author: CARTER, J.

text:
    [L. A. No. 16484.
    In Bank.
    April 29, 1940.]
    CHARLES D. CHESNEY, Respondent, v. H. L. BYRAM, County Tax Collector, etc., Appellant.
    Everett W. Mattoon, County Counsel, J. H. 0 ’Connor, County Counsel, and Gordon Boiler, Deputy County Counsel, for Appellant.

      Holbrook & Tarr and W. Sumner Holbrook, Jr., for Respondent.
    Bernard C. Brennan, as Amici Curiae, on Behalf of Respondent.
   CARTER, J.

This is an appeal from a judgment of the Superior Court of Los Angeles County granting a writ of mandate against appellant, H. L. Byram, tax collector of the county of Los Angeles, compelling him to receive the sum of $21.84 as the full amount of taxes due on the real property of respondent for the fiscal year 1936-37, in lieu of taxes in the sum of $67 levied upon and extended against said property on the assessment roll of said county for said year.

Respondent’s property was assessed by the Los Angeles County assessor for the fiscal year 1936-37 at the value of $1350. He claims an exemption in the amount of $1,000, by reason of his being a veteran within the meaning of section 1% of article XIII of the Constitution of California. He tendered payment to the appellant of taxes based upon the valuation of $350, which tender was refused. Respondent then secured a writ of mandate compelling appellant to accept the amount tendered and to issue a receipt in full for respondent’s taxes.

The provision of the Constitution above referred to reads as follows:

“The property to the amount of one thousand dollars of every resident of this state who has served in the army, navy, marine corps or revenue marine service of the United States in time of war, and received an honorable discharge therefrom, . . . shall be exempt from taxation; provided, this exemption shall not apply to any person named herein owning property of the value of five thousand dollars or more, or where the wife of such soldier or sailor owns property of the value of five thousand dollars or more. No exemption shall be made under the provisions of this act of the property of a person who is not a legal resident of the state.”

Section 3612 of the Political Code provides that every person entitled to such exemption from taxation shall give to the assessor under oath all information required upon forms prescribed by the State Board of Equalization and failure of any person entitled to such exemption so to do shall be deemed as a waiver of such exemption.

The allegations of the petition for a writ of mandate bring respondent within the constitutional provision for exemption, to wit: that he is and was during the fiscal year 1936-37, a resident of California, that he served in the marine corps of the United States during the world war and received an honorable discharge therefrom, that he is married, that neither he nor his wife nor the two together owned property greater than $5,000 in value, and that in 1936 he furnished a copy of his honorable discharge to the county assessor. Respondent further alleged that at no time did he file an application for exemption or any affidavit as required by section 3612 of the Political Code.

The appellant, tax collector of the county of Los Angeles, contends that the failure of respondent herein to make the exemption claim required by Political Code section 3612 constituted a waiver of said exemption. The respondent, however, maintains his right thereto, claiming that the provision in said section, that a veteran having failed to make proof of his constitutional right to exemption prior to completion of the assessment roll “waives” such exemption, is unconstitutional and void, as being an invalid statutory “limitation” on such constitutional right.

The sole question then before this court is whether the waiver provision of section 3612 of the Political Code is an invalid infringement upon a constitutional right, or is a valid legislative provision regulating the exercise or assertion thereof.

Respondent contends that section 1%, of article XIII of the Constitution is self-executing and that section 3612 of the Political Code is an attempt to limit the constitutional right to exemption from taxation granted to veterans under said provision of the Constitution. It has been held that:

“ A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced.” (Cooley’s Constitutional Limitations, 7th ed., p. 121; Winchester v. Howard, 136 Cal. 432, 439 [64 Pac. 692, 69 Pac. 77, 89 Am. St. Rep. 153]; People v. Hoge, 55 Cal. 612.)

We are disposed to hold that the constitutional provision above-mentioned is self-executing; that is, that it required no legislative enactment to put it into effect. If the legislature had failed to make any provision for a veteran to avail himself of the tax exemption provided for in said provision of the Constitution, we are of the opinion that the veteran would nevertheless be entitled to the exemption provided for. How such exemption could be obtained, would be a matter first for the determination of the assessors of the respective political subdivisions, and in case of their failure to recognize the right granted to the veteran, their action would be subject to review by the courts. However, it does not follow from the determination that the above-mentioned constitutional provision is self-executing, that the legislature did not have the power to enact legislation providing reasonable regulation for the exercise of the right to the exemption granted by the Constitution, and if section 3612 of the Political Code constitutes such reasonable regulation and not an invalid limitation of the right thereby granted, the power of the legislature to enact said section should be upheld. (Chester v. Hall, 55 Cal. App. 611 [204 Pac. 237] ; First M. E. Church v. Los Angeles County, 204 Cal. 201 [267 Pac. 703].)

In the case of Chester v. Hall, supra, the court held that the requirement of section 1083a of the Political Code that the signer of a petition for a county charter election shall affix thereto the date of such signing is not void as making an additional requirement to the self-executing character of section 7% °f article XI of the Constitution, since it in no manner prevents any person from signing but merely facilitates the operation of the constitutional provision and places a safeguard around the exercise of the rights thereby secured.

In that case the court said:

“It is clear that the constitutional provision in question is self-executing, but it does not follow that legislation may not be enacted to facilitate its operation and place safeguards around the exercise of the rights thereby secured so long as the right itself is not curtailed or its exercise unreasonably burdened. ‘Legislation may be desirable, by way of providing convenient remedies for the protection of the right secured, or of regulating the claim of the right so that its exact limits may be known and understood; but all such legislation must be subordinate to the constitutional provision, and in furtherance of its purpose, and must not in any particular attempt to narrow or embarrass it.’ Cooley’s Constitutional Limitations, 7th ed., p. 122. See, also, Welch v. Williams, 96 Cal. 365 [31 Pac. 222]; State v. Hooker, 22 Okl. 712 [98 Pac. 964] ; City of Pond Creek v. Haskell, 21 Okl. 711 [97 Pac. 338]; Stevens v. Benson, 50 Or. 269 [91 Pac. 577]; State v. Superior Court, 81 Wash. 623 [Ann. Cas. 1916B, 838, 143 Pac. 461].) The requirement of section 1083a of the Political Code that the signer of a petition shall ‘affix thereto the date of such signing' in no manner prevents any person from signing or places an undue burden on the exercise of the right. The Constitution prescribed the qualifications of electors and provides that all persons having such qualifications ‘shall be entitled to vote at all elections’. The Constitution makes no provision for the registration of electors, yet registration laws have always been upheld as reasonable regulations by the legislature for the purpose of ascertaining who are qualified electors and preventing illegal voting. ’ ’

In the case of First M. E. Church v. Los Angeles County, supra, this court while declining to pass upon the question of whether or not section 1% of article XIII of the Constitution of California is self-executing, made this comment with respect to legislation enacted for the purpose of facilitating the operation of a self-executing provision of the Constitution :

“It may be assumed as argued by respondent, that even though a constitutional provision is self-executing, the legislature may, and in many instances must, enact legislation to facilitate its operation, and to provide convenient remedies for the protection of the right established, and for the determination thereof and the regulation of claims thereto. Such legislation must be in furtherance of the purposes of the constitutional provisions, but if so, it is valid and enforceable. The last provision of section 3611 is, we think, such a law. It is regulatory, and places no unreasonable burden upon those entitled under section of article XIII of the Constitution to tax exemption. It creates no hardship to require of a property owner that he file an affidavit showing that the property claimed to be exempt is used solely for religious worship, that it is required for the convenient use and occupation of the building upon the premises, and that the same is not rented for such purposes and rent received by the owner therefor.”

We are not impressed with the argument advanced by respondent to the effect that the provisions of section 3612 of the Political Code imposes an unreasonable restriction or limitation upon the exercise of the right to the exemption granted by the constitutional provision above mentioned. On the other hand, it appears to us reasonable and proper that some method should be provided by the legislature for the determination of those who may be entitled to the exemption provided for in the Constitution. It is obvious that the burden should be upon the person claiming the exemption to establish his right thereto. The method provided for under section 3612 of the Political Code is a simple one and is available to all who desire to claim the exemption provided for under the above-mentioned provision of the Constitution; in fact, it would be much easier and simpler for a person claiming such exemption to comply with the provisions of section 3612 of the Political Code than to resort to the procedure followed by respondent in this ease, even if the tax collector had complied with respondent’s request to accept the sum of $21.84 in full payment of the taxes due from respondent, and the latter had not been required to institute this action.

