author: WASTE, C. J. LANGDON, J., Dissenting.

text:
    [Crim. No. 3738.
    In Bank.
    July 2, 1934.]
    THE PEOPLE, Respondent, v. CHARLES D. TEDESCO, Appellant.

      S. S. Hahn, Harry Polglase and W. 0. Graf for Appellant.
    U. S. Webb, Attorney-General, and James S. Howie, Deputy Attorney-General, for Respondent.
   WASTE, C. J.

Defendant was charged, by information filed by the Superior Court in- and for the County of Los Angeles, with the crime of murder, to wit, the killing of John W. Whitehead. He was tried before a jury, which returned a verdict of guilty of murder in the first degree, without recommendation. A motion for a new trial was made and denied, and thereafter judgment of conviction and sentence to pay the extreme penalty was pronounced. The appeal from the judgment and from the order denying a new trial is now before the court.

The prosecution contends that a motive for the killing of the decedent is found in the fact that the defendant’s home was encumbered, and that he was in need of funds which he sought to raise through insurance he succeeded in having placed on the life of the decedent, with himself as the beneficiary.

No one saw the defendant and deceased together immediately prior to the killing. The evidence connecting the defendant with the crime is entirely circumstantial. The scene of the alleged killing was on the Redondo-Wilmington Boulevard, between three and four miles distant from Redondo Beach, in Los Angeles County. Defendant conducted a shoe-repairing shop in the city of Redondo. Charles E. Pollard, who testified as a witness for the prosecution, had a shoe-shining stand in the shop, and also performed the necessary janitor work in and about the place. Another witness for the prosecution, Larry Ford, worked for the defendant a few weeks before the killing of the decedent, and slept in the shop at night. The defendant and each of these witnesses had a key to the shoe shop. John W. Whitehead, the deceased, an elderly man, frequently visited the shop. He and others addressed the defendant by the familiar name, “Charlie”. For some time prior to his death, Whitehead had been employed as a dishwasher in a restaurant located near the defendant’s shop. About six weeks before Whitehead was killed, John A. Jenkins, an employee of an insurance company, met the deceased, Whitehead, in the defendant’s shop, the defendant having previously told Jenkins that he had a friend who wanted some insurance. On the occasion of Jenkins’ visit, the defendant introduced him to Whitehead, who thereupon made application, through Jenkins, for a one thousand dollar life insurance policy. The arrangement was that the defendant would pay the necessary premiums on the policy. This plan was arrived at after it had been agreed that he might be made the beneficiary under the policy. The agreement was consummated through the execution of a “rider” on the policy signed by the deceased a few days before he was killed. The execution of this insurance policy, with the defendant named as beneficiary, is regarded by the prosecution as establishing the motive which led, it is claimed, to the killing of the decedent by the defendant.

The deceased, Whitehead, on the evening of July 18th, quit his work at the restaurant and left the place at about 8 o’clock, and about forty minutes later went back to get his glasses. As he left the last time, he was seen by the cashier of the restaurant to start across the street towards the defendant’s shop, which was only about thirty feet distant. A little more than an hour later, the deceased was found lying about eighteen feet from the Redondo-Wilmington paved highway, about three and four-fifths miles from the defendant’s shop in Redondo Beach. His head was badly cut and lacerated, and he was rolling back and forth on the ground, moaning. He was removed to the emergency hospital, where he died that night. As he appeared to be becoming partly conscious before he passed away, he was asked what happened to him, or who hit him, and he gave a name with two syllables. His voice was so weak, however, that the witness could not get the name. The autopsy disclosed numerous cuts and lacerations on the head, a subdural hemorrhage covering the entire surface of the brain, and a compound fracture of the vault and base of the skull, which caused decedent’s death. The autopsy surgeon testified that the injuries on the head of the deceased could have been caused by a blunt instrument, such as a hammer.

Between 9 and 9:30 o’clock on the night of the killing, people living on the Redondo-Wilmington Boulevard near where the decedent was found heard screams “coming from the westerly direction”. Witness Westonhagen got in an automobile and drove about a quarter of a mile on the highway in that direction. He saw a car on the highway with its lights out. This car started up, came toward him, and passed him, going east. He was shown a photograph of the defendant’s car, and testified that it generally answered the description of the car he saw that night. He further testified that at the time he heard the screams above referred to he also heard dull thuds that sounded to him like blows. After driving about a quarter of a mile and seeing nothing of a suspicious nature, he returned to his home, when the screams started up again. He was then joined by a police officer, Bennett, and together they drove westerly on the highway, and discovered what appeared to be a “bundle of rags” by the side of the road, which, on investigation, they found to be the deceased. Not only was the head of the deceased badly cut and bleeding, but there was blood on the ground near the body and on several tree stumps nearby. At the side of the highway, almost opposite the body, they found a large pool of blood and a beer bottle “with a Golden Glow label”. Nearby they also found the decedent’s cap and glasses. The decedent was in a semi-conscious condition, and frequently called, “Help—police!” About 160 feet from the highway, there was a road shack, which, on the night of the killing, was occupied by a tramp by the name of MitcheE. He testified that he went to sleep about 7 o’clock, and was awakened later by a noise, and heard a man cry out, “Don’t kill me, Charlie”, which he said was repeated many times.

On the morning following the killing, a deputy sheriff found a shoemaker’s hammer with a broken handle, and a blood-stained handkerchief where the body of the decedent had lain. The handle of the hammer was covered with a red, sticky substance. At the trial, this hammer was identified by the witness Pollard [who was the janitor at the shop] as the hammer which the defendant kept in the rear of his shop on the bottom shelf of his show-case. He testified that he had seen three shoemaker’s hammers in the shop prior to the morning of the murder, but on the morning following the killing he made an investigation, and found there were but two. Witness Pollard also testified that there were a number of bottles of beer of the brand known as “Golden Glow” in the defendant’s shop on the night previous to the murder, and that on the morning thereafter there was one less bottle. At this point it may be noted that the bottle found beside the place where the body of the decedent lay bore fingerprints of the deceased, but no others were established. The automobile owned by the defendant, found at his home after the killing, was a Chevrolet sedan, highly polished. Across one front door there were a number of streaks. It appeared as though they had been caused by the door having been recently wiped off, and on various parts of the car, both inside and out, numerous spots were found. A chemical analysis of one of these spots determined that it was human blood. The witness who so testified said that by chemical analysis he determined that there was human blood on the hammer found at the scene of the crime.

There was considerable testimony concerning the movements of the defendant on the evening of the killing (July 18th). It was a warm night. According to the witnesses, defendant got into his automobile, and left his shop about 7 o’clock. A police officer (Carter) saw him about 9:20 that night in his automobile and wearing a heavy overcoat. He explained to the officer that he was not feeling well. A half-hour later, the same witness met defendant in a drugstore near the defendant’s shop. He still had his overcoat on. He hurriedly drank two glasses of water, pushed back his hat, ran his finger across his forehea.d, and drops of perspiration ran off the finger. He showed the witness a note which he said he had found under the door of his shop. It was to the effect that the deceased had “gone back Bast”. At the same time, defendant called the deceased a vile name, and added, “He owed me a few dollars.” At that time he also showed the note to the witness Schultz, the druggist. At about the same time, the defendant met a confectioner (witness Stamas), whose store was located next to the shop of the defendant, and said to him, “Johnny [referring to the deceased] left -Redondo”, at the same time showing Stamas a note which he gave him to read. Stamas did not identify the exhibit (People’s No. 2'4), as did the other witnesses, but, in a conversation, defendant said to him that he was sorry he gave him, the decedent, five dollars, and remarked he did not believe he would see him any more, but “guessed” he was going to lose his five dollars. He apparently sought to impress Stamas with the fact that he had been sick all day, and the witness noticed that the defendant at that time was “in perspiration and also kind of red”. Later in the evening, the defendant, telephoned to the witness Sheeley, the proprietor of the house in which the deceased, Whitehead, roomed, and read a note over the telephone, telling Sheeley that “Johnny had left the note on his desk in the shoe shop ’ ’, the note purporting to recite that “Johnny” had been called out of town, had left in a hurry; and that he was the man who owed the defendant. About 11 o’clock that night, the defendant called Doctor Shea to his home, claiming he was ill. The doctor found nothing pathologically wrong with the defendant, and did not take his temperature. The defendant showed him the note he had previously exhibited to the policeman and others, stating at the time that Whitehead had left town owing him five dollars.

Testimony was introduced by the prosecution regarding the amount which the defendant at various times claimed the deceased owed him. The prosecution regards this as very material. In a statement to witness Raymond, connected with the insurance company, defendant represented that the decedent owed him approximately seven hundred dollars. To other witnesses, the defendant stated that decedent owed him small amounts, “either $2.90 or $3.90”. The decedent had paid him at one time fifty cents. At other times, he was sorry he gave the decedent five dollars.

On the morning following the killing, in conversation with Chief of Police Peterson, of Redondo, and two deputy sheriffs, the defendant sat in a chair “perspiring profusely”. He showed the officers the note he had shown to others (People’s Ex. No. 24). At that time, he told the chief and others present that Whitehead owed him either sixty or eighty dollars. Other testimony was to the effect that about 10 o’clock on the evening in question defendant, in his Chevrolet ear, was driving on the highway at a high rate of speed. He later drove into a filling station, asking for air and water, but did not wait for either. A handwriting expert (witness Sellers) testified that in his opinion the note in question (People’s Ex. No. 24), displayed by the defendant to various persons, was not all written at the same time nor under the same writing conditions. In his opinion, the paper on which the note was written had come from a pad which was found in the shop of the defendant, and the paper was in and a part of the pad when the note was written.

