text:
    [L. A. No. 16924.
    In Bank.
    March 21, 1939.]
    VICTOR A. BERRY, Appellant, v. MAYWOOD MUTUAL WATER COMPANY NUMBER ONE (a Corporation), Respondent.

      Victor A. Berry, in pro. per., and Earl Blodgett for Appellant.
    H. W. Shaw, Pearson C. Schaefer and S. C. Schaefer for Respondent.
   SEAWELL, J.

Plaintiff sued to recover $2,150, alleged to be the reasonable value of legal services performed for defendant Maywood Mutual Water Company Number One, a corporation. The trial court found that plaintiff had rendered services for defendant under oral contracts by which he was to be paid a monthly retainer fee of $50, and, after September 12, 1934, an additional fee of $50 for each day spent in court, and that all sums due plaintiff had been paid. The plaintiff admits receipt of payments totaling $1875, but contends that they did not cover the services which are the subject of the present action.

Judgment for plaintiff entered upon a jury verdict in the first trial of this action was reversed for error in an instruction. (Berry v. Maywood Mutual Water Co., 11 Cal. App. (2d) 479 [53 Pac. (2d) 1032].) The appellate court there said: “The evidence was conflicting, that of defendant being ample to support a verdict in its favor if such had been returned.”

Upon the present appeal the plaintiff attacks the sufficiency of the evidence. He does not contend, however, that it differs from that introduced on the first trial. A decision on appeal that the evidence will support a judgment for a party becomes the law of the case, and is binding when the action comes before an appellate court on a second appeal on the same evidence. (Raymond v. Glover, 144 Cal. 548 [78 Pac. 3] ; In re Baird’s Estate, 193 Cal. 225, 233-239 [223 Pac. 974] ; McCormick v. Great Western Power Co., 134 Cal. App. 705 [26 Pac. (2d) 322]; 2 Cal. Jur. 968.) Furthermore, independent of the doctrine of law of the case, the evidence sustains the judgment for defendant.

Plaintiff was consulted by Mr. Goodway, president of the defendant water company, in April, 1933. Mr. Goodway and his fellow members of the board of directors, elected in April, 1933, were involved in a controversy with the former directors, who claimed to constitute the lawful board. In the present action plaintiff seeks to recover the sum of $2,100 for his services in five proceedings involving the right of the Good-way board to act as directors and to possession of the corporate property. Two of said actions established the authority of the Goodway board and its right to control the corporate property. For services in each of said two actions, plaintiff herein sues for $500. Another of the five proceedings was an application for a writ of prohibition made to the District Court of Appeal by the former directors and unsuccessfully resisted by plaintiff herein on behalf of the Goodway board. (Somo v. Superior Court, 135 Cal. App. 584 [27 Pac. (2d) 790].) For services in this proceeding also plaintiff herein sues for $500.

The remaining two of the five proceedings involved collections of water bills made by the former directors after the Goodway board claimed their authority had ceased. One of said cases had not been brought to trial when plaintiff ceased to be attorney for the company, while the other had been lost in the justice’s court, and was awaiting trial on appeal to the superior court. Plaintiff claims to have done work in the former of these two cases of the reasonable value of $500, and in the latter, subsequent to the judgment of the justice’s court, of the value of $100. An item of $50 for services for the month of May, 1935, brings the total sued for to $2,150.

Goodway’s testimony as to what took place when he consulted plaintiff in April, 1933, as embodied in the bill of exceptions, is as follows:

“He [plaintiff] said he could not tell how much litigation we might have and it would be hard to decide upon the pay; that he would do our work on a monthly basis as he was working for the City of Bell.
“I told him that would be all right, provided he did not want too big a salary, too big a monthly pay. He asked me how $50 a month would be. I told him as far as I was personally concerned, I thought it would be all right; that I would take the matter up with the balance of the board of directors and let him know the following day, which I did.’

On September 12, 1934, plaintiff attended a meeting of the board of directors of defendant company. As counsel for the company he had received a check in the sum of $3,200 in payment of a judgment in its favor against a bank. According to testimony offered on behalf of defendant, Berry, the plaintiff herein, stated that he felt he was entitled to an additional fee of $200 for recovery of so large a judgment ; that the contract for payment of the $50 retainer fee, made the preceding year, should not continue as the measure of his compensation.

The directors, after discussion, agreed to payment of the $200, but insisted that a definite arrangement be made as to future compensation for court appearances. The sum of $50 for each day’s appearance in court was agreed upon with plaintiff as the amount he should receive in addition to the monthly retainer, according to testimony for defendant. The minutes of the meeting contain the following recital: “Mr. Berry proposed to handle cases still pending for $50 per day while same were on trial in court, and which after considerable discussion was finally agreed to by the board without a vote.” The evidence shows payments of $50 thereafter made to plaintiff for court appearances.

On May 9, 1935, the secretary of defendant water company wrote plaintiff as follows: “The board of directors, at their meeting on the 8th inst. passed a resolution to discontinue your employment on a monthly salary basis, but to continue your employment in the cases now on file, to wit, the Gale case, the Strauss case, and the case against the old board, on a fifty ($50) per day basis for time in Court when the cases are tried and instructed me to notify you of their decision.”

Plaintiff replied on the following day: “ ... I repudiate your resolution 100 per cent. In plain English I won’t work on any such terms. You must remember that there are two parties to every contract of employment, the employer and the employee, and both must agree to the terms. You must also remember that a salary cannot be altered in the middle of the month.”

Thereafter plaintiff did no work for defendant. In the trial herein he denied that he was originally employed under an agreement for a monthly fee of $50, to include litigation. He testified that Goodway on employing him said that if the company ever had any money it would pay him a good fee. He further testified that the arrangement for a monthly-retainer fee was not made until February, 1934, which was after the major part of the services for which plaintiff herein sues had been performed, and that said fee was only “to cover advice and drawing small papers” and “it did not include any appearance in court”. He denied that a further contract was made on September 12, 1934. He testified that payments totaling $475 made to him before February 1, 1934, were applied by him on his fee for resisting an injunction suit brought against the Goodway board by the former board in April, 1933, and that payments in the sum of $1400 made after February 1, 1934, were applied either on the monthly retainer or on his fee for other suits for which he does not seek recovery herein.

Defendant introduced in evidence receipts and checks for payments to plaintiff. The receipts, which evidence payments made from the commencement of plaintiff’s employment on April 12, 1933, to January 3, 1934, read “to apply on attorney fees.” The sum of $475 paid during this period, in payments of either $50 or $25, exceeds by $50 what became due to plaintiff under the agreement for a monthly retainer of $50. Between January 3, 1934, and September 12, 1934, on which date defendant claims it was for the first time agreed that plaintiff should receive additional compensation for court appearances, the checks show, in addition to the regular monthly payments of $50, three separate payments of $50, which plaintiff testified were for court appearances. Plaintiff received in all $1875 for his services for approximately two years.

Plaintiff contends that these extra payments prior to September 12, 1934, demonstrate conclusively that plaintiff was at no time employed under a contract to render all services, including litigation, for a monthly retainer. Goodway testified that the corporation did not knowingly make any extra payments for court appearances prior to the payment of $200 on September 12, 1934; that it was possible that plaintiff overdrew his account; that one of the checks which constituted an extra payment was made to plaintiff because he said “he had another one coming to him” and “insisted on having it”.

The record indicates that defendant company, a mutual water company, composed of landowners to whose land the water was appurtenant, was run in an informal fashion, without strict attention to business detail and record keeping. In the circumstances the fact that payments exceed somewhat the amount due under the retainer contract of $50 a month does not conclusively negative the existence of such a contract.

Plaintiff does not claim that he sent defendant company a bill for the account here sued for, or orally asked for payment, until after termination of his employment in May, 1935. The major part of the services for which he sued herein were performed in 1933. The trial court resolved the conflict in the evidence in favor of defendant company. It cannot be said that the judgment for said company is, as a matter of law, without support in the evidence.

Error of the court, if any, in permitting the defendant to introduce in evidence the above-mentioned checks and receipts during the cross-examination of plaintiff, rather than requiring defendant to postpone introduction of said material until it put on its defense, did not affect the substantial rights of plaintiff in this action, tried by the court, and is too inconsequential to justify a reversal in the light of section 4%, article VI, Constitution, and section 475, Code of Civil Procedure.

Certain of the findings are inartificially drawn. But when read in the light of the record they are not in conflict with other clear findings which support the judgment,

Plaintiff also objects that the oral contracts under which the court found he had been employed were not authorized by resolution of the board of directors. It is well settled, however, that when the corporation with knowledge of the contract accepts performance and makes payments on account thereof, there is a ratification of the contract, or an estoppel to deny its validity. (Tierney & Lawford, Inc., v. Wilshire Cafe, Inc., 209 Cal. 605 [289 Pac. 621]; Brown v. Crown Cold Milling Co., 150 Cal. 376, 386 [89 Pac. 86] ; Scott v. Superior Sunset Oil Co., 144 Cal. 140 [77 Pac. 817] ; Pacific Bank v. Stone, 121 Cal. 202 [53 Pac. 634]; 6A Cal. Jur., pp. 1181-1189.) Plaintiff, the legal adviser of the corporation, did not inform the board that the corporation should act by resolution.

The judgment is affirmed.

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

Rehearing denied.


source: Caselaw Access Project

author: HOUSER, J.

license: Public Domain

text:
    [Sac. No. 5231.
    In Bank.
    March 21, 1939.]
    ANDERSON-COTTONWOOD IRRIGATION DISTRICT (a Public Corporation), Appellant, v. JOHN KLUKKERT, as County Assessor, etc., et al., Respondents.
    L. C. Smith for Appellant.
    Harry W. Horton, Hankins & Hankins, C. F. Metteer, Arvin B. Shaw, Jr., Thomas C. Boone and A. L. Cowell as Amici Curiae, on Behalf of Appellant.
    Glenn D. Newton for Respondents.
   HOUSER, J.