It has been uniformly held that the legislature has the power to enact statutes providing for reasonable regulation and control of rights granted under constitutional provisions. (Bergevin v. Curtz, 127 Cal. 86 [59 Pac. 312] ; Chester v. Hall, supra; Crescent Wharf etc. Co. v. Los Angeles, 207 Cal. 430 [278 Pac. 1028] ; Western Salt Co. v. City of San Diego, 181 Cal. 696 [186 Pac. 345] ; Bancroft v. City of San Diego, 120 Cal. 432 [52 Pac. 712]; Sala v. City of Pasadena, 162 Cal. 714 [124 Pac. 539]; Potter v. Ames, 43 Cal. 75.) In the ease of Bergevin v. Curtz, supra, this court considered the effect of a statute requiring a citizen to register in order to exercise the voting franchise guaranteed by the Constitution. In discussing the power of the legislature to impose conditions on those entitled to exercise the voting franchise under the Constitution, this court said:

“We do not think the legislature, even if it attempted to do so, could add any essential to the constitutional definition of an elector. It is settled by the great weight of authority that the legislature has the power to enact reasonable provisions for the purpose of requiring persons who are electors and who desire to vote to show that they have the necessary qualifications, as by requiring registration, or requiring an affidavit or oath as to qualifications, as a condition precedent to the right of such electors to exercise the privilege of voting. Such provisions do not add to the qualifications required of electors, nor abridge the right of voting, but are only reasonable regulations for the purpose of ascertaining who are qualified electors, and to prevent persons who are not such electors from voting. These regulations must be reasonable and must not conflict with the requirements of the constitution. The legislature has required that all electors, as a condition of the right to vote, shall have their names properly.and in due season entered upon the great register of the county. (Pol. Code, sec. 1094.) The section provides that in the register shall be entered the names of the qualified electors of the county, and ‘that any elector who has registered and thereafter moved his residence to another precinct in the same county thirty days before an election may have his registration transferred to such other precinct upon his application ’. The legislature has made no attempt to change or add to the qualifications of an elector, hut has simply provided a means whereby the elector who is entitled to vote may he known hy having his name enrolled upon an authentic list.”

In the case of Crescent Wharf etc. Co. v. Los Angeles, supra, this court had before it a case involving the right of a person whose property had been appropriated for public use to compensation for such property in accordance with the provisions of section 14 of article I of the Constitution of California. In that ease it was contended by the plaintiff that its right to recover such compensation could not be abrogated by a charter provision of the city of Los Angeles requiring the presentation of a claim as a condition precedent to the commencement of an action to recover the value of the property appropriated by the ctiy. In answering this contention, this court speaking through the late Mr. Justice Seawell said:

“All that the framers of the Constitution meant to do was to protect the citizen in his ownership of property against the state or its agencies appropriating private property to public uses against the will of the owner without making just compensation for all damages which the owner should sustain by the exercise of governmental power. It was not intended to remove the subject matter beyond the operation of reasonable statutory enactments which affect property rights generally, such as the bar of the statute of limitations. ’ ’

Certainly, if the legislature has the power to pass statutes providing reasonable regulations and control over the constitutional right of a citizen to vote and the constitutional right of a citizen to recover compensation for his property which has been appropriated to a public use, it should likewise have the power to enact statutory provisions providing reasonable regulations and control over the exercise of rights granted by the Constitution for the exemption of property from taxation.

In determining the reasonableness of the regulation provided for in section 3612 of the Political Code as applied to the exercise of the right of a veteran to exemption from taxation under section 1% of article XIII of the Constitution, let us examine the constitutional provision and ascertain to whom it applies and what property is exempted from taxation thereunder. It is obvious that the exemption therein provided for is available to veterans of a particular class, having specific qualifications as to experience, property ownership and residence, to wit: (1) He must be a resident of this state; (2) he must have served in the army, navy, marine corps or revenue marine service of the United States army in time of war; (3) he must have received an honorable discharge; and, (4) neither he nor his wife is the owner of property of the value of $5,000 or more. If such veteran falls within the classification above-outlined, he is entitled to an exemption from taxation of any property owned by him up to the value of $1,000. It is obvious that before an assessor can determine whether or not a property owner is entitled to an exemption under the above-mentioned provision of the Constitution, it is necessary to obtain sufficient information to enable him to ascertain whether or not such person comes within the classification specified therein. It is likewise obvious that such determination and ascertainment is necessary in order to enable the assessor to make up his assessment roll and determine the value of property within the political subdivision subject to assessment and taxation. Such determination must be made not later than the first of July of each year as the assessment roll is thereupon submitted to the Board of Equalization of the respective political subdivisions and the valuation determined by such board is used as the basis for the tax rate required to raise revenue for the maintenance of the government.

It would seem to be consonant with the establishment of a sound fiscal policy to have all matters of exemption of property from taxation determined not later than July 1st of each year, and it is obvious that this can only be done by the application of a uniform regulation to those who are entitled to exemptions. The legislature undoubtedly had the foregoing considerations in mind in the adoption of section 3612 of the Political Code and similar enactments for the determination of claims for exemption of property from taxation. Such regulations, if reasonable, as those provided for under section 3612 of the Political Code, do not constitute a limitation or restriction upon the constitutional right of the person entitled to the exemption, but simply establishes a rule for the determination of whether or not the right is to be exercised or waived.

The provisions of section 3612 of the Political Code establish a uniform system throughout the state for those desiring to claim the exemption granted by the Constitution under the provisions of section 1% of article XIII thereof. It amply safeguards the exercise of the right of those entitled to the exemption, facilitates the operation of the system of assessment and taxation now authorized by law, and protects the public against the fraudulent claims of those not entitled to the exemption who may nevertheless assert their claim thereto. Such legislation is clearly not in contravention of the constitutional right to which it relates.

That a right to have property exempted from taxation can be waived, there can be no doubt. Even counsel for respondent in the case at bar concedes that unless appropriate legal proceedings were instituted by the exemption claimant to resist the payment of the tax or the recovery of the tax after the same is paid within the time provided for in the statute of limitation applicable thereto, the exemption claimant would lose his right; in other words, the exemption claimant would waive his right to the exemption by failing to assert his claim in time to have his exemption noted on the assessment roll or by failing to take appropriate action thereafter within the period of time allowed by the statute for the recovery of taxes paid under protest.

It is well settled that a right granted by the Constitution may be waived by the inaction of the person entitled to exercise such right. Probably the most common example of such waiver is disclosed by those cases where a property owner whose property has been taken or damaged for public use fails to avail himself of the remedies provided for by statute to either recover the property so taken or compensation and damages for its taking. It has been repeatedly held that mere inaction on the part of the owner of such property may constitute a waiver of the right to compensation or damages guaranteed to him by section 14 of article I of the Constitution of California. (Bigelow v. Ballerino, 111 Cal. 559 [44 Pac. 307] ; Gurnsey v. Northern Cal. Power Co., 160 Cal. 699 [117 Pac. 906, 36 L. R. A. (N. S.) 185]; Sala v. City of Pasadena, supra; Yonker v. City of San Gabriel, 23 Cal. App. (2d) 556 [73 Pac. (2d) 623].)

The trial court based its decision in favor of the respondent in this action upon the case of St. John’s Church v. County of Los Angeles, 5 Cal. App. (2d) 235 [42 Pac. (2d) 1093], wherein it was held that a similar provision of the Constitution (sec. 1% of art. XIII) exempting church properties from taxation was self-executing, and that no legislation was necessary to achieve its purpose, and that no legislation was permissible that would impair, limit or destroy the rights thereby granted. In the written opinion filed by the learned trial judge in overruling the demurrer in the case at bar, he said:

“On the authority of that case (St. John’s Church v. County of Los Angeles) it must be held that that part of section 3612 of the Political Code which declares that failure to make the affidavit and to furnish the evidence therein required operates as a waiver of the constitutional exemption is void by reason of its being in excess of the power of the legislature to impair or destroy the exemption granted by a self-executing provision of the Constitution. ’ ’

While it may be argued that a different rule should be applied to the legislation relating to the exemption of church property under the above-mentioned provision of the Constitution, it is our conclusion that the same rule should be applied to such legislation as that involved in the case at bar, and we therefore disapprove the holding of the District Court of Appeal in the ease of St. John’s Church v. County of Los Angeles, supra, to the effect that the provision in subdivision 3 of section 3611 of the Political Code that the failure on the part of the person claiming the exemption to make the affidavit mentioned therein should be deemed a waiver of such exemption is ineffective for the reason that it constitutes an attempt by the legislature to limit the exemption provided for in section 1% of article XIII of the Constitution.

In view of what we have said with respect to the power of the legislature to enact statutes providing for reasonable regulation and control of a constitutional right, we deem it unnecessary to devote further time in this opinion to a discussion of the St. John’s Church case. We can see no reason why the same rule as to waiver of the right to exemption should not apply to church property as to any other right granted by the Constitution, and we think it is immaterial whether such waiver is the result of the failure of the exemption claimant to comply with the provisions of the statute providing such reasonable regulation or is the result of inaction on the part of such claimant.

