil was not passed on. That is the question presented by the present appeal.

There is no merit in the respondents’ contention that because the order in question was made after the decree of distribution it is not appealable. This appeal must be deemed to have been taken from the order admitting the will to probate as amended by the nunc pro tunc order. Such an order is appealable. (Probate Code, sec. 1240.)

The respondents contend that the issue presented by the present appeal has become moot because the 1927 will is now admitted to probate by another order which has become final. They state that on November 14, 1935, the superior court granted a petition for the probate of the will dated in 1927 and made an order accordingly. However, the transcript on appeal does not show any proceedings subsequent to the order made on March 4, 1935, from which this appeal was taken. Under these circumstances the appeal will not be dismissed.

Admittedly a trial court upon its own motion or on ex parte application, has jurisdiction to correct mistakes in its orders and records which are not actually the result of the exercise of judgment. (Lauchere v. Lambert, 210 Cal. 274 [291 Pac. 412]; Estate of Willard, 139 Cal. 501 [73 Pac. 240, 64 L. R. A. 554]; Carter v. J. W. Silver Trucking Co., 4 Cal. (2d) 198 [47 Pac. (2d) 733].) But where the error is inherently judicial rather than clerical or inadvertent, the court has no power to amend its decision. (Stevens v. Superior Court, 7 Cal. (2d) 110 [59 Pac. (2d) 988]; Drinkhouse v. Van Ness, 202 Cal. 359 [260 Pac. 869]; Egan v. Egan, 90 Cal. 15 [27 Pac. 22].)

The order sought to be amended by the respondents in this case measures up to all the formalities required by section 1704 of the Code of Civil Procedure (now Probate Code section 1221). A hearing on a petition for the probate of a will is a proceeding in rem, binding on all persons interested in the will. (Estate of Parsons, 196 Cal. 294, 299 [237 Pac. 744]; Estate of Baker, 170 Cal. 578, 585 [150 Pac. 989].) An order made in such proceedings is a formal record representing the performance of a judicial act and the exercise of judicial discretion. The 1915 will and 1925 codicil being the only two testamentary documents of the decedent properly before the court, it had no choice but to admit them to probate (Estate of Burnett, supra). The recital in the order made nunc pro tunc that a clerical error had crept into its first order is not conclusive of either the fact or the nature of the error (Stevens v. Superior Court, supra, p. 113), although where such an order rests upon evidence in which there is a substantial conflict, it will not be disturbed upon appeal. (Kaufman v. Shain, 111 Cal. 16 [43 Pac. 393, 52 Am. St. Rep. 139].) But where the facts upon which the court acted are undisputed and only one conclusion can be drawn from them, the appellate court is not bound by the order made below. Any statement to the contrary in the case of Kohlstedt v. Hauseur, 24 Cal. App. (2d) 60 [74 Pac. (2d) 314], was inadvisedly made and is disapproved.

The appellant has moved for a diminution of the record to allow the filing of a certified copy of the signed order dated September 3, 1929, and a like copy of the order of March 4, 1935, because the transcript does not show that each of them was filed. That omission should be corrected. The motion for diminution is granted and the order appealed from is reversed.

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


text:
    [S. F. No. 15957.
    In Bank.
    April 29, 1938.]
    BATTISTA SADA et al., Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION and AGNES M. O’CONNOR, Respondents.

      Hubbard & Hubbard for Petitioners.
    W. N. Mullen, as Amicus Curiae, on Behalf of Petitioners.
    Everett A. Corten for Respondents.
   THE COURT.

This proceeding in certiorari was instituted by petitioners Sada and Dantoni, copartners doing business as Loop Bowling Alley, to secure the annulment of an award made against them by the Industrial Accident Commission for the death of Martial Hainque.

The commission found that on March 7, 1937, Martial Hainque, while working as a pinsetter for petitioners, sustained an injury which resulted in his death on March 10th, and that Agnes M. O’Connor, the mother of decedent, was a partial dependent, entitled to a death benefit of $1560, and $150 for burial expenses. Petitioners challenge the sufficiency of the evidence to support (1) the finding of employment, and (2) the finding which fixes the amount contributed by decedent to his mothei’s support.