As is indicated by the title of the cause, the plaintiff herein is a corporation known as an irrigation district. In due course of the exercise of its powers and operations as such district, an assessment was levied by it .upon the lands that were located within the boundaries of the district. The assessment not having been paid, by reason thereof and in accordance with the provisions of the enabling statute, the lands upon which the assessment had become delinquent were sold to the said district. Thereafter, while such lands were thus apparently owned by the plaintiff, the county assessor of the county in which the lands were situated threatened to include them in a general assessment of taxes for county governmental purposes. Thereupon, the plaintiff instituted a proceeding for' the purpose of prohibiting such contemplated action on the part of the said county assessor, as well as the collection by the county tax collector of taxes thus proposed to be assessed. Prom a judgment that was rendered therein in favor of the defendants, the instant appeal has been presented to this court.

Basically, the merits of the cause are determinable from a consideration of the pertinent provisions that are contained within section 1 of article XIII of the Constitution of this state. Therein, it is provided that “ . . . property used for free public libraries and free museums, growing crops, property used exclusively for public schools, and such as may belong to the United States, this state, or to any county, city and county, or municipal corporation within this state shall be exempt from taxation, ...” (Emphasis added.)

. In itself, as far as it may relate to the question here presented, the language there employed would seem to require no construction by the courts, particularly the pertinent provision which relates to the exemption of property “belonging to” the state. However, it is urged by respondents that the specific property in question was “non-operative”, that is, not in actual use for the purposes for which the irrigation district was organized—and, consequently, that it was not of the class of public property which is or was intended to be relieved from the burden of taxation.

Passing for the moment the question whether the lands here involved were “non-operative” within the meaning eon-tended for by respondents, or whether they are or were used for governmental purposes—in which latter event respondents concede they could not lawfully be taxed—we deem it, expedient to give some consideration to the argument advanced by respondents to the effect that, notwithstanding the plain language of the constitutional provision which exempts from taxation any property belonging to the state without limitation as to its “use”, nevertheless such property was not intended to be exempted unless it was in actual use for a public purpose.

On several different occasions, the appellate courts of this state heretofore have ruled upon that question adversely to respondents’ contentions.

In the comparatively early case of San Francisco v. McGovern, 28 Cal. App. 491 [152 Pac. 980], under the constitutional provision here involved, as it existed prior to 1914, at which time an amendment thereto was adopted, it was held that property acquired by the City and County of San Francisco for the purpose of constructing and maintaining a municipal waterworks for the benefit of the inhabitants of said city and county, and to supply water, light and power to cities outside such municipality, was exempt from taxation under the provisions of article XIII, section 1, California Constitution even though such acquired property was located outside the territorial limits of said city and county. In substance, an identical conclusion was reached by the Supreme Court of this state in the case of Turlock Irr. Dist. v. White, 186 Cal. 183 [198 Pac. 1060, 17 A. L. R. 72], wherein it was sought to tax lands of an irrigation district which lay outside the corporate boundaries of such district, and wherein the court ruled that all property held or apparently owned by an irrigation district, even though not actually in use by it, in reality “belonged to” the state and was exempt from taxation under the constitutional provision. Also in the ease entitled State Land Settlement Board v. Henderson, 197 Cal. 470 [241 Pac. 560], it was held that “all lands held by the state and open for settlement upon the terms prescribed by the State Land Settlement Act (Stats. 1917, p. 1566) are lands which belong to the state and are exempt from taxation” under the constitutional provision. (Emphasis added.)

It is to be noted that in each of those cases the fundámental basis for the decision that was made by the court was that, in effect, the property upon which the tax was sought to be levied was owned by the state or held by a subordinate agency thereof, and that, in accordance with the constitutional provision, such land was exempt from taxation. (In principle, the cases of Webster v. Board of Regents, 163 Cal. 705 [126 Pac. 974], and San Pedro etc. R. R. Co. v. Los Angeles, 167 Cal. 425 [139 Pac. 1071, 52 L. R. A. (N. S.) 991], are to the same effect.)

Also, directly bearing on the question is a note found in 3 A. L. R. 1440, wherein it is said: “Property owned by the state or subordinate municipal bodies is expressly exempted from taxation by constitutional provision or statutory enactment in many jurisdictions, and in some of these jurisdictions it is held that, where the exemption is express and unqualified, no tax can be levied against it regardless of the use to which it is put.” (Citing cases from several jurisdictions, including California.) However, in a succeeding note that appears on page 1442 of the same volume it is also said that, “As a general rule, property held by a municipality in connection with property used for a public purpose, but in excess of the amount required for proper conduct of such purpose, and not actually so used, is not within tax exemption provisions exempting property used for public purposes.” (Citing cases.) (Emphasis added.) The distinction would thus appear to be that in the first list of authorities, the constitutional or other provision with reference to the exemption is general, whereas in the latter the exempted property must be “used for public purposes”.

Among the several authorities from other jurisdictions which have followed the rule heretofore adhered to in California that where tax exemption provisions are directed solely to the “ownership” of public property, the use to which such property is put becomes immaterial, are the following: Otter Tail Power Co. v. Degnan, 64 N. D. 413 [252 N. W. 619, 621] ; City of Harper v. Fink, 148 Kan. 278 [80 Pac. (2d) 1080] ; Board of Commrs. v. City of Wellington, 66 Kan 590 [72 Pac. 216, 60 L. R. A. 850]; City of Omaha v. Douglas County, 96 Neb. 865 [148 N. W. 938] ; Stewart v. Denver, 70 Colo. 514 [202 Pac. 1085] ; City of Springville v. Johnson, 10 Utah, 351 [37 Pac. 577]; State v. Mayes, 174 Okl. 286 [51 Pac. (2d) 266, 268]; Town of Weaverville v. Hobbs, 212 N. C. 684 [194 S. E. 860] ; and Grand River Drainage Dist.’v. Reid, 341 Mo. 1246 [111 S. W. (2d) 151] ; see, also, Teaneck Tp. v. State Board of Tax Appeals, 110 N. J. L. 28 [164 Atl. 895] (affirmed 111 N. J. L. 242 [168 Atl. 449]).

In the case entitled State v. Mayes, 174 Okl. 286 [51 Pac. (2d) 266, 268], under the Oklahoma Constitution it was held that lands or property acquired and owned by a city for water right purposes were not liable to taxation by a county or other taxing district, although such lands or property were situated without the limits of such city and in a county other than that in which the city was located, and notwithstanding the fact that the property was used in part for other purposes. In discussing the constitutional exemption, the court said:

“Section 6, art. 10, of the Constitution provides that ‘all property of the United States, and of this State, and of counties, and of municipalities of this state . . . shall be exempt from taxation.' To the same effect is subdivision 3 of section 12319, O. S. 1931. There is no mention of the use to which property of a municipality is put as a condition to its being nontaxable. The provisions of the Constitution and the statute are without condition or limitation. ... It is the general rule that where the Constitution and laws of a state exempt from taxation all property of municipalities within the state, without reference to the use to which the property is put, it is exempt from all taxation regardless of the character of the use thereof. It is so held in Stewart, County Treas., v. City and County of Denver, 70 Colo. 514 [202 Pac. 1085] ; Omaha v. Douglas County, 96 Neb. 865 [148 N. W. 938] ; City of Colorado Springs v. Board of Com’rs of Fremont County, 36 Colo. 231 [84 Pac. 1113] ; City of Spring-ville v. Johnson, 10 Utah 351 [37 Pac. 577] ; City and County of San Francisco v. McGovern et al., 28 Cal. App. 491 [152 Pac. 980] ; Board of Commrs. of Sumner County v. City of Wellington, 66 Kan. 590 [72 Pac. 216, 60 L. R. A. 850, 97 Am. St. Rep. 396].”

In the light of the interpretation placed upon constitutional exemptions similar to the one here under consideration, by the several authorities hereinbefore cited, including the decisions of our own courts, it is manifest that the language of the exemption provision, being free from ambiguity, “has left no room for judicial construction.”

In that regard, in the case entitled San Francisco v. McGovern, 28 Cal. App. 491 [152 Pac. 980], in discussing the exemption provision here in question, the court said, “ . . . “where a law is plain and unambiguous, whether it is expressed in general or limited terms, the legislature (or framers of a constitution) should be intended to mean what they have plainly expressed, and consequently, no room is left for construction. Possible or even probable meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere.” , . . Whenever a constitutional provision is plain and unambiguous, when no two meanings can be placed on the words employed, it is mandatory, and courts are bound to obey it. Such a mandate, whether wise or unwise, whether founded upon good reasons or not, is obligatory, and cannot be construed away by the history of the past, or by any mischief that it may be supposed it was intended to remedy.’ (See Cooley on Constitutional Limitations, pp. 89-91; Maxwell v. Dow, 176 U. S. 581, 602 [44 L. Ed. 597, 20 Sup. Ct. Rep. 448].) We find ourselves unable to discover, from the language employed in the constitution [art. XIII, sec. 1], any reason for interpretation, or ground for entertaining doubt as to its meaning. The language employed in classifying the property declared to be exempt from taxation, it will be noted, limits the exemption as to property used for free public libraries and free museums and property used for public schools, but the language following is—‘and such (property) as may belong to the United States, this state, or to any county or municipal corporation within this state shall be exempt from taxation. ’ The condition here seems only to be that it (the property) shall ‘belong’ to the United States, etc. Its location or use is not made a condition of its exemption. The word ‘belong’ is applied alike and with the same force and meaning to the United States, this state, and to counties and municipalities, and it seems to us was employed to denote an unqualified ownership of the property, not an ownership subject to the condition that it was to be used exclusively for governmental purposes. Certainly it was not intended to attach any such condition to property belonging to the United States or this state and how can we give it a different meaning as applied to counties and municipalities?”