The regulation provided for in section 3611 of the Political Code before its amendment in 1929 was held not to be unreasonable in the ease of First M. E. Church v. Los Angeles County, supra, as appears from the portion of the opinion in said ease hereinabove quoted. The 1929 amendment to section 3611 of the Political Code simply provides that the failure of the exemption claimant to make the affidavit required by said section constitutes a waiver of the exemption. From what we have heretofore said with reference to a similar provision contained in section 3612 of the Political Code, this amendment did not transform said section from a reasonable regulation into an invalid limitation upon the exercise of the constitutional right granted by section iy2 of article XIII of the Constitution.

The basis of the decision of the District Court of Appeal in the St. John’s Church case appears to be that property subject to exemption from taxation under the provisions of section iy2 of article XIII of the Constitution of California, is not subject to assessment and taxation and that any attempt to place the same on the assessment roll of a political subdivision for the purpose of assessment and taxation is abortive. In the opinion in said case, the court said:

“The basic question is whether or not the property is taxable and while reasonable regulations may be made for the making of preliminary proof and while a failure to comply therewith may subject an owner of such property to the burden of making his proof in a more inconvenient and expensive manner, through an action in court, it cannot confer an authority to tax which has been expressly withheld by the Constitution. The authority to levy such a tax thus withheld cannot be acquired by a statute providing, in effect, that if the owner does not claim the exemption before the assessment roll is completed the tax will be levied.”

The inevitable result to be obtained by the line of reasoning which is the basis of the decision in the St. John’s Church case must be, that if an owner of property exempt from taxation under the provisions of section 1 y2 of article XIII of the Constitution would fail to assert a claim of exemption for said property, and the same would be assessed and the taxes thereon become delinquent and the property sold in accordance with the law authorizing the sale of property for delinquent taxes, a purchaser at such delinquent tax sale would not acquire a valid title to the property; in other words, all proceedings in connection with the assessment, levy of taxes and sale of said property would be void. It would therefore follow that the owner of such property could ignore all proceedings instituted by public officials to have said property subjected to assessment, levy and payment of taxes, and would suffer no loss as the result of such inaction or failure to assert a claim of exemption. It is obvious that such a situation would have a detrimental effect upon the administration of the laws providing for the assessment, levy and collection of taxes, and would create a condition of uncertainty with respect to what property was available for the purpose of taxation within the respective political subdivisions which have the power to levy and collect taxes for the maintenance of local government.

The opinion of the District Court of Appeal in the St. John’s Church ease does not discuss the well-settled rules that a right granted under a provision of the Constitution may be waived and that the legislature has the power to enact statutes providing for reasonable regulation and control of a right granted by the Constitution. The application of these rules to the factual situation in said case would have resulted inevitably in the reversal of the judgment rendered therein.

The judgment is reversed with directions to the trial court to enter judgment in favor of appellant denying respondent the relief prayed for in his petition.

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

Rehearing denied.


source: Caselaw Access Project

license: Public Domain

text:
    [L. A. No. 16777.
    In Bank.
    April 30, 1940.]
    HELEN S. WING, Appellant, v. FOREST LAWN CEMETERY ASSOCIATION (a Corporation) et al., Respondents.

      Michael F. Shannon, Thomas A. Wood, and Charles W. Wolfe for Appellant.
    Call & Murphey and Robert B. Murphey for Respondents.
    Raymond Brennan, Byron C. Hanna, Sullivan, Roche & Johnson, Ed. P. Sample and Hanna & Morton, as Amici Curiae, on Behalf of Respondents.
   CARTER, J.

This is an appeal from a judgment of dismissal entered upon an order sustaining a demurrer in an action brought by an owner of burial space in Forest Lawn Memorial Park, a private cemetery located in Los Angeles County, to enjoin the operation of a funeral director’s and embalming business on the premises of said cemetery. Defendants’ demurrer to plaintiff’s original complaint was sustained without leave to amend. Plaintiff then moved to file a proposed amended complaint, but said motion was denied on the ground that the proposed amended complaint contained no new or different facts sufficient to constitute a cause of action. Thereupon, there was entered the judgment from which plaintiff herein appeals.

It is alleged in plaintiff’s complaint that on May 11, 1929, she purchased from the Forest Lawn Memorial Park Association two lots, for interment purposes only, and that in violation of a restrictive negative easement contained in the deed thereto, the defendant corporations are now maintaining a mortuary business on the premises of said Forest Lawn Memorial Park.

Plaintiff’s claim to a restrictive negative easement is predicated on (1) the provisions of section 608 of the Civil Code as in effect at the time of the execution of her deed, and (2) the wording of said deed. Defendants deny that any restriction as to the operation and management of a mortuary arises either from said deed or said statute, and contend that plaintiff in her complaint has stated no cause of action.

The questions requiring our consideration are whether the complaint alleges facts showing the existence of such a restriction, and if so, whether a violation of the same should be relieved by the issuance of an injunction.

Numerous authorities are cited by plaintiff to the effect that parties are presumed to contract with reference to laws in existence at the time a contract is made and that statutes pertinent to the subject of an agreement enter into and become as much a part of it as though the language were incorporated in its terms. Basing her argument on these premises, plaintiff asserts that when the deed to her lot was executed in 1929, the use to which cemetery corporations could put their lands was limited to the burial of the dead by the language of Civil Code, section 608. The portion of said section from which she makes this deduction is as follows:

“Corporations organized to establish and maintain cemeteries may take by purchase, donation, or devise, land, not exceeding three hundred and twenty acres in extent, in the county, wherein their articles of incorporation are filed, or in an adjoining county, and may employ any surplus moneys in the treasury thereof, for such purpose; such lands to be held and occupied exclusively as a cemetery for the burial of the dead. ...”

Defendants on the other hand point out that said section, as it existed in 1929, was a part of that division of the Civil Code which dealt with the incorporation and powers of various types of corporations, and contend that said section was not intended to be a declaration of the legislature imposing perpetual restrictions on the free use of real property, but merely a grant of corporate powers, the exercise of which can be questioned only by the state in a quo warranto proceeding. Support for this view of the statute is found in the case of Odd Fellows’ Cemetery Assn. v. San Francisco, 140 Cal. 226, at 232 [73 Pac. 987], where this court said:

“The provisions of the act of 1859 for the incorporation of rural cemetery associations (Stats. 1859, 281), which are substantially reenacted in sections 608 to 616 of the Civil Code, are cited as general laws conflicting with this ordinance. Section 4 of the act and section 608 of the Civil Code give such corporations power to take and hold, within the county, lands not exceeding three hundred and twenty acres in extent, to be held and occupied exclusively for cemeteries. This is a grant of power to such corporations to own property, and the limitation of the amount that may be acquired, and of the uses to which such property may be devoted. ’ ’ See, also, Estate of Gay, 138 Cal. 552, 557 [71 Pac. 707, 94 Am. St. Rep. 70], and Application of Laurel Hill Cemetery Assn., 73 Cal. App. 193, 198 [238 Pac. 732].

We are inclined to agree with this contention of the defendants, although mindful of the rule as it has been stated that “all applicable laws in existence when an agreement is made necessarily enter into it and form a part of it as fully as if they were expressly referred to and incorporated in its terms”. (Gally v. Wynne, 96 Cal. App. 145, 148 [273 Pac. 825].) This rule, however, should be limited to those laws which are “applicable” and which affect “the validity, construction, discharge or enforcement of the contract”, (Burke v. Meyerstein, 94 Cal. App. 349, 353 [271 Pac. 343]; Connecticut Mutual Life Ins. Co. v. Cushman, 108 U. S. 51 [2 Sup. Ct. 236, 27 L. Ed. 648, 653]; Rosenplanter v. Provident Savings Life Assur. Soc., 96 Fed. 721, 727 [37 C. C. A. 566, 46 L. R. A. 473]), and care should be taken that its application is not extended to lengths which approach absurdity.

Nevertheless, assuming for the purposes of this opinion only, that the terms of said section were in effect incorporated into, plaintiff’s deed to interment space in her burial lots, we do not find that the operation of a mortuary is inconsistent with the holding and occupying of land “exclusively as a cemetery for the burial of the dead”.

In her interpretation of its meaning, plaintiff would transpose this clause to read that such land must be occupied “as a cemetery exclusively for the burial of the dead”, rather than as adopted by the legislature where the words “burial of the dead.” are used in a manner descriptive of the word “cemetery” without reference back to the word “exclusive”. That such an interpretation has previously been placed on the same clause by this court is indicated by the italicized portion of the above quotation from the case of Odd Fellows Cemetery Assn. v. San Francisco, supra.