On the subject of employment, the only support for the commission’s finding, other than such inferences as may be drawn from the evidence as a whole, is certain hearsay testimony which was flatly contradicted by persons who witnessed decedent’s alleged injury. The record shows that decedent was a pinsetter who had been employed intermittently in various bowling alleys in San Francisco; that prior to 1937 he had worked for petitioners, but that he was an inveterate drinker, and frequent intoxication prevented any regular pursuit of his occupation. Admittedly decedent called at petitioners’ bowling alley on the evening of March 7th, and there sustained an injury. The conflict of evidence concerns the manner in which the injury occurred—whether decedent was hit in the head by a flying pin while working temporarily as a pinsetter, or whether decedent was merely visiting in the spectators’ section of the alley, and fell down from drunkenness,'hitting his head against a railing.

Petitioner Sada, John Rotunas, the night manager of the bowling alley, and two pinsetters regularly employed there, Black and Kelly, all of whom were at the alley on March 7th, and knew decedent, testified positively that decedent did not work on that evening, and was not injured while setting up pins; that on the contrary, decedent called at the alley about midnight in a condition of intoxication; that he remained in the spectators’ section, and about 12:30 A. M. (March 8th), it was observed that he had fallen face downward just outside of the fence which surrounded the bowling lanes, with his head close to the fence railing; that it was thought that he was merely drunk, not injured, and that he was placed on a couch in another room to recuperate. Petitioner Sada stated that many times previously when decedent was drunk, he had been put in the back room to sleep for a night or two; that therefore when he (Sada) left for his home about 3 o’clock in the morning, he did not disturb decedent; that he returned to the alley about 10:30 A. M., and talked with decedent; that decedent said he felt “dizzy”, but nevertheless walked to the bar, had a plate of soup, and then went back and lay down again; that about 4 o’clock in the afternoon, as decedent seemed to be getting worse, an ambulance was called and decedent was taken to the Harbor Emergency Hospital, where he was booked as an alcoholic but, upon diagnosis, was found to be severely injured, having sustained a fracture of the vertebra, or in common parlance, a “broken neck”, with the complication of pneumonia.

Shortly after decedent’s arrival at the hospital, about 5:20 o’clock of the afternoon of March 8th, Police Officer Jack W. Leishman called to investigate the case, and talked with decedent. Officer Leishman, when testifying before the commission in this proceeding, gave the following version of his conversation with decedent: “At my arrival he (Martial Hainque) was on the table in the treatment room in a paralyzed condition ... he stated to my partner and myself, who was Officer Guisto, that he received an injury about 8 p. m. on March 7th while setting up pins in the Loop Bowling Alley at 238 Columbus Avenue, and that he was asked to do so by Mr. Sada. . . . And I asked him if he was employed by Mr. Sada, or by the Loop Bowling Alley, and he said that he was from time to time, that whenever there was anything to do why he was, I understand, or he so made it clear to me, that he wasn’t permanently employed, that he was sort of hanging around there and if there was anything to do why—in the line of setting up pins—if there was a job why he would get up and do it—that is he was in this particular case. I asked him if he was steadily employed and he stated ‘No’, but that he was asked to set these pins up by Mr. Sada on this particular occasion, and that was about eight o’clock Sunday night, which was March 7th, and he didn’t remember very much that transpired between that time and the time that he was conveyed to the hospital. He was—he said that he laid down or was laid down on a couch or cot or something there at the bowling alley, and he was sent into the hospital. . . . He said that he was stooping over, setting up pins, when suddenly a bowling pin struck him in the head, and that he fell backward. . . . The only apparent abrasion that I noticed was a little abrasion on his forehead, that I can recall. He received no medical attention for anything in that line. . . . There was a slight odor of alcohol on his breath. . . . Q. When you talked to him, was his mind apparently clear '? A. Yes, I would say that it was. ’ ’

Dr. Joseph S. McGuinness, the hospital physician who examined decedent prior to the arrival of Officer Leishman, testified that decedent told him that the night before, while working in the pit of the bowling alley setting up pins, he had been struck by a pin on the back of the neck and suffered paralysis; that they had laid him down in the hall and kept him there all night. Dr. McGuinness expressed the view that at the time of this conversation decedent’s mind was perfectly clear. He also testified, however, that he detected a strong odor of alcohol upon decedent.

Mrs. Agnes M. O’Connor, decedent’s mother, testified that on March 9th the hospital telephoned that her son was seriously injured; that she went to him at once; that he was very ill, and she did not question him much, but that he stated he was hurt over in the bowling alley where he was working; that he was hit with a pin.

