author: SEAWELL, J.

text:
    [S. F. No. 16084.
    In Bank.
    January 9, 1939.]
    THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY (a Corporation), Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY et al., Respondents.

      Robert Brennan, Leo E. Sievert and H. K. Lockwood for Petitioner.
    Clifton Hildebrand, James F. Hoey and Hildebrand & Bills for Respondents.
   SEAWELL, J.

The petitioner Atchison, Topeka & Santa Fe Railway seeks a writ of prohibition to prevent a second trial of the action of Scarlett v. Atchison, Topeka & Santa Fe Railway. The respondent Superior Court has granted a motion to set said ease for retrial.

The action was brought to recover damages for personal injuries sustained by plaintiff, a brakeman, when he fell from a ladder on a freight ear in the course of his employment. The first trial resulted in a judgment for plaintiff for $18,000, entered upon a jury verdict. We affirmed the judgment. (Scarlett v. Atchison, Topeka & Santa Fe Railway, 7 Cal. (2d) 181 [60 Pac. (2d) 462].) Thereafter the Supreme Court of the United States reversed it. (Atchison, Topeka & Santa Fe Railway v. Scarlett, 300 U. S. 471 [57 Sup. Ct. 541, 81 L. Ed. 748].) Petitioner contends that the judgment of the Supreme Court and the judgment of this court entered pursuant thereto preclude a second trial, which should be restrained by writ of prohibition. (Lial v. Superior Court, 133 Cal. App. 31 [23 Pac. (2d) 795]; compliance with appellate court judgment enforced by writ of mandate, Lamb v. Owen, 98 Cal. App. 106 [276 Pac. 628].)

It was plaintiff’s theory at the outset of the first trial that the complaint was broad enough to allege a right of recovery for violation of the Federal Safety Appliance Act (36 U. S. Stats, at L. 298, 45 U. S. C. A., secs. 11-16), and for common-law negligence independent of said act. The Federal Employers’ Liability Act (36 U. S. Stats, at L. 65; 45 U. S. C. A., see. 51 et seq.) imposes liability on the employer for damages to the employee both for violations of the Safety Appliance Act and for common-law negligence. Where there is a violation of the Safety Appliance Act, liability is absolute, rather than dependent on negligence, assumption of risk is not a defense to the employer, and contributory negligence of the employee does not reduce the damages. (Scarlett v. Atchison, Topeka & Santa Fe Railway, 7 Cal. (2d) 181, 185 [60 Pac. (2d) 462].) But where a claim of liability rests on common-law negligence, assumption of risk is a defense and contributory negligence reduces the damages. (45 U. S. C. A., secs. 53, 54.)

Plaintiff contended that he fell from the ladder when his foot came in contact with a round brace rod which was between the ladder and the side of the freight car. This rod braced the side and end of the car and ran in a diagonal position back of the ladder. In view of the fact that plaintiff originally relied on the claim of common-law negligence as well as on a violation of the Safety Appliance Act, his contention was twofold: (1) that by reason of the presence of this type of brace rod, the ladder was not “secure” for use within the meaning of the Safety Appliance Act, which requires cars to be equipped with “secure” ladders (45 U. S. C. A., see. 11) ; and (2) irrespective of said act, the use of cars with this type of rod constituted common-law negligence.'

In its defense the defendant railroad offered testimony bearing on the defense of assumption of risk, which was available to defendant in claims based on common-law negligence. Counsel for plaintiff requested a recess to consider whether to base plaintiff’s claim solely on the Safety Appliance Act, with a view to excluding-testimony bearing on the assumption of risk. After said recess counsel for plaintiff stated that it had been decided “to base his case squarely upon the Safety Appliance Act”, and that he abandoned any claim for common-law negligence. This action by plaintiff resulted in the exclusion of the evidence in question.

In the trial court and on appeal defendant contended that as the brace rod and ladder had a clearance of more than 21/2 inches, there was a compliance with a rule of the Interstate Commerce Commission in that regard, and as a matter of law the ladder must be held to be “secure”. In affirming the judgment for plaintiff we held that the clearance rule was not intended to govern and to legalize the situation where the clearance space between car side and ladder although greater than 2% inches, contains a hazardous diagonally placed round brace rod. We further held that since the rule of the commission did not cover the situation, it was for the jury to determine whether the ladder was “secure” within the meaning of the Safety Appliance Act. We defined a “secure” ladder to mean “safe for use in the purpose for which it is intended”. (Davis v. Reynolds, 280 Fed. 363, 366.) We rejected the contention of the defendant that the ladder could not be held to be “insecure” by virtue of the presence of this type of rod for the reason that the brace rod was no part of the ladder. We declared “that the act [Safety Appliance Act] contemplates not only that any appliance shall be without defect or secure as to its construction but also that it shall be secure in matters pertaining to its location, installation, maintenance and intended use”, and that “the injection of a foreign article [the brace rod] which is no part of an appliance would be as likely to render the appliance insecure as a direct defect in the appliance itself”.

The Supreme Court of the United States reversed our judgment, holding that there was as a matter of law no violation of the Safety Appliance Act. The court said: “We do not see how it reasonably can be said that the brace rod constitutes a part of the ladder. In itself, it was a contrivance separate and distinct from the ladder, designed and used for a purpose entirely apart from the use of that appliance. The right of recovery, if any, must, therefore, rest upon the effect of the near proximity of the.ladder to the rod, neither being in itself defective. The law to be applied to that situation is the common-law rule of negligence, and not the inflexible rule of the Safety Appliance Act; and the questions to be answered are whether the two appliances were maintained in such relation to one another as to constitute negligence on the part of the company, and, if so, whether Scarlett assumed the risk. [Citing cases.] In that view, Scarlett in abandoning Ms claim under the common-law rule of negligence abandoned the only possible ground of recovery. (Italics ours.)

“Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.”

The petitioner herein relies on the italicized sentence as tantamount to a declaration that the action shall not be retried on the issue of common-law negligence, but a final judgment should be entered that plaintiff Scarlett take nothing. Upon receipt by this court of the mandate from the Supreme Court of the United States we entered a judgment as follows: “It is ordered that the judgment appealed from is hereby reversed.” The defendant railway company petitioned us to modify said judgment by adding thereto the following:

“The Superior Court of the State of California in and for the County of Contra Costa is hereby directed upon the filing of the remittitur in this case to enter judgment for defendant, for costs, as above stated [costs in Supreme Court of the United States, as provided by mandate to this court], and also for such costs and disbursements in the courts of this state as may be taxed and allowed.”

This modification, if made, would have included trial court costs for the trial theretofore had. A judgment entered pursuant to such a direction would have precluded a retrial, since the trial court costs are recoverable only upon entry of the judgment which finally disposes of an action. (Monson v. Fischer, 219 Cal. 290 [26 Pac. (2d) 6]; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 205 Cal. 6 [269 Pac. 525]; Ex parte Burrill, 24 Cal. 350; 7 Cal. Jur. 316.) This court did not grant the modification as prayed for, but did modify the judgment on June 10, 1937, to read as follows:

“It is ordered that the judgment appealed from is hereby reversed with directions to the trial court to enter judgment in favor of defendants in the sum of Five Hundred and Thirty-three Dollars and forty-three cents ($533.43), and costs on appeal.”

The sum of $533.43 was the amount of costs in the Supreme Court of the United States. Fearing that the modification made by us might be interpreted as precluding a retrial on the theory of common-law negligence, plaintiff, in turn, petitioned that the reference to costs be stricken and that our judgment expressly provide for a new trial. The matter was placed on the calendar and, after argument, was denied from the bench. The remarks of members of this court made at that time, which remarks were recorded by the court reporter, indicate that this court did not intend thereby to deny a new trial to plaintiff, but, rather, that this court was of the view that the question as to a retrial should be passed on by the trial court.

It is the general rule that a retrial in civil actions may be had following a reversal without express provision therefor in the judgment of the appellate court. (Falkner v. Hendy, 107 Cal. 49 [40 Pac. 21, 386]; Heidt v. Minor, 113 Cal. 385 [45 Pac. 700]; Central Sav. Bank of Oakland v. Lake, 201 Cal. 438, 443 [257 Pac. 521]; Harding v. Harding, 148 Cal. 397 [83 Pac. (2d) 434]; Erlin v. National Union Fire Ins. Co., 7 Cal. (2d) 547 [61 Pac. (2d) 756]; 2 Cal. Jur. 1057; 5 C. J. S. 1476.) In view of this general rule and the further fact that in acting on the first petition for modification we refused to provide for trial court costs, our judgment of June 10, 1937, cannot be construed as denying the right to a retrial. Said judgment, in the circumstances, neither affirms nor denies the right to retry the action.

The question to be determined then is whether the judgment of the Supreme Court of the United States precludes a retrial. If that court had been of the view that the only proceeding consistent with its opinion was the entry of a final judgment for defendant without the right of retrial for plaintiff, it would have been a simple matter to state its view clearly and unequivocally in its opinion.

The decision of the Supreme Court must be construed in the light of certain well-established principles. We are not here concerned with the right of plaintiff to bring a second and independent action based on common-law negligence. The decision of the Supreme Court is to the effect that plaintiff misconceived his remedy in proceeding to judgment on the theory of violation of the Safety Appliance Act. It is elementary that the law favors the decision of eases on their merits. Plaintiff is not seeking a second trial upon other acts of defendant than those relied on in the first trial, but, rather, he now seeks a decision on the question whether said acts constitute common-law negligence.

The effect in general of a reversal is to set the case at large as if it had never been tried. (Central Sav. Bank of Oakland v. Lake, 201 Cal. 438, 443 [257 Pac. 521]; Erlin v. National Union Fire Ins. Co., supra; Estate of Pusey, 177 Cal. 367 [170 Pac. 846]; Heidt v. Minor, supra; Kruk v. Minneapolis, St. Paul & S. S. M. Ry. Co., 249 Mich. 685 [229 N. W. 479]; Id., 257 Mich. 152 [241 N. W. 162]; 2 Cal. Jur. 996; 5 C. J. S. 1576.)