Cemeteries have always been and are now used primarily for the burial of the dead, but portions of cemetery properties have likewise been used for numerous other incidental purposes, such as greenhouses, nurseries, chapels, administration buildings and tool houses. In many instances these and other practices have received judicial approbation. For instance, in the case of State v. Lakewood Cemetery Assn., 93 Minn. 191 [101 N. W. 161], a corporation organized under a statute similar to Civil Code section 608, which provided that a cemetery association might purchase land not exceeding three hundred acres in area “to be held, actually used and occupied exclusively for a cemetery for the burial of the dead and for purposes necessary or proper thereto”; it was stated at page 163 that:

“The use of a small portion thereof for a greenhouse for the purpose of growing flowers and plants to be used in beautifying the grounds, clearly, in our judgment, falls within the authority conferred upon the appellant. It is a matter of common knowledge that greenhouses are maintained by many of the large cemetery associations throughout the country, and the sale of a small amount of the surplus stock is but an incident of the general management. We are of the opinion the land so acquired is exempt from taxation. ’ ’

Likewise, in Dries v. Charles Evans Cemetery Co., 109 Pa. Super. 498 [167 Atl. 237, 238], wherein the cemetery company, a nonprofit organization, .was created by a special charter permitting it to own land for “a burial cemetery”, it was held that the company had the implied power to buy and sell stone vaults to its lot owners, the court saying that “the essential purpose in the institution of a cemetery and the subsequent conveyance to lot owners is to provide for the burial of the corpse, and the form or material of the container is an incident thereof” and that “the cemetery company had a right without profit, to transact, in addition to maintaining their main purposes, such subordinate and connected matters which fit in essentially or are at least convenient to the due prosecution of the chartered purposes”.

In State v. Lakewood Cemetery, 197 Minn. 501 [267 N. W. 510], a cemetery corporation whose articles of incorporation permitted the erection of a “suitable chapel and office building, and other structures that may be essential or proper for carrying out in the best manner the purposes of the association” erected a building of which a part was used as a tool-house, another part as an incinerator, and the remaining portion for the making and storing of wooden and concrete vaults. The court therein gave its approval to these activities in the following language:

“That the actions of the defendant are being performed properly and legally by the defendant, and that the defendant, in engaging in the manufacture and sale to its own lot owners of wooden and concrete burial vaults has been and is acting entirely within its corporate rights and powers.”

Manifestly the operation of a mortuary where bodies are prepared for interment or cremation is a much closer and more intimate incident of burial than the activities above referred to. We therefore, conclude that cemetery lands may be used for such purposes as are incident to the burial of the dead, so long as the rights of the lot owners in their own lots and their rights of egress and ingress are not invaded. (Vesper v. Forest Lawn Cemetery Assn., 20 Cal. App. (2d) 157, 163 [67 Pac. (2d) 368] ; Certia v. University of Notre Dame, Du Lac., 82 Ind. App. 542 [141 N. E. 318].)

Plaintiff’s second contention is that the deed to her two burial lots conveyed to her a restrictive negative easement in all lands retained by the grantor and in the lots to be subsequently conveyed by it to other grantees.

An examination of said deed reveals that two lots were conveyed to Helen S. Wing “for interment purposes only”. The deed further stated:

“All right, title and interest of said Grantee in and to said premises is, and at all times shall be subject to the following conditions, exceptions, reservations, and restrictions, to-wit:
(a) That said premises shall be used for interment purposes only.”

Following the enumeration of several other such conditions, exceptions, reservations and restrictions is the statement which forms the principal basis for plaintiff’s claim to a restrictive easement and the only portion of said deed which we deem it necessary to discuss:

“This is one of a series of conveyances of like purport and effect, the restrictions, covenants and conditions hereinabove expressed shall be and be deemed to be covenants running with the property and enforceable not only by the cemetery association in charge of said Memorial Park, but also by any individual owner or owners of burial space therein.”

It is plaintiff’s position that said paragraph indicated that the land was being sold under a common plan—and that it created an equitable easement or servitude in all other lands retained or sold by the defendant cemetery corporations. Defendants contend that the first clause—‘ ‘ This is one of a series of conveyances of like purport and effect”—is merely a recital and not a covenant on the part of the grantor to do or refrain from doing anything; that the next clause—“and the restrictions, covenants and conditions hereinabove expressed shall be and be deemed to be covenants running with the property” refers only to those restrictions imposed on the burial space conveyed to the grantee by the deed; and that the succeeding clause that said restrictions are to be “enforceable not only by the Cemetery Association in charge of said Memorial Park, but also by any individual owner or owners of burial space therein” is solely for the purpose of making the grantee’s covenant enforceable not only by the grantor but by the owners of burial space as third party beneficiaries.

Viewing this paragraph in the light of the decisions in this state, it cannot be said that there was thereby created a valid equitable easement in the lands retained by the grantor or to be afterwards conveyed by it.

The law is well settled in California, that the deed is the final and exclusive memorial of the intention and rights of the parties. (Martin v. Holm,, 197 Cal. 733, 742 [242 Pac. 718]; Werner v. Graham, 181 Cal. 174, 185 [183 Pac. 945] ; Berryman v. Hotel Savoy Co., 160 Cal. 559, 566 [117 Pac. 677, 37 L. R. A. (N. S.) 5] ; McBride v. Freeman, 191 Cal. 152, 156 [215 Pac. 678].) Furthermore, any provisions of an instrument creating or claimed to create such a servitude will be strictly construed, any doubt being resolved in favor of the free use of the land. (Werner v. Graham, 181 Cal. 174, 181 [183 Pac. 945] ; Firth v. Marovich, 160 Cal. 257 [116 Pac. 729, Ann. Cas. 1912D, 1190] ; Berryman v. Hotel Savoy Co., 160 Cal. 559 [117 Pac. 677, 37 L. R. A. (N. S.) 5]; Bresee v. Dunn, 178 Cal. 96 [172 Pac. 387].)

Werner v. Graham, 181 Cal. 174 [183 Pac. 945], has oft been cited as the leading case in this state defining the manner in which an equitable servitude may be established. That case makes it requisite not only that the deed contain (1) a proper expression of intent to create an equitable easement; that is, reference to a common plan of restriction or indication of an agreement between the grantor and grantee that the conveyed lot be taken subject to some such plan, but also (2) “some designation or description of what is an essential factor, namely, the dominant tenement”.

Measured by these standards it can scarcely be said that an equitable easement was created by plaintiff’s deed. Certainly, there is no description of a dominant tenement which is to be benefited by the restriction placed upon the property of the grantee. The importance of describing with certainty the property to be affected by a restrictive easement has been commented on by Professor William Edward Burby in 10 So. Cal. Law Rev. 281, at page 289, note 21—thusly:

“The desirability of adhering to the rule announced in Wagner v. Hanna [38 Cal. 111, 99 Am. Dec. 354] (cited in Werner v. Graham, supra,) in connection with the creation of equitable easements, seems apparent. There should be some written evidence, either in the form of a plat of otherwise, delineating or pointing out the extent of the property affected by the restrictions. A more extensive area is usually involved in the case of equitable easements than is the ease in the creation of legally enforceable easements. As a matter of policy, the understanding of the parties should be definite and clear, and should not be left to mere conjecture. Property described in the deed creating the equitable easements, and no other property should be affected thereby.”

Clearly, the recital that “This is one of a series of conveyances of like purport and effect” designates no dominant tenement, refers to no map, plat or tract or otherwise indicates the location or extent of the land which is to be affected by the restrictions set forth in the grantee’s deed to her property. Although the grantor by the terms of said deed imposed numerous restrictions on the lots conveyed to the grantee, it in nowise bound itself to impose restrictions on any which may have been retained by it, or to convey other property which it may have held subject to the same or similar restrictions or to do anything in favor of the property of the grantee.

A similar situation was presented in the case of Kuhn v. Saum, 316 Mo. 805 [291 S. W. 104, at p. 105], wherein the Supreme Court of Missouri said:

“The next inquiry is whether the deed from the St. Louis Improvement Company to respondent imposed a negative easement in favor of the grantee on the .remaining lands of the grantor, which included the lot subsequently purchased by appellants. In this connection it will be noted that all the covenants in that deed, which may be termed restrictive, were made on the part of the grantee. The grantor made none. That fact, standing alone, shows prima facie that the restrictions were imposed solely for the benefit of the grantor’s remaining land. Consequently, if the grantor made use of his remaining land which did not conform to such restrictions, his grantee had no ground of complaint. And if the grantee could not compel his grantor to observe the restrictions, he could not compel a subsequent grantee to do so. Beattie v. Howell, 98 N. J. Eq. 163, 129 A. 822. However, the deed from the St. Louis Improvement Company to respondent expressly provided that the restrictions were made ‘for the mutual benefit of all parties purchasing lots by similar conveyances from this grantor’. But the grantor on its part did not covenant to make similar conveyances of the lots, or any of them, and he did not make a similar conveyance to appellants’ grantor.”

Therefore, it cannot be said that by the mere imposition of restrictions on the lands of the grantee, the grantor impliedly placed the same restrictions on lands retained by it.