The prosecution contends that this evidence discloses that the defendant deliberately planned to have himself named the beneficiary under an insurance policy issued on the life of the decedent, under which, in case of accidental death, the policy would pay double indemnity; that, in order to establish an insurable interest in the life of the decedent, he represented to the company that the deceased owed him approximately seven hundred dollars, which, according to subsequent statements to various other persons, was manifestly a grossly exaggerated amount; that, in order to realize upon the policy he took the decedent in his automobile, drove a distance of approximately four miles from his shop, and there, by repeated blows of the hammer upon the head of the deceased, caused injuries which, a few hours later, resulted in the decedent’s death; that defendant’s subsequent actions, immediately following the beating of Whitehead, his efforts to establish that decedent had left town owing him money, and his appearance that night and before the officers on the morning following the killing, unquestionably tend to show a consciousness of guilt. The jury accepted the theory of the prosecution and returned its verdict carrying with it the extreme penalty. The defendant did not take the stand at the trial. Evidence was introduced that prior to the homicide his general reputation for peace and quiet was good.

On the record, the prosecution contends, there is substantial evidence tending to support the verdict of the jury, and that this court cannot, as a matter of law, substitute its judgment on the facts for that of the jury. No rule of criminal law and procedure is better established in this state. It is the function of the jury, in the first instance, and of the trial court after the verdict, to determine what facts are established by the evidence and, before the verdict of the jury which has been approved by the trial court can be set aside on appeal upon the ground of the insufficiency of the evidence to support it, it must be made clearly to appear that upon no hypothesis whatever is there substantial evidence sufficient to support the conclusion of the trial court. (People v. Tom Woo, 181 Cal. 315, 326 [184 Pac. 389].) This court has uniformly held that where there is evidence tending to support a verdict we cannot disturb the verdict upon the ground that it is not sustained by the evidence; and the application of this rule is strengthened in a case where, as here, the trial court has refused a new trial. It is settled beyond controversy that the weight to be accorded the evidence is a question for the jury. (People v. Ellis, 188 Cal. 682, 688 [206 Pac. 753].) The finding of the jury in this case was approved by the trial court on motion for a new trial. The findings of the jury and the trial judge on this subject are conclusive upon this court. It may disturb such a finding only when we can say, as a matter of law, that there was no evidence to support it. (People v. Erno, 195 Cal. 272, 283 [232 Pac. 710].) After reaching this conclusion as to the sufficiency of the evidence, it becomes necessary to carefully examine the various contentions advanced by the appellant as to alleged errors of law occurring during the trial.

There was testimony, already referred to, that the witnesses Pollard and Ford each had a key to the shoe-repairing shop of defendant. Ford disappeared immediately after the killing of the decedent, and was not seen until he appeared for the trial. On the theory, we may conclude from the record of the cross-examination of some of the witnesses for the People that it would be. argued to the jury by the defense that an accomplice or a co-conspirator might have committed the killing, the prosecution submitted, and the court gave, certain instructions which correctly defined an accomplice and co-conspirator, and stated the law governing the guilt of the defendant if he participated in the commission of the crime, though actually accomplished by such accomplice or co-conspirator. No complaint is made that these instructions incorrectly stated the law. In defendant’s brief it is admitted “that no confederation or conspiracy was charged or proven”. We are therefore of the view that the giving of the instructions was harmless. Complaint is made that, after giving these instructions, the court refused to give instructions on the same subject requested by the defense. These instructions impress us as being somewhat argumentative and relating to matter sufficiently covered by the court in the other instructions. In view of the evidence and of the entire charge given to the jury, we are of the view that the court was not required to give any instructions on the subject. Those given were not prejudicial to the defendant.

The giving of instructions by the trial court in the language of section 189 of the Penal Code was not prejudicial. The evidence in this case, if accepted, discloses that the killing of the decedent by defendant was wilful, deliberate and premeditated, and therefore, under the section, murder of the first degree. The jury was fully instructed on the doctrine of the presumption of innocence and of reasonable doubt, and, at the request of the defendant, sufficiently instructed on the question of circumstantial evidence and the manner in which it is to be weighed by the jury. The jury was properly instructed by the court upon all phases of the law applicable to the facts in this case. That being so, the defendant was not entitled to have instructions on like matters given in a particular phraseology.

Certain alleged errors of the court in the decision of questions of law arising at the trial are complained of. Whether or not the decedent told Mrs. Bertha Poster where he was going when he left the restaurant in the evening just prior to the killing was immaterial in view of the fact that what he told her was not testified to before the jury.

A chemist, Abernathy, testified that he examined for blood-spots certain clothes which he understood to be those worn by the defendant on the night of the homitide, but found no such spots. The prosecution stipulating there was no blood on the clothing, the court held that its production in court was unnecessary. Subsequently, after the People had closed their case, a discussion arose as to the color of an overcoat. The prosecution offered to bring the coat into court, and counsel for the defense said, “Let it stand as it is; I am satisfied.” No error can be predicated on this incident.

We find no merit in the contention of appellant that the district attorney commented before the jury on the failure of the defendant to take the stand. The district attorney’s remarks, in declaring that witnesses Ford and Pollard were not afraid to take the witness-stand and subject themselves to cross-examination, cannot, in our estimation, be interpreted as the appellant contends. Furthermore, no assignment of misconduct was made, and no request was made by the appellant that the jury be instructed to disregard the remarks objected to. The jury was advised in the charge that, if the defendant in a criminal case does not testify, his failure to do so shall not be taken as a circumstance against him. We therefore find no error. (See People v. Nakis, 184 Cal. 105 [193 Pac. 92].)

Character witnesses for the defendant testified that the general reputation of the defendant for peace and quiet was good. On cross-examination, the district attorney asked them whether or not they heard or knew that the defendant had struck his sixty-two year old father in the face. Most of them answered in the' negative; one was not certain. No error was committed in permitting the cross-examination. (People v. Gayle, 202 Cal. 159, 165 [259 Pac. 750].) It appeared that during the trial one of the jurors made an unauthorized visit to the scene of the crime. Such visit was an irregularity, but does not constitute misconduct warranting the granting of a new trial, unless prejudice is shown to have followed therefrom. (People v. Powell, 133 Cal. 39 [65 Pac. 127].) No such showing is made here. Appellant admits this to be the true rule, but argues that, in view of the errors of the court complained of by him and heretofore discussed, including the alleged misconduct of the • district attorney and the alleged insufficiency of the evidence, the court should have granted the motion for a new trial. In view of the conclusions reached and announced in our consideration of these matters, we are of the view that the trial court did not err in its refusal to grant the motion.

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

Shenk, J., Curtis, J., and Thompson, J., concurred.

LANGDON, J., Dissenting.

I dissent. The evidence in this case was purely circumstantial, and in my opinion insufficient to justify the verdict of guilty of murder in the first degree.

Rehearing denied.

Preston, J., and Langdon, J., dissented.


source: Caselaw Access Project

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

license: Public Domain

text:
    [L. A. No. 13029.
    In Bank.
    July 2, 1934.]
    GEORGE GRAF, Appellant, v. MONTECITO COUNTY WATER DISTRICT (an Incorporated County Water District), Respondent. CURTIS PAYTON, Appellant, v. MONTECITO COUNTY WATER DISTRICT (an Incorporated County Water District), Respondent. EDWARD W. SANDELL, Appellant, v. MONTECITO COUNTY WATER DISTRICT (an Incorporated County Water District), Respondent.

      Butcher & Haines, Robertson & Crawford and Maxwell Nichols for Appellants.
    Heaney, Price & Postel for Respondent.
   THE COURT.

A hearing was granted in these consolidated cases after decision by the District Court of Appeal, Second Appellate District, Division Two. Upon further consideration we are satisfied that said court has correctly determined the issues, and we hereby adopt the following opinion of Mr. Justice Stephens as the opinion of this court:

“This is an appeal from a judgment of nonsuit. The appellants have consolidated their eases on appeal. Substantially the facts are as follows: On June 14, 1930, appellants were injured while riding on a railroad owned and operated by the respondent upon the respondent’s premises; they brought suits for damages for personal injuries and upon conclusion of their cases in chief respondent upon motion therefor was granted a nonsuit upon the ground that the superior court did not have jurisdiction of the subject-matter of the actions because appellants, at the time they incurred their injuries, were employees of the respondent and that both appellants and respondent were subject to the provisions of the Workmen’s Compensation, Insurance and Safety Act (Stats. 1917, p. 831) and that the industrial accident commission of the state of California has sole and exclusive jurisdiction of the claims of appellants. The record shows that appellants as employees of respondent resided at a camp maintained by the respondent near the site of Juncal dam in Santa Barbara county; that said dam was being constructed by respondent at the time of the accident and appellants’ work was in connection with the construction thereof. On the day of the accident, at the customary hour of 4:30 o’clock in the afternoon, appellants ceased work, returned to their homes in the camp, changed their clothing and made other preparation to go to the city of Santa Barbara over respondent’s railroad. They boarded the train, which was called the ‘ Saturday Special’ and at 4:50 o’clock in the afternoon the train left the camp with appellants on board. The train had been in operation for approximately a year prior to the accident, its rolling stock consisting of flatcars about three feet wide, and the record shows that while its primary purpose was to aid in the construction work it was in operation for one trip every Saturday evening for the purpose of accommodating the employees of the district, their families and invitees, without cost to them, to ride from the campsite to the south portal of what is known as the Doulton tunnel, some four or five miles from the camp, at which place other means of transportation was procured by the passengers to take them on to Santa Barbara. While some of the employees testified that sometimes during the week they walked through the tunnel, the evidence shows that the tunnel was dark, the floor uneven and wet. The appellants testified that some of the trips they made to Santa Barbara were for the purpose of recreation and to secure supplies for their use at the camp, but on the day of the accident they were going to Santa Barbara for the sole purpose of visiting friends and relatives, or to attend a theater.