The doctrine of election of remedies does not defeat plaintiff’s claim to a retrial. The doctrine of choice between inconsistent remedies presupposes a choice of remedies. Where a party misconceives his remedy, he is not in general precluded thereby from availing himself of the proper remedy. (Hinkel v. Crowson, 83 Cal. App. 87, 97 [256 Pac. 479]; Kruk v. Minneapolis, St. Paul & S. S. M. Ry. Co., supra; Barnsdall v. Waltemeyer, 142 Fed. 415, 420; McGibbon v. Schmidt, 172 Cal. 70 [155 Pac. 460]; 10 Cal. Jur. 5; 20 C. J. 21.) That the proper basis of plaintiff’s claim presents a difficult problem is indicated by the fact that the trial court and this court affirmed his right to proceed under the Safety Appliance Act, while the Supreme Court of the United States ruled otherwise. A mere mistake of judgment should not result in depriving one of valuable rights. (Agar v. Winslow, 123 Cal. 587, 592 [56 Pac. 422, 69 Am. St. Rep. 84].)

It has been held that one who proceeds to judgment on a claim of violation of the Federal Boiler Inspection Act (45 U. S. C. A., sec. 23), a safety statute similar to the Safety Appliance Act, may, upon reversal, be granted leave by the appellate court to amend his complaint to set up common-law negligence. (Riley v. Wabash R. R. Co., 328 Mo. 910 [44 S. W. (2d) 136].) In the cited case the plaintiff claimed that his injuries were due to a clinker hook which was out of place on the top of an engine tender, and that by reason thereof the tender was not “in proper condition and safe to operate”, as required by the Boiler Inspection Act. The court submitted the case t.o the jury on this theory. The appellate court held that said act had reference to. “some mechanical defect in the appliance itself, or a defect in the design, or the construction of the locomotive or tender” (44 S. W. (2d) 136, 141), and that the case should have gone to the jury on the question whether the misplacement of the clinker hook by an employee of defendant constituted negligence.

If a retrial properly may be ordered by the appellate court on the theory of common-law negligence, as was done in the Biley case, supra, then we should be loathe to interpret the decision of the Supreme Court in the instant case as denying this right by implication where it is not expressly denied. In the Riley case the plaintiff did not go to trial on two theories and during the course of the trial, as in the instant case, elect to proceed solely on one theory, and “abandon” the other. But we do not deem this distinction vital. There was an abandonment in the sense of an election when the plaintiff in the Biley case framed his complaint on one theory to the exclusion of the other.

In Corbett v. Boston & Maine Railroad, 219 Mass. 351, 357 [107 N. E. 60, 12 A. L. R. 683], there was a question whether the Federal Employers’ Liability Act or a state statute governed. The court said: “It is a familar principle that, where inconsistent courses are open to an injured party and it is doubtful which ultimately may lead to full relief, he may follow one even to defeat, and then take another, or he may pursue all concurrently, until it finally is decided which affords the remedy. The assertion of one claim which turns out to be unsound so long as it goes no further, is simply a mistake. It is not and does not purport to be a final choice, nor an election. A party is not obliged to select his procedure at his peril.”

In Kruk v. Minneapolis, St. Paul & S. S. M. Ry. Co., supra; Id., 257 Mich. 152 [241 N. W. 162], the case was tried solely on the theory that a state law governed. After judgment for plaintiff it was held in another case that said statute did not govern. Thereupon the trial court granted a new trial in the Kruk case, and over the objection of defendant that plaintiff was estopped from pursuing a different remedy, permitted him to retry his case under the Federal Employers’ Liability Act. The decision on this point was without reference to the fact that plaintiff was a minor.

We conclude that it was not the intent of the Supreme Court of the United States to deny to the courts of this state the right to relieve plaintiff of his “abandonment” of the claim of common-law negligence; that by its statement to the effect that ‘ ‘ Scarlett in abandoning his claim under the common-law rule of negligence abandoned the only possible ground of recovery”, the federal court meant no more than that the judgment resulting from the first trial could not be sustained on any theory, since for the purposes of that trial plaintiff had elected to rely on the claim of violation of the Safety Appliance Act, and thereby had abandoned the only possible ground of recovery.

Plaintiff is not seeking to reinstate a cause of action barred by the statute of limitations. (Kruk v. Minneapolis, St. Paul & S. S. M. Ry. Co., supra; Nash v. Minneapolis & St. Louis Railroad Co., 141 Minn. 148 [169 N. W. 540].) He is relying on the same facts as on the first trial, and, indeed, on the same law, the Federal Employers’ Liability Law, which imposes liability on the employer for injury both for violations of the Safety Appliance Act and common-law negligence. He desires to retry the same cause of action, the admission of evidence and instructions to be governed by the theory of recovery as announced by the Supreme Court.

The writ is denied.

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

Rehearing denied. Edmonds, J., voted for rehearing.


source: Caselaw Access Project

author: LANGDON, J.

license: Public Domain

text:
    [L. A. No. 16852.
    In Bank.
    January 9, 1939.]
    WILLIAM E. LEWIS, Appellant, v. CARL G. JOHNSON et al., Respondents.

      Taylor, Kolliner, Bolton & Schwartz and Combs, Fritz & Murphine for Appellant.
    W. I. Gilbert, W. I. Gilbert, Jr., and Fred O. Reed for Respondents.
   LANGDON, J.

This is an appeal by plaintiff from a judgment based on a directed verdict.

Plaintiff was injured in an automobile accident, and was sent to Seaside Hospital in Long Beach for treatment of fractures in his left leg. The treatment was unsuccessful and the leg was later amputated. Thereafter plaintiff brought the present action for malpractice, against Dr. Carl G. Johnson, Dr. Carl H. Gans, the Seaside Hospital, and Miriam Furlong, superintendent of nurses of the hospital. The complaint alleged negligence of the doctors in using too tight a east, and negligence of the other defendants in failing promptly to advise the doctors of discovery of this fact.

The case 'went to trial before a jury on August 13, 1937. While it was in progress, negotiations were commenced between Mr. Quail, claim superintendent for the insurance company representing the hospital and nurse, and Mr. Fritz, one of counsel for plaintiff, the object being to obtain a covenant not to sue said defendants. An agreement was reached to pay $6,000 in consideration of the giving of such a covenant, and on August 23d the money was paid and the instrument delivered. Mr. Fritz then informed Mr. Hunter, counsel for these defendants, that he would give him a dismissal as to them, and accordingly handed him a document entitled “Dismissal”, in the usual form of a request to the clerk of the court to enter the dismissal against the said defendants. The attorneys then went to the courtroom, where counsel for the defendant doctors obtained permission to amend their answer to allege that plaintiff had settled with two joint tort-feasors and had thereby released them all. A discussion took place in which Mr. Fritz pointed out that there was no release but only a covenant not to sue. The court called for the document requesting dismissal, and ordered it filed. Thereupon the trial proceeded. On August 27th the motion of defendant doctors for a directed verdict was granted. Judgment for defendants followed, and this appeal was taken.

A review of the record discloses competent evidence sufficient to go to the jury. The fracture in plaintiff’s leg was reduced and the cast applied about 10 A. M., Sunday, August 9th. Dr. Johnson visited plaintiff at 11:30 that same morning. He did not see him again, nor communicate in any way, until 8 P. M. When Dr. Johnson left plaintiff on Sunday morning, he gave no instructions to the nurses as to what they should do in an emergency resulting from a tight cast. Meanwhile, in the afternoon, the patient felt such severe pain that narcotics were administered, and his toes appeared swollen and dark blue in color. Dr. Johnson partially split the east Sunday night, but plaintiff continued to suffer great pain, and the swelling and discoloration continued. The condition of plaintiff’s leg became increasingly worse, and required continual treatment with frequent hospitalization, until on June 10th amputation was made.

Dr. Trenery, a properly qualified medical witness for plaintiff, testified in response to a hypothetical question that the care of the plaintiff following the original operation was not up to the standard of care and skill in the locality. He specifically criticized the failure to have constant after-care and observation of the leg when the rigid cast was applied, and testified that provision should have been made to notify the doctor of the changes in condition, which would have made it possible to open the cast must earlier. This expert testimony was enough to make a prima facie case, and the cross-examination and conflicting views of defendants’ witnesses raised only questions of credibility for the jury. (See Ross v. Hieronymus, (1934) 2 Cal. App. (2d) 258 [37 Pac. (2d) 837]; Thomason v. Hethcock, (1935) 7 Cal. App. (2d) 634 [46 Pac. (2d) 832]; McLennan v. Holder, 1 Cal. App. (2d) 305 [36 Pac. (2d) 448].)

Plaintiff called Drs. Chappell and Grant, two additional medical witnesses, fully qualified, who corroborated the testimony of Dr. Trenery that the cause of the injury was a cast which was too tight. These doctors were also asked hypothetical questions as to whether the conduct of defendant surgeon constituted due care, and an offer of proof was made to the effect that they would testify that it was not. The court sustained objections to the questions on the ground that these doctors were currently practicing in Los Angeles, and could not testify as to the standard of care in Long Beach. We can see no justification for such a narrow view. The cities of Long Beach and Los Angeles are both in the same county; they are contiguous communities, both metropolitan in character, and their business centers are only about 25 miles apart. There is reason in the general requirement that the medical expert must be familiar with the standard of care in the particular locality, in order that the standards of widely separated localities with different practices may be excluded. But to make the exclusion rest arbitrarily upon a geographical line separating two cities of the same county, with almost identical kinds of medical service, would be a misuse of the rules of evidence and an unjustifiable emphasis on empty technicalities. Common knowledge, as well as the testimony of the doctors on both sides, tells us that the method used in treating this particular kind of fracture was one in use throughout the world. And there is the evidence offered by Dr. Trenery (admitted) and Dr. Chappell (excluded), to the effect that long prior practice in Los Angeles County, including Long Beach, showed that there was no difference in the treatment in the two communities. Both on principle and under the authorities we are satisfied that the exclusion of the evidence of Drs. Chappell and Grant was error. (See Turner v. Stoker, (Tex. Civ. App.) 289 S. W. 190; Geraty v. Kaufman, 115 Conn. 563 [162 Atl. 33]; Tennant v. Barton, 164 Wash. 279 [2 Pac. (2d) 735]; Sampson v. Veenboer, 252 Mich. 660 [234 N. W. 170].)