It is true that the deed stated that the restrictions placed on the land of the grantee might be enforced against the land of the grantee by other owners of burial space in Memorial Park, but said statement did not have the effect of creating a reciprocal negative easement. There is no reference to a common plan of restrictions; no indication that one is in existence or no covenant between the grantor and grantee that lots being conveyed by the grantor to the grantee or subsequently to be conveyed to other grantees will be subject to any such plan and no covenant or warranty can be implied from the mere recital that “This is one of a series of like purport and effect.’’ (O’Sullivan v. Griffith, 153 Cal. 502, 506 [95 Pac. 873, 96 Pac. 323].)

The recent case of Moe v. Gier, 116 Cal. App. 403 [2 Pac. (2d) 852], is in point. The owner of a tract of land subdivided it into lots, mapped the same and sold many of the lots. Some of the deeds contained building restrictions and stated that the right to enforce same should “run to each owner of any lot described on the aforesaid map’’. However, in the words of the court (p. 406) :

“Many of the deeds are silent relative to restrictions and except for the provision above set forth as to certain lots, it is not stated that the land conveyed by the deed is a part or portion of a larger tract, or that the restrictions contained in the deeds are for the benefit of other lands, nor was there in any of the deeds any description or designation of the land which was the dominant tenement, nor was there in any of the deeds, any statement that the restrictions imposed upon each or any of the parcels of land were part of a general plan of restriction common to all the parcels in the tract or designed for the mutual benefit of all the parcels contained in the tract, nor was there in any of the deeds any statement that the parcel thereby conveyed should be subject to restrictions in accordance with any plan for the benefit of all other parcels in the tract, or that all other parcels in the tract should be subject to such restrictions for its benefit.’’

The court therein held that the mere fact that the tract had been subdivided and that some of the deeds contained building restrictions upon the lots therein conveyed, did not impose any such restrictions upon the tract generally, there being no clear expression of any such intended general restriction in said deeds. At page 409, the court said:

“The language in the deeds involved herein did not create equitable servitudes. To create an equitable servitude in the grant of lands in a large area it is essential that there must be a general scheme of restrictions sufficiently uniform in character to indicate unmistakably a designated and adopted plan throughout common to all purchasers of lots. The restrictions must not only appear in one deed, but in all the deeds and must expressly declare that such restrictions are for the benefit of and run with all other lots in the designated area. In other words, the restrictions must be for the mutual benefit of all parcel owners and each lot imposed with a servitude for the benefit of each and every other lot. [4] It is necessary to state in the deed what is the servient and what is the dominant tenement. (See Berryman v. Hotel Savoy Co., 160 Cal. 559 [37 L. R. A. (N. S.) 5, 117 Pac. 677]; Werner v. Graham, 181 Cal., at 174 [183 Pac. 945] ; McBride v. Freeman, 191 Cal. 152 [215 Pac. 678].) The intent of the parties to create mutual and reciprocal rights of restrictions between the grantees of the original grantor must appear in the deed. (Gamble v. Fierman, 82 Cal. App., at p. 182 [255 Pac. 269].) ”

The strictness of the above rule is regarded as somewhat relaxed by the case of Martin v. Holm, 197 Cal. 733 [242 Pac. 718]. However, in that ease this court held that the deeds and agreements in question expressly contained a covenant on the part of the grantors to subdivide, restricting the entire tract; that the original grantors had in mind a general plan of building restrictions intended for the benefit of all the lots, including their own, that the conveyances which followed each imposed the same or similar restrictions; and that grantees of three lots who took a deed which omitted these restrictions took the same with notice and were bound thereby.

Since, in this case, there is no designation of a dominant tenement and no expression of any general plan of which plaintiff’s conveyance is a part, there is no basis for holding that her deed contained a valid equitable easement in the lands retained by or subsequently to have been conveyed by her grantor.

Furthermore, we think it is obvious that plaintiff has alleged no facts satisfactorily showing an irreparable or probable injury which would be necessary in order to justify her demand for defendants to cease doing business.

Plaintiff asserts that she need not plead any monetary damage in order to obtain an injunction against the defendants for the reason that she seeks relief from the violation of a covenant and not from tortious acts, citing as authority the case of Walker v. Haslett, 44 Cal. App. 394 [186 Pac. 622]. However, inasmuch as we have determined hereinabove that defendants are not violating a restrictive covenant, it is of prime importance that plaintiff allege facts to show wherein she has been or is to be injured by the operation of defendants’ mortuary. In the case of Vesper v. Forest Lawn Ceme tery Assn., 20 Cal. App. (2d) 157 [67 Pac. (2d) 368], another owner of burial space sought to enjoin the same defendants from the operation of the identical mortuary involved herein. The court sustained a demurrer to plaintiff’s complaint because the plaintiff there involved had likewise failed to allege that he had sustained an injury. We find the language of that case applicable here and quote with approval the following:

“It does not appear either in the original complaint or in the proposed amended complaint that the mortuary can be seen from his lots or that the operation of the mortuary has depreciated the value of his lots, or that upon resale he would suffer loss. Clearly one who has suffered no injury nor damage, nor whose rights have been in anywise invaded, nor who has suffered any interference in his easement, nor who has alleged nor is able to establish that the maintenance of a mortuary impairs the beauty and value of his lot, nor the convenience of ingress to or egress from it, has ground to complain of another, or to enjoin another’s acts.” And in support of its decision that plaintiff had failed to state a cause of action entitling him to the relief sought, the court said:
“In Clough v. Healy Co., 53 Cal. App. 397 [200 Pac. 378], an injunction was refused, the court there saying: ‘The right must be clear, and an injunction of the character here in question will be denied where the obstruction does not constitute a material interference with the right of the owner of the easement, or where the damage sustained by him is merely nominal. ’ ”

In this connection we wish to point out that even were we to regard the deed herein as having created a valid equitable easement, its enforcement would have to be governed by equitable principles. It is on this same principle that the courts of this state have relaxed building restrictions where conditions have so changed that to enforce them would work an unreasonable hardship on the owners of property within the restricted area. (Hess v. Country Club Park, 213 Cal. 613, 619 [2 Pac. (2d) 782], and cases cited.) As stated by Professor William E. Burby, 10 So. Cal. Law Rev. 281, at page 287:

“There is, however, one vital distinction between a legal and an equitable easement. The latter type of burden, being under the exclusive jurisdiction of a court of equity, will not be considered as in esse if, under the facts of a particular case, enforcement would not be in furtherance of public interest. Restrictions will not be enforced if enforcement would be inequitable and unjust. It is not a matter of balancing the equities but, given a case where enforcement would be unjust, it properly may be said that there has been no invasion of any property right. (See 4 Pom. Equit. Jurisprudence [4th ed. 1919], 3958n-3959n.)

Plaintiff contends that the trial court erred in denying her motion to file her proposed amended complaint. We have examined said complaint and find that it failed in the same respects as the original to state facts sufficient to constitute a cause of action. We shall, therefore, not interfere with said ruling of the trial court, since the privilege of amending a complaint rests in the sound discretion of that tribunal (Whyte v. City of Sacramento, 65 Cal. App. 534 [224 Pac. 1008] ; Buckley v. Howe, 86 Cal. 596 [25 Pac. 132] ; Hansen v. Carr, 73 Cal. App. 511 [238 Pac. 1048]) and will not be disturbed in the absence of a showing of gross abuse. (Fetterley v. Gibson, 210 Cal. 282 [291 Pac. 411].)

We have considered the other contentions made by plaintiff and find that they do not require further discussion since they are without merit.

In view of our determination that plaintiff’s complaint failed to state a cause of action for injunctive relief and that the trial court did not err in refusing to allow plaintiff to file her proposed amended complaint, the judgment of said court is hereby affirmed.

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

Houser, J., concurred in the judgment.


author: SHENK, J.

text:
    [S. F. No. 16354.
    In Bank.
    April 30, 1940.]
    HUGH J. QUINN, Respondent, v. M. ROSENFELD, Appellant.

      Cooley, Crowley & Supple for Appellant.
    F. Bert Fernhoff and Robert R. Ashton, as Amici Curiae, on Behalf of Appellant.
    James C. Purcell and William E. Ferriter for Respondent.
    Philander B. Beadle, Felix M. Cunningham, John J. Taheny and Joseph Francis Murphy, as Amici Curiae, on Behalf of Respondent.
   SHENK, J.

The plaintiff sued to recover damages for personal injuries suffered when he was run into by the defendant's automobile as he was crossing Geary Street between Scott and Divisadero Streets in the city of San Francisco. The defendant denied the charge of negligence and interposed the defense of contributory negligence. The case was tried without a jury. The court found for the plaintiff on all the issues and rendered judgment in his favor for $2,800. The defendant appealed.