It will be noted that according to decedent’s statements to the police officer and physician, he was injured about 8 o’clock in the evening, whereas the bowling alley people claimed that decedent did not arrive at the alley until about 12, midnight. The statements of two other witnesses tended to corroborate the latter testimony. Mr. Reavis, the manager of the hotel where decedent was rooming, testified that he saw decedent leave the hotel about 11:30 with a Mr. Russell, and that decedent appeared to be sober. Mr. Russell testified that he'first saw decedent about 5 o’clock in the afternoon, and that thereafter between that time and 11:30 in the evening he saw decedent at least four times, sitting in the hotel ■ lobby; that at 11:30 he and decedent left the hotel together, and he walked with decedent as far as Market and Third Streets; that decedent seemed to be sober, and said he was going to the bowling alley where he had been working.

Petitioners placed in evidence a book containing a record of the names and earnings of pinsetters employed by them. Decedent’s name did not appear in this record. However, it was admitted that the names of temporary pinsetters were not always listed.

Testimony taken at the coroner’s inquest was made a part of the record in this proceeding. This evidence added to the conflict of proof. One witness testified that decedent had told him that a month or two previously he had been struck in the back with a bowling pin during a fight in the Hub Bowling Alley (an alley not owned by these petitioners). The manager of the Hub Bowling Alley testified that some months previously he had employed decedent but had discharged him because he was drunk. There was medical evidence that decedent was suffering from an old injury, and not a recent fracture. In contradiction of the testimony of Dr. McGuinness that decedent had sustained a recent fracture of the vertebra, causing the development of paralysis within 24 to 48 hours thereafter, Dr. Leland, who examined decedent subsequent to his treatment at the emergency hospital, stated that he could not find any fracture; that he found merely hypermobility, and that the dislocation apparently had been reduced surgically because it was perfectly in line; that there was no bruising or other evidence of injury other than a skinned chin and forehead; that “with a spinal cord injury, you afterward develop paralysis below that level, and this man went ahead and developed a pneumonia which was the actual cause of his death”; and that a contributory factor was decedent’s fatty enlarged liver, which was obviously due to alcoholism.

From this confusion of proof it will be noted that the hearsay testimony given by Officer Leishman, Dr. McGuinness, and Mrs. O’Connor, is the only evidence which directly supports the finding that decedent was injured in the course of his employment by petitioners.; that, however, the commission credited this testimony and refused to believe the statements of the eye-witnesses who testified on behalf of petitioners, all of whom were in a position to benefit by the prosperity of the bowling alley, or vice versa, particularly as petitioners had been unable to secure compensation insurance for that class of risk. Petitioners, in applying for a rehearing before the commission, offered newly discovered evidence, alleging that by continual inquiry they had succeeded in locating six persons who were in the bowling alley as visitors at the time decedent fell, and who could testify that decedent was intoxicated, and was not working. The commission refused to receive this testimony. While in one sense it might have been merely cumulative, in another sense, if credited, it might have carried sufficient weight to turn the case, in that it would have afforded a corroboration by disinterested spectators of the testimony of the bowling alley people.

A full review of this record leads us to agree with petitioners that the showing in support of the finding of employment is indeed meager, and to a reviewing court it seems that the trier of the facts might well have reached an opposite conclusion, or at least have permitted introduction of the proof proffered in the application for rehearing. However, under the rule which obtains in proceedings before the commission (27 Cal. Jur., sec. 149, p. 479), the fact that a finding is supported solely by hearsay does not of itself invalidate the finding or stamp the proof as too unsubstantial to be credited. Inasmuch as hearsay is admissible, the weight' to be given such evidence is a question for determination by the commission, and if in its judgment the evidence carries convincing force, it may be sufficient in itself to sustain an award (27 Cal. Jur., sec. 152, p. 483). Because of this rule, and because the thrice-told tale of decedent, as recounted by the police officer and physician—two disinterested witnesses who should have been well qualified to judge of decedent’s mental condition—has some support in inferences which may be drawn from the evidence as a whole, we are reluctant to brand said proof as too unsubstantial or highly improbable to support the finding of employment. Despite this conclusion, however, the cause will have to be remanded, as will hereafter appear, due to the insufficiency of the evidence to support an award in the sum fixed by the commission. Therefore, in view of the condition of this record, and in fairness to petitioners, we think that upon the further proceedings before the commission, the cause as a whole should be reopened, and an opportunity should be accorded both sides to produce additional proof on all issues. It is hoped that a showing can be made which will establish to a greater degree of certainty the true fact of the matter of employment.