We may also note the error that was committed in restricting the cross-examination of defendants’ expert, Dr. Terry, who testified that the patient’s leg was suspended in a “Bohler Fracture Frame”, and that the witness had studied under Dr. Bohler and used his textbook and that his opinion was in part based upon said book. Plaintiff’s counsel then sought to cross-examine him by use of Dr. Bohler’s book, and the court sustained objection to the impeaching questions. This was improper, for the rule against admission of such works as direct evidence is subject to the qualification that textbooks relied upon by an expert witness may be used as a foundation of impeaching cross-examination. (See State v. Bess, 60 Mont. 558 [199 Pac. 426]; Whitley v. Stein, (Mo. App.) 34 S. W. (2d) 998; 3 Wigmore on Evidence, see. 1700.)

There were other errors in the exclusion of evidence and restriction of cross-examination which we do not find it necessary to discuss.

On the hearing in this court defendants rely chiefly on the contention that the four defendants were sued as joint tort-feasors, and that the agreement resulting in the dismissal of the hospital and nurse destroyed plaintiff’s cause of action against the other two defendants. They seek to uphold the trial court’s decision on the theory that the agreement constituted a release, and that the dismissal amounted to a retraxit. Under well-settled principles this view is untenable.

The agreement was entitled “Covenant Not to Sue and Covenant Not to Sue Further; ” it recites that the named defendants desire “an agreement and covenant not to sue and a covenant not to sue them or either of them further”, or prosecute “any suit or suits now pending against them”; it states that plaintiff "promises and agrees that he will not sue and/or sue further” the said defendants, and that he covenants and agrees to hold them harmless from any liability arising out of the accident or treatment; it concludes by stating that plaintiff does not waive any claims against others. This instrument was unmistakably intended to constitute a covenant not to sue. “Its language is of covenant and indemnity, not of release.” (Kincheloe v. Retail Credit Co., 4 Cal. (2d) 21, 23 [46 Pac. (2d) 971].) Unlike a release, a covenant not to sue one joint tort-feasor does not relieve the others. (Kincheloe v. Retail Credit Co., supra; Cowles v. Independent Elevator Co., 22 Cal. App. (2d) 109 [70 Pac. (2d) 711]; see, also, Hawber v. Raley, 92 Cal. App. 701 [268 Pac. 943]; Charleville v. Metropolitan Trust Co., 136 Cal. App. 349 [29 Pac. (2d) 241].)

Since the agreement did not operate to release the other tort-feasors, plaintiff’s voluntary act in requesting the clerk to dismiss as to the first two could not possibly have this effect. There is a well-recognized distinction between a dismissal voluntarily made by the clerk’s entry, which is presumed to be without prejudice to the bringing of another action, and a dismissal entered in open court pursuant to stipulation, which is ordinarily effective as a retraxit. In the absence of such stipulation or motion addressed to the court, there is no retraxit. (Breznikar v. Topper Co., 23 Cal. App. (2d) 298 [72 Pac. (2d) 895]; Lamb v. Herndon, 97 Cal. App. 193 [275 Pac. 503]; Stoutenborough v. Board of Education, 104 Cal. 664, 667 [38 Pac. 449]; Shippy v. Peninsula Rapid Transit Co., 97 Cal. App. 367 [275 Pac. 515].)

The eases relied upon by defendants deal with instruments properly construed to be releases, and their reply brief frankly states: “We readily concede that if this document (the covenant) under the circumstances is but a covenant not to sue, then it can avail these defendants nothing.”

The judgment is reversed.

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

Rehearing denied.


author: WASTE, C. J.

text:
    [L. A. No. 16716.
    In Bank.
    January 11, 1939.]
    BUD RAE, Appellant, v. CALIFORNIA EQUIPMENT COMPANY (a Corporation), Respondent.

      Murchison & Clopton and Mort L. Clopton for Appellant.
    Pacht, Pelton, Warne & Black, Isaac Pacht, Alfred P. Chamie and Saul Ruskin for Respondent.
   WASTE, C. J.

Plaintiff appeals from a judgment entered in favor of the defendant following the granting of the latter’s motion for nonsuit. The action is one for damages for personal injuries.

It appears that shortly prior to the accident which gave rise to the plaintiff’s injuries, the defendant, in the usual course of business, rented an electric hoist machine to the Fox Film Corporation by whom the plaintiff was employed as an actor. Defendant’s salesmanager was informed that the hoist machine would be required to carry a load of approximately 2,500 or 3,000 pounds. The Fox Film Corporation by means of cables connected the hoist machine to a cage or car which was lowered and raised in a shaft leading down to a tunnel being constructed and used in the filming of a motion picture. At the suggestion of the film company, defendant’s salesmanager submitted the names of persons who might be engaged to operate the machine. One of the persons so suggested, was employed to operate the hoist machine and was so engaged at the time of the accident. It was stipulated, however, that though recommended by the defendant, through its salesmanager, the operator was, in fact, the employee of the film company. Consequently, any negligence in the operation of the hoist machine would be chargeable solely to the employer, the Fox Film Corporation. Plaintiff did not, however, proceed against the defendant because of any negligence of the operator, as shall hereinafter appear.

Just prior to the accident, the plaintiff, with ten other actors, boarded the hoist car for the filming of a scene showing them being lowered in the shaft to the tunnel about the construction of which the picture evolved. The operator of the hoist machine could not see the hoist car or cage from his station and he was unaware that it was loaded with men. Upon receiving the signal to lower the car, he disengaged the clutch and released the footbrake with which the hoist machine was equipped. The car thereupon fell 33 feet to the bottom of the shaft with resulting injuries to the plaintiff. As the ear was falling, the operator apparently sensed that something was wrong whereupon he applied the foot-brake. The brake failed to bring the car under control. His testimony indicates that “he was not able to apply sufficient brake stoppage” before the rapidly moving car hit the bottom of the shaft, with resulting injuries to the plaintiff.

In his complaint, containing several counts, the plaintiff alleged, among other things, that the defendant, as owner and lessor of the hoist had, in several specified particulars, violated a municipal ordinance and certain incorporated safety orders, all of which, he averred, had proximately contributed to the accident and his injuries. It was, and is, his theory that even though the operator of the hoist may have been negligent, such negligence did not break the line of causation and that the alleged negligence of the defendant was a concurrent proximate cause of the accident. In support of this theory he introduced in evidence a certified copy of the ordinance which it is claimed the defendant had violated. (Ordinance No. 33,512, N. S., as amended.) So far as material here, the ordinance provided that: “The Board of Mechanical Engineers shall have authority and jurisdiction over all . . . hoists, . . . and shall inspect and license the use and operation of any of the said apparatus, machinery or equipment as hereafter provided. . . .

“Sec. 26. Payment of Inspection Fees. It shall be unlawful for any person, firm or corporation to use or operate, or cause or permit to be used or operated, any of the equipment or apparatus mentioned in this ordinance until after the same shall have been inspected, all Permit and Inspection fees Paid, and a Certificate issued as herein provided, which Certificate of Inspection shall be good for a period of one year unless sooner revoked for cause. . . .

“Operating Without Certificate. It shall be unlawful for any person, firm or corporation to use, or to cause or permit to be used, any elevator or any equipment mentioned in this ordinance for the transportation of passengers or freight until the certificate of inspection of such equipment shall have been issued by the Board of Mechanical Engineers and said certificate posted in such elevator, or in a conspicuous place near the equipment inspected.”

Plaintiff also put into evidence a certified copy of certain “General Construction Safety Orders” as the same had been published by the Industrial Accident Commission and which were expressly made a part of the cited ordinance. The portions of said safety orders relied on by plaintiff read as follows:

“Order 11,14. Construction Material Elevators . . .
“ (w) Every hoisting engine shall be equipped with proper brakes to sustain its maximum load in any position . . .
“Order 1115. Construction Material and Man Elevators
“(c) The cable drum of the hoisting machine shall be rigidly and permanently attached to the driving mechanism. Friction gearing or clutch mechanism shall not be used.
“(d) All hoisting machines shall be provided with an automatic brake of sufficient holding power to prevent rotation of drum in either direction when the power is cut off from the machine.
“(e) All hoisting machines shall be provided with an efficient device which will automatically bring the cage to a stop at the top and bottom limits of travel. ’ ’

Plaintiff adduced other evidence which disclosed that, contrary to the provisions of the ordinance, the hoist machine furnished by the defendant had not been inspected, that the cable drum of the machine was not rigidly and permanently attached to the driving mechanism but was connected by a clutch mechanism, that the machine was not equipped with an automatic brake to prevent rotation of the drum when the power was cut off and that it was not equipped with a safety device to bring the cage to a stop at the top and bottom limits of travel.