And in the late case entitled Town of Weaverville v. Hobbs, 212 N. C. 684 [194 S. E. 860], wherein it was held that real property which had been deeded to the state by a trustee’s deed, for the use and benefit of the World War Veterans Loan Fund and which the state had rented to private persons and had applied the rentals to the fund, was exempt from ad valorem taxation by the town wherein the real property was located, the court said: The Constitution of North Carolina contains this mandatory provision, article V, section 5: ‘Property belonging to the State, . . . shall be exempt from taxation. ’ . . . The language of the constitutional provision is so clear and unambiguous that there is no room for judicial construction. The fact that social, economic, and political conditions in this state have undergone great changes since the adoption of our present Constitution, resulting in an enlargement of the functions of municipal corporations to meet the requirements of changed conditions, would not justify a construction of this provision which would in effect result in its amendment by the courts and not by the people.” (Emphasis added.) (To the same effect see, also, City of Springville v. Johnson, 10 Utah, 351 [37 Pac. 577]; City of Omaha v. Douglas County, 96 Neb. 865 [148 N. W. 938].)

Irrespective of that which hereinbefore has been stated with respect to the rule that under a constitutional provision exempting state-owned property from taxation it is immaterial whether the property is held in a proprietary or a governmental capacity, it does not appear that the lands here involved are nonoperative, within the meaning contended for by respondents. In the recent case entitled El Camino Irr. Dist. v. El Camino Land Corp., 12 Cal. (2d) 378 [85 Pac. (2d) 123], this court held that an irrigation district was an agency of the state, whose functions were considered exclusively governmental; that it owns no lands in a proprietary sense, its property being owned by the state and held only for governmental purposes. The court pointed out that under section 29 of the Irrigation District Act (Deering’s Gen. Laws [1931], Act 3854, p. 1948) it was provided that property acquired by the district should be held “in trust for”, and was “dedicated and set apart to the uses and purposes” set forth in the act. (See, also, Clough v. Compton-Delevcm Irr. Dist., 12 Cal. (2d) 385 [85 Pac. (2d) 126]; Moody v. Provident Irr. Dist., 12 Cal. (2d) 389 [85 Pac. (2d) 128].) Also, in the recent case entitled Provident Land Corp. v. Zumwalt, 12 Cal. (2d) 365 [85 Pac. (2d) 116], where the economic history of irrigation districts in this state was reviewed at some length it was held that lands acquired by the district under the provisions of the Irrigation District Act remain in trust, and that their proceeds, whether by sale or lease, were likewise subject to the trust.

Respondents have placed great reliance upon the case entitled La Mesa etc. Irr. Dist. v. Hornbeck, 216 Cal. 730 [17 Pac. (2d) 143], in support of their contention that the property here involved was nonoperative and therefore taxable. In that case, for the reason that property so acquired by the district, being for resale, was not impressed with a public trust,—it was held that irrigation districts which acquired property by virtue of delinquent district assessments were not entitled to have canceled liens of county taxes and assessments existing against the property. In the light of the holding of this court in the recently decided cases, to which reference hereinbefore has been had, to wit, El Camino Irr. Dist. v. El Camino Land Corp., 12 Cal. (2d) 378 [85 Pac. (2d) 123], Clough v. Compton-Delevan Irr. Dist., 12 Cal. (2d) 385 [85 Pac. (2d) 126], Moody v. Provident Irr. Dist., 12 Cal. (2d) 389 [85 Pac. (2d) 128], and Provident Land Corp. v. Zumwalt, 12 Cal. (2d) 365 [85 Pac. (2d) 116], the decision that was rendered in the La Mesa case loses its importance as far as its applicability herein is concerned. Furthermore, in the La Mesa case, the court specifically left open the settlement of the question here presented, holding it unnecessary to reexamine the decisions in the cases entitled San Francisco v. McGovern, 28 Cal. App. 491 [152 Pac. 980], Turlock Irr. Dist. v. White, 186 Cal. 183 [198 Pac. 1060, 17 A. L. R. 72], or State Land Settlement Board v. Henderson, 197 Cal. 470 [241 Pac. 560], and therein declared that none of those cases dealt with the question there under consideration and further observed that, “Whether nonoperative property or property held under a mere tax title and not devoted to the public use may be assessed is not here involved. . . . when a cause arises where such property of an irrigation district, or other agency, is assessed for general taxes, we can then, if required, treat that specific question.’- (Emphasis added.)

The fact that the property here involved has been judicially determined to be held or used by the irrigation district for a public purpose, and not in a proprietary sense, should not in any way be deemed to detract from the force of that which has been said hereinbefore with regard to the conclusion we have reached that, under the constitutional provision which makes ownership the sole test of exemption, the use to which the property is put would be immaterial.

The judgment is reversed.

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


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

text:
    [S. F. No. 15835.
    In Bank.
    March 22, 1939.]
    In the Matter of CHARLES JOE JUNG, a Member of The State Bar.
    Philbrick McCoy for Petitioner.
    Charles Joe Jung, in pro. per., and I. M. Peckham for Respondent.
   THE COURT.

On this rehearing, we adopt the following statement of the facts from our former opinion:

‘‘ This proceeding was instituted by The State Bar to revoke the license of the respondent Charles Joe Jung to practice law in all the courts of this state on the ground that it was obtained through misrepresentation and concealment in that respondent made false answers to several material questions in his sworn application for admission to practice. Respondent was thereupon directed to show cause before this court why the order admitting him to practice law should not be revoked. Thereafter he demurred and answered and the matter was referred to a referee to receive evidence, make findings and file a report. Both sides have filed exceptions to the referee’s findings and report and the matter now comes before us on the evidence adduced before the referee and the briefs of the parties.
“It appears that in June, 1936, the respondent filed with the committee of bar examiners his sworn application in writing to take the examination for admission to the bar of this state. Subsequently, he passed the examination and, upon motion of the committee, was admitted -to the practice of the law by this court on October 23, 1936. In its petition herein to revoke the order so admitting him to practice, The State Bar alleges that respondent by making false answers to certain questions in his sworn application for admission misrepresented certain matters and concealed certain facts material to a proper determination of his moral character.
“Specifically, it is charged that in answering question 14 relative to his previous business or occupation, respondent said that he had been employed as an interpreter in the United States immigration service and then, as reason for the termination of the employment, stated ‘ (4) (Non-civil service, Political Appointment) Position discontinued in March, 1933. ’ In question 16 respondent was asked: ‘Have you ever been reprimanded, censured, or otherwise disciplined as an attorney or member of any profession or organization, or holder of any office, or have any charges ever been made or filed or proceedings instituted against you?’ Respondent’s answer thereto was ‘No.’ In reply to question 17 as to whether he had ‘ever been charged with fraud, either formally or informally’, respondent likewise answered ‘No.’
“In effect, it is The State Bar’s theory that respondent’s answers to said three questions were false in that he deliberately withheld information relative to his dismissal ‘with prejudice’ by the immigration department following an investigation of a complaint received by that department having to do with asserted misconduct on his part as an interpreter. A reading of the transcript herein discloses that on November 28, 1932, the central immigration office in Washington requested the San Francisco office, where respondent was employed, to investigate a complaint from the Florida office apparently charging respondent with having taken money to effect the entry of an alien Chinese. Accordingly, an investigation was first made at Jacksonville, Florida, the source of the complaint and the location of the informer. When that investigation was completed to the satisfaction of the officer in charge, respondent was directed by said officer to report at the Angel Island station. The officer testified in this proceeding that he thereupon informed respondent that ‘he was charged with certain derelictions and malfeasance in office', that respondent was given ‘specifications of the elements of malfeasance with which he was charged’; that respondent was then sworn and under oath made a statement denying the charges against him, stating, in substance, that ‘from what had transpired it was his understanding he was under charges by a certain individual for taking money in order to effect the admission of an alien Chinese. He disclaimed all knowledge concerning the matter; disclaimed all activities in connection therewith; referred to his previous record and asserted that the charges were not true, and said that from the evidence, so far as he knew, there was no cause why he should be discharged from his position. He stated that the statements which he had made were all under oath, and that he fully understood the position which existed at that time. This statement that Mr. Jung understood his answers were made under oath was in addition to his being sworn. He was sworn before the statement was commenced. That was the material part of his comment. ’
‘ ‘ The record also discloses that less than three months after the commencement of this .investigation, respondent was informed by letter from the local office and by a second letter from the department of labor in Washington of the termination of his employment, the latter letter stating that ‘upon the recommendation of the Commissioner-General of Immigration, your services as Chinese interpreter . . . have been discontinued with prejudice. ... ’ ”

The referee found, with respect to the material issues herein, that respondent made no false statements, but acted in good faith in the answer given to the question asked; that he did not know the exact meaning of the statement that his services had been discontinued “with prejudice”, and was not expressly advised of the reason for the dismissal; that it was not clearly shown to what extent he knew of the nature or extent of the investigation; and that the testimony of the witnesses for The State Bar was “inconclusive and unsatisfactory”. His explanation of his understanding of the dismissal, which the referee found acceptable, was that he was appointed to his position by a commissioner who was himself a political appointee, holding at the will of the appointing power; that the commissioner died in December, 1932, or January, 1933, and he assumed that his dismissal followed naturally upon the termination of the political appointment of his superior.

The conclusion of the referee, that respondent did not wilfully or knowingly conceal any material facts in his application or make any false answers to questions therein, appears to us to be a reasonable one in the light of all the evidence in the record.

It is therefore ordered that the proceeding against petitioner be dismissed.

EDMONDS, J., Dissenting.

I dissent. In July, 1938, this court decided that the charges made by The State Bar against the respondent had been fully sustained and warrant a revocation of his license to practice law in this state. Thereafter a petition for rehearing was granted. Upon the same evidence which was before the court when the first decision was reached, a majority of the justices now determine that the conclusion of the referee is “a reasonable one”.