“ The issue on this appeal is whether the transportation furnished appellants by respondent was so connected with the employment that injury received by appellants while riding on the train arose out of or was incidental to their employment. Respondent contends that the transportation was furnished appellants as a matter of right and was an implied term of their contract of employment. The record does not disclose what the exact terms of their employment were; there was no testimony that such transportation was promised the employees as a part of their contract.

“Respondent cites many cases in support of its contention that an injury received while going to or coming from work by means of a conveyance furnished by the employer as an incident of the employment and in pursuance of the contract of hire arises out of and in the course of the employment and is compensable under the Workmen’s Compensation, Insurance and Safety Act. But we think the facts of the instant case i’emove it from any-influence of such cases. The injured employees were neither going to nor returning from their work, they lived at the campsite and had been to their abodes, changed their clothes and boarded the train for an excursion of pleasure wholly aside from their duties as employees. We cite the following two cases which cover the situation of the instant case and which are clearly and correctly reasoned to a like conclusion with ours: California C. I. Exchange v. Industrial Acc. Com., 190 Cal. 433 [213 Pac. 257], and Hama Logging Co. v. Department of Labor and Industries, 157 Wash. 96 [288 Pac. 655].

“Other contentions made by respondent are inapplicable to the facts of this case.”

Judgment reversed.

SHENK, J., Dissenting.

I dissent. It appeared by both pleading and proof on behalf of the plaintiffs that as a part of the working rules and contracts of employment the defendant water district permitted, and the circumstances of location of work and hours of employment required, the use of the defendant’s train as a means of access to and from lodgings provided by the employer. The railroad is not a common carrier and the passage was free of charge. The trial court applied the “premises” rule approved by this court in State Comp. Ins. Fund v. Industrial Acc. Com., 194 Cal. 28 [227 Pac. 168], and numerous other cases to like effect. The judgment has been reversed on the theory of the “going and coming” rule notwithstanding the showing, clear to my mind, that the “premises” rule should apply to the facts appearing in the record.

Rehearing denied.

Shenk, J., and Preston, J., voted for a rehearing.


author: THE COURT.

text:
    [S. F. No. 15063.
    In Bank.
    July 2, 1934.]
    BINGHAM GRAY, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.
    Joseph Scott and Jerry Giesler for Petitioner.
    Philbrick McCoy for Respondent.
   THE COURT.

It appearing that the transaction which formed the basis of the charges preferred against petitioner, and which resulted in a recommendation by the Board of Governors of The State Bar that he be suspended from practice of the law for a period of one year, involved a party or parties who participated therein with petitioner, but who were not proceeded against and whose conduct in the matter has not been inquired into, it is hereby ordered that this entire proceeding be remanded to the Board of Governors with directions to reopen the same, and by proper orders to bring before it for investigation any members of The State Bar who directly participated in the said transaction, or take such further steps as may seem meet and proper.

Shenk, J., Waste, C. J., and Thompson, J., dissented.


text:
    [L. A. No. 14420.
    In Bank.
    July 2, 1934.]
    SYLVIA A. BUTTERFIELD, Respondent, v. WILLIAM L. BUTTERFIELD, Appellant.
    Lovett K. Fraser for Appellant.
    Jess G. Sutliff for Respondent.
   THE COURT.

In this action for divorce defendant filed a demurrer and motion for change of venue, but failed to file points and authorities in support of either. At the instance of counsel for plaintiff, the trial court denied the motion, without prejudice, and overruled the demurrer, solely on this ground. Defendant appealed. The question presented by the appeal is whether there is a mandatory duty on the defendant seeking a change of venue to file points and authorities in support of the motion under Rule XIX of the rules governing the business of the superior court. (213 Cal. lxxxviii.)

Defendant contends that in making his motion he complied with the provisions of section 396 of the Code of Civil Procedure, which section makes no requirement of filing points and authorities, and that the court rule invoked against him deprives him of a statutory right and is therefore void. It is true that a rule inconsistent with a statute can have no validity; but the mere fact that the rule goes beyond the statutory provision does not make it inconsistent therewith. In Helbush v. Helbush, 209 Cal. 758 [290 Pac. 18], the defendant applied for a final decree of divorce without filing the affidavit required by Rule XXVI. This court gave full consideration to the extent of the rule-making power of the Judicial Council, and held the particular rule valid and not inconsistent with the statute. We said (p. 764): “Neither party has the right to a final decree and the court has no right to enter the same, except upon the existence of certain facts. When those facts exist the right to have the final decree entered accrues. How shall those facts be made to appear? Without the required affidavit the court must depend upon the oral representation of the party applying for the final decree or upon his own knowledge with reference thereto obtained either upon an investigation on its own account or under its direction. The rule provides the method by which the facts may be disclosed and it would seem to be a reasonable regulation to that end. No unreasonable hardship is placed upon the applicant to require that he make a showing of the essential facts in this manner. ’ ’

This reasoning is completely applicable here. Appellant had a statutory right to a change of venue upon a proper showing of grounds therefor; and the rule requiring points and authorities is a reasonable provision in furtherance of the statutory purpose. No possible hardship can fall upon the party who must comply with the rule; and appellant makes no claim to that effect.

The order is affirmed.


author:
PRESTON, J.
      LANGDON, J., Dissenting.

text:
    [L. A. No. 12725.
    In Bank.
    July 2, 1934.]
    JOHN KALASH, Respondent, v. LOS ANGELES LADDER COMPANY, Appellant; ASSOCIATED INDEMNITY CORPORATION (a Corporation), Intervener and Respondent.

      Dave F. Smith and Birney Donnell for Appellant.
    Haight & Trippet, Horton & Horton, Joseph K. Horton, Guy B. Graham, Robinson, Price & MacDonald', Joseph H. "Weisman, G. C. DeGarmo and W. M. Crane, as Amici Curiae on Behalf of Appellant.
    Syril S. Tipton for Intervener and Respondent.
    L. J. Styskal for Respondent.
    Livingston & Livingston, 0 ’Melveny, Tuller & Myers, Walter K. Tuller and Jackson W. Chance as Amici Curiae on Behalf of Respondent.
   PRESTON, J.

Plaintiff, a painter by trade, acting in the course of his employment, on April 8, 1929, was standing on the next to the top rung of a forty-foot extension ladder, hanging window screens on the outside of an apartment house in Los Angeles owned by Hart Brothers Company, his employer. While so engaged, the rung of the ladder on which he was standing collapsed, due to its defective condition, and plaintiff was thereby precipitated a distance of some thirty feet to the sidewalk and sustained serious and permanent physical injuries. The Los Angeles Ladder Company, defendant and appellant here, manufactured the ladder on a date subsequent to January 1, 1929, and sold it to said employer on March 8, 1929.

Plaintiff brought this action against said defendant, charging it as manufacturer with negligence in the construction of the ladder and further charging that the ladder was such an instrumentality as to be imminently dangerous when defectively constructed or assembled. Plaintiff had verdict and judgment thereon. Defendant moved for a new trial and also for judgment notwithstanding the verdict. Both motions were denied and defendant later appealed from the judgment.

We are aware that a ladder is a rather simple tool and that no contractual privity existed between plaintiff and defendant. We further realize that the common law, as a general rule, throws a strong arm of protection around the manufacturer, warding off claims of third persons, not direct purchasers, for personal injuries sustained from use of articles so manufactured and sold by him. But we are at the same time in full sympathy with the acknowledged exceptions to this general rule and also with the trend of judicial decisions which extend these exceptions to include additional classes of cases not heretofore included. The language of Mr. Justice Cardozo, while a member of the New York Court of Appeals, in the case of MacPherson v. Buick Motor Co., 217 N. Y. 382 [111 N. E. 1050, Ann. Cas. 1916C, 440, L. R. A. 1916F, 696], seems appropriate:

“We hold, then, that the principle of Thomas v. Winchester, 6 N. Y. 397 [57 Am. Dec. 455], is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. ... In such circumstances, the presence of a known danger, attendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.”

The same learned justice, in his work entitled “The Growth of the Law”, comments further upon this subject as follows (The Growth of the Law, 1924 ed., p. 77) : “The development is merely a phase of the assault, now extending along the entire line, upon the ancient citadel of privity. In New York, there is a remedy in tort, regardless of privity against the negligent manufacturer, where the subject of the manufacture is likely to be dangerous to life (MacPherson v. Buick Motor Co., 217 N. Y. 382 [111 N. E. 1050, Ann. Cas. 19160, 440, L. R. A. 1916F, 696].) The things classified as dangerous have been steadily extended with a corresponding extension of the application of the remedy. They began with Thomas v. Winchester, 6 N. Y. 397 [57 Am. Dec. 455], and the sale of poisons. They have been widened until they include a scaffold (Devlin v. Smith, 89 N. Y. 470 [42 Am. Rep. 311] or an automobile (MacPherson v. Buick Motor Co., supra), or even pies or cakes when nails and other foreign substances have supplied ingredients not mentioned in the recipes of cook books.”

This same tendency in England is noted in a recent decision by the House of Lords, styled Donoghue v. Stevenson, (1932) Appeal Cases, 562, where the subject received extensive consideration and the doctrine announced by Mr. Justice Cardozo was approved.

This court has marched in complete step with these advancing judicial pronouncements. Witness among others the recent case of Dahms v. General Elevator Co., 214 Cal. 733 [7 Pac. (2d) 1013], where it is said (p. 740): “In many jurisdictions, in recent years, there has been a marked tendency to extend the exception under discussion beyond inherently dangerous articles to those articles which are reasonably certain to place life and limb in peril if negligently prepared or constructed (citing cases).” See, also, to the same effect: Hall v. Barber Door Co., 218 Cal. 412 [23 Pac. (2d) 279], Kolberg v. Sherwin-Williams Co., 93 Cal. App. 609, 613 [269 Pac. 975], and Cliff v. California Spray Chemical Co., 83 Cal. App. 424 [257 Pac. 99].