At this point we pause to state that we find no merit in the defendant’s contention that the above quoted safety orders are without application here because of the terms of order No. 1100 to the effect that “These orders [as above quoted] shall apply to the construction, alteration, repairing, renovating, removal or wrecking of buildings or other structures within this state.” We are of the opinion that the shaft and tunnel used and being constructed in the filming of the picture then in production constituted the “construction” of one of the “other structures” contemplated in said safety orders. Its temporary character does not militate against such a conclusion. Certainly, it could not successfully be urged that the “construction, alteration, repairing, renovating, removal or wrecking' ’ of a building essential to a movie set would not come within the purview of the safety orders, thus exempting the machinery employed in such work from the regulatory features thereof. The ordinance and safety orders fail to include any requirement that the “building” or “other structures” therein contemplated should be invested with any particular degree of permanency. The obvious purpose of the ordinance and the safety orders is to protect from injury and possible death all persons properly on, near or using the regulated machinery when employed in the construction, etc., of “buildings or other structures”. As stated, in our opinion, the construction of the tunnel being filmed came within the phrase “other structures” so as to require the hoist machinery used in connection therewith to comply with the established regulations.

Nor do we think that the ordinance and safety orders are here inapplicable because the defendant had leased the hoist machine to a third person. To indulge such a construction would be to disregard as surplusage many of their terms and would render meaningless the word “owner” and such phrases as “or permit to be used or operated”, repeatedly appearing therein. It is our function to construe the ordinance and incorporated safety orders as they were enacted, without adding thereto or detracting therefrom. If defendant’s construction were intended, the legislative body could well have omitted the language which we are here requested to read out of the ordinance.

The case of Gulzoni v. Tyler, 64 Cal. 334 [30 Pac. 981], offers no obstacle to our conclusion herein for in that case it was merely held that the transfer of the entire possession and control of property to another does not impose any responsibility on the transferor for the “wrongful use or mismanagement” of it by the transferee. This is so under the rule of respondeat superior. Here, however, as already stated, the plaintiff has not proceeded against the defendant lessor because of any wrongful use or mismanagement of the hoist by the lessee but because of the defendant lessor’s alleged negligence in furnishing an uninspected hoist unequipped with the prescribed safety devices.

We are satisfied that the plaintiff produced sufficient evidence to warrant the case going to the jury and that it was error for the trial court to grant the defendant’s motion for nonsuit. It is well established that upon such a motion every favorable inference and presumption fairly arising from the evidence adduced must be considered as facts proved in favor of the plaintiff. Entirely apart and aside from any negligence of the operator in the operation of the hoist machine, and for which, as stated, the defendant would not be answerable, we are of the view that there is evidence in the record upon which the jury might have found that the ear would not have dropped to the bottom of the shaft if the defendant, as owner and lessor, had first caused the hoist machine to be inspected and equipped with the safety devices and automatic brake specified in the ordinance and safety orders. Section 408 of the Restatement of the Law of Torts states that ‘ ‘ One who leases a chattel as safe for immediate use is subject to liability to those whom he should expect to use the chattel, or to be in the vicinity of its probable use, for bodily harm caused by its use in a manner for which, and by a person for whose use, it is leased, if the lessor fails to exercise reasonable care to make it safe for such use or to disclose its actual condition to those who may be expected to use it.” In comment “a” thereunder it is stated that “The fact that a chattel is leased for immediate use makes it unreasonable for the lessor to expect that the lessee will do more than give it the most cursory of inspections. The lessor must, therefore, realize that the safe use of the chattel can be secured only by precautions taken by him before turning it over to the lessee ...” In comment “b” it is stated, in part, that “The rule stated in this Section is peculiarly applicable to persons who make a business of leasing chattels. In such a case, in the absence of an understanding to the contrary it may be assumed that both lessor and lessee understand that the article is leased as fit for immediate use.” (See, also, McCall v. Pacific Mail SS. Co., 123 Cal. 42, 44 [55 Pac. 706].)

To state the matter another way, we are inclined to the view that a finding by the jury that the car would not have fallen if the defendant lessor had complied with the ordinance, might well render the defendant liable to third persons not in privity with it, but properly using the hoist, under the dangerous instrumentality doctrine announced in Dahms v. General Elevator Co., 214 Cal. 733 [7 Pac. (2d) 1013], and Kalash v. Los Angeles Ladder Co., 1 Cal. (2d) 229 [34 Pac. (2d) 481], Of course, any liability of the defendant is dependent on a finding that its negligence was one of the proximate causes of the accident. Violation of the ordinance would constitute negligence per se and the question whether such negligence proximately contributed to the plaintiff’s injuries would be one of fact for the jury. (Gerberich v. Southern Cal. Edison Co., 5 Cal. (2d) 46, 51 [53 Pac. (2d) 948]; McKay v. Hedger, 139 Cal. App. 266, 275, 276 [34 Pac. (2d) 221].) Had the case gone to the jury, as it should, the jury might have found that defendant’s negligence was continuing in character and concurred with any negligence of the operator in producing the accident and that the negligence of the operator, if any, did not break the line of causation. In this connection, section 439 of the Restatement, supra, declares that: “If the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.” We had occasion to state this principle in Lacy v. Pacific G. & E. Co., 220 Cal. 97, 98 [29 Pac. (2d) 781], wherein it is stated that: “The authorities in this state hold that where the original negligence continues and exists up to the time of the injury, the concurrent negligent act of a third person causing the injury will not be regarded as an independent act of negligence, but the two concurring acts of negligence will be held to be the proximate cause of the injury. ’ ’ In the cited case, this principle was applied to a situation where the plaintiff’s injury resulted from the concurring negligence of defendant in leaving a pole in a driveway and the negligence of another in so operating his automobile as to collide with said pole. It was held that “in such a case either of the negligent persons would be liable to the plaintiff for his injuries”. (See, also, the early and leading ease of Pastene v. Adams, 49 Cal. 87, and Springer v. Pacific Fruit Exch., 92 Cal. App. 732, 737-739 [268 Pac. 951].)

Nor do we think the case of Stultz v. Benson Lumber Co., 6 Cal. (2d) 688 [59 Pac. (2d) 100], relied on by the defendant, compels a conclusion other than that here announced. The cited case came up on appeal from a judgment entered after a demurrer had- been sustained to the complaint without leave to amend. Examination of the case discloses that the complaint therein had alleged that the defendant lumber company had sold to the employer of the plaintiff for use as a main support in a scaffolding a plank of lumber which it knew to be defective and inappropriate for the intended use. But, the complaint further alleged that plaintiff’s employer also knew of the defect prior to using the plank in the construction of the scaffold which, by reason of such defect, collapsed and precipitated plaintiff to the ground. In exonerating the defendant lumber company from liability on the ground that the intervening negligence of plaintiff’s employer in knowingly using the defective plank in the scaffold broke the chain of causation, the opinion declares:

“It is true that the plaintiff alleges that the Benson Lumber Company was informed of the use to be made of the lumber and that it knew of the defects in the plank and its unsafe and dangerous condition for use as a main support in the construction of a scaffolding. But it is not alleged, nor is it contended that the condition of the plank was concealed in any manner or unknown to the purchasers, the Newbys. On the contrary, it is expressly alleged that the plank was full of knots and was cross-grained, and that this condition and its unsuitability for the purpose of a support for a scaffolding was likewise known to them, and that they with such knowledge used it as a main support for the scaffolding.
‘ The conceded negligence of the Newbys must be deemed to be an intervening cause which served to break the chain of causation between the alleged negligence of the defendant Benson Lumber Company and the injury suffered by the plaintiff. . . . Whether the defendant Newbys’ acts in constructing the scaffold with the defective lumber, had they been without knowledge of its defective condition, would still have been an efficient intervening act of negligence we are not called upon to decide. . . .
“When the defendants Newby constructed the scaffolding with the defective plank, knowing it to he defective, such negligence in the construction of the scaffolding became their negligence and their responsibility and terminated the responsibility of the Benson Lumber Company as to the plaintiff. ...”

It is thus apparent that the Stultz ease turned on the employer’s deliberate use of the plank when he knew of its defective condition, a fact alleged by the plaintiff in his complaint. The opinion expressly leaves open the question whether the line o£ causation would have been broken by the employer’s conduct in using the plank had he been without knowledge of its defective condition. In the present case, the hoist machine was furnished by defendant to the plaintiff’s employer as a completed whole which, as stated above, the plaintiff’s employer had the right to assume was ready to be used for the purpose for which the defendant had leased it. Plaintiff’s evidence does not disclose, as did the complaint in the Stultz case, that his employer had knowledge that the hoist was uninspected and unequipped with the required safety devices. Upon a motion for nonsuit, it must be assumed from the showing made that the jury would find that the employer was without such knowledge. Under such circumstances, there appears to be no reason why the instant. case should be governed by a rule other than the usual and ordinary rule that the question of proximate cause is one of fact for the jury.

For the foregoing reasons the judgment is reversed with directions to the court below to proceed in conformity with the views herein expressed.

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

Rehearing denied. Langdon, J., and Edmonds, J., voted for a rehearing.


author: THE COURT.

text:
    [Sac. No. 5258.
    In Bank.
    January 12, 1939.]
    TURLOCK THEATRE COMPANY (a Corporation), Respondent, v. ELWOOD P. LAWS et al., Appellants. ELWOOD P. LAWS et al., Petitioners, v. TURLOCK THEATRE COMPANY (a Corporation), Respondent.

      Nathan B. McVay, Livingston & Livingston and Leonard J. Bloom for Appellants.
    Gumpert & Mazzera and Charles A. Zeller for Respondent.
   THE COURT.

The plaintiff sued Elwood P. Laws, A. Blumenfeld, Joe Blumenfeld, and several fictitious defendants, to recover alleged unpaid rentals under a lease of a moving picture theater in Turlock, Stanislaus County; also to terminate the lease and to be restored to possession of the property. The action was commenced in Stanislaus County on June 2, 1938. The defendants specifically named were served with summons. Within due time they filed a demurrer and a notice of motion for change of place of trial to the city and county of San Francisco, the place of their residences. The motion was argued on August 1st and on August 11th the court entered an order denying the motion. The defendants appealed from the order. They also applied for a writ of supersedeas staying further action of the trial court pending the determination of the appeal.