I adhere to the views first expressed. In my judgment, the record clearly shows that -while the respondent was in government-service as an interpreter, a complaint xvas made against his conduct; that thereafter an investigation was made which included a statement taken from him concerning the pending-charges, of which he was fully informed; and that thereafter he was dismissed from the service “with prejudice”. It strains ordinary credulity to believe, as found by the referee, that the respondent, with sufficient legal education to pass the bar examination, did not know the meaning of the words “with prejudice” or understand that his dismissal, which followed the investigation of his official conduct by less than three months, had no connection with it.

The State Bar Act (Stats. 1927, p. 38, as amended; Deering’s Gen. Laws, 1937 ed., Act 591), prescribes as a qualification for admission to practice law, that a person must be “of good moral character”. (See. 24.2) The examiners, whose duty it is “to administer the requirements for admission to practice and to certify to the Supreme Court for admission those applicants who fulfill the requirements” therefor (sec. 24), have a right to know the circumstances which necessarily influence a determination as to whether a person is of the character required by the statute. For the purpose of securing information, upon which to determine the eligibility of applicants, each is asked certain questions. One who under oath falsely answers such inquiries is not a person qualified by either the specific terms of the State Bar Act, supra, or the principles of common honesty to engage in the practice of law.

In my judgment, the only conclusion which can reasonably be drawn from the record before this court is that the respondent made false representations in connection with his application to take the examination for admission to the bar, and that in view of such conduct his license to practice law should be revoked.

Waste, C. J., concurred.


author: THE COURT.

text:
    [Crim. No. 4207.
    In Bank.
    March 24, 1939.]
    THE PEOPLE, Respondent, v. PASQUALE D’ANGELO, Appellant.

      Carl H. Allen and J. Bruce Fratis for Appellant.
    U. S. Webb, Attorney-General, William F. Cleary, Deputy Attorney-General, Matthew Brady, District Attorney, and Harmon D. Skillin, Assistant District Attorney, for Respondent.
   THE COURT.

The evidence is undisputed in effect that on June 14, 1938, defendant killed his wife by decapitating her with a meat cleaver. From a judgment of conviction of the commission by him of the crime of murder in the first degree, which carried with it the imposition of the death sentence, defendant has appealed to this court. Defendant has also appealed from the order by which his motion for a new trial was denied.

On the trial of the action, defendant presented two defenses (1) that he was “not guilty”; and (2) that he was “not guilty by reason of insanity”.

On the appeal from the judgment, the point is urged that, on cross-examination of defendant as a witness in his own behalf, prejudicial error was committed by the trial court in that the deputy district attorney in charge of the proseention was permitted to ask defendant whether, on an occasion which preceded the killing of his wife, he had not had his ■wife arrested and taken to a detention hospital, and “tried to have her put in the insane asylum”. In view of the fact that on his direct examination, defendant had testified extensively regarding the relations that theretofore had existed between him and his wife, the questions to which attention has been directed were proper cross-examination. (People v. Gallagher, 100 Cal. 466, 473 [35 Pac. 80] ; People v. Buckley, 143 Cal. 375, 386 [77 Pac. 169] ; People v. Rozelle, 78 Cal. 84 [20 Pac. 36] ; People v. Maughs, 8 Cal. App. 107, 117 [96 Pac. 407]; People v. Turco, 29 Cal. App. 608 [156 Pac. 1001].)

The next asserted error of which appellant complains is to the effect that his defense was prejudicially affected by the fact that, in the presence of the jury, the trial judge made the statement that if the decapitation of the wife of defendant occurred in the course of an attempt that was made by him to commit the crime of mayhem, as a matter of law the result of the incident would be that defendant had committed the crime of murder in the first degree. From a reading of the transcript of the reporter’s stenographic notes made with relation to the aforementioned statement, it is obvious that it ■was made inadvertently, but nevertheless in response to argument that immediately theretofore had been presented by counsel for defendant. Following a more specific explanation of the position which was assumed by counsel for defendant with respect to the point then under discussion, which explanation included the statement that section 189, Penal Code “refers to where a particular crime is attempted to have been committed, and a killing is committed in the attempted perpetration of another crime entirely”, the judge said: “ . . . —that was my understanding upon the conclusion of your argument, that the defendant did not intend to commit a homicide; that he might have intended to commit something else’’; and “I do not follow the argument. So as to clear the record, let all the remarks by the Court be expunged from the record. The jury is instructed to disregard them. We are discussing merely possibilities and questions of law that have no relation to any facts in the case, based upon, perhaps, a misconstruction of the position of counsel for the defense.” In such circumstances, it is clear that the jury could not have been prejudicially influenced by the remarks to which appellant has objected.

The third specification of error made by appellant relates to asserted misconduct on the part of the deputy district attorney in that in his cross-examination of one of the alienists who testified as a witness in the action, he asked the question whether, in his opinion, “the defendant, at the present time is shamming or faking the condition which he apparently visualizes or shows himself to the ladies and gentlemen of the jury”.

It appears that theretofore the alienist had expressed his opinion that defendant was sane at the time when the alleged murder was committed; also that, notwithstanding the apparently abnormal actions of defendant or his incoherent language in the courtroom, after the assertedly objectionable question had been asked, the opinion of the alienist was then the same as it was at the time when he expressed his original opinion. It is clear enough that eccentric action or speech on the part of defendant might have afforded some indication of his mental status; but it also is obvious that such deportment was not conclusive of the ultimate fact regarding his sanity. Such action or speech may have constituted but a deception or pretense on the part of defendant. In substance, the alienist already had given it as his opinion that at all times defendant was sane; which answer, as far as the abnormal conduct of defendant was concerned, very aptly implied that defendant was “shamming or faking”. And if the alienist was qualified to express an inclusive opinion with reference to the sanity of defendant, this court can perceive no good reason why the same alienist was not also possessed of the legal capacity to express an opinion concerning any act or conduct of defendant that might constitute an element in the ultimate conclusion regarding his sanity. If that position is tenable, it should follow that the point presented by appellant cannot be sustained. But even though it should be considered as worthy of serious consideration, the fact that, following discussion of the point by respective counsel, the question was withdrawn, and that thereupon the jury was fully and carefully instructed by the trial judge to disregard the fact that the question had been asked and that argument had ensued regarding its pertinency and competency,—effeetively cured any possible ill effect that, in the absence of such course, might have resulted.

On the asserted ground of their uneonstitutionality, appellant attacks the entire group of sections 1016,1020,1026, 1026a and 1027 of the Penal Code, which relate to the right afforded a defendant in a criminal action to enter not only a plea of “not guilty”, but also a plea of “not guilty by reason of insanity”. Those provisions, or some of them, also purport to establish certain presumptions of fact and to adopt specified procedure with relation to such pleas. However, in connection with such contention, appellant makes the statement that he “fully realizes that the constitutionality of the dual trial has been considered in the following cases”, citing People v. Troche, 206 Cal. 35 [273 Pac. 767] ; People v. Leong Fook, 206 Cal. 64 [273 Pac. 779], People v. Bias, 210 Cal. 495 [292 Pac. 459], and People v. LaCrosse, 5 Cal. App. (2d) 696 [43 Pac. (2d) 596], To that list, the following cases might well be added, to wit: People v. Perry, 195 Cal. 623 [234 Pac. 890], People v. Hickman, 204 Cal. 470 [268 Pac. 909, 270 Pac. 1117], People v. Coen, 205 Cal. 596 [271 Pac. 1074], People v. Sloper, 198 Cal. 238 [244 Pac. 362], and People v. Davis, 94 Cal. App. 192 [270 Pac. 715],

In connection with the point thus presented, appellant particularly contends that even if, in accordance with the well-established law in this state, it be constitutional to require a separate trial as to each of the pleas of “not guilty” and “not guilty by reason of insanity”,—nevertheless, the combined effect of the statutory provisions in substance that on the trial of the issue of “not guilty”, the sanity of the defendant at the time when the offense was alleged to have been committed shall be conclusively presumed, aud the judicial construction of those statutes that because of such conclusiveness on a trial of that issue no evidence may be introduced to the contrary of such presumption, deprives the defendant of his constitutional rights in that he is not afforded “due process”.

Were the “bald” question thus presented new in the jurisprudence of this state, it might present a basis for legal discussion herein. But considering the fact that each of the particular phases of the point to which attention has been directed by appellant 'heretofore has received consideration by this court and a conclusion reached with reference thereto that such contention is untenable,—unless this court should now be prepared to recede from a position which for several years last past it has insistently maintained,—it necessarily follows that appellant’s suggestion in that regard must be rejected.

Technically, perhaps, but nevertheless in accord with well-settled rules of procedure, another reason exists which may form a basis for a ruling contrary to appellant’s contention. It not only appears as an indisputable fact, but also from statements contained in the brief of appellant that on his first trial (had upon the plea of “not guilty”) he “did not introduce evidence of his mental condition. . . . Under the present interpretation of the conclusive presumption contained in section 1026 of the Penal Code, this evidence is not admissible and was not offered in the trial on the ‘not guilty’ plea.” (Emphasis added.) Manifestly, in such circumstances, defendant is in no position to question the constitutionality of the statute. Notwithstanding that situation, it may be noted that on the trial had on the issue of ‘' not guilty ’ ’ the stringency of the rule to which attention has been directed was somewhat relaxed.