The further contention of petitioners is that the commission erred in computing the amount which decedent contributed to his mother's support, and that the finding on this subject is without sufficient support in the evidence. This contention must be sustained.

The commission found, and the finding has support, that decedent’s mother was partially dependent upon him. A partial dependent is entitled to a benefit, in addition to burial expense, fixed by statute at three times the annual amount devoted by the deceased to the support of such dependent, provided said amount does not exceed three times the average annual earnings of the deceased. (27 Cal. Jur., sec. 195, p. 542.) The commission found that this decedent contributed to his mother annually the sum of $520 (an average of $10 per week); that she was therefore entitled to a death benefit of $1560, in addition to burial expense; and that the payments were based on earnings of $17.50 a week.

The evidence showed conclusively that the commission was not warranted in basing payments to the partial dependent upon earnings fixed at so high a figure, and also that decedent's earning capacity could not have permitted him to make contributions to his mother to the extent found. It is true that the mother testified: “Q. How much did he contribute to your support? A. Various sums. Some weeks $12.00; some weeks'$10.00; some weeks $15.00, and so on. Q. How did he pay this to you? A. By the day. He gave it to me when he had little jobs places.” But the other evidence showed that decedent, after paying his own room rent and incidentals, could not have had left for contribution any such sums, and furthermore, that the money which he gave his mother was used in part for his own support, as he took three meals a day at his mother’s apartment, and also had her do his laundry.

As a matter of fact, the evidence failed to show that decedent had had any regular employment whatsoever during a period of several months prior to his death. The only indication that he may have had some earnings during that time is found in the testimony of Mr. Russell, who stated: “He (decedent) told me he made from $2.00 to $3.00, sometimes more, a day ... we talked a couple .of times about it. I had set up pins and I couldn’t see how he made quite so much money at it or anything, but he was laughing and joking and said he had lots of friends out there and everything, and he made more money by drinks than by setting pins.” In view of the complete absence of any other showing of employment, this testimony can scarcely be said to constitute a sufficient basis for the commission’s finding.

On the subject of the average earnings of a pinsetter, the evidence showed that a pinsetter who was permanently employed, working eight hours a day seven days a week, would have average daily earnings of from $1.50 to $2.50, or if it were a good day and a good pinsetter, he could make $3; that the average was $2 a day. The records introduced in evidence by petitioners showed that the earnings of pinsetters regularly employed by them averaged $10 per week, and often less. Thus the evidence showed that even if decedent had been a good pinsetter, regularly employed, his maximum average weekly earnings would not have exceeded $14. It is obvious that he could not have supported himself from this sum and still have contributed $10 to $15 a week to his mother’s support. Not only this, but the evidence also showed without contradiction that decedent was not a regular pinsetter; he was at most merely an intermittent pinsetter. The commission therefore erred in basing the payments herein upon the average earnings of a regular pinsetter.

One witness testified that decedent had been on relief. Petitioners, in their application to the commission for a rehearing, alleged that they had investigated this statement and found it to be true, and they proffered a letter from the Director of the California State Relief Administration stating that the relief records showed that decedent had disclaimed employment during December, 1936; that he had received relief thereafter; that on January 7th he had received $8.20, and subsequently twice a month until March 31, 1937, he had received $9.13. The commission refused this proof.

Prom the above résumé it will be seen that the record contains no support for the allowance of so large a sum as awarded by the commission. Additional evidence should be taken on this issue to ascertain, if possible, both the average earnings of an intermittent pinsetter and whether decedent actually contributed more than a nominal sum to his mother’s support, thus laying the basis for computation of a proper award, should the commission retain its view that decedent was in fact injured in the course of his employment.

The award is annulled, the cause remanded, and the commission is directed to take such further proceedings, consistent with the views above expressed, as it may deem advisable.


author: LANGDON, J.

text:
    [Crim. No. 4143.
    In Bank.
    April 29, 1938.]
    THE PEOPLE, Respondent, v. FRANK TUCKER, Appellant.

      Richard Seely for Appellant.
    U. S. Webb, Attorney-General, Albert F. Zangerle, Deputy Attorney-General, for Respondent.
   LANGDON, J.