We feel that no good purpose will be served by attempting to review at length the wide range of discussion that has attended the progressive development of the rules of law now governing causes involving this subject. Sufficeth it to say that from the principles stated we easily conclude that it was a proper question of fact for the jury as to whether or not an extension ladder of recent manufacture, when used as plaintiff was using it, became, because of defective construction or assembling, an instrument imminently dangerous to human life or limb.

But whether or not, as contended by appellant, the evidence shows, as a matter of law, freedom from actionable negligence in the construction and assembling of said ladder, presents a question not so easily resolved. In this behalf the court instructed the jury as follows: “Because they are alleged by the plaintiff to be true, and are not denied by the defendant, the following facts are deemed to be proved: That if there were any defects in material, workmanship or construction, such defects were not possible of discovery by general observation or superficial examination; that if any such defects existed, they were hidden, latent and invisible. ...”

The effect of this instruction was practically to exonerate the plaintiff from the charge of contributory negligence, but it also had the effect of strengthening defendant’s claim that it used ordinary care in the manufacture of said ladder. It practically reduced the case to one where the judgment of an expert in the texture of woods alone might have detected infirmity in the rung. Whether the standard of manufacture in the trade required the employment of such an expert does not clearly appear nor does it clearly appear that the employees of defendant were not such experts. Moreover, the experts who testified for plaintiff were so shaken and weakened upon cross-examination as to practically demonstrate the unreliability of their opinions.

The undisputed facts shown by defendant respecting manufacture of the ladder were as follows: Defendant has been engaged in the ladder manufacturing business for many years, employing competent and skilled workmen, mechanics, laborers and foremen. It constructs annually some 200,000 ladders of the type here involved. Apparently in constructing the ladder and finishing the rung in question, defendant pursued its customary course substantially as follows: The rung was one of many thousands included in a carload purchase from a lumber and hardwood dealer of good repute in the trade, the quality of whose wares is generally respected ; when delivered it had been cut to size so that it was only necessary for defendant to fix the ends to fit into the sides of the ladder. The said carload was ordered by sample, selected from a number of samples of good material by defendant’s general manager, who had had some twenty years’ experience in the purchasing of ladder material. Upon arrival of the carload, the material and samples were compared by said manager and two experienced men; they were found to tally; hence, the lumber was accepted, went into stock and from it were finished the rungs of the ladder in question. Before going into stock, however, different tests were made on a set of samples taken from the lot. One or two pieces were put in a vise and struck with a ten-pound sledge for a test of strength. Another piece was taken and put between two side rails; a rope was thrown over the rung from which a platform was hung and a test of 800 pounds was put on it.

The ladder in question was made from said stock subsequent to January 1, 1929, or within a few months from the time of its purchase. In process of manufacture the ladder, and said rung, went through many hands. The rung was tenoned to fit into the ladder, that is, the ends were shaped and slightly reduced to fit the sides. In this process the rung was handled three times by the operator, the grain of wood was observed and the weight test given. Any brashness or defect, if obvious, would have been detected by the feel in the “heft” of the piece. It was customary to handle one rung at a time in process of tenoning. Thereafter the rungs went to another department to be tested and placed. As each rung was placed, it was nailed in and the sound, when it was struck with a hammer, would indicate any defect or unsoundness. After being assembled, the ladders were again inspected in the shipping and sales department. It was customary to follow each of the above-mentioned steps in the construction of the ladders and’ to have an experienced operator for each and every handling of each and every rung thereof. The ladders were sold unpainted, with nothing covered or concealed.

The showing of plaintiff contrary to that above set forth was: He produced two expert witnesses who in substance stated that the rung was faulty and that they could have discovered its brash substance by an inspection thereof; that had they been manufacturers they would have rejected it as unfit ladder rung material and, moveover, that an ordinary mechanic or workman would not have been able to detect its infirmity. This evidence was developed largely upon cross-examination by defendant’s attorney, his theory evidently being that if it took experts in wood textures to discover the defect, then defendant could not be charged with lack of ordinary care in the premises. Both of said experts, however, were put to a practical test, on cross-examination, by exhibiting to them for their inspection and judgment, certain specimen rungs designated as exhibits A, B and C. Witness Rigelsberger testified that exhibit A was a brash piece of wood and unfit for use and that exhibits B and 0 were tough, strong and reliable pieces of wood. Witness Wohlman testified that exhibit A was a good piece and that exhibit 0 was brash and unfit. Exhibit A was then put to a weight test and not only stood the standard test of 800 pounds, but actually stood 936% pounds before fracturing. Exhibits B and C also withstood the 800-pound test successfully. As already noted, neither party produced evidence setting up- the standard of care obtaining among manufacturers of ladders. This standard may or may not require the submission of each finished product to the judgment of an expert, experienced in the classification of textures of woods. We are therefore hesitant to apply the rule of substantial conflict of evidence to this verdict.

It is not necessary, moreover, to definitely declare as a matter of law the absence of proof of negligence for we are clearly of the view that many of the instructions of the trial court to the jury were so erroneous and confusing as to require a reversal of this judgment. For instance, plaintiff’s instruction No. 11 was as follows:

“It is true as a matter of law that cases may arise in which without the privity of contract, breach of duty arising as a matter of law may be imputed to the defendant. If you find from the evidence that the accident happened through the character of the ladder being, imminently dangerous and plaintiff was injured because of the imminently dangerous character of the ladder without knowledge on his part of the imminently dangerous character thereof, and if you find that plaintiff himself was not guilty of contributory negligence proximately related' to the accident in question, you will find a verdict in favor of the plaintiff.”

This was a so-called formula instruction, but it omitted the rule of proximate cause. More than this, it did not require that negligence of defendant be shown at all, but charged it with liability practically as an insurer, it being only necessary to show that the ladder was in fact inherently dangerous and of which fact plaintiff was ignorant.

Another formula instruction requested by plaintiff and given was No. 14, as follows: “If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If, to the element of danger, there is added knowledge that the thing will be used by persons other than the purchaser, and used without due test, then, irrespective of any privity of contract the manufacturer of this thing of danger is under duty to make it carefully. And if you find from the evidence that the defendant did not -construct the ladder carefully, it breached a duty it owed to plaintiff and you will consequently find in favor of the plaintiff.”

That instruction omitted both contributory negligence and proximate cause and predicated liability solely upon a failure to construct the ladder “carefully” without attempting to define an applicable standard of care. It assumed that the ladder was an instrument of danger, which was a question of fact for the jury.

Again, at the request of plaintiff, the court, after declaring in instruction No. 20 and the first part of instruction No. 21, the warranty undertaken by a manufacturer with a purchaser respecting latent defects, used the following language: “If you find, however, that no contractual relationship existed between the plaintiff and defendant, and therefore, the warranty above mentioned is not applicable, I further instruct you that regardless of the warranty and regardless of contractual relationship between the parties, the defendant is liable if the article is imminently dangerous, and that fact is unknown to the plaintiff who is injured as a result of such imminently dangerous character of the article.”

This instruction seems clearly to charge defendant as an absolute insurer and to emphasize the fact by contrasting this liability with that of the warranty of a manufacturer to his purchaser.

In apparent contradiction of the above, the court, at whose request it is not shown, instructed the jury as follows:

“Instruction No. 42. If you find from the evidence that defendant had no knowledge of any defect in the ladder that would render it inherently dangerous, your verdict will be for defendant.”
“Instruction No. 46. If you find from the evidence that the ladder was sold to plaintiff’s employer and that it was in fact defective and inherently dangerous when sold; and if you also find from the evidence that defendant believed it to be free from defects and not inherently dangerous, your verdict will be for defendant.”
“Instruction No. 47. Unless you find from the evidence that defendant concealed from plaintiff the danger arising from defects in material, workmanship or construction of the ladder, your verdict will be for defendant.”

Having in mind the state of the evidence, as above noted, we think the jury should have had a clearer and more accurate statement of the law applicable to the ease. We are of the view that the defendant suffered material prejudice from this failure. We say this too notwithstanding the fact that contributory negligence and proximate cause were, in other parts of the charge, properly defined.

Judgment reversed.

Shenk, J., Waste, C. J., and Thompson, J., concurred.

LANGDON, J., Dissenting.

I dissent. The majority opinion holds that a duty of care was owed to plaintiff, and the only remaining question is whether the jury were justified in finding a violation of such duty, that is, in finding that the dangerous condition of the ladder was a result of negligence on the part of defendant. The only defect was in the rung. It was made of oak, a wood generally approved for the use to which it was put, but the particular piece was “brash” or brittle, and incapable of supporting any substantial weight. It had been purchased by defendant from a concern in Arkansas as part of a carload lot of over 100,000 rungs. The evidence shows that less than a dozen rungs out of the carload bad been taken out and specially examined for defects, and that the only other testing was by the observation of the workmen who assembled the ladders. If they felt, in handling a rung, that it was too light, a sign of brashness, they would discard it. The rungs of the assembled ladders were also struck with a hammer to ascertain defects through the sound. It therefore appears that no scientific test was made of each rung, either prior to or after its insertion in the ladder, the matter being left to the ordinary observation of the workmen. Whether this constitutes negligence depends upon an answer to two questions: Could the workman accurately determine brashness in wood through observation; and could an expert discover it by some reasonable and not impracticable test? In view of the settled rule limiting the power of an appellate court to reach a conclusion on the factual question of negligence different from that reached by the jury, I am of the opinion that the evidence, coupled with legitimate inferences, makes out a case for the plaintiff. Plaintiff’s witnesses, properly qualified as experts, testified that the ordinary mechanic or mill workman could not, by simple observation, determine the strength of the wood; and that an expert, by observation of the ends, as cut, could make such a determination. Whether the cross-examination of these witnesses weakened their testimony is also, of course, a question for the jury.