At the outset of the direct examination of defendant, the trial judge said: “I mean the relations between the defendant and the deceased are certainly material to the extent that they may aid the jury in determining what the punishment shall be. . . . And I am explaining the ruling, so that the position of the Court will be made manifest; and that is, at least for the purpose of placing before the jury the environment in which the parties lived, their relations one to the other, the state of feeling between them,, and whatever may have contributed to that, are circumstances that in my opinion are proper to go before the jurj to enable them to assess the punishment. . . . the testimony is admissible upon the theory that I have suggested, namely, that the jury must have before it the circumstances surrounding the parties to enable the jury to determine what the punishment shall be. ’ ’ (Emphasis added.) Thereupon, the defendant proceeded to and did testify to many facts and circumstances concerning the relationship which had existed between him and his wife. Among other things, he testified that the troublé between them had continued since 1935, when on an occasion of some argument his wife had spat in his face and threatened to kill him. On being questioned as to whether his wife had ever struck him, defendant indicated that she had done so on each of several different occasions,—once having thrown a plate which injured his hand and which necessitated the taking of three stitches thereon; that she had hit him on the head with an iron bar; that she had thrown plates and knives at him, which broke the windows and doors of a store owned and operated by defendant; and that on one occasion she had come to the store and then and there threatened to kill him with an ice pick which she had concealed up her sleeve. He further testified that on the morning of the day the crime was committed, he left his place of business and went to the store (then being operated by her) with no intention of killing his wife, but merely to “scare” her; that he accused her of having been intimate with another man, whom he stated that he had observed leaving the house at 1 o’clock on the morning of the day when the killing occurred; that she did not deny the accusation, but defiantly declared that she would do as she pleased in that respect, as marital relations between them were ended; that she called him opprobrious names and vehemently asserted that he was “through”, and spat at him again. She further stated: “I will send two persons to kill you;” also that she would get rid of him, either by sending him to the prison at San Quentin or to an undertaking parlor. At this juncture, defendant declared a “screen” came before his eyes; that he was very violent when he thought of the way he had been treated,—but that he would not have killed her if she had not called him names and spat in his face.

On cross-examination, defendant also testified further in detail regarding the killing of his wife. On being questioned in regard to the cleaver which he had carried with him to “scare” his wife, defendant testified that (induced by statements of his wife that she wanted to get rid of him) he had urged her to take the cleaver, but that she did not do so; that she was calling him vile names and spitting at him; that he was “blind” and did not know what he was doing; that thereafter on leaving the scene of the crime he became aware of the blood present on his hands and clothing, but did not know where it came from, and did not remember striking his wife, nor anything of what had happened. Upon his leaving the store, after the crime had been committed, defendant was questioned as to his reason for crossing the street, instead of proceeding down the street on the side thereof on which the store was located and on which side of the street he had gone to the store (in which latter event he would have encountered a neighbor who was watering her lawn) ; and he testified that he did not know what direction he took, that he was “not in his right mind” and was not conscious of what he was doing.

In addition thereto, at a time when testimony was offered through another witness regarding an altercation that had occurred between defendant and his wife two years before the homicide was committed, in response to objection made thereto by the deputy district attorney, in part the trial judge said: “ . . . And if the killing is as it has been indicated to be, that would not give excuse for the homicide, as far as it goes now. If you are offering this testimony for the purpose of excusing the homicide—if there is anything that happened, that counsel in good faith tells me, that anything happened in his conversation in 1935 between the defendant and the witness and the attorney that will excuse this homicide, and justify it, why, you can offer it subject to a motion to strike out. ... I will allow that [referring to the statement that the wife had threatened the life of defendant] for the purpose of mitigation and it hasn’t to do with the degree. It may come in for what it is worth; but certainly it is admissible for the purpose of mitigation.” (Emphasis added.) In respect to such prior threat or threats, the witness testified that on the occasion of the proposed signing of an agreement between the defendant and his wife (and in the presence of witnesses), she had refused to sign the said agreement and asserted that everything belonged to her and that she would like to see Pasquale D’Angelo “out like a dog”; that in the argument that thereupon ensued the wife of defendant opened the drawer of a table beside which she was standing and pulled therefrom a large kitchen knife; that in that connection the witness had asked her what she was going to do, whereupon she was induced by the witness to drop the Imife back into the case; that during such action on her part, defendant had stood, talking, “but he never made any bad move”. With respect to that incident, the trial judge said: “I say it is properly coming in for the purpose of showing mitigating circumstances. Yes [referring to date, 1935], In other words, this is the starting point; and, as I understand it, there had been feeling between the two parties, and doubtless other testimony will come in more near in point of time; and its remoteness has to do with the weight. Its weight will he for the jury. It has to do in my judgment not for the purpose of fixing degree, but for the purpose of establishing mitigation.” (Emphasis added.)

Further testimony which was given by a lawyer, who formerly had represented defendant in a divorce, action, disclosed facts regarding the conduct of, and statements that were made by, defendant early in the morning of the day when the crime was committed. He testified that defendant had berated and upbraided him for the reason that the attorney had failed to bring the divorce case to trial; that then defendant had “started to grit his teeth’’ and jerked open a cash register to show him some figures therein;—following which he loudly declared that he was being impoverished by the actions of his attorneys, and applied epithets to the witness, who at that point made his retreat from the place.

A third witness testified regarding a quarrel which had occurred between defendant and his wife about three years before she was killed. In part the witness stated that as he joined defendant and his wife on that occasion, the argument which then was in progress between them became more heated; that defendant’s wife “made a move” toward the defendant; that as she did so he put out his hands to defend himself and she fell down; and that as she got up “there was a sort of an object that she had wrapped up in a newspaper, and when it fell, it fell with a sort of a thud”; but that when the object fell, the yomiger daughter (who was present) picked up this object right away and put it under her arm.

It thus indisputably appears that defendant was permitted to and did introduce evidence outside the immediate ‘‘ circumstances connected with the offense” (People v. Troche, 206 Cal. 35, 47 [273 Pac. 767], and authorities there cited), all of which was expressly admitted “for the purpose of showing mitigation”, and which also, in some respects, might have tended to establish the fact either that the killing constituted a murder in the second degree, or even that the crime of manslaughter was committed. And in that connection, the jury was not only instructed as to the law with respect both to first and second degree murder, but also was told that, on the evidence adduced, it might find defendant guilty of the latter offense; furthermore, that in the event it should determine that defendant was guilty of first degree murder, the jury had the right to fix the penalty therefor at life imprisonment. Appellant does not contend that he was entitled to have the jury instructed with regard to the crime of manslaughter. Prom a complete reading of the testimony that was given by defendant, in which he detailed not only facts which related to his marital affairs which immediately preceded the killing, but also to those which later existed at or about the time when the homicide occurred, it is obvious that, although not so intended by either court or counsel, the issue of the sanity of defendant was indirectly injected into the trial had on the plea of “not guilty”;—that is to say, that the apparently eccentric conduct of defendant, both preceding and at the time of the commission of the offense, could not have failed to suggest to the minds of the individual jurors some question with reference to the sanity of defendant. Since on the trial on the issue of “not guilty” defendant was not precluded from showing “mitigating circumstances”,-—but was given every opportunity to establish either that the offense was that of second degree murder, in that it was not committed wilfully, deliberately and premeditatedly, or possibly that the act constituted a voluntary manslaugher,—under the provisions of the several statutes to which attention has been directed, and particularly in consideration of the judicial interpretation or construction which has been given to such statutes, it results that with respect to the conduct of the trial court no error was committed by it with reference to the procedure of which appellant complains. In other words, with the exception of the right to introduce evidence which might relate directly to the insanity issue on the trial of the plea of “not guilty”, every right of defendant was secured to his benefit that was legally possessed by him prior to the enactment of the several statutes which relate to the question of whether at the time when the offense was committed, defendant was legally sane; and as to that issue, since, by judicial interpretation, as attested either singly or by a combination of some or all of the several authorities in this state to which attention hereinbefore has been directed, the manner in or by which the entire trial was conducted was procedural only, and did not deprive defendant of any of his just rights in the premises, it follows that none of his several contentions respecting a denial of “due process” may be sustained.

Finally, appellant presents the point that prejudicial error was committed by the trial court in that it denied defendant’s motion for a new trial.

It appears that, in part, the motion for a new trial was based upon the asserted fact that since the trial had been concluded defendant had discovered new evidence that was material to his defense and which evidence, by the exercise of ordinary diligence, could not have been, nor was theretofore discovered by defendant. The materiality of such “new” evidence is said to relate principally to the issue of the sanity of defendant, and was addressed to evidence that was given on the trial by one of the alienist witnesses to the effect that if, preceding the killing of his wife, defendant had been afflicted by delusions respecting his wife’s former conduct and actions with respect to defendant,—then, in the opinion of said alienist, defendant was insane. One of the assumed delusions of defendant which was contained in a hypothetical question which was propounded to the alienist was: “ . . . that the man [defendant] believed that he called the police on several occasions for protection from his wife, which belief was contrary to the fact; . . . ” On the hearing of the motion for a new trial, the substance of the material part of one of the affidavits that was presented to the trial court was that, shortly before the homicide occurred, defendant told one of the affiants that he was in fear of his life and was afraid that a person by the name of Don Hunt would kill him or at least do him great bodily harm; that he employed the affiant to act as a bodyguard for him on five occasions during the month of May, 1938; and that, in compensation therefor, defendant paid to affiant the sum of $54, during the period May 15 to 19, 1938. The other affidavit contained the assertedly material statements that, in defendant’s beer tavern, on or about May 15 (1938), a man by the name of Don or Dave went into the beer tavern and started a quarrel with defendant; that the said person went back of the bar and struck defendant, knocked him to the floor and then continued to strike and to choke him as he was prostrate; and affiant stated that thereupon it was necessary for him to strike the said person on the head with a stool in order to prevent him from doing serious bodily harm to defendant; that a day or two later affiant told Rosa D’Angelo (wife of defendant), in the presence of her daughter Viola, what had occurred on the occasion just described, and the daughter stated to affiant in the presence of her mother that affiant should not have interfered; and the daughter asked affiant why he had not allowed the person to kill defendant; that at said time and place said Rosa D’Angelo acquiesced in the statement made by her daughter; also, that on or about the 28th day of May, 1938, a man by the name of Harry Marshall came into the beer tavern operated by defendant and started an argument with the latter, and in the course of the argument Marshall threw at least a dozen eggs, one at a time, at defendant and also at the back bar and bottles of liquor thereon.