This is an appeal from a judgment of conviction of murder in the first degree and from the order denying a motion for new trial. Defendant was sentenced to death.

The record shows that at about 2:30 A. M. on July 11, 1937, decedent, Antonio Martinez, apparently in an intoxicated condition, left a Sacramento saloon and proceeded along the street where he crossed the path of defendant,' a stranger to him. At this time the decedent addressed a foul epithet to him. Thereupon the defendant followed the decedent across the street and after some time caught up with him and struck him in the face with his fists. The decedent fell to the ground and defendant kicked him as he lay there. Then he kneeled over the decedent and struck him three times in the chest with -a stabbing motion. The defendant threw decedent’s hat at him and left quickly towards his home. The decedent arose and staggered to the middle of the street, where he fell. Shortly thereafter police officers found decedent and were directed to the defendant, whom they apprehended. They found a pocket knife in defendant’s clothes, the larger blade of which was capable of inflicting a wound found on decedent’s chest. Decedent died a few hours after the encounter and the cause of death was found to be hemorrhage from a wound in the heart. His body showed three wounds on the chest.

All the facts concerning the assault were observed by an eye-witness for the prosecution. This witness did not observe any knife in the defendant’s hand nor did he see any act of opening the pocket knife later found in defendant’s possession, but he did observe the stabbing motion. The assault is admitted by the defendant, his only contention being that he struck the decedent with his fists and feet but not with a knife, and that he was not responsible for the death of decedent. Considerable stress is placed by defendant on the fact that no blood stains were discovered on the knife blade upon subsequent examination. However, an expert medical witness for the prosecution testified that if a knife passed through the muscle in the region of the heart, where the fatal wound was inflicted, and was quickly withdrawn, it could be wiped clean of blood both by reason of the contraction of the muscle and the lack of time in which the blood might coagulate.

It thus appears that the evidence, both direct and circumstantial, was ample to justify the verdict of murder in the first degree, and defendant has failed to show any grounds for reversal or for modification of the judgment. It is true that the record does contain some evidence that defendant was an epileptic but, since the jury found him sane on his plea of not guilty by reason of insanity, this evidence cannot affect the judgment rendered.

The judgment and order appealed from are affirmed.

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


author: WASTE, C. J.

text:
    [S. F. No. 15979.
    In Bank.
    May 2, 1938.]
    COUNTY OF LOS ANGELES, Petitioner, v. ROGER JESSUP, as Chairman of the Board of Supervisors of Los Angeles County, Respondent.

      Everett W. Mattoon, County Counsel, J. H. O’Connor, Assistant County Counsel, S. V. O. Prichard and L. K. Vobayda, Deputies County Counsel, for Petitioner.
    Gail J. Burck for Respondent.
   WASTE, C. J.

The petitioner seeks by this proceeding in mandamus to compel the respondent, as chairman of its board of supervisors, to sign and execute certain releases of liens and mortgages acquired by petitioner upon the real properties of the recipients of financial aid granted under the provisions of the Old Age Security Act. Respondent has demurred.

It appears that the Old Age, Security Act was originally enacted in 1929 (Stats. 1929, chap. 530, p. 914). Generally speaking, the statute provided for the granting of financial assistance to the needy aged who met the requirements of the act and whose property did not exceed in value a specified amount, as originally enacted, $3,000. A detailed statement of the requirements that had to be satisfied in order to make one eligible for the benefits available under the act is not indispensable to our present problem. As originally adopted, the statute declared that as a condition to the granting or continuance of aid the board of supervisors of the county “may” require the applicant to transfer his property to the board, the net income therefrom to be paid to the owner and in the event of discontinuance of aid or death of the recipient the remainder of the property over and above the amount of aid paid to be returned to him or his estate. Provision was also made, under certain circumstances, for the recovery of excess aid paid when the recipient’s property or income exceeded the amount allowed under the act. Double the amount paid was recoverable if upon the death of the recipient his property or income was found to be greater than that permitted under the act. Such, briefly, were the provisions for reimbursement that existed until 1935.