The plaintiff had been employed for about seven years at a firehouse located in a residential district on the northerly side of Geary Street between Scott Street on the east and Divisadero Street on the west. About 6:35 P. M. on September 29, 1937, the plaintiff stepped from the northerly curb in front of the firehouse, with the intention of crossing the street at that point for the purpose of going to a store on the southeast corner of Geary and Divisadero Streets. There was no crosswalk at the point of crossing selected by the plaintiff. There were established crosswalks and stop signs at both intersections. A pole with a lighted street lamp stood about two feet east of the point where the plaintiff entered the street, and the doors of the lighted firehouse remained open. The plaintiff wore a dark blue uniform. He stopped behind a parked car which was to the west of him. There were no parked cars to the east for a distance of about 75 feet. He looked to the east and at a distance of 135 to 150 feet observed the lights of the defendant’s car in the traffic lane on the north side of the car tracks approaching at a speed of about 20 to 25 miles an hour. He' proceeded safely as far as the northerly rail of the westbound car tracks and stopped again to permit another westbound automobile, which had passed the defendant’s car and which was moving at a high rate of speed, to pass in front of him. Before proceeding he observed the defendant’s car again, and saw that it was swerving onto the westbound car tracks and coming directly towards him. He stepped back but before he could clear the defendant’s path he was struck by the right front fender of the vehicle.

The defendant testified that at no time did he see a man in the path of his car, but that he became aware of a shadow which he thought was a car backing out from the curb and that he swerved to his left to avoid it.

The principal ground of the appeal is that the evidence does not support the findings or the judgment. Over the objection of the plaintiff, paragraphs 2 and 3 of section 10, article IV of the San Francisco Traffic Ordinance (No. 7691, New Series) were introduced in evidence. Paragraph 2 reads:

“Outside of the central traffic district or a business district, no pedestrian shall cross a roadway other than by a route at right angles to the curb, and when crossing at any other place other than a crosswalk, shall yield the right of way to all other vehicles on the roadway. ’ ’

Paragraph 3 is as follows:

“It shall be unlawful for any person to be in any roadway other than in a safety zone or crosswalk, provided that this provision shall not be construed to prevent the necessary use of a roadway by a pedestrian.”

It is the defendant’s contention that inasmuch as crosswalks were established at Scott and Divisadero Streets, a necessary use of the street at the point selected was not shown by the plaintiff, and that his attempt to cross at that point under the circumstances was negligence which proximately contributed to his injuries as a matter of law.

The plaintiff's position is that the ordinance was void because its provisions were in conflict with the California Vehicle Code, relying on Ex parte Daniels, 183 Cal. 636 [192 Pac. 442, 21 A. L. R. 1172] ; that in any event his conduct was not in violation of the ordinance, but, if otherwise, the question of proximate cause was one of fact and not of law.

Chapter 10 of division IX of the Vehicle Code relating to “Traffic Laws” deals with “Pedestrian’s Rights and Duties”. (Secs. 560 to 564.) Section 560 states the pedestrian’s right of way at crosswalks. Sections 561 and 562 direct when the pedestrian shall yield the right of way. Section 562 provides :

“ (a) Every pedestrian crossing a roadway at a point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.
“(b) The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway. ’ ’

Section 563 reads:

“ (a) At intersections where traffic is controlled by a traffic signal device or by police officers, pedestrians shall not cross the roadway against a red or stop signal.
“(b) Between adjacent intersections so controlled pedestrians shall not cross at any place except in a crosswalk.”

Section 564 states the duty of the pedestrian in country areas to walk close to his left-hand edge of the roadway.

Section 458, also contained within division IX of the Vehicle Code, reads:

“The provisions of this division are applicable and uniform throughout the State and in all counties and municipalities therein and no local authority shall enact or enforce any ordinance on the matters covered by this division unless expressly authorized herein.”

The ordinance does not fall within any of the express authorizations (sec. 459).

The defendant argues that the ordinance related to a matter not covered by division IX of the Vehicle Code, and was therefore a valid enactment, relying on Mann v. Scott, 180 Cal. 550 [182 Pac. 281], and similar cases. However, our conclusion that the ordinance appears not to prohibit crossing between the intersections here involved makes it unnecessary to discuss the other questions regarding the validity of the ordinance. The only parts of the ordinance introduced in evidence, as noted, were paragraphs 2 and 3. It is apparent from the language of paragraph 2 that the pedestrian is permitted to cross roadways outside of the central or a business district at a place other than a crosswalk, so long as he does so by a route at right angles to the curb and yields the right of way to all vehicles on the roadway. Here the street was in a residence district and was therefore outside the central or a business district.

Paragraph 3 makes it unlawful for any person to be in any roadway other than in a safety zone or crosswalk, “provided that this provision shall not be construed to prevent the necessary use of a roadway by a pedestrian”.

We cannot construe the language of paragraph 3 as a prohibition against crossing except at a crosswalk. If it were so construed it would be contrary to and inconsistent with the provisions of paragraph 2. Ordinarily, crossing a street is a necessary and proper use of it, and the permission to cross at points between crosswalks implied in the language of paragraph 2 is a recognition of such use as a necessary use. So construed, the provisions of the ordinance are not inconsistent with the provisions of the Vehicle Code. Therefore, unless it clearly appears that the ordinance contains some restriction not included in the statute there is no occasion in a ease such as this to consider further the question of claimed invalidity. No serious .contention is made that the plaintiff was crossing the roadway otherwise than at right angles to the curb. The plaintiff testiñedx that his route was on such a straight line, and not diagonally, from his position in the rear of the parked car. The defendant testified that he did not see the plaintiff.

We find no merit in the contention that the provisions of section 563 of the Vehicle Code were applicable. It appears that there were “stop” signs at the intersections, but there was no evidence that the intersections were controlled by a “traffic control signal device” or by a police officer. An unchanging lettered “stop” warning is a sign, not a controlled “stop and go” signal. The language of the section, which also refers to control by police officers and prohibits crossing against a red or stop signal, must necessarily refer to mechanically controlled stop and go signals, which are operating, as “traffic control signal devices”. (Brown v. Regan, 10 Cal. (2d) 519 [75 Pac. (2d) 1063].)

By section 562 (a) of the Vehicle Code the plaintiff was required to yield the right of way to all vehicles on the roadway. But by the provision of subdivision (b) of the same section the defendant was not. thereby relieved from the duty of exercising due care. His duty did not arise only when he saw the plaintiff. It was a constant duty, and that duty would be breached if, under the circumstances, he failed to see when an ordinarily prudent person exercising due care would have seen. We cannot say that before proceeding the plaintiff should have waited for a vehicle to pass which was traveling at a relatively slow rate of speed and approaching from a distance of 135 to 150 feet, nor that his failure to do so necessarily constituted a violation of the statute. On the record here presented the question whether the plaintiff did all that a reasonable man was required to do in compliance with the statute, the questions of negligence, contributory negligence and of proximate cause, were for the court to determine. (Genola v. Barnett, 14 Cal. (2d) 217 [93 Pac. (2d) 109], and cases cited; see, also, Mitrovich v. Graves, 25 Cal. App. (2d) 649 [78 Pac. (2d) 227].)

The case of Meincke v. Oakland Garage, Inc., 11 Cal. (2d) 255 [79 Pac. (2d) 91], is not controlling on the facts of this case. There the violation of a city ordinance prohibiting crossing between intersections was admitted. The question of alleged conflict between the ordinance and the state law was not presented by the parties. It was attempted to be presented for the first time by an amicus curiae in support of a petition for a rehearing in this court.

There is no merit in the contention that the probative facts found are inconsistent with the findings of the ultimate facts and that they overcome the latter as a matter of law. The findings of the probative facts are susceptible of a construction which will support the judgment for the plaintiff. In such case they do not, of course, adversely affect the findings of the ultimate facts. (People v. McCue, 150 Cal. 195 198, 199 [88 Pac. 899]; Hammond Lumber Co. v. Barth Investment Co., 202 Cal. 606, 609 [262 Pac, 31].)

The judgment is affirmed.

Curtis, J., Houser, J., Gibson, J., Carter, J., and Waste, C. J., concurred.


author: PULLEN, J., pro tem.

text:
    [Crim. No. 4236.
    In Bank.
    May 1, 1940.]
    THE PEOPLE, Respondent, v. JACK RYAN, Appellant.
    S. W. Thompson for Appellant.
    Earl Warren, Attorney-General, and Alberta Belford, Deputy Attorney-General, for Respondent.
   PULLEN, J., pro tem.

Appellant, with others, was jointly charged with violating subdivision 2 of section 337a of the Penal Code. Ryan was found guilty. From an order denying a motion for a new trial, an appeal was taken to the District Court of Appeal. The transcript of the proceedings of the trial court as presented to the appellate court clearly showed that at the time of pronouncing judgment the court found appellant guilty of a violation of subdivision 3, section 337a, of the Penal Code. The appellate court, in reviewing the record, held the judgment defective because the defendant had been adjudged guilty of an offense not alleged in the information, and thereupon reversed the trial court.