Considering the contents of such affidavits, together with the fact that on each of several occasions the wife of defendant had threatened him with personal violence, either by herself or through others, and actually had physically assaulted him, it becomes clear that defendant was justified in having at least a suspicion that his wife was the instigator of each of the unprovoked assaults to which reference was made in the two affidavits; and that if, on the insanity trial of defendant, evidence of the said assumed facts had been placed before the jury, it is extremely improbable that the verdict would have been different from that which the jury returned on said issue. At any rate, in the exercise of its sound discretion in the matter, the order that was made by the trial court, by which the motion for a new trial was denied, did not amount to prejudicial error.

No other points are suggested by appellant as affording impelling reasons for a reversal of the judgment or the order by which a new trial was denied.

Defendant had a fair trial. It is ordered that the judgment and the order be and they are affirmed.

Rehearing denied.


author: EDMONDS, J. SEA WELL, J., Dissenting.

text:
    [S. F. No. 16099.
    In Bank.
    March 24, 1939.]
    CHARLEY H. ENGELKING, Appellant, v. F. J. CARLSON et al., Respondents.

      Clark, Nichols & Eltse for Appellant.
    Call & Stearns, as Amici Curiae, on Behalf of Appellant.
    Myron Harris, William H. Older and John Jewett Earle for Respondents.
    Hartley F. Peart, Howard Hassard and Bronson, Bronson & McKinnon, as Amici Curiae, on Behalf of Respondents.
   EDMONDS, J.

Each of the defendants in this case is a duly licensed and practicing physician and surgeon who has been sued by the plaintiff for physical injuries alleged to have been sustained as the result of his negligence in the performance of an operation. At the conclusion of plaintiff’s case a nonsuit was granted as to defendant Ream, and after hearing the evidence presented by the defendant Carlson, the trial judge directed a verdict in his favor. The appeal is from the judgments which followed the order and verdict.

Dr. Carlson, with the assistance of Dr. Ream, operated upon plaintiff for the purpose of correcting an instability of the left knee. The facts concerning this operation are not disputed. It appears that the operative work consisted of the repair of the exterior lateral and posterior crucial ligaments, which had been torn and ruptured as the result of a fall. The former of these structures runs alongside the knee where the femur comes in contact with the fibula; its function is to hold the knee steady and prevent lateral or sidewise movement. The other runs from the femur to the tibia and prevents an excess of gliding in the knee. The operation involved the removal of the damaged portions of the ligaments, and the substitution therefor of new material obtained by cutting sections from the fascia lata and the biceps muscle of the left leg. It was performed while plaintiff was unconscious and relaxed under the influence of an anaesthetic.

After the operation plaintiff began to suffer from a “foot drop ’ ’, that is, an inability to control the lifting and sidewise movement of the left foot, and also from a numbness in an extensive area of the lower left leg. Upon examination by another physician it was found that the external peroneal nerve in that leg was severed in the vicinity of the knee. This nerve runs down the side of the leg below the knee and affects the muscles which raise the foot. A severance of it, according to the medical testimony, will produce the difficulties experienced by plaintiff.

Dr. Carlson was the only physician called by the plaintiff who testified concerning what was done by him and Dr. Ream and the procedure ordinarily employed by surgeons performing an operation of the kind submitted to by the plaintiff. Admittedly, the peroneal nerve, the position of which does not vary normally, is in the operative field. Although this nerve can be isolated, said Dr. Carlson, it is not the practice to do so in operations of this kind. Accordingly, after he made the necessary incision and the cutting progressed through the skin, the fascia, and other structures down to the bone, the surrounding muscles and tissues were drawn aside and held back by blunt retractors, which were adjusted by him and maintained in position by Dr. Ream. Dr. Carlson handled all of the sharp instruments; Dr. Ream did nothing except to hold the retractors.

After the operation was completed a cheek was made to see whether the nerve was cut. This was done by looking at the tissues which had been dissected and all of them were identified. The nerve was not sutured, said Dr. Carlson, because, in his opinion, that was not required. Asked if “you can state positively that neither you nor Dr. Ream severed this nerve”, Dr. Carlson replied that he could not say, although he did not do any cutting “in the neighborhood of it”. “The severance of this nerve is a problem that is one of the difficulties of surgery.” Although it does not ordinarily happen, he continued, it is something which may occur. “The nerve can be injured by pulling on a blunt instrument alone, and the problem as to whether or not that was true was our first problem after the operation.”

Asked a hypothetical question concerning what method would ordinarily be employed “by a physician and surgeon possessing the reasonáble degree of skill and knowledge possessed by others of his profession in good standing in the East Bay Area” to protect the peroneal nerve during such an operation, Dr. Carlson answered: “To retract it with its protective tissue. ’ ’ However, he said, in doing so it might be stretched with temporary loss of function. He also very frankly said that although the peroneal nerve is not difficult to locate and identify, a surgeon can miss it and thereby cause injury. Several instances where that had occurred were mentioned by him and his testimony in this regard was corroborated by two well-qualified surgeons who were called as witnesses in his behalf. One of them said that in average surgical practice the peroneal nerve is cut in five per cent of operations such as that undergone by the plaintiff; another stated that it is severed even by those using care and skill in over five per cent of the cases, some authorities claiming that the number runs to eight or nine per cent. Each of these witnesses declared that it is standard technique to leave the nerve covered in its own protective tissue rather than to expose it because exposure is more likely to cause injury; to retract the nerve with the tissues is the most conservative method.

The plaintiff contends that with this evidence before the jury the trial judge should not have granted a nonsuit or directed a verdict. He insists that the evidence offered by him together with the reasonable inferences legitimately deducible therefrom, would support a verdict in his favor upon the theory (1) that the condition of the left foot and leg subsequent to the operation was due to the severance of the peroneal nerve; (2) that this nerve became severed in the course of the operative work upon the ligaments; and (3) that such severance was the result of negligence in the performance of the surgical work.

The first of these propositions is supported by expert evidence introduced by the plaintiff, and is not controverted by the defendants. The second proposition also requires no consideration, because the defendants take the position that for the purpose of passing upon the particular rulings of the trial court under review, “the sufficiency of plaintiff’s evidence upon this point and the reasonableness of his inference that the nerve became severed in the course of the operation, may be assumed”. The third proposition states the principal controversial point. Conceding that the evidence stands undisputed, the plaintiff contends that it justifies an inference of negligence under the doctrine of res ipsa loquitur. He insists that he was unconscious; that the defendants had charge of the operation; that the result suffered by him does not ordinarily occur; and that in the absence of an explanation by the defendants justifying a verdict in their favor upon the ground that they were not negligent, they are liable to him in damages.

If this were the rule, as a practical proposition, no surgeon could ever operate without being an insurer of a medically satisfactory result. The medical testimony in this ease shows without any contradiction whatever that although the severance of the peroneal nerve is something which ordinarily does not occur in operations such as that performed by Dr. Carlson, yet even when the precautions prescribed by the approved technique are taken, there is a break of or injury to it in between five and nine per cent of the cases. There is nothing startling about such evidence and it affords no basis for the recovery of damages against a surgeon. Probably in every operation there is some hazard which the medical profession recognizes and guards against but which is not always overcome. To say that the doctrine of res ipsa loquitur allows the recovery of damages in every case where an injury does not ordinarily occur, would place a burden upon the medical profession which the law has not heretofore laid upon it. Moreover, such a rule is not justified by either reason or authority.

The law has never held a physician or surgeon liable for every untoward result which may occur in medical practice. It requires only that he shall have the degree of learning and skill ordinarily possessed by physicians of good standing practicing in the same locality and that he shall use ordinary care and diligence in applying that learning and skill to the treatment of his patient. (Hesler v. California Hospital Co., 178 Cal. 764, 174 Pac. 654].) Whether he has done so in a particular ease is a question for experts and can be established only by their testimony. (Perkins v. True- blood, 180 Cal. 437 [181 Pac. 642] ; Patterson v. Marcus, 203 Cal. 550 [265 Pac. 222].) And when the matter in issue is one within the knowledge of experts only and is not within the common knowledge of laymen, the expert evidence is conclusive. (Wm. Simpson C. Co. v. Industrial Acc. Com., 74 Cal. App. 239 [240 Pac. 58] ; Johnson v. Clarke, 98 Cal. App. 358 [276 Pac. 1052].) Negligence on the part of a physician or surgeon will not be presumed; it must be affirmatively proved. O'n the contrary, in the absence of expert evidence, it will be presumed that a physician or surgeon exercised the ordinary care and skill required of him in treating his patient. (Donahoo v. Lovas, 105 Cal. App. 705 [288 Pac. 698].)

It is true that in a restricted class of cases the courts have applied the doctrine of res ipsa loquitur in malpractice eases. But it has only been invoked where a layman is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. For example, it has been applied where a sponge was left in the body of the patient after closing an operative incision. (Ales v. Ryan, 8 Cal. (2d) 82 [64 Pac. (2d) 409] ; Armstrong v. Wallace, 8 Cal. App. (2d) 429 [47 Pac. (2d) 740]); where the patient was burned by the application of hot compresses or heating apparatus (Timbrell v. Suburban Hospital, 4 Cal. (2d) 68 [47 Pac. (2d) 737] ; Meyer v. McNutt Hospital, 173 Cal. 156 [159 Pac. 436]; McCullough v. Langer, 23 Cal. App. (2d) 51.0 [73 Pac. (2d) 649]); where the patient was burned through the operation of an X-ray machine (Moore v. Steen, 102 Cal. App. 723 [283 Pac. 833]; Ragin v. Zimmerman, 206 Cal. 723 [276 Pac. 107]); and where the patient sustained an infection through the use of an unsterilized hypodermic needle (Barham v. Widing, 210 Cal. 206 [291 Pac. 173]). In each one of these situations the rule was applied because common knowledge and experience teaches that the result was one which would not have occurred if due care had been exercised.