In the construction of an article which, when used, may if defective become highly dangerous to human life, I think the evidence shows too low a degree of care. Conceding that the jury may not arbitrarily set a standard beyond that recognized in the community, it does not follow that the customary practice of the defendant, which indicates some degree of care, sufficiently meets the standard. The danger to human life involved in the use of a defective extension ladder was such as to require a higher degree, and the jury’s verdict therefore finds support in the evidence. (See 20 R. C. L., sec. 18; 19 Cal. Jur. 579.)

The defects in the instructions were all cured by proper qualifying instructions, and I cannot agree that the jury were in any way confused by them as to the simple issue of negligence presented by the facts.

I think the judgment should be affirmed.

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

Rehearing denied.


text:
    [S. F. No. 15145.
    In Bank.
    July 3, 1934.]
    OTTO A. GERTH et al., Petitioners, v. ROBERT DOMINGUEZ, City Clerk, etc., Respondent.

      Otto A. Gerth, in pro. per., and Roy A. Linn for Petitioners.
    Ray L. Chesebro, City Attorney, and Frederick von Schrader and William H. Neal, Assistants City Attorney, for Respondent.
    Ralph G. Lindstrom, Macfarlane, Schaefer, Haun & Mulford, Hulme, Hastings & Bartlett, Marshall Stimson and Louis W. Myers, as Amici Curiae on Behalf of Respondent.
   THE COURT.

This is a petition for a writ of mandate to compel respondent, Clerk of the City ■ of Los Angeles, to count in favor of a recall the names of certain electors signed to recall petitions. The parties have stipulated to the facts, and questions of law alone are presented.

Under the provisions of the School Code, the board of education of the city of Los Angeles is the governing body of three school districts, the boundaries of which extend beyond the city. The Los Angeles City School District, for elementary schools, includes the city and several other municipalities, together with some unincorporated territory. The Los Angeles City High School District includes all of the territory of the elementary school district, and additional incorporated cities and unincorporated territory. The Los Angeles City Junior College District has the same boundaries as the high school district, and these are about twice the size of the city itself. It is further provided in the School Code that any such annexed territory shall be deemed a part of the city for the purpose of holding a general municipal election at which any member of the board of education is to be elected (sec. 2.471); that the members of such a city board of education shall be elected at large from the territory within the boundaries of the districts under the jurisdiction of the board (see. 2.971); and that all qualified electors in a school district, “whether residing within or without the boundaries of the incorporated city or town, shall be entitled to vote for members of the board of education at any election held for that purpose” (sec. 2.55).

Pursuant to these statutory provisions, members of the city board of education were elected by voters throughout the district on May 5, 1931. On April 2, 1934, petitions were filed seeking the recall of three members of the board. The petitions followed the procedure set forth in the Los Angeles city charter (art. XXVII, sec. 290 et seq.). A total of 96,567 names was subscribed. A few thousand names were rejected for various irregularities, but the remaining signatures would be ample in number, were it not for the position taken by respondent on the validity of two classes: (1) those of electors residing in the district but outside the city, and those obtained by circulators who were not residents of the city but were residents of the district; (2) those in which the precinct numbers were incorrectly designated.

The chief question is whether the electors of the district have the right to recall members of the city school board. Respondent relies upon the city charter, which provides that circulators shall be qualified electors of the city (see. 290) and that at the recall election the question shall be submitted to the electors of the city. (Sec. 290 [c].) Amici curiae appearing on behalf of respondent contend that there is, under the existing constitutional, statutory and charter provisions, no procedure at all for the recall of members of the city board of education. They reach this conclusion by pointing out that the charter provisions on recall in terms apply only to the city of Los Angeles, but that to restrict the right of recall to electors of the city would deprive residents of the district outside the city of constitutional rights. Respondent also urges the unfairness of placing the entire expense of conducting the election upon the city.

In our opinion, there is a sufficient statutory basis for the right claimed by petitioners. It is settled in this state that the school system is a matter of general concern, and not a municipal affair. Consequently, the School Code governs, and charter provisions must be interpreted in conformity therewith. (See Kennedy v. Miller, 97 Cal. 429 [32 Pac. 558]; Hancock v. Board of Education, 140 Cal. 554 [74 Pac. 44]; Los Angeles City School District v. Longden, 148 Cal. 380 [83 Pac. 246] ; Board of Education v. Davidson, 190 Cal. 162 [210 Pac. 961] ; Whitmore v. Brown, 207 Cal. 473 [279 Pac. 447] ; Esberg v. Badaracco, 202 Cal. 110 [259 Pac. 730].) Since the legislature has, by express language in the School Code, declared that residents of the district but outside the city may vote at the election of members of the city board, this right is established beyond question. If the charter were construed to deny or abridge it, the charter provisions would be void by reason of conflict with the state law.

The School Code contains no express statement on the right of recall in this situation. But it does contain sections which, reasonably construed, protect the right. One, to which reference has already been made, provides that the annexed territory “shall be deemed a part of the city for the purpose of holding the general municipal election”. (Sec. 2.471; see, also, sections 2.113, 2.114, 2.470, 2.472.) Another provides that in cases where the electors o£ a school district have voted at a school election under a city charter, under the circumstances present here, “then the electors of such school district shall be deemed to have submitted to be governed in all matters relating to the management of public schools within such school district or high school district as fully and to all intents and purposes as though the electors of such school district or high school district had by their votes elected to be governed by the provisions of such charter”. (See. 2.54; see, also, section 2.50.)

We see no reason why the recall provisions of the Los Angeles charter, applicable to the members of the board of education, may not be deemed a matter relating to the management of the public schools; and if they are, then the electors of the district residing outside the city have subjected themselves to these provisions, and are entitled to avail themselves of them. This conclusion avoids the extraordinary results which would follow from a failure to give the above-quoted section this broad construction: either a right of recall limited to the electors resident in Los Angeles, an unwarranted and no doubt an unconstitutional discrimination against residents of the district outside the city; or an immunity of such boards of education from any recall. We cannot ascribe to the legislature the intention to create either of these conditions, and we believe that the manner in which we have resolved the uncertainties is in accord with the general legislative purpose in establishing these peculiar districts governed by city boards of education.

The case of Ackerman v. Moody, 38 Cal. App. 461 [176 Pac. 696], contains the brief statement that the right to recall members of the board of education of the city of San Diego is, equally with the right to elect them, vested in the city. It does not appear from the opinion that any attempt was made to deny the right to persons in the annexed territory within the district, the sole point at issue being whether the members of the board were subject to recall at all. (See Ward v. San Diego School District, 203 Cal. 712, 716 [265 Pac. 821].) The Ackerman case is not an obstacle to the conclusion we have reached.

It follows that the signatures of electors residing in the district, though outside the city, were proper; and it is equally clear that no valid objection can be made to signatures secured by circulators residing in the district though outside the city.

With respect to the precinct numbers, we think that the action of respondent was justified. The charter requires the numbers, as an aid to cheeking signatures, and the difficulties involved in searching the alphabetical register of voters to check names having incorrect precinct numbers are numerous. There is no reason why this added expense should be cast upon the city. It is true that in Ley v. Dominguez, 212 Cal. 587 [299 Pac. 713], we pointed out that the failure to designate correct precinct numbers did not invalidate the signatures. However, the proponents of the petition in that case offered to supply the correct numbers and were refused permission to do so. In the instant case, respondent called the errors to the attention of the sponsors, and offered them the opportunity to correct them, which they failed to do. This brings the case within the views expressed by us in Mayock v. Kerr, 216 Cal. 171 [13 Pac. (2d) 717], and in consonance with that decision, we hold that the names may be considered if and when the correct numbers are furnished by the sponsors of the petition.

It is therefore ordered that a writ of mandate issue requiring the City Clerk of the City of Los Angeles to count in favor of the recall all names signed by qualified electors of the Los Angeles City High School District, including both qualified electors of the city and qualified electors of the territory in the district, but outside the boundaries of the city; and to count also in favor of said recall the names of all electors otherwise qualified, appearing on petitions circulated by qualified electors residing in the district, but outside the boundaries of the city; and to permit a reasonable time for the furnishing of correct precinct numbers by the sponsors of the recall for any names with incorrect or no precinct numbers, if requested by such sponsors; and thereafter to certify to the city council of the city of Los Angeles the result of his examination of the sufficiency of the petitions.

Rehearing denied.

Shenk, J., dissented.


author: WASTE, C. J.

text:
    [S. F. No. 15098.
    In Bank.
    July 5, 1934.]
    ULRICH DIETHELM, Respondent, v. EDWARD RAINEY, as Superintendent, etc., Appellant.
    Sullivan, Roche, Johnson & Barry for Appellant.
    Williamson & Wallace for Respondent.
    Pillsbury, Madison & Sutro, Alfred Sutro, Eugene M. Prince and A. B. Tanner, as Amici Curiae on Behalf of Respondent.
   WASTE, C. J.

The Bank of Oakley, with a capital stock of 250 shares of the par value of $100 per share, was organized on August 20, 1920. Plaintiff, at an undisclosed date, became the owner and holder of one share of its stock. In 1925 he opened a savings account with said bank and made deposits therein. On December 19, 1930, the bank became insolvent, whereupon the Superintendent of Banks in the manner provided by law assumed possession of the bank and undertook to administer its affairs as an insolvent bank. In due time plaintiff filed a claim for his deposits which, at the time of the bank’s insolvency, aggregated $3,718.77. The Superintendent of Banks rejected the claim and this suit followed. Trial was had on an agreed statement of facts. From a judgment entered in favor of the plaintiff the Superintendent of Banks has prosecuted this appeal.