In this latter year, the provision for transfer of the recipient’s property to the county was repealed and section 4 of the act was amended (Stats. 1935, p. 1769) to provide, in substance, that aid granted to any person under the provisions of the act “shall constitute a debt of such person” to the state and county participating in the granting thereof and that upon the filing by the board of supervisors with the county recorder of a notice of the granting of aid such notice “shall have the force, effect and priority of a lien of a judgment”, which lien “shall be deemed security for reimbursement to the state and county” for the amount of aid paid. The provisions for the recovery of “excess” aid when the recipient’s property was found to exceed the allowed value, though amended, remained substantially the same as in the original act and as outlined above.

Therefore, in 1935, for the first time, provision was made for what may be termed a statutory lien which was to serve as security for reimbursement to the state and county for aid given under the act. In May, 1937, when the Old Age Security Act was incorporated in and made a part of the Welfare and Institutions Code (Stats. 1937, chap. 375), which code was adopted at the same legislative session and went into effect immediately as an urgency measure (Stats. 1937, chap. 369), sections 2224 and 2225 of said code became the successor sections to or the counterparts of the former amended section 4 of the original Old Age Security Act in that they, too, provided that aid granted to persons under the provisions of said chapter of the Welfare and Institutions Code should constitute a debt of the recipient to the state and county (see. 2224) and that upon the filing with the county recorder of a notice of granting of aid, such notice should have the force, effect and priority of a judgment lien and should be security for the reimbursement to the state and county of the amount of such aid (sec. 2225). Subsequently, and at the same legislative session, these sections were amended (Stats. 1937, chap. 405), effective September 1, 1937, so as to shift the debt or liability created for aid so granted from the recipient thereof to a spouse or adult child pecuniarily able to support said recipient (sec. 2224) and so as to omit all provisions for a statutory lien and purportedly to discharge all liens theretofore imposed for such relief (sec. 2225).

Inasmuch as our problem turns upon the construction and effect of the amended section 2225, effective, as stated, September 1, 1937, we quote it verbatim: “2225. Aid granted under the provisions of this chapter shall not constitute a lien upon any property of the recipient and all liens and mortgages heretofore created under the provisions of this chapter are hereby released and the board of supervisors of each county is hereby directed and authorized to execute and record appropriate instruments of release.”

The foregoing legislative history discloses that from 1935 until September 1, 1937, a statutory lien was accorded to the counties as security for reimbursement to them for aid granted under the act. Upon the latter date, by legislative edict all such liens “and mortgages” were purportedly “released” and the counties authorized and “directed” to execute and record appropriate instruments of release, and this, whether or not the property continued to be owned by the person who received the aid and whose property was made subject to the lien as security for reimbursement. In other words, section 2225 of the Welfare and Institutions Code, as it now reads, purports to wipe out and destroy all such liens heretofore impressed even though the properties encumbered thereby are now owned by third persons who purchased or acquired the same from the recipients of the aid subject to such liens.. In fact, of the eight “typical” cases alleged in the petition, of which typical cases concededly several hundred or more of each type or class exist throughout the state, at least three are of a type or class wherein the property has passed subject to the lien to an heir or grantee of the recipient of the aid. To release and discharge the lien in favor of such persons, as section 2225, supra, purports to do, in our opinion constitutes a gift to them of “public money or thing of value” in violation of section 31 of article IV of the Constitution. In the event of personal inability or refusal of the recipient of the aid to reimburse the participating governmental agencies for the aid so granted, such agencies must look for reimbursement to the security of the lien theretofore imposed. To destroy the security by release of the lien may in many cases forever preclude such reimbursement to the financial loss of the participating governmental agencies and the aggrandisement of the heirs or grantees alone, who took subject thereto.

In addition, the petition sets forth another “typical” case, of which many other similar cases allegedly exist in the state, wherein the recipient, whose property was made subject to lien for the aid granted, was not at any time entitled to such aid because of ownership by him at all times of property of a value in excess of that allowed by the act. Because the recipients in this class of cases did not acquire such excess property subsequent to their application for and receipt of aid and are not now deceased, sections 2222 and 2223 of the Welfare and Institutions Code which provide for reimbursement in such instances, are not applicable to the situation. We are satisfied, therefore, that to release and wipe out the liens heretofore imposed upon the properties of persons who, it now develops, never were entitled to aid, likewise constitutes, as in the other three typical cases above mentioned, a gift of “public money or thing of value” in violation of the constitutional provision.