But the present case shows an entirely different situation. Here what was done lies outside the realm of the layman’s experience. Medical evidence is required to show not only what occurred but how and why it occurred. That evidence establishes beyond question not only that the peroneal nerve may be injured even where due care is used but that this unfortunate result invariably occurs in a limited number of eases. The doctrine of res ipsa loquitur is, therefore, entirely inapplicable and no malpractice has been proved.

The judgments are, and each of them is, affirmed.

Curtis, J., Houser, J., Shenk, J., Waste, C. J., and Lang-don, J., concurred.

SEA WELL, J., Dissenting.

I dissent.

I am of the view that the decision rendered by the District Court of Appeal, First Appellate District, Division Two, Nourse, P. J., correctly states the law of the case and it cannot in principle be distinguished from Brown v. Shortlidge, 98 Cal. App. 352 [277 Pac. 134], Ales v. Ryan, 8 Cal. (2d) 82 [64 Cal. (2d) 409], Thomsen v. Burgeson, 26 Cal. App. (2d) 235 [79 Pac. (2d) 136], and Armstrong v. Wallace, 8 Cal. App. (2d) 429 [47 Pac. (2d) 740], and a number of the decisions of this court where the doctrine of res ipsa loquitur has been considered in its relation to kindred situations. The doctrine is not novel in its application to cases of this kind. It is applied in cases in which the person is charged with negligence by reason of his superior knowledge and exclusive control of the agency which caused the injury. All that the law requires, is that the defendant charged with negligence rebut the presumption of negligence by giving a reasonable explanation of the cause of injury. The application of the doctrine should not be arbitrarily limited to certain fields and extended to others when there is no good reason for making a distinction. It is difficult to understand why the cases cited herein can be regarded as stating the true principle if the doctrine, in the instant case, is sound.


author: CURTIS, J.

text:
    [Crim. No. 4197.
    In Bank.
    March 24, 1939.]
    THE PEOPLE, Respondent, v. WILLIAM G. SMITH, Appellant.

      Albert L. Wagner and Kenneth G. McGilvray for Appellant.
    U. S. Webb, Attorney-General, and J. Q. Brown, Deputy Attorney-General, for Respondent.
   CURTIS, J.

The defendant was found guilty of murder in the first degree and sentenced to suffer the death penalty. Prom the judgment of conviction so rendered against him and from the order of court denying his motion for a new trial the defendant has appealed.

The evidence in the case is without conflict. On January 3, 1936, Mary Mendonca was residing with Mr. and Mrs. Prank Durkee in their home located in the city of Sacramento. On that evening Mr. and Mrs. Durkee left Mary Mendonca alone in their home, and between 6 and 7 o’clock on that evening Mary Mendonca heard a noise in one of the bedrooms which sounded as if a person was in said room. On hearing the noise she jumped up and ran next door to the home of Mr. and Mrs. Elmer Cox and told Mr. Cox that someone was prowling around the Durkee home. Mr. Cox got his pistol, and he and Mary Mendonca went back to the Durkee home. On entering the hall, Mary Mendonca switched on the electric light and saw the defendant standing in the doorway of one of the bedrooms. Mr. Cox told him to hold up his hands, and with that the defendant shot Mr. Cox and felled him to the floor. The defendant followed the first shot by three other shots, all of which took effect in Mr. Cox’s body. Nothing was said by any of the three persons during the shooting except that Mr. Cox said to the defendant after the first shot not to shoot any more, but the defendant kept on shooting. As a result of these shots, Mr. Cox was taken to a hospital where he died four days later. The defendant escaped from the house through a window. He remained in Sacramento during that night, and the next morning read in the papers of the murder of Elmer Cox. He eventually made his way to Auburn in this state and from there to other parts of this state. During the month of June, 1936, he was received as a prisoner in the state prison at San Quentin. While there he disclosed to a fellow prisoner named Rowell the fact that he was wanted in Sacramento for shooting “some fellow by the name of Cox”. This information was communicated by Rowell to the prison authorities, who in turn informed the police department at Sacramento of defendant’s presence in San Quentin and of this incriminating admission. W. A. Thomas, a member of the police force of Sacramento, went to San Quentin, where he met the defendant in the presence of the captain of the guards at San Quentin, Ralph H. New. After some preliminary conversation between Mr. Thomas and the defendant in which Mr. Thomas told the defendant of the object of his visit and that the authorities at Sacramento believed they had a good case against him for the Cox murder, Mr. Thomas outlined the evidence which they had against defendant respecting the murder of Elmer Cox. After listening to these statements of Mr. Thomas, the defendant said, “Now you have got the right man.” In further conversation with the defendant, Mr. Thomas asked him if he was willing to make a statement, to which defendant replied that he was willing to do so. A shorthand reporter was called in, and defendant’s statement was taken down in shorthand, and after-wards transcribed and submitted to the defendant, who signed it before those present. This statement was shown to have been voluntarily made without any promises of reward or of immunity and without any threats or compulsion and after he had been informed that it might be used against him in case he was tried for murder. In this statement the defendant admitted he was in the Durkee home at Sacramento on the evening of January 3, 1936, “just prowling around” when he heard someone in the hall; ‘ ‘ There was a man standing with a gun. He made no effort to drop it and I was considerably excited. I shot before I realized what I was doing.” He further stated that he shot four times. “The man he shot said, ‘Don’t shoot.’ But I was under the impression that he was shooting at me because I thought I heard bullets whizzing over my right shoulder. I later discovered that what I had thought to be bullets were merely the cartridges ejected from my own gun.” This statement was admitted in evidence at the defendant’s trial without objection. The defendant also took the stand as a witness and told practically the same story as that contained in the written statement. He further stated at the trial that when Cox came into the Durkee home he was not alone, but said “I don’t know which person came in first, the maid or the man, but the first one that came in turned on the light. ’ ’ At the trial the prosecution called as witnesses, Mary Mendonca, Captain of the Guards Ralph IT. New, W. A. Thomas of Sacramento police department and Youther Rowell, the fellow prisoner of the defendant to whom the defendant gave the information which led to the latter’s arrest. The testimony of these witnesses substantiated the facts hereinbefore set forth.

No contention is made that the evidence is not sufficient to support the verdict. In fact it would be futile to so contend in the face of the overwhelming evidence against the defendant. Not only did he make a full confession of the crime to the officers who confronted him while in San Quentin but this confession was reduced to writing and signed by him. It was admitted in evidence at the trial without any objection thereto by the defendant or any claim that it was not free and voluntary and binding upon him. In addition to this confession, the witness Mary Mendonca positively identified him as the person who shot and killed Elmer Cox in the Durkee home, and at the trial, the defendant took the stand as a witness, admitted the shooting of Cox, and his only explanation of his act was that he was frightened at the sudden appearance of Cox and Miss Mendonca. He further attempted to explain his reason for firing three shots after his first shot had felled Cox to the floor by the statement that he heard something whizzing over his right shoulder which he thought were bullets from Cox’s gun, but later concluded that what he thought were bullets whizzing by him were cartridges from his own gun.

Appellant contends, however, that the trial court committed prejudicial error in admitting evidence of another crime over his objections. This contention is based upon the evidence given by the prisoner Rowell, wherein the latter testified that the defendant stated to him that there was a girl in the hall, referring to the hall in the Durkee home, whom he almost ran into in getting out of the hall, and the defendant said, as testified by Rowell, “When you leave San Quentin I want you to do me a favor. I would like for you to get rid of this witness. . . . That witness is out there, and I have to get rid of her some way.” The district attorney, in his opening statement to the jury referred to this conversation between the defendant and Rowell, and stated that this evidence would be produced for the jury’s consideration as tending to prove defendant guilty of the crime for which he was then being tried. It is not clear just what ' ‘ other crime ’ ’ appellant contends that this evidence tended to prove, but assuming that it did tend to connect defendant with some other crime, it was clearly admissible as a declaration of the defendant tending to prove his guilt of the crime of which he was then on trial.

“The rule against the admission of evidence of other crimes does not exclude such evidence when it logically tends to prove any fact necessary or pertinent to the proof of the crime for which a defendant is being tried.” (8 Cal. Jur., p. 60, sec. 168.)

At the trial the defendant in answer to questions propounded to him by his attorney testified to his age, his place of birth, the names of his parents, the occupation of his father, and various places at which he had resided during his lifetime. He was also asked further questions in regard to his past history, none of which bore even indirectly upon any circumstance or fact connected with the crime for which he was then being tried. Objections to such questions were sustained by the trial court and the defendant now contends that the court erred in sustaining such objections. This contention is without merit. It was within the discretion of the trial court to exclude evidence of certain facts connected with the defendant’s past history, which were wholly disconnected with the crime for which he was on trial. (1, Wharton’s Criminal Evidence, 11th ed., sec. 227, p. 272.)

Appellant admits that the rule is as stated above, but claims that the trial court refused to exercise its discretion but sustained objection to such questions on the ground that the answers were not proper evidence in the ease. The record does not support this claim. It is based upon the casual statement of the trial court that the Supreme Court had held such evidence improper. The reporter’s transcript shows that the trial court permitted the defendant to testify to much of his past life, but declined to permit him to testify as to other portions of his past. Notwithstanding the casual remarks of the trial judge that the Supreme Court had held such evidence improper, it appears from a reading of defendant’s testimony that the trial court did exercise its discretion in the admission of evidence regarding his past by permitting him to testify as to certain events occurring in his past life and sustaining objections as to others.