The disposition of the cause turns oh the construction to be placed on section 21 of the Bank Act as it read in 1930 (1 Deering’s Gen. Laws (1931), p. 237), the pertinent portion of which is as follows: “The capital and assets of such bank are a security to depositors and stockholders, depositors having the priority of security over stockholders.”

It is the appellant’s contention, in substance, that respondent, being a stockholder as well as a depositor, is precluded from participating ratably with other depositors and loses all rights as a depositor until the deposits of those creditors, who are not stockholders, are paid in full. In other words, the appellant urges that the section creates a preference in favor of nonstockholding depositors as against stockholding depositors.

Literally construed, the section as above quoted fails, in our opinion, to create the preference contended for by the appellant. Standing alone, uninfluenced by other considerations, the section draws no distinction between depositors. It broadly creates a preference in favor of all depositors, stockholding or nonstockholding.

Appellant is inclined to agree with this literal interpretation of the section, for in his opening brief he states that “Upon first impression, and without considering the history of section 21, or authorities relating thereto, one would be inclined to doubt that the priority given to depositors by said section was intended to inure only to the benefit of those depositors who are not stockholders. Indeed, one would be disinclined to place that construction upon section 21, unless compelled to do so, because of its effect upon the depositor who has a substantial deposit in the bank, who holds only a nominal stock interest therein and who takes no active part in its management.”

With this literal construction of the section in mind, we turn now to a consideration of its legislative history to ascertain whether a different conclusion is suggested. Appellant contends that the history of the section, and the authorities construing similar statutes superseded by it, definitely indicate the legislative intention to have been to defer the claims of stockholding depositors to those of nonstoekholding depositors. He refers us first to section 10 of the act of 1862 (Stats. 1862, p. 201) and to the cases of Murphy v. Pacific Bank, 119 Cal. 334 [51 Pac. 217], Id., 130 Cal. 542 [62 Pac. 1059] , and to Laidlaw v. Pacific Bank, 137 Cal. 392 [70 Pac. 277], applying the same. The act of 1862 provided in part that “the capital stock and the assets of the corporation shall be a security to depositors who are not stockholders, and the by-laws may provide that the same security shall extend to deposits made by stockholders”. This differs materially from the section here involved. The italicized language expressly limited the preference. granted in the act of 1862 to “depositors who are not stockholders”, unless changed by the by-laws.

With the adoption of the codes in 1872, section 573 of the Civil Code came into being. This court had occasion to refer to the section in People v. California Safe Deposit & Trust Co., 160 Cal. 374 [117 Pac. 321]. That section reads, in part, that “the capital stock and the assets of the corporation are a security to depositors and stockholders, depositors having the priority of security over the stockholders, but the by-laws may provide that the same security shall extend to deposits made by stockholders”. Here, again, the legislature, by the concluding proviso, definitely evidenced its intention to limit the preference, unless changed by the bylaws, to nonstockholding depositors.

We come now to section 21 of the Bank Act, adopted in 1909 (Stats. 1909, p. 92), which section is now before us for construction. This section superseded section 573, supra, as to banking corporations thereafter organized. As originally enacted, section 21 of the Bank Act was identical with the former section 573, providing, in part, that “the capital and the assets of the bank are a security to depositors and stockholders, depositors having the priority of security over the stockholders, but the by-laws may provide that the same security shall extend to deposits made by stockholders”. Thus, again, the legislature by the language employed definitely evidenced an intention to prefer nonstockholding depositors over stockholding depositors, unless changed by the by-laws. The section remained unchanged from 1909 to 1913, at which time (Stats. 1913, p. 147) the legislature deleted the concluding proviso to the effect that “the by-laws may provide that the same security shall extend to deposits made by stockholders”. As so amended, and until subsequent to the insolvency of the Bank of Oakley, the section provided, as first set out above, that “the capital and assets of any such bank are a security to depositors and stockholders, depositors having the priority of security over stockholders”.

We have already indicated that a literal construction of the section in this form fails to evidence a legislative intention to prefer nonstockholding depositors over stockholding depositors. Appellant, while so conceding, urges that the legislature by deleting the language providing for an equality between depositors by by-law provision intended to preclude such equality and to create a preference in favor of nonstockholding depositors. The point is arguable and the contention cannot be said to be without a semblance of merit. However, we are not inclined to accept the appellant’s reasoning. Inasmuch as a literal construction of the section as so amended fails to disclose the preference contended for by the appellant, and inasmuch as the deleted proviso theretofore was the only language in the section indicative of a distinction between stockholders, we are inclined to accept its elimination from the section as evidence of a legislative intention to place all depositors of an insolvent bank on an equal basis in the matter of participating ratably in dividends.

This conclusion not only avoids a harsh result, but is in accord with a recent amendment of the section (Stats. 1933, p. 1178) which now provides that stockholding depositors may enjoy the same priority as other depositors. The section as amended in 1933 reads: “The capital and assets of any such bank are a security to depositors and stockholders, depositors having the priority of security over stockholders; provided, however, that any stockholder who is also a depositor and who has paid all assessments, debts or other obligations due from him to the bank shall enjoy the same priority as other depositors.”

Appellant points to the 1933 amendment as the first and only express legislative declaration of equality between stockholding and nonstockholding depositors of an insolvent bank and argues that prior to this amendment of the section the legislature could not therefore have intended such equality. This reasoning, too, must be conceded to have some merit, but, again, we are inclined to adopt that reasoning which tends to support the literal construction of the section as it read in 1930 when the Bank of Oakley went into liquidation. In other .words, we are inclined to accept the 1933 amendment as some evidence that the legislature by expressly providing for an equality on specified conditions, between all depositors was merely attempting to clarify its intention in theretofore deleting from the section the proviso that previously gave rise to a distinction between stockholders, thus removing any ambiguity in the section as previously amended. One interpretation of this most recent amendment of the section is as reasonable as the other, and we are therefore inclined to accept that which is in accord with the literal construction of the section as it read when the Bank of Oakley became insolvent in 1930 and which, in addition, precludes the harsh result which would follow were we to adopt appellant’s theory.

The conclusion we have reached makes it unnecessary for us to here determine whether such a distinction as appellant contends for between stockholding and nonstockholding depositors of an insolvent bank would run counter, as respondent urges, to the case of Wood v. Hamaguchi, 207 Cal. 79 [277 Pac. 113, 63 A. L. R. 861] and to section 3 of article XII of the state Constitution, as creating a personal liability against stockholders, who are also depositors of a bank in liquidation, in excess of and in addition to that created and authorized by the constitutional provision. In view of our conclusion, any expression of opinion on this point would be dictum. We therefore leave the question open.

The judgment is affirmed.

Langdon, J., Preston, J., Shenk, J., and Thompson, J., concurred.


text:
    [S. F. No. 14950.
    In Bank.
    July 5, 1934.]
    ALASKA PACKERS ASSOCIATION, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION and JUAN PALMA, Respondents.

      Pillsbury, Madison & Sutro, F. D. Madison and Francis Gill for Petitioner.
    Arthur I. Townsend, Everett A. Corten and' Elmer P. Delany for Respondents.
   THE COURT.

This is a proceeding to review an award of compensation made by the Industrial Accident Commission in favor of Juan Palma against the Alaska Packers Association, his employer.

On May 13, 1932, Juan Palma, a nonresident alien, entered into a contract of employment on board the steamer “Chirikof” in the harbor of San Francisco, with the Quong Ham Wah Co., agent for the petitioner, the Alaska Packers Association, by which he agreed to work for the petitioner during the salmon canning season at or about Kvichak in the territory of Alaska. The Alaska Packers Association agreed to transport Palma to Alaska and back to San Francisco at the close of the season. He was to be paid on his return to San Francisco, at a monthly rate, less any advances made. Section 11 of the contract, signed by Palma, and some fifty other workers, on board the “Chirikof,” reads as follows:

“Section 11. As the only labor contemplated by this contract is to be performed in the Territory of Alaska, and as the Contractor has elected to be bound by the provisions of the Alaska Workmen’s Compensation Act, Chapter 25 of the laws of Alaska, 1929, pages 46 to 49 and amendments thereto, the parties of the second part hereby agree, as an incident of this contract of employment, to accept and be bound by the provisions of the said Workmen’s Compensation Act of Alaska for any and all injuries arising out of and in the course of their employment, and further agree to accept as their exclusive remedy for any and all industrial injuries, the provisions of the said Workmen’s Compensation Act of Alaska.”

Palma was treated on two occasions and was finally operated on in petitioner’s hospital in Kvichak, having left work on June 3, 1932. He presented no claim for compensation in Alaska, but received his regular wages until August 11th. Upon his return to San Francisco, and on August 18, 1932, he made application to the California Industrial Accident Commission for an adjustment of his claim on the ground that his disability had resulted from an injury arising out of and in the course of the employment and had been caused by an empty box falling against his stomach.