Thereafter, the People filed a petition for a hearing before this court, which petition was granted. Following the granting of the petition for a hearing, the attorney-general, upon behalf of the state, presented a motion for diminution of the record based upon an affidavit of the official court reporter who reported all the proceedings had at the trial of Ryan in the superior court, and affiant declared that the transcript wherever it purported to say that the trial court found the defendant then guilty of a violation of subdivision 3 of section 337a of the Penal Code, was a mistake in transcription, and that the court stated, and the transcript should have read “Subdivision 2” of said section.

Upon the hearing of the motion this court granted the same and issued an order correcting the record upon which the District Court acted, so that the only point considered and acted upon by that court is not now in the record, nor is the point now before us. We are satisfied that if the amended and corrected record had been presented to the District Court, that tribunal would have reached the same conclusion that we now find to be decisive of the appeal.

The point here presented is that the evidence is insufficient to support the verdict and that the same is contrary to the evidence.

The evidence submitted to the trial court, sitting without a jury, was, briefly, that two officers went to a certain dwelling house in Los Angeles, and upon looking through a. window, saw the defendant Ryan seated at a table in a rear room, upon which table were telephones, an amplifier, papers and other paraphernalia; the officers observed Ryan answering a telephone and making certain notations on a paper lying on a table before him. Upon demanding admission, Ryan, and the other men who were in the room, left that room and went into another part of the house. Upon examining the room in question the officers found certain papers known among racing men as betting markers or betting records, four telephones and an amplifier, an adding machine, and a rack in which were filed a number of betting records. They placed Ryan under arrest, and he then told the arresting officers that that was his home and that he would take the “rap”. He also stated he had been operating for several months, although not continuously—that sometimes his play was not heavy enough to justify remaining open.

Defendant was charged with a violation of subdivision 2 of section 337a of the Penal Code, which provides that every person ‘ ‘ who . . . keeps or occupies . . . any room . . . with . . . book, . . . papers, apparatus, device or paraphernalia for the purpose of recording or registering . . . bets ... or wagers . . . upon the result... of any trial, . . . , or contest ... of skill, speed or power of endurance of man or beast ... is punishable . . . ”.

For the purpose of this appeal appellant admits the evidence before the court showed that in a house which defendant Ryan occupied the officers found certain paraphernalia that is usually kept and found in places where the wagering on horse racing is carried on, but contended that proof alone of the occupancy of a place “with books and paraphernalia” which might have been used for the purposes prohibited by section 337a of the Penal Code is not sufficient, but that the proof must further show that the place was occupied for the purpose of recording or registering bets or selling pools upon the result of the prohibited contests. In other words, does the prepositional phrase “for the purpose of recording or registering any bet” modify “occupies” or does it modify the phrase “with a book . . . paper . . . apparatus ... or paraphernalia?” If the latter construction is correct then it is the paraphernalia and apparatus which must be for the purpose of recording a bet, and not the occupying, for the purpose of recording or registering the bets.

Support for the contention of appellant is found in People v. Tuttle, 27 Cal. App. (2d) 647 [81 Pac. (2d) 571], wherein the court said: “Although it was incumbent upon the prosecution to prove that the room was kept for the purpose set forth in the Code provision it was not necessary to make the proof by direct evidence.”

In view of the abundance of the evidence that the room was kept by defendant for the acts prescribed by the statute we need not approve nor disapprove the construction of the language placed thereon by the court in that case, for here the circumstantial evidence is sufficient to support the finding that the room was kept for the purpose of accepting wagers on a horse race. The usual equipment was found therein; a horse race was being announced over the loud speaker when the officers gained admission to the room; defendant was seated at a desk, pencil in hand, talking over the telephone;' he attempted to run out of the room but was interrupted by the officers; and his admission tended to connect him directly with the establishment and the activities there being carried on.

The evidence is ample to support the verdict. The judgment is affirmed.

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


author: GIBSON, J. SHENK, J., Concurring and Dissenting.

text:
    [S. F. No. 16392.
    In Bank.
    May 3, 1940.]
    THEODORE CANAVARRO et al., Appellants, v. THEATRE & AMUSEMENT JANITORS UNION LOCAL No. 9 (an Unincorporated Association) et al., Defendants and Respondents. APARTMENT HOUSE EMPLOYEES UNION LOCAL No. 14 (an Unincorporated Association) et al., Cross-Complainants and Respondents, v. BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION (an Unincorporated Association) et al., Cross-Defendants and Respondents; CHARLES HARDY et al., Interveners and Appellants.

      Picard & McCarty for Appellants.
    James L. Peely, Amicus Curiae, on Behalf of Appellants.
    I. B. Padway for Respondents.
   GIBSON, J.

This is a petition for a writ of supersedeas, arising out of a controversy between the officers of certain labor union locals and the officers and representatives of their international union. Upon the filing of the petition this court issued an order to show cause why the writ should not issue, and stayed all proceedings pending the hearing on said order.

On December 27, 1939, plaintiffs and appellants, members of certain local unions, brought an action in the superior court for an injunction and an accounting, against various local unions, the officers thereof, the international union, its president, George Sealise, and others. The main charge in the complaint is that the local unions are paying per capita taxes to the international union, but that the president thereof, in violation of its constitution, refuses to furnish the executive board with a statement of expenditures, and is wasting the money. It is also alleged that the president and others have entered into a conspiracy to prevent local unions from demanding an accounting, and in pursuance thereof purported to suspend from office Charles Hardy, duly elected fourth vice-president and western representative, because of his demands therefor, replacing him with one Meyer Lewis. Lewis, it is further alleged, threatens to take possession of the documents and property of the local unions. The prayer is that the defendant local unions and officers be restrained from delivering the documents or property and from paying the funds to the international union; that the international and its president be restrained from removing Hardy from his office; that the international and its president be compelled to account; and that a referee be appointed to take the accounting.

On January 9, 1940, some of the local unions and officers who were named as defendants filed an answer and cross-complaint which seek the same relief as does the complaint.

On January 17, 1940, Hardy and his two sons, who are officials of local unions, intervened in the action, also seeking substantially the same relief, with an additional prayer. It appeared that Lewis, sent here by President Scalise to replace Charles Hardy, was instructed to hear and try charges of disloyalty, false propaganda against the international union, and other alleged improper conduct on the part of the Hardys. The record of such trial was to be sent to President Scalise for decision. Notice to that effect was sent to the Hardys. Accordingly, in their complaint they prayed that the threatened trial of them by Lewis and Scalise should be enjoined pending the trial of the main proceeding on the merits.

The trial court issued a temporary restraining order and directed defendants to show cause why a preliminary injunction should not be granted. A hearing was had and the court made its order, granting in part the injunctive relief sought, but refusing to restrain the trial of the Hardys. Plaintiffs and interveners appealed from certain portions of the order.

The present petition for supersedeas seeks to prevent the threatened trial of the Hardys pending the determination of the main case on the merits.

The law governing the issuance of writs of supersedeas in injunction cases has been fully discussed by this court in recent cases, and needs no detailed exposition here. A mandatory injunction is automatically stayed by an appeal, and if the trial court should proceed to enforce it notwithstanding this stay, supersedeas may issue. A prohibitory injunction is not stayed by the taking of an appeal, and supersedeas will not be granted except in rare circumstances. (See Ohaver v. Fenech, 206 Cal. 118 [273 Pac. 555] ; Feinberg v. Doe, 14 Cal. (2d) 24 [92 Pac. (2d) 640].) Recognizing these settled rules, petitioners contend that the court’s order directs that the Hardys be tried, and in this respect is substantially a mandatory injunction which was stayed by the appeal.

To answer this contention requires a consideration of the provisions of the decree, and we find that the court ordered the following: (1) Those portions of the temporary restraining order which “interfere with or prevent the Executive Board” from trying the Hardys, on the charges made in the manner provided by the constitution and by-laws of the international union, be “set aside and discharged”. (2) Provided, however, that board members Scalise (president) and Burke (third vice-president) be restrained from sitting on the board or in any way participating in the trial, “for the reason that they investigated said charges and caused the same to be made”; and “no one but members of the Executive Board not herein disqualified participate as judges in said trial”. (3) The trial shall be “prompt and expeditious” in order to permit an appeal to the international convention in May, 1940; and for the convenience of the Hardys their residence (San Francisco), shall be the place of trial. (4) Because of the present illness of two members of the board, “it is ordered that said trial shall be conducted in the following manner”: three members “shall hold and conduct the hearing in San Francisco ... to commence not later than Tuesday, March 5, 1940”; notice of place of trial shall be furnished by March 4; a stenographic record shall be made and sent to the other two members, who may participate after reading it. (5) The charge of disseminating false propaganda against the executive board is excluded and the board restrained from trying it. (6) The Hardys shall be permitted to participate as delegates in the convention, if elected. (7) The board “are hereby restrained from conducting said trial in any manner or place save as hereinabove provided”.