On the hearing of the motion it appeared that on July 22d, and after the filing of the notice of motion, Edward Albin, a resident of Stanislaus County, was served as one of the defendants fictitiously named. An amendment to the complaint stating the true name of such defendant to be Edward Albin was filed on July 25th. No service of the amendment was had on opposing parties or their attorneys. When the court called attention to the matter, counsel for the plaintiff stipulated that the plaintiff had no intention of urging the residence of Edward Albin in opposition to the defendants’ motion for change of place of trial. The court took note of the stipulation and remarked that it would disregard entirely the matter of the residence of Edward Albin for purposes of the motion. The question before this court is whether the complaint states a cause of action, the subject-matter of which is exclusively local, thus requiring a trial in Stanislaus County; or whether the complaint includes as well a cause of action alleging matter of a so-called transitory nature which should permit the defendants to prevail in their application for a change of place of trial. That question must be determined from an inspection of the allegations of the complaint and the nature of the relief sought; and all ambiguities must be resolved against the pleader. (See Sheeley v. Jones, 192 Cal. 256 [219 Pac. 744]; Weygandt v. Larson, 130 Cal. App. 304, 308 [19 Pac. (2d) 852].)

The complaint in form includes three causes of action, in the first it is alleged that on August 1, 1936, a lease was executed by the plaintiff to the defendant Laws of the theater property situated in the city of Turlock, for a five-year term, and whereby the lessee agreed to pay as rental fifteen per cent of the gross monthly box office and storeroom receipts, with a guarantee of $500 minimum rental per month; that it was also agreed that a complete daily report of the box office receipts would be mailed forthwith to the secretary of the plaintiff. It was also alleged that by the agreement no assignment would be made without the written consent of the lessor. Breaches of the lease provisions were alleged, consisting of the wilful and fraudulent failure and refusal of the defendant Laws to make full and accurate report of the daily box office receipts and refusal to pay fifteen per cent of such receipts, and that the defendants have thus withheld from the plaintiff an estimated $300 per month from the beginning of the lease. In addition it was alleged that the defendant has failed to pay any rental whatsoever subsequent to March 1, 1938, and that the defendant Laws had assigned the lease to others without the consent of the plaintiff. Upon its first cause of action the plaintiff prayed judgment for the amount of the rental found to be unpaid under the lease; for a cancellation of the lease, and to be restored to possession of the premises.

As a second cause of action the plaintiff alleged a wrong-full withholding of possession, and in this respect it asked for $10,000 damages and restoration of possession. A third cause of action contained the usual allegations when it is sought to quiet the title against adverse claims, with a prayer for the appropriate relief thereunder.

Section 392 of the Code of Civil Procedure provides that actions for the recovery of real property, or for the determination of any right or interest therein, and for injuries to real property, must be tried in the county where the real property or some part thereof is situated.

The plaintiff does not question the application to the appropriate facts of the well-settled rule enunciated in Smith v. Smith, 88 Cal. 572 [26 Pac. 356], and other cases. (Ah Fong v. Sternes, 79 Cal. 30, 33 [21 Pac. 381]; Warner v. Warner, 100 Cal. 11, 16 [34 Pac. 523]; Sheeley v. Jones, supra; Howe v. Tucker, 219 Cal. 193 [25 Pac. (2d) 832]; Bardwell v. Turner, 219 Cal. 228 [25 Pac. (2d) 978]; Nason v. Feldhusen, 34 Cal. App. 789, 795 [168 Pac. 1162]; Chew v. Storrie, 108 Cal. App. 313 [291 Pac. 610].) The rule of the cited cases is that section 392 is effective only when the real property or the title thereto is the exclusive subject-matter of the action. When a cause of action for relief in personam also is joined, the defendant is entitled to have the cause transferred to the county of his residence. The basis for the distinction in the application of the code provisions, stated in Smith v. Smith, supra, will bear repetition:

“Section 395 of the Code of Civil Procedure provides that ‘in all other cases the action must be tried in the county in which the defendants, or some of them, reside at the commencement of the action’.

“The general spirit and policy of the statute is to give to the defendant the right of having all personal actions against him tried in the county of his residence. Provision is made for the trial of actions affecting real estate in the county where the land is situated, and for the trial of certain other designated actions in the county where the cause of action arose; but the general rule for the place of trial is prescribed in section 395, by the declaration that ‘in all other cases’ the action must be tried in the county in which the defendant resides at the commencement of the action. This section is general and comprehensive in its terms, and embraces all other eases than those which are specified in the three preceding sections. It is intended to protect the defendant in the expense and inconvenience of being compelled to go to a distant county to defend himself against an action that might be commenced against him there, and is in accordance with the principles that obtain wherever the common law prevails, that the plaintiff who would seek redress from a defendant must seek it in the county where he resides.

“When, however, the subject-matter of the action is local, and the judgment which is sought is to operate directly upon that subject-matter, it is provided that the action shall bo tried in the county where the subject-matter of the action is situated. This being an exception to the general rule, the conditions under which the exception is claimed must be clearly and distinctly shown.’ The plaintiff cannot, by uniting in his complaint matters which form the subject of a personal action with matters which form the subject of a local action, compel the defendant to have both those matters tried in a county other than that in which he resides. It is only when the real estate alone is the subject-matter of the action that the provisions of section 392 can be invoked against a defendant who resides in a county different from that in which the land is situated. If, in his complaint, the plaintiff join with such cause of action another which is not embraced in its provisions, or if he also seeks a remedy against the defendant upon matters which are not embraced within the provisions of this section, his action becomes one of those ‘ other eases ’ provided for in section 395, which the defendant is entitled to have tried in the county of his residence. ’ ’

The burden of the plaintiff’s contention is that the title to and possession of the real property is the primary object of the action and that the personal remedies sought, namely, judgment for unpaid rentals and a necessary accounting to determine the amount thereof, are merely incidental to the primary object within the meaning of such cases as McFarland v. Martin, 144 Cal. 771 [78 Pac. 239] (wherein the plaintiff sought to recover a one-third interest in mining property), Grocers’ Fruit Growing Union v. Kern County Land Co., 150 Cal. 466 [89 Pac. 120] (involving an action for the specific performance of a contract to convey lands), State v. Royal Consolidated Min. Co., 187 Cal. 343 [202 Pac. 133] (wherein the state sought to recover title and possession of certain mining properties and the rents, issues and profits derived therefrom), Robinson v. Williams, 12 Cal. App. 515 [107 Pac. 705] (an action brought to establish ownership in the plaintiff of real property pursuant to contract of sale to and a breach by the defendant), and Brown Materials Co. Ltd. v. Angus, 20 Cal. App. (2d) 32 [66 Pac. (2d) 470] (involving, an action to establish the plaintiff as the owner of certain leases of lands).

A reference to but one of these eases will serve to distinguish all of them and dispose of the plaintiff’s contention.

In the case of State v. Eoyal Consolidated Min. Co., supra, it was held that the action, in so far as it related to rents, issues and profits, was essentially one to quiet title, for the reason that the right thereto depended upon the issue of title, and an adjudication of the right to rents was necessarily determinative of the right to the land itself. The question there did not arise out of proceedings for a change of venue, but was concerned with the question whether the court in Sacramento County had power pursuant to section 3773 of the Political Code to entertain jurisdiction of an action involving title and possession of real property situated in another county. The correctness of the holding that the relief there sought in the nature of rents, issues and profits was merely incidental to the primary object of the action, that is, to recover the title and possession of the mining properties, need not be questioned. It is apparent, however, that under the allegations in the complaint in the present action, the contrary situation obtains. Here the right to possession of the real property largely depends upon the outcome of the controversy concerning the amounts of rentals paid or claimed to have been unpaid by the defendant. If it be found, under the allegations of the first cause of action wherein the plaintiff seeks to recover the amount of rentals alleged to remain unpaid, that all rentals have been paid in accordance with the contract, it may result that the plaintiff would not be entitled to any of the relief prayed for. We would thus have the situation where the cause of action for the unpaid rentals is the primary object of the complaint, and relief by way of restoration of possession would follow the judgment on that cause of action. That is not the situation obtaining in the case last cited, where the judgment for the rents and profits followed as an incident of a judgment awarding title and possession to the plaintiff.

As above indicated, the parties do not question the personal nature of the cause of action seeking recovery for alleged unpaid rentals. Inasmuch as that relief is not merely an incident to the claim to be restored to possession, but is distinctly a primary object of the complaint, we must conclude that the plaintiff has joined a personal or transitory cause of action with one of a local character, and the trial court on the record before it erred in denying the motion.

The order to show canse and the temporary stay of proceedings issued upon the application of a writ of supersedeas are discharged. The order denying the motion for change of place of trial is reversed.


author: SHENK, J.

text:
    [Crim. No. 4199.
    In Bank.
    January 17, 1939.]
    In the Matter of the Application of WESTY PETRAEUS, Jr., for a Writ of Habeas Corpus.
    W. I. Gilbert and James B. Fredericks for Petitioner.
    Buron Fitts, District Attorney (Los Angeles County), and A. H. Van Cott, Deputy District Attorney, for Respondent.
   SHENK, J.

The question for determination in this proceeding is whether one who has given self-incriminating testimony as a witness in the defense of another on trial for the crime of gaming, may invoke the immunity provided by section 334 of the Penal Code.