Petitioner filed an answer to the application, admitting the employment, but denying that the applicant sustained an injury arising out of the employment and setting up that both the applicant and the petitioner were subject, at the time of the alleged injury, to the Workmen’s Compensation Act of Alaska, chapter 98 of the Session Laws of Alaska, 1923, and chapter 25 of the Session Laws of Alaska, 1929, and acts amendatory thereof; and further, that petitioner was qualified to do business in Alaska, had filed in the office of the clerk of the District Court, Third Judicial Division, at Valdez, Alaska, its articles of incorporation and other papers qualifying it to do business in Alaska, and that it maintained, as required by law, its resident agent for the purpose of receiving service of papers in the third judicial division; that the District Court in that division was the only proper tribunal for the settlement of Palma’s claim by reason of the Alaska act and the contract of employment, section 11 of which is set out above; and that the California Commission was without jurisdiction. These allegations are supported by an affidavit of the United States commissioner of the Kaknek-Kvichak precinct that neither the applicant nor the Alaska Packers Association had filed a notice of rejection of the terms of the Alaska Workmen’s Compensation Act in accordance with the provisions thereof and that on May 26, 1932, and ever since the Alaska Packers Association and all their employees had been subject thereto, and by an affidavit of the clerk of the District Court of the Third Judicial Division that the Alaska Packers Association had qualified to do business in the territory of Alaska by filing the necessary papers and maintained a resident agent for service in that division.

While the petitioner questions the sufficiency of the evidence to support the finding that the injury arose out of the employment, the main attack is directed toward the jurisdiction of the Industrial Accident Commission to entertain this proceeding for compensation under the California Workmen’s Compensation Act. The respondent commission cites in support of its claim of jurisdiction sections 27 (a) and 58 of the California act, which provide as follows:

Section 27(a). “No contract, rule or regulation shall exempt the employer from liability for the compensation fixed by this act. ...”
Section 58. “The commission shall have jurisdiction over all controversies arising out of injuries suffered without the territorial limits of this state in those cases where the injured employee is a resident of this state at the time of the injury and the contract of hire was made in this state, and any such employee or his dependents shall be entitled to the compensation or death benefits provided by this act.”

Petitioner urges that this injury is within the exclusive territorial jurisdiction of Alaska and hence not within the territorial jurisdiction of California; and, second, that section 58 of the California act, above quoted, is unconstitutional for the reason that it denies full faith and credit to the Alaska statute, trespasses upon the exclusive power of Congress to make laws regulating the employer-employee relationship in the territory of Alaska, and constitutes a denial of due process and equal protection of the law under amendment XIY of the federal Constitution, inasmuch as it is an unreasonable regulation of the right to make private contracts of employment and an attempt to regulate a relation or status existing beyond the territorial limits of the state. The problem can be narrowed to some extent. In the first place, the California commission cannot apply and administer the Alaska act. Section 25 of chapter 25 of the Session Laws of Alaska, 1929, provides 'that “No action for the recovery of compensation hereunder shall be brought in any court holden outside of the judicial division in which the injury occurred, out of which the right to compensation arises, except in cases where service cannot be had on the employer in the judicial division where the injury occurred. No action for the recovery of compensation hereunder shall in any case be brought outside of the Territory of Alaska, except in cases where it is not possible to obtain service of summons upon the defendant in said Territory, and in all such cases the plaintiff must plead and prove his inability to obtain service of summons upon the defendant within the Territory of Alaska.” In the second place, if California has not attempted an extraterritorial regulation of the incidents of employment, petitioner’s argument relative to invasion of the exclusive jurisdiction of the federal government to regulate employment in Alaska must fail; nor is there any denial of due process and equal protection by reason of extraterritoriality.

It is fundamental and has been well said that: “In general our law is territorial and not personal. This does not mean that rights and duties can be enforced only in the territory of the jurisdiction which created them; it does mean that such law does not ordinarily purport to create rights and impose duties by reason of acts, to which legal consequences may be annexed, occurring beyond the geographical confines of its territory.” (See Angell, Recovery Under Workmen’s Compensation Acts for Injury Abroad, 31Harv. L. Rev. 619.) However, the California act does purport to establish compensation for injuries received abroad in a certain class of cases where (the other general requirements of compensation of course being present): (1) the injured employee is a resident of this state at the time of injury, and (2) the contract of hire was made in this state. The first condition has been nullified by the decision in Quong Ham Wah Co. v. Industrial Acc. Com., 184 Cal. 26 [192 Pac. 1021, 12 A. L. R. 1190] (certiorari denied by the United States Supreme Court, 255 U. S. 445 [41 Sup. Ct. 373, 65 L. Ed. 723]), which held that the federal Constitution extended the benefits of the act to nonresidents also. The second condition remains and squarely presents the question whether the making of the contract of employment in this state is a satisfactory and sufficient basis for the creation by the California legislature of the right of compensation for an injury received beyond its borders, even though the services contracted for were to be performed wholly outside the state, a consideration apparently not urged upon the court in the Quong Ham Wah Co. case.

Where the duty to pay compensation is contractual, as under the optional acts, the rights of the injured party, wherever the injury is received, may, according to recognized principles, be controlled by the law of the place of contract. However, the California act is compulsory and it is now settled.that the right to, and the liability for, compensation established by it are not founded upon contract but are statutory rights and duties arising from the employer-employee relationship and are imposed by the law as incidents to that status. (North Alaska Salmon Co. v. Pillsbury, 174 Cal. 1 [162 Pac. 93, L. R. A. 1917E, 642] ; Quong Ham Wah Co. v. Industrial Acc. Com., supra, 31 Harv. L. Rev. 619.) Consequently a decision upholding the so-called extraterritorial effect of our act cannot be placed upon this ground.

In Post v. Burger & Gohlke, 216 N. Y. 544 [111 N. E. 351, Ann. Cas. 1916B, 158], this extraterritorial effect was given the New York act on the basis of the fiction of a “constructive contract”, on the theory that the legislature had the power “to compel a contract between employer and employee that is extraterritorial in effect”. This case is cited in Quong Ham Wah Co. v. Industrial Acc. Com., supra, which described the liability as not the mere regulation of a status or imposition of a tort liability but as “quasi ex contractu”, and sustained an award under section 58 of the act for an injury received outside the state on the ground that the statute assumed to extend its effect “only to those cases where the contract of hire was made in this state”, and that consequently it is “not an attempt to create an obligation merely as an incident to a status but is, in form and substance, a genuine regulation of contracts subject to the sovereignty of the state”. The court further said: “The contract creates a relationship under the sanction of the law and the same law attaches as an incident thereto an obligation to compensate for injuries sustained abroad amounting to a sort of compulsory insurance. The legislature may lawfully impose that right and duty upon those operating under a contract subject to the legislative power, and no principle of law is defeated by attaching to such contracts the same duties and rights as incidents to acts abroad that are lawfully imposed as incidents to the same acts occurring within the geographical limits of the state.” While there is much apparent conflict on this question in the various jurisdictions of the country, most of the cases turn upon the construction of the particular statute involved and the legislative intent as shown by its provisions. Though not controlling, in view of the legislature’s express declaration that our statute shall apply to injuries received abroad where the contract of hire is made within the state, these cases are instructive of the social policy behind such declaration and of the principles upon which it may be sustained. Where the statute is elective the contractual theory has been applied and, where the statute is compulsory, as well as in some cases where the elective feature of the optional act has not been particularly relied upon, the basis of the power to impose such an incident upon the employer-employee relationship seems to be jurisdiction of that status at the time of its creation. Although there are many eases holding that particular compensation statutes were not intended to cover injuries received abroad, none has been cited or discovered which holds an express legislative declaration of that policy to be ineffective. (See note, 3 A. L. R. 1351 [collecting and discussing cases] and supplemental notes in 18 A. L. R. 292; 28 A. L. R. 1345; 35 A. L. R. 1414; 45 A. L. R. 1234; 59 A. L. R. 735; 82 A. L. R. 709; also 31 Harv. L. Rev. 619, supra, and 37 Harv. L. Rev. 375.) We are of the opinion that the creation of the status under the laws of this state is a sufficient jurisdictional basis for the regulation of that relationship within this state and the creation of incidents thereto which will be recognized within this state, even though the relation was entered into for purposes connected solely with the rendition of services in another state. If this were not so there could be no compensation for an injury, arising out of and in course of the employment but occurring before the jurisdiction in which the services were to be performed had been entered, or where that jurisdiction had no compensation statute. This would seriously interfere with the policy of the act, which is to charge to the industry those losses which it should rightfully bear, and to provide for the employee injured in the advancement of the interests of that industry, a certain and prompt recovery commensurate with his loss and, in so doing, lessen the burden of society to care for those whom industry has deprived, either temporarily or permanently, of the ability to care for themselves. Having a social interest in the existence within its borders of the employer-employee relationship, the state may, under its police power, impose reasonable regulations upon its creation in the state. That the imposition of such conditions is in line with the present-day policy in compensation legislation cannot be doubted. Similar provisions have been upheld and enforced in Falvey v. Sprague Meter Co., 111 Conn. 693 [151 Atl. 182], Roberts v. I. X. L. Glass Corp., 259 Mich. 644 [244 N. W. 188], Pederzoli’s Case, 269 Mass. 550 [169 N. E. 427], McLaughlin’s Case, 274 Mass. 217 [174 N. E. 338], and Migue’s Case, 281 Mass. 373 [183 N. E: 847], even though the services were to be performed entirely in- another state. It is true that these acts have elective features, but in the Massachusetts cases the decisions were not placed upon that ground but upon the legislative intent to cover such situations, the constitutionality of the provision not being discussed although the question was raised. We consider this a reasonable regulation having a direct relation to the protection of the public, especially under the facts of the present case, since the employment was to both commence and terminate in this state. Palma was, under the contract of employment, to be transported from San Francisco to Alaska and back, and was to be paid off on his return to San Francisco.

Additional points made by the petitioner are that on conflict of laws principles, the Alaska act should govern the determination of Palma’s claim, and that the failure of the commission to recognize the Alaska act, when pleaded as a defense to this application, was a denial of the full faith and credit to which it was entitled under the federal Constitution.