In so far as the amendment of section 2225, effective September 1, 1937, purports to release all liens theretofore imposed for aid granted under the old age security law, including, as stated, liens on property of persons never entitled to aid and liens on property now in the hands of heirs or grantees who took or purchased subject thereto, the section is fatally defective and invalid, and this, even if we assume, without deciding, that legislation may constitutionally be framed looking to the release of such statutory liens as may ekist under other classes of “typical” cases alleged in the petition. This is so, for the reason that a statute which is not severable and which by its express terms permits an application the effect of which is unconstitutional, is invalid even though its provisions also permit and contemplate another and different application with a legal and proper effect.

This proposition found expression in the case of City of Los Angeles v. Lewis, 175 Cal. 777 [167 Pac. 390], wherein was involved a statute authorizing a county to own, lease or operate a cement manufacturing plant and to sell its products. It was urg’ed that this amounted to taxation for a private purpose, which made the statute unconstitutional in that it authorized the county to sell the cement to private persons. In opposition thereto it was replied that the only action contemplated under the statute was for public purposes and reference was made to the rule which favors a construction and presumption in favor of constitutionality. In disposing of the issue this court declared, page 783, that “It has been said that to save even a legislative enactment nothing can be read into it nor read out of it. The supreme test of the validity of any such law is not what may have been done under it, not, as here, what the contracting parties may by convention agree to do or not to do under it, but it is what may be done under it. . . . No man can doubt but that under this law a county acquiring a cement plant is authorized to manufacture all of the cement which that plant can produce and sell all that it desires to private consumers. To deny this right and power under the law is to destroy the law itself and to frame a law distinctly the contrary of that which the legislature deliberately and advisedly formulated and passed. So plain is this that respondents cannot successfully urge the severability of the statute and that a part of it can be saved by a construction limiting the cement production to the public needs of the county. For this, as we have said, would be to make a law which the legislature has not made and which requires legislative deliberation and determination before it can be made.”

To the same effect see Matter of Lambert, 134 Cal. 626, 634 [66 Pac. 851, 86 Am. St. Rep. 296, 55 L. R. A. 856],

As stated above, section 2225 expressly and unequivocally provides that “all” liens theretofore created or imposed for aid granted “are hereby released” and the counties are “directed” to execute instruments evidencing such release. Paraphrasing the language of the Lewis case, supra, no man can doubt but that under this section a county is authorized and directed to release a lien in favor of a third party ineligible for any relief or aid. To deny this right and power under the section is to destroy the section itself, and to frame a section distinctly the contrary of that which the legislature deliberately and advisedly formulated and passed. So plain is this that petitioner cannot successfully urge the severability of the section and that a part of it can be saved by a construction limiting the release of liens to those situations where the benefits would accrue to persons eligible for old age seeurity. For this, as we have said, would be to make a law which the legislature has not made and which requires legislative deliberation and determination before it can be made. The section here involved, in so far as it purports to release “all” preexisting liens, is not susceptible of severability to allow application of the rule enunciated in Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282 [42 Sup. Ct. 106, 66 L. Ed. 239], cited with approval in Max Factor & Co. v. Kunsman, 5 Cal. (2d) 446, 468 [55 Pac. (2d) 177], for in each of such cases a reasonable classification was present. What has been said is fatal to the issuance of the writ as to any and all of the “typical” cases alleged in the eight counts of the petition.