Margaret Petraeus and Westy Petraeus, Jr., were charged by separate informations with violations of section 337a. subdivision 2, of the Penal Code. Margaret Petraeus was tried first. On her trial she called Westy Petraeus, Jr., as her witness. Without claiming the constitutional privilege against self-incrimination, he gave testimony on behalf of Margaret Petraeus which implicated him in the commission of the crime with which he was charged. The jury in the trial of Margaret Petraeus failed to agree upon a verdict. Upon his own trial, Westy Petraeus, Jr., claimed immunity by virtue of the provisions of section 334 of the Penal Code, but this was denied. He was convicted and thereupon commenced the present proceeding to obtain his release from custody, basing his petition for the writ of habeas corpus upon the same claim,

Section 334 of the Penal Code reads: “No person, otherwise competent as a witness, is disqualified from testifying as such concerning the offense of gaming, on the ground that such testimony may criminate himself; but no prosecution can afterwards be had against him for any offense concerning which he testified.”

The petitioner relies on the literal language of this section and on a statement in the case of In re Williams, 127 Cal. App. 424 [16 Pac. (2d) 172], referred to in In re Critchlow, 11 Cal. (2d) 751 [81 Pac. (2d) 966], in support of his claim.

In the opinion in the Williams case it was said at page 431: “What the statute means is that a witness called to testify to facts concerning or relating to the offense of gaming can safely testify for the reason that he is forever free from the possibility of punishment for any crime in the proof of which such testimony would be material. Such a construction is literally what the statute says, and it preserves the whole meaning and intention thereof. Such construction brings the statute within the rule that it must be coextensive with the Constitution. . . . Any witness who testifies to facts concerning or relating to prohibited gaming is immune from punishment for any offense in the proof of which such facts would be relevant and material. ’ ’

In that case the petitioner was called as a witness for the People in a preliminary hearing of gaming charges against others. He refused to answer certain questions asked on behalf of the People on the ground that his answers would tend to incriminate him. He was adjudged in contempt and committed to jail. On his application for a writ of habeas corpus the following propositions were decided: (1) That section 334 of the Penal Code comprehended all offenses of gaming or gambling, including those defined in section 337a of the same code; (2) That conspiracy to violate any of such sections was also an offense concerning gambling and within the comprehension of the immunity section; (3) That any witness referred to by section 334 of the Penal Code must be afforded an immunity coextensive with the constitutional privilege against being compelled to give self-incriminating testimony; (4) that the section afforded such immunity and therefore that the petitioner in that case was under compulsion to give the incriminatory answers as to relevant matters because he was fully protected against future punishment on account of any offense as to which he might thus testify.

In the Critchlow ease the witness was subpoenaed to appear and answer before the grand jury. She claimed the constitutional privilege against self-incrimination and resisted compulsion to testify as to certain bribery activities in connection with violations of the gaming law. The language quoted from the Williams case was referred to as stating the correct rule of law in considering the question of the coextensiveness of the .immunity given by section 334 of the Penal Code with the constitutional privilege.

We are aware of no case or authority, and the petitioner has cited none, which holds that one who gives self-incriminating testimony on behalf of the defense in a criminal proceeding or investigation, may thereafter claim the right, under any immunity statute, to go unpunished for the crime so confessed. The protection of the witness in such circumstances is not the immunity statute, but the constitutional provision which guards him from the compulsory revelation of self-incriminating evidence.

The history of the origin of the constitutional privilege, and the development of the custom of granting immunity by prosecuting authorities in aid of the administration of justice, was referred to without extended discussion in the Critchlow case. It was there pointed out that one curtailment of the right to invoke the constitutional privilege occurs during an investigation by a prosecuting or indicting body, in certain classes of eases specified by statutory law, wherein immunity is granted in exchange for information against other offenders. It must be obvious that it was not the intention either in the Critchlow case or in the Williams case to intimate that one who testified for the defense in a criminal proceeding could invoke the immunity provided by section 334 of the Penal Code. Such testimony is voluntary and is not under the compulsion which a reference to the history and development of such system or custom, discloses as a necessary element within the meaning of the immunity granting system prescribed by the code sections. Such compulsion is present only when a witness is called by the prosecution, as to whom alone section 334 applies. That this is so is also indicated by the immediately preceding section of the Penal Code, namely, section 333, which provides: "Every person duly summoned as a witness for the prosecution, on any proceedings had under this chapter, who neglects or refuses to attend, as required, is guilty of a misdemeanor.” Reading these sections together leads directly to the conclusion that the legislative intent was that witnesses for the prosecution were referred to by the language of section 334. There is no justification in law for reading the language of the latter section apart from other sections bearing upon the same subject-matter and which are in pari materia, where to do so would lead to the absurd conclusion that a witness may volunteer testimony on behalf of the defense, thereby incriminate himself, clear the accused and both escape punishment.

The petitioner contends that his testimony was "compulsory” because the defendant on whose behalf he testified was entitled to prove her innocence by showing that another was guilty. But it would not follow that one who is willing to confess a crime to exonerate another should necessarily go unpunished. The argument loses sight of the quid pro quo in the matter of granting immunity by the state, namely, information leading to the arrest and conviction of offenders. The petitioner would have the court extend the immunity beyond its clear ends and limits, that is, to situations wherein the state is assumed to have bargained to give all without any return. This was not the legislative purpose.

Additional support for the foregoing conclusion may be found in the rule that a statute must be construed with reference to the object to be accomplished (People v. Dana, 22 Cal. 11, 20; Bannerman v. Boyle, 160 Cal. 197, 200 [116 Pac. 732]; Johnston v. Baker, 167 Cal. 260, 264 [139 Pac. 86]; Gise v. Myers, 22 Cal. App. 127 [133 Pac. 500]; Golden & Co. v. Justice’s Court,, 23 Cal. App. 778, 794 [140 Pac. 49]; Spier v. Peck, 36 Cal. App. 4, 6 [171 Pac. 115]), and the rule that code sections relating to a particular subject are in pari materia and should be read and considered together (23 Cal. Jur. 791; People v. Parvin, 74 Cal. 549, 555 [16 Pac. 490]; People v. Upton, 67 Cal. App. 445, 450 [228 Pac. 50]).

The writ is discharged and the prisoner is remanded to custody.

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

Rehearing denied.


text:
    [Sac. No. 5166.
    In Bank.
    January 17, 1939.]
    THE CUDAHY PACKING COMPANY (a Corporation), Respondent, v. CHARLES G. JOHNSON, as Treasurer, etc., Appellant.

      U. S. Webb, Attorney-General, H. H. Linney, James J. Arditto and Albert F. Zangerle, Deputies Attorney-General, and Dixwell L. Pierce for Appellant.
    Thomas & Sullivan and E. H. Howlett for Respondent.
   THE COURT.

This action was brought for the purpose of having an assessment declared void and to recover from the defendant, treasurer of the state of California, the amount of tax paid by plaintiff pursuant to said assessment. The tax was paid under protest.

Plaintiff operates plants in Los Angeles and San Diego, California, and at numerous points outside of the state of California, for the slaughtering of livestock and converting same into fresh meat and other products, and sells said products throughout the state of California and in other states, and maintains branch houses in a number of states of the United States, including two branch houses in the state of California, and also maintains other distributing points for its products in said state of California; it owns a number of livestock, refrigerator and oil tank cars in which livestock and other food products belonging to said plaintiff are transported from points without and within the state of California to its various plants, branch houses and distributing points, both without and within said state; said cars are owned and used for the transportation of plaintiff’s products in connection with and as an incident to the general business of said plaintiff for the convenience of its operations and for the purpose of securing adequate facilities for its general business from the various railroad companies for carrying its own property and products, and to that end during all of the times herein mentioned the various railroad companies have operated said cars over their respective lines, paying to plaintiff as its sole compensation for the use thereof on a mileage basis for said cars, and charging plaintiff the usual tariff rates for the transportation of its property and products therein.

Plaintiff has not at any time mentioned in the complaint in this action been engaged in the loaning or rental of said cars or any portion of them to the public at large but said ears are used by said railroads for the sole and exclusive purpose of transporting the property and products of the plaintiff, and neither the service rendered by the plaintiff, nor the rates charged by it for said service, have ever been regulated by the railroad commission of this state, or by any other regulatory body.

The tax against the property of plaintiff which it seeks to recover by this action was levied by the board of equalization pursuant to the purported authority contained in section 14 of article XIII of the Constitution as in force during all the times herein involved. Said taxes were levied and paid during the year 1934, and were based upon the earnings of its property during the fiscal year next preceding the year of said levy.

Section 14 (a) of article XIII of the Constitution of this state, then in force, in so far as it is pertinent to the question before us, reads as follows: “All refrigerator, oil, stock, fruit, and other ear-loaning and other car companies, operating upon the railroads in this state . . . shall annually pay to the state a tax ...”

That portion of the section with which we are concerned in this proceeding would read as follows: "Taxes levied, assessed and collected as hereinafter provided upon ... refrigerator, oil, stock, fruit, and other car-loaning and other car companies operating upon the railroads in this state . . . shall be entirely and exclusively for state purposes and shall be levied, assessed and collected in the manner hereinafter provided. ’ ’

Plaintiff, as stated herein, owns “a number of livestock, refrigerator and oil tank cars” which are used exclusively for the purpose of transporting its own products to various points within and without the state. These cars are operated over the railroads of the state under an agreement whereby the various railroads using said cars pay to the plaintiff as compensation for the use of said cars a definite sum per mile, in most instances 2 cents per mile for each mile traveled during the time the ear is being used by the- company. The plaintiff then pays to the railroad companies using its cars, the usual tariff rates for the transportation of its property and products in said cars.

While it is not conceded, it must be held from the facts found by the trial court, the substance of which is set forth above, that the plaintiff is not a public service corporation, or a public utility. It has never dedicated its property or business to the use of the public. By its contract with the railroad, its cars are to be used exclusively for the transportation of its own products, and not for those of the public at large. In defining a public utility, this court has said: "That the devotion to public use must be of such character that the public generally, or that part of it which has been served and which has accepted the service, has the right to demand that that service shall be conducted, so long as it is continued, with reasonable efficiency under reasonable charges.” (Allen v. Railroad Com., 179 Cal. 68, 88 [175 Pac. 466, 8 A. L. R. 249]; Richardson v. Railroad Com., 191 Cal. 716, 720 [218 Pac. 418].)