It should, first, be observed that in Quong Ham Wah Co. v. Industrial Acc. Com., supra, the court was primarily concerned in determining the validity of section 58 with reference to article IY, section 2, of the federal Constitution, and the first clause of section 58, which extended the benefits of the act in connection with injuries abroad only to residents of this state. The consideration of the nature of the “extraterritorial” effect to be given the act and' the language quoted above was in answer to the argument that the obligation placed on the employer was one which could only be imposed by the law of the place of injury or of the place of the servant’s domicile, and hence that the qualification of residence was a jurisdictional limitation and not discriminatory. It does not appear that the law of the place of injury was set up as a defense or that the questions thus presented were urged upon the court in that case.

This phase of the problem is essentially one in conflict of laws. The jurisdiction of both Alaska and California may be sustained, the one upon the basis of control of the status at the time of the injury, the other upon the basis of control at its inception. (See American Law Institute, Restatement of Conflict of Laws, Proposed Pinal Draft No. 4, sees. 434 and 436.) We have been referred to many decisions of state courts, principally later New York decisions modifying Post v. Burger & Gohlke, supra, which apply the rule that where the contract is for services to be performed exclusively abroad and the injury is received there, the law of the place of injury will be applied. (Cameron v. Ellis Const. Co., 252 N. Y. 394 [169 N. E. 622], See, also, MacKesson-Fuller-Morrison Co. v. Industrial Com., 212 Wis. 507 [250 N. W. 396], and discussion of cases in the notes above cited). But for the most part these cases, as already indicated, deal with the construction of various acts as intending or not intending a recovery of compensation for injury received abroad where the contract, made in the state of the forum, contemplated an exclusively foreign employment. In American Liability Ins. Co. v. McCaffrey, 37 Fed. (2d) 870, the court applied the rule that a contract made in one state, to be wholly performed in another, is governed by the law of the state where the performance is to be held. In Ford, Bacon & Davis v. Volentine, 64 Fed. (2d) 800, which did not decide the question, the problem is stated with regard to optional laws: “Under elective laws the obligation to make compensation exists because the parties to the employment have expressly or impliedly agreed to it, surrendering their rights to other adjustment for injuries. Where, as in this case, the entire performance of the employment is to be in another state, a serious question may exist whether the parties did not really contract with reference to the law of that other state, which ought accordingly to enter into the contract rather than the law of the place of its making. . . . Many courts, however, disregarding the place where the services are to be rendered, have considered that an elective compensation act of the place of contract follows the employee wherever he renders service under the contract, and is to be enforced in suits for injuries in other states unless that compensation act itself provides against its applying beyond its own state, or unless the public policy of the forum or a lack of necessary machinery prevents its enforcement.”

Our act being compulsory, neither line of reasoning can be applied. The parties cannot be said to have contracted with reference to the law of either jurisdiction other than as the laws of this state enter into and are a part of every contract made here, and, as by going into another jurisdiction to perform services under a contract of hire, they submit themselves to its laws. The attempted selection of the Alaska act as the governing law in section 11 of the contract is not available to the petitioner. A contract attempting to avoid the liability imposed by the California act is invalid. (Sec. 27[a] of the Workmen’s Compensation, Insurance and Safety Act of 1917; San Francisco-Oakland Terminal Rys. v. Industrial Acc. Com., 180 Cal. 121,127 [179 Pac. 386] ; Hines v. Industrial Acc. Com., 182 Cal. 359 [188 Pac. 277].)

Petitioner cites as particularly applicable the following comment following section 434 of the Proposed Pinal Draft No. 3 of the Restatement of Conflict of Laws, American Law Institute: “The case of employment through an employment agency in one state where the entire business is carried on in another state, and the applicant is merely sent to the principal office to report, is specially treated. In such a case the relation is regarded as established not by the action of the agency, but by the workman reporting for work at the principal office of the business, the transaction at the employment office not being regarded as definitive hiring. In that ease the compensation act of the state where the workman reported for duty governs liability for injuries.” The Restatement on Conflict of Laws has not reached its final form. The foregoing comment on section 434 does not reflect the general rule, but rather an exception to or modification of the general rule announced or suggested for approval' by the institute in section 434 of the latest Proposed Draft No. 4, published March 22, 1934, as follows:

“Compensation Under Act of State of Employment.

“A workman who enters into a contract of employment in a state in which a Workmen’s Compensation Act is in force can recover compensation under the Act in that state for bodily harm arising out of and in the course of employment, although the harm was suffered in another state, unless the Act provides in specific words or is so interpreted as to apply only to bodily harm occurring within the state.”

Section 58 of the California act is in accord with the foregoing proposed final draft, and, whether it be in the exact form to be finally adopted, undoubtedly it reflects the final trend of the law on the subject. If the proposed final draft should have any bearing on the present case, the general rule as suggested, and not a comment noting an exception or modification of the general rule, would be the more persuasive.

Furthermore, in the light of the foregoing “comment” we regard the employment agreement pursuant to which the applicant went aboard the “Chirikof” and was transported to Alaska, as “definitive”. The parties both signed the contract. It apparently contained all the important conditions of the employment. The transportation and the payment of wages, which were both important incidents of the contract of hire, were not to be performed in Alaska. Moreover, whatever may be the correct rule in conflict of laws to be applied in the ordinary case of a contract of employment made in this state, to be performed exclusively in another jurisdiction, such contracts as the present one, which hire itinerant labor in large groups to be transported out of the state for seasonal work and returned to this state at the end of the season, constitute a special class of employment contracts in which the state of hiring has an interest at least as substantial as that of the state in which the temporary and seasonal work is to be performed. The laborer injured in the course of such employment is, by the terms of his contract of hire, to be returned to that state to become a charge upon it if he cannot obtain compensation or take care of himself. To leave the applicant to his remedy in Alaska in such a case would create a great hardship. In this class of employment the employer exercises great control over the presence of the applicant in either jurisdiction. Should he stay to prosecute his claim in the jurisdiction of the injury it is quite likely that he would lose his return transportation.

We come now to the question of the recognition to be accorded the Alaska act. The United States Supreme Court has held in a ease where the contract of employment was made in Vermont, the principal employment was located there and the Vermont statute was elective and clearly exclusive (i. e., precluded, without the necessity of construction, any recovery under the law of another state) ; that it was a denial of full faith and credit for the New Hampshire court to refuse to allow the Vermont act to be set up as a defense to an action in New Hampshire, where the employee was working temporarily at the time of his injury. (Bradford Electric Light Co. v. Clapper, 268 U. S. 145 [52 Sup. Ct. 571, 76 L. Ed. 1026, 82 A. L. R. 696].) In Ohio v. Chattanooga Boiler & Tank Co., 289 U. S. 439 [53 Sup. Ct. 663, 77 L. Ed. 1307], it was held that it was not a denial of full faith and credit to apply the compulsory law of the state of injury where the contract, made in Tennessee, provided that the workmen should also serve in other states and the Tennessee act had been interpreted by the Tennessee courts as not precluding recovery in another state. The conclusion reached herein is not inconsistent with those cases which have left open the question of what law is applicable where the state of injury is the state where the major incidents of the employment are located although the contract is made elsewhere. Nor do we here attempt to decide that question except in the special class of cases now before us. In addition, we may add that it is not ordinarily a denial of full faith and credit to refuse to apply the law of another jurisdiction on conflicts principles. (See note 46, Harv. L. Eev. 291.) A fortiori if it cannot by its own terms be administered by the forum in which it is pleaded.

Since we have concluded it was not error for the California Industrial Accident Commission to entertain this proceeding, it becomes necessary to consider the claim that there is not sufficient evidence to sustain the findings of the commission that the injury arose out of the employment. The company doctor, who was the only one to examine the applicant before the operation, or to make a thorough examination at any time, testified that in his opinion the disability was not caused by an injury but was due to natural causes. Doctor Quinn, on the basis of whose testimony the award was made, examined the patient upon his return to San Francisco and gave his opinion, basing his conclusion “on the reports rendered by the attending physicians”, that the condition was of traumatic origin. The rule invoked by petitioner is that of Winthrop v. Industrial Acc. Com., 213 Cal. 351 [2 Pac. (2d) 142], and Nielsen v. Industrial Acc. Com., 125 Cal. App. 210 [13 Pac. (2d) 517], to the effect that “there was no true conflict in the evidence where that on one side consists of opinions based on facts not shown by the record to exist, while that on the other side was based upon facts actually shown to exist or rested on the testimony of physicians who had actually treated and examined the patient’ ’. In the Nielsen case the discredited evidence “rested solely in the opinions of physicians who had not treated, examined or seen the patient, but who based their opinions upon a statement of the case which in numerous particulars was not a full and complete statement”.

Doctor Quinn’s opinion is introduced by the following words: “Discussion of the case: Owing to this man’s ignorance it is impossible to obtain any accurate idea of the condition for which he was operated upon, and it is necessary for me to base my conclusion on the reports rendered by the attending physicians.” This brings the case within the rule of McNamara v. Industrial Acc. Com., 130 Cal. App. 284, 289 [20 Pac. (2d) 53]: “The conclusions of the latter witness were based on the facts testified to by Dr. Tiffany and on an extended history of the case. It thus appears that the two experts took into consideration the same facts, but reached different conclusions.”

On the second appeal of the Nielsen case it was said by this court, speaking of the Winthrop case: “There was no intent to hold, and it was not decided, that the opinion of experts who had no personal knowledge of the facts may not raise a conflict with the testimony and opinion of those whose conclusions are drawn from a personal examination of the injured employee. The opinion of experts based on hypothetical statements of the facts in the record is competent evidence. The weight of such evidence is for the commission’s determination.” (Nielsen v. Industrial Acc. Com., 220 Cal. 118 [29 Pac. (2d) 852].)

The award is affirmed.

Rehearing denied.