The court, at the instance of the prosecution gave the following instruction:

“You are instructed that section 190 of the Penal Code of the State of California, provides that a person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the jury trying the same. Therefore, if you do find the defendant guilty of murder in the first degree, you have the discretion to determine the nature of his or their punishment, and if in your discretion or judgment find there is any fact or circumstance in the case which ought to mitigate the extreme penalty of death, you will, by your verdict, indicate the same but if you find no such mitigation in the facts of the case, and think the death penalty should be inflicted you will simply find him guilty of murder in the first degree

Appellant contends that the italicized portion of said instruction is erroneous and the giving thereof was highly prejudicial to the rights of the defendant. This instruction is substantially like an instruction considered in the case of People v. Bollinger, 196 Cal. 191 [237 Pac. 25], and found on page 20.5 of the opinion in that ease. It was held in the Bollinger case that the giving of such instruction was not reversible error. At the same time this court in refusing to reverse that case by reason of said instruction expressed itself in the following pointed and emphatic language: “While we are satisfied that the giving of such instructions is opposed to the provisions of section 190 of the Penal Code, we are not prepared to depart from the decisions on this point. In other words, we consider as settled that the giving of such instructions is not error. We have, however, gone into the subject in the hope, if not the expectation, that the practice of giving such instructions may be abated, thus giving assurance that the penalty reflects the decision of the jury alone and at the same time sparing this court the necessity of repeatedly passing on such assignments of error. And considering the numerous occasions this court has held that section 190 of the Penal Code confers on the jury alone the discretion of determining the punishment in cases of guilt of murder in the first degree, trial courts, especially where a human life is at stake, should not interfere with the discharge of that solemn duty by the jury.”

Just why this and similar warnings by this court have not been observed by prosecuting officers and trial courts, we are at a loss to understand. We are not prepared to say that cases, in which this instruction so frequently and vehemently condemned by this court may be given, may not arise, in which, due to the unusual nature of the evidence therein respecting the facts and circumstances in mitigation of the crime, the court will refuse to adhere to its past practice of sustaining death penalty judgments. But in the instant case, in view of the condition of the evidence which is so overwhelmingly against the defendant as to leave no doubt in our minds that the jury would have found the defendant guilty of murder in the first degree without recommendation, even if such instruction had not been given, we are of the opinion that the defendant suffered no prejudice by reason of the inclusion of this instruction in the trial court’s charge to the jury.

The judgment and order denying defendant’s motion for a new trial are affirmed.

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


author: WASTE, C. J.

text:
    [L. A. No. 16972.
    In Bank.
    March 24, 1939.]
    GEORGE A. GLOVER, Petitioner, v. THE STATE BAR, Respondent.

      George A. Glover, in pro. per., for Petitioner.
    Philbrick McCoy for Respondent.
   WASTE, C. J.

Three charges of professional misconduct involving moral turpitude were filed with the respondent State Bar against the petitioner, an attorney at law. At the conclusion of its hearings, only one of which petitioner attended in person, the local administrative committee filed its report with the board of governors wherein it recommended that petitioner be disbarred from the practice of the law. The board, in turn, held a hearing and has similarly recommended disbarment of the petitioner.

In his petition to review such recommendation, the petitioner merely complains of the refusal of the board of governors to grant a continuance when the matter was before that body. When this was pointed out in the brief of The State Bar and reference made to the fact that “petitioner does not question the sufficiency of the evidence to sustain the findings of fact adopted by the board”, petitioner in his reply brief stated that he ‘ ‘ does earnestly and seriously question the sufficiency of the alleged evidence . . . ”. However, he has since made no effort to point out any deficiency in the evidence or findings, satisfying himself with the statement that he “does not desire to occupy the time of this . . . court in discussing the alleged evidence, until such time as the record is sufficient and complete and all material facts bearing on the charges are before this court”. The refusal to grant the requested continuance before the board of governors underlies this statement.

An examination of the entire record convinces us that petitioner had ample opportunity to develop “all material facts bearing on the charges”. Three hearings were held before the local administrative committee at which the several charges against petitioner were fully developed. Though personally served, petitioner failed to file an answer to the charges against him and he found it convenient to attend but one of the three hearings in person. At the first and third hearing he was represented by an office associate who, by reason of petitioner’s attitude in the matter, was not entirely clear as to his authority or status in the proceeding. At the conclusion of the second hearing, which petitioner attended in person, he stated that he had no further evidence which he desired to produce in the so-called “Rust matter”. His office associate appeared at the third and final hearing and stated that petitioner declared it to be immaterial to him whether the hearing was held or continued. It was held on May 3, 1938, and at the conclusion thereof, petitioner’s representative was informed that the committee would hold the whole matter open for a week “with the understanding that [petitioner] may have an opportunity to come in and offer any evidence he may have”. One week later, or on May 10th, the matter was submitted after petitioner’s associate had indicated that petitioner did not desire to offer any further evidence and would not again appear without subpoena. Under date of July 22, 1938, petitioner was informed by letter of the report of the committee, a copy of which was enclosed. He was also informed of his right to file a statement in opposition to such report and of his right to appear before the board for further hearing on August 19, 1938. On July 28th, petitioner sought by telegram to procure a continuance of the hearing before the board “on account of involved nature of cases and number of persons concerned and summer vacations seem impossible to properly prepare for hearing”. Petitioner was immediately informed that his request for a continuance would have to be presented to the board at its scheduled meeting and that he should be prepared' to proceed in the event the request was denied. Other telegrams and letters were exchanged on the subject. When the board met on August 19th as noticed, petitioner failed to appear and likewise failed to offer or file any statement in opposition to the report of the committee. A continuance was denied and the board heard and determined the proceeding in petitioner’s absence. This chronological statement of the case speaks for itself. It points irrefutably to the conclusion that petitioner at all times was afforded full opportunity to offer any defense he might have to the several charges pending against him. He did not seriously avail himself of this opportunity but, on the contrary, appears to be procrastinating. His contention that he was improperly denied a continuance and an opportunity to be heard lacks merit. As stated in Shaeffer v. State Bar, 220 Cal. 681 [32 Pac. (2d) 140], “the practice . . . requires that the attorney present- evidence available to him which he deems favorable to himself, to the local committee and the board, where such evidence may appropriately be received, and he may not neglect or withhold his activities in that respect and then successfully demand in his petition for review either that such evidence may properly be considered by this court or that he is entitled to another hearing in order to have it considered by the appropriate body.” (See, also, Tapley v. State Bar, 8 Cal. (2d) 167, 170, 171 [64 Pac. (2d) 404].)

Inasmuch as petitioner fails to point out any deficiencies in the evidence or findings, we do not intend to here narrate in detail the charges against him. Examination of the record definitely indicates that the charges were fully established by the evidence and that the punishment recommended therefor is proper. In the so-called “Rust Matter” it appears that on October 25, 1937, petitioner received on behalf of his client a cashier’s check in the sum of $1995, by way of settlement of a claim. From that time until February 21, 1938, a period of 117 days, petitioner failed to notify his client of the receipt of such money. On the latter date, he informed his client thereof and requested the client to call at his office. When the client called, someone in the office delivered to him a check in the amount of $1950, drawn on “Trust Account #7” and signed by petitioner. The check was dishonored when presented for payment for at none of the pertinent times did petitioner have sufficient funds in the account to cover the check. In fact, a copy of the bank statement introduced in evidence discloses that between February 1 and February 21, 1938, the account varied from $3.50 to a high of $62.50 and to a low on the latter date of ten cents. Complaint was thereupon made by the client to The State Bar as a result of which '$200 was paid to the client and petitioner agreed to pay $100 a month until the obligation was discharged. During the committee hearings petitioner made one payment of $100, leaving a balance still owing of $1650.

In the “Abraham Matter” petitioner unsuccessfully represented a client on a counterfeiting charge. He was paid a stipulated fee. Thereafter it was agreed between the parties that petitioner should be paid an additional amount of $500 to cover proceedings intended to establish the client’s insanity or, failing in this, for an effort on his part to secure a reduction of the client’s sentence from 12 years to 3 years, or less. It was also agreed that $400 of this sum was to be returned by petitioner should he be unsuccessful. The record fails to disclose any effort by petitioner to accomplish the desired result. Upon demand, he promised to repay the $400 as originally agreed. Several days after a complaint was lodged with The State Bar petitioner, through his office associate, repaid $100 of this sum.

The “Bautovich Matter” presents a situation where on November 20, 1937, petitioner received $400 from his client which he was to pay over to her estranged husband under a property settlement agreement, said sum to be paid in discharge of her note held by the husband. Counsel for the husband delivered all papers upon which payment of the money was conditioned. How'ever, repeated requests to and demands upon petitioner for the payment of the money proved unavailing. Complaint was made to The State Bar and on March 29, 1938, the date set for hearing of such complaint, petitioner delivered to adversary counsel his check on “Trust Account #7” in the sum of $377.50, an acceptable deduction having been made from the original amount due. Upon presentment, the check was dishonored for insufficient funds. Subsequently, the husband sued petitioner’s client on her note and on April 16, 1938, the client paid $413 in discharge of the note and costs, petitioner on the same day having repaid her.

The record thus discloses that on three distinct occasions petitioner misappropriated money entrusted to him by clients, and in two instances when called on to account, executed and delivered two checks on an account in which there were insufficient funds. His acts and conduct show moral turpitude and a disregard of the duties and obligations owed by an attorney to his client. Such conduct merits the punishment recommended. (Maggart v. State Bar, 7 Cal. (2d) 495 [61 Pac. (2d) 451]; Mills v. State Bar, 6 Cal. (2d) 565, 567 [58 Pac. (2d) 1273].)

It is therefore ordered that petitioner, George A. Glover, be disbarred from the practice of law in this state and that his name be stricken from the roll of attorneys, effective thirty days after the filing hereof.

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