In the ease of Story v. Richardson, 186 Cal. 162 [198 Pac. 1057, 18 A. L. R. 750], this court held that the plaintiff therein, who was the owner of an office building and who had installed a plant for the generation of electricity and steam to be used by the tenants of the building, was not liable under the said section of the Constitution for a tax on his gross receipts derived from the sale of electrical energy notwithstanding he supplied, as an incident to his business of furnishing his tenants with electricity, electrical energy to persons in his immediate neighborhood for light and power purposes. The basis of that decision was that the plaintiff was not a public utility and therefore did not come within the terms of said section of the Constitution. The court in that opinion reviewed at some length the history of said section of the Constitution, and, after referring to the fact that the Constitution was amended by the adoption of said section as a result of the appointment of a commission to investigate the then prevailing system of taxation and to recommend a plan for the revision thereof, called attention to certain specific portions of said report which indicated that the members of said commission had in mind only public utilities and certain corporations such as insurance companies and banks, the property of which should be taxed for state purposes. In that opinion, reference was also made to the argument submitted to the voters of the state at the time when said constitutional amendment was voted on in which the “gross receipt” method of taxation was advocated solely for public utilities. From this history of the amendment, as well as the language of the amendment itself, this court concluded: “Throughout the report electrical companies were classified and discussed as one group of ‘public utilities’ to be taxed upon gross receipts. In the printed arguments submitted to the voters in 1910, at the time the constitutional amendment was voted upon, the ‘gross receipts’ method of taxation was advocated solely for public utilities. It is clear both from the report of the commission proposing the amendment and the arguments advanced to those voting upon the adoption of the amendment, as well as from the nature of the amendment, that the provision for taxation in proportion to gross receipts is applicable only to public utilities.” Appellant admits the force and effect of this decision in so far as “companies furnishing electricity” are concerned, but claims that the tax on “ear-loaning companies” was fixed and determined for an entirely different purpose than that which prompted the sponsors of said constitutional amendment to recommend that electrical companies be taxed for state purposes upon their gross receipts.

Appellant calls our attention and relies with considerable assurance in support of his contention upon that portion of the report of said commission contained in section 3 of chapter V of part III of the report of said commission which in part reads as follows: “The taxation of companies operating their own cars over the railroads of the State is in an especially unsatisfactory condition. Except in the case of the Pullman Company, which is assessed by the State Board of Equalization, on the basis of the average number of cars which it operates in the State during the year, the only taxes levied are those assessed by the county assessors on such cars as happen to be found in the State on the first Monday in March. This, in spite of the fact that a considerable number of such cars find their way into the State during the year, amounts in actual practice to the taxation of those cars only which are owned or operated in California by some local company or agency, and a few scattering ears of other lines. ’ ’ It is evident from this section of the report of said commission, appellant argues, that car-loaning companies “operating their own cars over the railroads of the state” whether they were public utilities or only private car lines, by the system of taxation then in force were not paying their just proportion of taxes for the reason that only those cars which happened to be within the state on the first Monday in March of each year could be reached by the county assessor, and thereby made subject to taxation in this state. The report of the commission then called attention to the fact that “a considerable number of such cars find their way into the State during the year”, with the result that only cars “owned or operated in California by a local company or agency, and a few scattering cars of other lines”, are subject to taxation. Appellant contends that it was for the purpose of compelling these cars owned without the state but which were operated during the entire year within the state, to pay their just proportion of taxes, that refrigerator, oil, stock, fruit and other car-loaning companies were made subject to taxation for state purposes upon a basis of an ad valorem tax upon such cars as happened to be within the state on the first Monday in March. If, therefore, this was the purpose of applying the new system of taxation to such ear companies, the reason therefor would apply to private car lines as well as to car companies that were rendering a public service. We admit that there is much force in appellant’s argument and we would be compelled to yield to its persuasive force were it not for other provisions of the report of the commission which seem to indicate that only public utilities were under consideration by the commission.

The commission, after a lengthy discussion of the then prevailing, and the proposed new systems of taxation, made certain recommendations in which the property of the state was to be divided into two separate classes, one of which would be subject to taxation for state purposes only, and the other for county and city purposes. Part III of said report is entitled, “Proposals and Recommendations”, and chapter IV of part III is devoted to, “Taxation of Railroads”. Chapter V of part III is concerned with, “Taxation of Public-Service Corporations Other Than Railroads”, and section 3 of this chapter is devoted to, “The Taxation of Car Companies”. It is in this section 3 that we find the quotation above set out on which the appellant relies in support of his contention that respondent is liable for a tax upon its property for state purposes even if it is not a public service corporation. As the subject of taxation of “companies operating their own cars over the railroads of the state” is found only in that section of the report which, is devoted to, “Taxation of Public-Service Corporations Other Than Railroads”, it is apparent that the commission in preparing that part of its report was considering only public service corporations, and as this is the only portion of the report which could possibly be construed as evidencing an intent on the part of the members of the commission to recommend a tax for state purposes upon the property of private corporations "operating its own cars upon the railroads of the state”, the only reasonable construction to be given that section of the report is that it referred exclusively to public service corporations or public utilities, and not to private corporations.

This report of the commission was the basis upon which section 14 of article XIII was framed and submitted to the voters of the state. In fact, this section of the Constitution with immaterial changes was prepared by the very same commission that made said report. We may, therefore, consider the terms and provisions of the report in determining the meaning of the constitutional amendment which was the outgrowth of said report. (Story v. Richardson, supra.) As the provisions of the report, clearly show that the commission had under consideration only public service corporations whose property should be assessed for state purposes upon a basis of their gross receipts, we must conclude that this intention was carried' into the amendment of the Constitution which the commission was instrumental in preparing, and, therefore, that the amendment does not apply to property of a private corporation such as the plaintiff’s.

Appellant has cited the case of Union Tank Line Co. v. Richardson, 183 Cal. 409 [191 Pac. 697], in support of its contention that respondent’s property is subject to taxation for state purposes. The question of whether the Union Tank Line Company, the plaintiff in said action, was or was not a public utility, was not raised in that action although the court held that it was a ear-loaning company as defined in said section of the Constitution. There are certain statements in the opinion, notably the following: “There is nothing in the section (of the Constitution) which requires that, in order for a public service company to be taxable thereunder, all its business must be transacted within the state,” which clearly indicate that the court in determining the liability of the Union Tank Line Company to be taxed for state purposes, acted upon the theory that said plaintiff was a public service corporation and was, therefore, answerable under said section of the Constitution for the taxes sued for in that action. In that opinion it was stated, “The company (The Union Tank Line Company) was engaged in the acquiring by purchase or otherwise of oil-tank cars and the leasing thereof to shippers throughout the United States. ’ ’ The Union Tank Line Company was evidently a public service corporation, or at least the court in that opinion assumed that it was such.

Under the rule of contemporary construction we are further fortified in construing said section of the Constitution so as to exempt plaintiff’s property from taxation for state purposes. In the case of Reuter v. Board of Supervisors, 220 Cal. 314, 323 [30 Pac. (2d) 417], this court in commenting upon said rule stated: “ ‘Contemporaneous exposition has ever been esteemed by jurists and statesmen as strong evidence in support of an interpretation or construction of a statute, or of a provision of the organic law in consonance with such exposition. ’ ” Section 14 of article XIII of the Constitution was adopted, as we have seen, in 1910. The reports of the state board of equalization disclose that the Cudahy Packing Company was assessed as a car company in 1914, on the basis of its gross receipts from operations in 1913, in the amount of $1612.23 on which a tax of $64.48 was computed. Whether this tax was paid or not, the record in this ease docs not show. We assume, however, that it was paid. After the year 1914, and until the present assessment was made, covering a period of nineteen years, no assessment was made against the plaintiff herein for state purposes based upon its gross receipts. It is not denied that during this period respondent paid an ad valorem tax upon its tangible property within the state. Just why no assessment was made for state purposes does not appear, but we are justified in assuming from these facts that the officers of the state construed said section of the Constitution as not applying to the plaintiff herein. This contemporaneous construction of said section of the Constitution by the authorities of the state charged with the duty of collection of the revenues of the state, while not controlling, is entitled to great respect. (23 Cal. Jur. 775.)

The judgment is affirmed.


text:
    [Crim. No. 4185.
    In Bank.
    January 18, 1939.]
    In the Matter of the Application of WILLIAM WILLING, for a Writ of Habeas Corpus.

      Erling S. Morby and A. B. Reynolds for petitioner.
    U. S. Webb, Attorney-General, Ralph H. Cowing, Deputy Attorney-General, and Joseph L. Heenan, District Attorney (Yuba County), for Respondent.
   SEAWELL, J.

Petition for writ of habeas corpus. Petitioner was arrested for violating section 737.5 of the Agricultural Code, in that as a distributor he purchased fluid milk from a producer without obtaining a license from the state director of agriculture and furnishing a bond. The District Court of Appeal, Third Appellate District, heretofore issued a writ, but after hearing dismissed the proceeding and remanded petitioner to custody. (In re Willing, 27 Cal. App. (2d) 367 [80 Pac. (2d) 1027].)

Petitioner contends that the section is unconstitutional class legislation for the reason that while requiring distributors purchasing milk from producers to obtain a license and file a bond, it does not apply to retail stores purchasing milk from producers, nor to persons purchasing milk from producers for manufacturing purposes, and for the further reason that it requires a surety company bond, thereby denying the right to file a bond with personal sureties. The latter contention is concluded by In re Cardinal, 170 Cal. 519, 526 [150 Pac. 348, L. R A. 1915F, 850], where this court upheld an ordinance provision which required the operator of a jitney bus to give a surety company bond to pay all damages arising from negligent operation as a condition to obtaining a license. (See, also, Argo Oil Corp. v. Atwood, 274 Mich. 47 [264 N. W. 285]; Ferguson-Hendrix Co. v. Fidelity & Dep. Co. of Md., 79 Wash. 528 [140 Pac. 700].)