In addition, as to at least seven of the eight alleged “typical” cases, the section is also constitutionally objectionable because of its impairment of the obligation of contract. In this connection it appears that all of the “typical” cases except that set forth in count one of the petition, involve rights and obligations accruing not alone under the statutory lien contemplated and imposed between 1935 and September 1, 1937, but rather rights and obligations flowing from a contractual relationship. That is'to say, in the many hundreds of cases identical with the “typical” cases set forth in counts 2 to 8, inclusive, of the petition, the petitioner elected to avail itself in many instances not of the statutory lien then contemplated by and provided for in the act, but preferred to and did enter into a contractual relationship with the recipients of aid in all such cases, as a result of which it procured from them mortgages pledging their properties as security for the reimbursement of the aid so granted. For the amended section 2225, supra, to declare such mortgages theretofore executed “hereby released” and for it to “direct” execution and recordation of appropriate instruments evidencing such release as it purports to do, is to cause it to do violence to the federal and state constitutional provisions prohibiting the impairment of the obligation of contract. Nor may it successfully be contended that the section, as amended, undertakes to work a mere procedural or remedial change that may properly be given a retroactive operation. The decision in Brown v. Ferdon, 5 Cal. (2d) 226 [54 Pac. (2d) 712], precludes any such construction of the statute. In the cited case, it was sought to give a retro-. active application to a statute which provided, in substance, that a deficiency judgment should not be rendered for the balance due upon any obligation secured by deed of trust or mortgage with power of sale, following the exercise of such power of sale, unless the notice of breach and election to sell was recorded at least, one year before the date of sale. As to instruments executed prior to its enactment, the effect of the statute was to cause the beneficiary or mortgagee to either waive his right to a deficiency judgment or to wait nine months longer than he was formerly required to do before a sale of the property might be held to satisfy the debt. It was there declared that the attempted retroactive application of the statute could not be justified as a mere remedial change. The decision quotes from the authorities to the effect, supra, 231, that “It is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired’’. The opinion then states that if the statute there involved be retroactively applied “ ‘the right to a deficiency judgment has either been entirely taken away from the creditor, or he must wait an additional period of nine months before he may have judgment. These are substantial rights which are either entirely abrogated or suspended, and the fact that this is accomplished by legislation which has to do with the remedy rather than the substance of the contract is not controlling. . . . The remedy, where it affects substantial rights, is included in the term “obligation of contract’’, and the remedy cannot be altered so as to materially impair such obligations’. . . . Thus the contention now under consideration, if accepted, would work a change in the substantive rights of the creditor under the guise of a change in the remedy. . . . ‘the existing remedy cannot be so altered as to take away or impair any of the rights given by the contract.’ ”

The foregoing quotation is peculiarly pertinent to the present cause. Whether the amended section 2225 be regarded as a remedial change or otherwise, it purports to entirely destroy a substantive contractual right of the counties in and to the mortgages executed in their favor as security for reimbursement of the aid granted in reliance thereon. As stated above, in the event of refusal or inability of the recipients of such aid to make reimbursement, the counties may look to the mortgages to recoup the advances made. To release such security by statute, is to interfere with and destroy a valuable substantial right under the contract.

We are not impressed with petitioner’s argument that the language of section 12 of the Old Age Security Act, in effect with the adoption of that law in 1929 and carried into the Welfare and Institutions Code as section 2002, contemplated and authorized the amendment purporting to release “all liens and mortgages” imposed or created under the act. The section as originally enacted, and as it read when the liens and mortgages here involved were imposed or created, provided that “Any and all aid granted under the provisions of this act shall be deemed to be granted and held subject to the provisions of any law that may hereafter be enacted amending or repealing in whole or in part the provisions of this act, and no recipients under this act shall have any claim for compensation or otherwise by reason of his aid being affected in any way by any such amending or repealing act.” The entire section must be read as a whole. The latter and italicized portion thereof definitely indicates to us that it was the legislative intention that the recipient of “aid” under the act should not, under any circumstances, acquire a vested right thereto but should at all times receive the same subject to a change in or repeal of the act. This is the only reasonable construction of which the section is susceptible. It is interesting to note that throughout the history of this section the marginal notes thereto and the title thereof undertook to so describe its purpose. (See Stats. 1929, p. 916; Welfare and Institutions Code, sec. 2002.) The use of the word “aid” throughout the section fortifies our construction thereof. Obviously, the section was not intended to affect the rights of the county under the act. Nor do we think this result was achieved by the placing of a period where a comma formerly existed, thereby splitting the section into two sentences when it was incorporated into the Welfare and Institutions Code. As so punctuated, it must still be interpreted as herein indicated. We are of the view, therefore, that as to liens and mortgages imposed or created prior to the 1937 amendment of section 2225, supra, the rights of participating counties had become fixed and vested.

What we have said, in our opinion, is determinative of this proceeding. Contentions of counsel not specifically mentioned herein have been considered and found to be without merit or not indispensable to our determination of the cause.

We do not feel that our conclusion herein in any way interferes with a legislative policy having for its purpose the giving of aid to indigents, as that term is commonly understood. It appears from petitioner’s points and authorities that as security for some $960,000 advanced under the act it holds approximately 4,000 mortgages on real property valued at approximately $3,000,000. That such property should remain as security, as originally contracted, for the repayment of said amount does not appear unreasonable or harsh. The money recouped thereby may then be made available for other needy causes, thus tending to foster a policy of public assistance to those entitled thereto.

The demurrer is sustained, the alternative writ is discharged and the peremptory writ is denied.

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