The bond required by section 737.5 is conditioned on the payment of amounts due to producers for fluid milk and fluid cream purchased by the distributor, and must be filed before a license is issued to him. An action may be brought on the bond by the director of agriculture on behalf of producer-creditors. Said license is in addition to all licenses required by other provisions of division IV of the Agricultural Code. Sections 492 and 621, 622, provide for permits and licenses to be issued after investigation of sanitary conditions of plants dealing in milk and milk products.

Section 737.5 is found in a chapter of the Agricultural Code entitled “Stabilization and Marketing of Fluid Milk and Fluid Cream”. It authorizes the director of agriculture to establish marketing areas and, upon the application of those who produce 65 per cent of the milk of an area, or 65 per cent of the cream, to put into effect a milk or cream stabilization and marketing plan. Such plan must provide minimum prices to be paid producers by distributors, and may provide for an equalization pool with uniform prices for milk purchased for pasteurization. (Secs. 735, 736.4, Agricultural Code.) The director may also fix minimum wholesale prices for sale of milk and cream by distributors to retail stores, and minimum retail prices for sale by distributors and retail stores to consumers. The license and bond provisions of section 737.5 apply regardless of whether a stabilization and marketing plan is in effect in an area.

The purpose of said chapter, as announced in section 735, is to eliminate economic disturbances and unfair trade practices in the milk industry which threaten both the quality and adequacy of the supply of fluid milk and cream. The section declares that health regulations alone are insufficient to prevent disturbances which threaten to destroy and seriously impair the quality and supply of milk. Thus provisions which protect the producer by establishing a fair price to him and affording him security for payment of the price due him for milk and cream by means of a bond, are incident to the broader purpose to protect the public milk supply. Economic security to producers will tend to encourage compliance on their part with sanitary regulations and the maintenance of dairy herds sufficient to provide an adequate milk supply at reasonable prices to consumers.

The price-fixing provisions are not under attack. But since they are part of the plan to afford a measure of economic security to those engaged in the milk industry in the interest of protecting the public milk supply, of which plan section 737.5, providing-for a bond to secure payment to the producer is another feature, it is pertinent to cite the recent decisions of the United States Supreme Court sustaining statutory provisions for the fixing of milk prices. (Nebbia v. New York, 291 U. S. 502 [54 Sup. Ct. 505, 78 L. Ed. 940, 89 A. L. R. 1469]; Borden’s Farm Products Co. v. Ten Eyck, 297 U. S. 251 [56 Sup. Ct. 453, 80 L. Ed. 669]; Highland Farms Dairy v. Agnew, 300 U. S. 608 [57 Sup. Ct. 549, 81 L. Ed. 835]; see, .also, 7 So. Cal. L. Rev. 325.)

We are of the view that the weight of authority, as well as the decisions of this state, sustain the right of the state to require of those engaged in the distribution of important food products a license and bond to pay producers. (People v. Perretta, 253 N. Y. 305 [171 N. E. 72, 84 A. L. R. 636]; People v. Beakes Dairy Co., 222 N. Y. 416 [119 N. E. 115, 3 A. L. R. 1260]; Payne v. State of Kansas, 248 U. S. 112 [39 Sup. Ct. 32, 63 L. Ed. 153], affirm. State v. Mohler, 98 Kan. 465 [158 Pac. 408]; Hickey v. Levitan, 190 Wis. 646 [210 N. W. 111, 48 A. L. R. 434]; Ferguson-Hendrix Co. v. Fidelity & Dep. Co., supra; Lasher v. People, 183 Ill. 226 [55 N. E. 663, 75 Am. St. Rep. 103, 47 L. R. A. 802]; State v. Wagener, 77 Minn. 483 [80 N. W. 633, 778, 1134, 77 Am. St. Rep. 681, 46 L. R. A. 442]; contra: State v. Porter, 94 Conn. 639 [110 Atl. 59]; Maine v. Oil Tavern Farm, Inc., 113 Me. 468 [180 Atl. 473, 101 A. L. R. 810]; note, 10 So. Cal. L. Rev. 83.)

In this state the Deciduous Fruit Dealers’ Act (Stats. 1929, p. 665, now secs. 1285-1288, Agr. Code) requires dealers in deciduous fruits to obtain a license and file a bond to comply with all contracts with growers and to account for proceeds. The validity of these provisions was upheld in People v. Jarvis, 135 Cal. App. 288, 312 [27 Pac. (2d) 77], (See, also, People v. Perry, 212 Cal. 186 [298 Pac. 19, 76 A. L. R. 1331], involving other provisions of the act.) In Moulton v. Williams Fruit Corp., 218 Cal. 106 [21 Pac. (2d) 936], this court affirmed judgment against the surety on a bond filed under the Produce Dealers’ Act (Stats. 1927, p. 1812, now sections 1261-1273, Agr. Code) after failure of the dealer to pay the grower a guaranteed price.

This brings us to petitioner’s contention that the exemption of retail stores and of purchasers of mills: for manufacturing into dairy products renders our bond statute invalid. The exemption of retail stores is by express provision. (See. 737.12, Agr. Code.) Retail stores purchase milk in the final bottled form. Milk can be sold by retail stores only in standard bottles (sec. 479, Agr. Code), and must be bottled mechanically where pasteurized in bottles sterilized on the premises where filled. (Secs. 479, 482.) If one engaged in the retail store business should also maintain a plant for the processing and bottling of milk, we do not doubt that such operations, constituting a different business than the conduct of a retail store, would subject such operator to the license and bond requirements of section 737.5. (See definition of distributor, sec. 735.3, subd. f.) The result is that a retail store which is not subject to the bond requirement purchases direct from a producer only where such producer himself pasteurizes and bottles his milk, that is, where the producer is a producer-distributor. According to respondent, retail stores buy from producers less than five per cent of all milk going to consumers. The usual course through which milk sold at a retail store has passed is from producer to distributor to retail store. The distributor, unlike the retail store, purchases milk in bulk and thereafter pasteurizes and bottles it.

This circumstance—that retail stores not subject to the license and bond provisions purchase from a producer only when he is also a distributor of bottled milk—furnishes a constitutional basis for their exemption. The statute does not require a bond to secure payment for milk purchased from a distributor, but only for milk purchased from a producer. The selection of the producer of food products as the special object of legislative protection designed to safeguard the food supply has long been sustained, and is not challenged by petitioner herein. (Cases cited, supra.) The effect of the exemption of retail stores, therefore, is to put producing distributors in the same category with non-producing distributors, for whose protection no bond is required, and to place all purchases of bottled milk by retail stores, whether from a producing or non-producing distributor, on the same footing.

The separate classification of distributors and retail stores is, therefore, constitutional. It is only where class legislation is arbitrary and unreasonable that it is invalid. (Bacon Service Corp. v, Huss, 199 Cal. 21 [248 Pac. 235]; In re Weisberg, 215 Cal. 624, 629 [12 Pac. (2d) 446]; Lloyd Garretson Co. v. Robinson, 178 Wash. 601 [35 Pac. (2d) 504, 506].)

In its brief the state says that bulk milk is sold according to butter fat content, ascertained by the purchaser, upon whose honesty the producer is, therefore, dependent, whereas bottled milk is sold to retail stores at a fixed price per bottle which can be computed on delivery and a cash sale provided for, and that this distinction furnishes additional grounds for exempting retail stores from filing a bond to secure payment for milk purchased. But these facts were not established by evidence, are incomplete, in particulars are not without dispute, and are not facts of which the court can take judicial notice. Therefore we. decide the case without reference to them.

The other exemption upon which petitioner relies in support of his claim of unconstitutionality—the exemption of those purchasing milk from producers for manufacture into dairy products—results from the fact that section 737.5 requires a bond and license of “distributors”. The term distributor, as defined by section 735.3, subdivision f, refers to distributors of fluid milk and cream, and does not include those who manufacture and sell dairy products.

The purpose of affording economic protection to the producer of milk, as announced in section 735, is to safeguard the public supply of fluid milk and cream. We are of the view that it was competent for the legislature to afford safeguards to the supply of fresh milk and cream without giving the same protection to manufactured dairy products, such as cheese, condensed milk, butter, ice cream, ice milk and flavored milk drinks, which in the main may be said to be less important in the public diet than fresh fluid milk and cream, largely the food of infants. That such products are also important foods is evidenced by the numerous provisions in regard to them in divisions IV and VI of the Agricultural Code. But it is not required that the legislature give to said products the identical protection given to fresh fluid milk and cream. It is also suggested as a possible reason for not requiring a bond of manufacturers, that manufactured dairy products are relatively less perishable than fluid milk and cream, and by reason thereof constitute an asset of the debtor-purchaser which the creditor-producer may reach.

If it should be held by reason of the definition of fluid milk contained in section 735.3, subdivision b, that a manufacturer who sells the products there listed, to wit, ice cream, ice milk, flavored milk drinks, buttermilk, cottage cheese and butter, is selling fluid milk and cream, and is therefore a distributor under section 735.3, subdivision f (and this seems a strained construction), the result would be that manufacturers of the named dairy products would be subject to the license and bond requirements of section 737.5. With the validity of such a classification within the class of manufacturers we are not here concerned. If invalid the result would be that all manufacturers would be free from obtaining the license and filing a bond. But petitioner makes no claim that he is a manufacturer of dairy products. A party complaining must belong to the class discriminated against. (In re Weisberg, supra; Fox-Woodsum Lumber Co. v. Bank of America etc. Assn,, 7 Cal. (2d) 14 [59 Pac. (2d) 1019]; 5 Cal. Jur. 623.)

The writ is discharged and the petitioner is remanded" to custody.

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