Petitioners, as stated above, contend that this was “an affirmative and mandatory order” directing the three designated members of the executive board to try the Hardys in a certain manner at a certain time. They rely upon the quoted portions of the order, supra, and on inferences from the asserted facts that the constitution of the union does not authorize trial by the board, that no previous attempt had been made to try the Hardys before the board. Thus they reach the conclusion that the only authority for the trial comes from the court’s order, and that consequently that order, laying down the conditions under which the trial shall be held, is in effect a mandatory injunction directing that a trial be held.

The argument is not convincing. Whether the union’s constitution authorizes, expressly or by implication, the discipline of members or officers after trial on charges filed, is a problem not before us. The circumstances show quite clearly that respondents, the international officers, did claim such a right, and proceeded to act under it. It was that action under that purported authority which petitioners sought to prevent by applying to the trial court for an injunction. It was not respondents who sought the aid of the court; they did not and do not now claim authority to hold the trial by reason of the court’s order.

Some of the quoted portions of the order, if completely separated from their context and read without any knowledge of the circumstances leading thereto, might suggest that the court was ordering that the Hardys be tried. But reading the entire order in the light of the background of the case, its purpose and effect are unmistakable. The court, recognizing the authority of the international union to take the disciplinary measures in question, but cognizant of the claim of unfairness made by petitioners, sought to place limitations upon the conduct of any such trial, practically all in the interests of petitioners. Thus, those who had brought the charges were disqualified from hearing them; the order required that a report be made of the proceedings, with right of appeal to the convention; and the court insisted upon a speedy hearing to safeguard this right of appeal. The provision that trial be before impartial members of the board was in lieu of the attempted trial before Lewis and Scalise. Petitioners were not initially forced to trial by the court’s order. They were given a right to insist that any trial, if held, be conducted in a manner consistent with principles of fairness and impartiality.

Indeed, the order can hardly be interpreted any other way. There was no issue raised, nor evidence presented, on the authority of the court to order petitioners to submit to trial. It can hardly be imagined that the court would deliberately make such an order, requested by neither party, and supported by neither pleading nor proof. If, for example, respondents should choose to abandon the proceedings entirely, could it be said that the court would have power to punish them for contempt? Yet.if the court ordered a trial, they would have to comply on pain of such punishment. The result would then be that without the request of either party, both would be forced to take action which each opposed. These speculations only serve to emphasize the unreasonableness of petitioners’ theory.

Since there was, therefore, no mandatory injunction, the order of the court was not stayed by the appeal. Nor have petitioners made any showing which would warrant our issuance of supersedeas on any other ground. As a matter of fact, the opposite is true. Petitioners sought, in the lower court, to restrain their trial. The court gave relief only to the extent of prescribing conditions under which the trial could be held, but refused to enjoin it altogether. If we issue supersedeas, as requested, its effect would be to prevent the trial, thus granting the injunction which the trial court denied. We have on several occasions pointed out that this is not a proper function of the writ of supersedeas. (See Seltzer v. Musicians’ Union, 12 Cal. (2d) 718 [87 Pac. (2d) 699]; McCann v. Union Bank, 4 Cal. (2d) 24 [47 Pac. (2d) 283] ; Wollenshlager v. Riegel, 186 Cal. 622 [200 Pac. 726].)

The writ is denied.

Houser, J., Curtis, J., Carter, J., and Waste, C. J., concurred.

Edmonds, J., concurred in the judgment.

SHENK, J., Concurring and Dissenting.

I concur in the order denying the writ of supersedeas for the reason that the portions of the order of the trial court from which an appeal was taken and which are claimed by the petitioners herein to be mandatory became ineffective by lapse of time. The trial court directed that the contemplated trial of the petitioners be conducted before three members of the general executive board and be commenced not later than March 5, 1940. That time had passed before the hearing on the application for the writ was had in this court, and the directions to hold the trial on a day that had long since passed became ineffective.

But I dissent from the holding that the portions of the order of the trial court directing the time, place and manner of the trial were not mandatory. In language too plain to be misunderstood the court assumed to direct the time when, the place where, and the manner in which the trial should be had and to order a record thereof made and certified to absent members of the board. The consequences of this language cannot be minimized by assuming that the trial court could not have intended its obvious effect, inasmuch as it went beyond the issues then before the court. Whatever the reasons, the order was made and is reviewable on appeal.

Nor can I accede to the conclusion that the writ of supersedeas, if issued, would have the effect of “granting the injunction which the trial court denied”. The trial court did not deny a temporary injunction. It granted one restraining the board from 11 conducting the trial in any manner or place save as hereinabove provided”. The fact that the operation of the writ, if issued, would not be upon the prohibitory features of the order appealed from, but would operate only to stay the effect of the provisions of the order which are clearly mandatory, is the natural consequence of the trial court’s order and cannot affect the application of the well-established rules of law invoked by the petitioners.


author: SHENK, J.,

text:
    [S. F. No. 16326.
    In Bank.
    May 14, 1940.]
    JACOB LOWEN, Appellant, v. M. A. FINNILA, Respondent.

      Cross & Brandt for Appellant.
    Hone & Hone and Bronson, Bronson & McKinnon for Respondent.
   SHENK, J.,

The plaintiff sued to recover damages for personal injuries suffered as the result of alleged negligence of the defendant. The ease was tried with a jury. Pursuant to the court’s instructions, the jury returned a general verdict and an answer to a special interrogatory. Notwithstanding the general verdict for the plaintiff, the trial court upon motion rendered judgment for the defendant pursuant to section 625 of the Code of Civil Procedure. The plaintiff appealed.

On this appeal we are not concerned with the question whether the evidence was sufficient to sustain the general verdict, nor the question whether, upon the evidence, it must be said as a matter of law that the plaintiff was guilty of negligence which proximately contributed to his injury and barred a recovery. The disposition of the appeal is governed by the considerations surrounding the question whether the trial court correctly concluded that the special verdict was so inconsistent with the general verdict as to control it as a matter of law. That question is determinable on the pleadings and the findings of the jury. It is assumed for the purposes of this appeal that the evidence was sufficient to support the allegations of the complaint and the general verdict of the jury. (Law v. Northern Assur. Co., 165 Cal. 394, 406 [132 Pac. 590]; 64. Cor. Jur., p. 1182.) Every reasonable intendment in favor of the general verdict must be indulged in order to reconcile all findings of the jury. Thus, “the general verdict will stand unless the facts found by the jury in answer to special interrogatories are so clearly antagonistic to it as to be absolutely irreconcilable, the conflict being such as to be beyond the possibility of being removed by any evidence admissible under the issues, so that both the general verdict and special findings cannot stand”. Under this test it has been determined that “a special finding is inconsistent with the general verdict only when, as a matter of law, the special finding when taken by itself would authorize a judgment different from that which the general verdict will permit”. (Law v. Northern Assur. Co., supra, 406, 407; 38 Cyc., p. 1928; 24 Cal. Jur., pp. 906, 910-912.)

In the complaint it is alleged that the defendant owned and conducted in San Francisco the premises known as the “Finnish Baths”, for the use and convenience of patrons; that on October 10, 1936, the plaintiff entered the premises, paid the charge requested, and was directed to a private steam room; that in said room the defendant maintained for the use of patrons a shower having pipes and faucets for the use of hot and cold water. The complaint then contains the following allegations: “That said shower bath was so carelessly and negligently constructed and maintained by the defendant, that the pipe carrying hot water to said shower bath, when the valve or faucet attached to said pipe was opened, first emitted from said shower cold water before emitting therefrom hot water, that said cold water, without any intermediate change in temperature, suddenly without notice or warning changed from cold water to hot water and that said shower emitted boiling, scalding water; that said defendant carelessly and negligently failed and neglected to notify the plaintiff which of said pipes leading to said shower carried hot water and which of said pipes carried cold water, or to designate by sign, writing or in any other manner, which of said pipes leading to said shower bath carried hot water and which of said pipes carried cold water thereto.

“That plaintiff had no knowledge of any kind as to which of said pipes carried cold water to said shower bath and which of said pipes carried hot water thereto; that desiring and intending to take a shower bath of cold water, and for the purpose of ascertaining which of said pipes carried and conducted cold water to said shower, plaintiff opened the faucet or valve attached to one of the said pipes leading to said shower bath; that when the water was emitted therefrom, plaintiff felt and tested the same with his hand and ascertained that the water flowing therefrom was cold water; that believing, as a result of said test, that said valve or faucet controlled the cold water flowing to said shower, plaintiff started to step into said shower; that said defendant so negligently and carelessly maintained and operated said shower that without any notice or warning of any kind whatsoever, scalding water suddenly flowed from said shower, impinging upon and striking the body of the plaintiff.

“That as a direct and proximate result of the aforesaid neglect, negligence and carelessness of defendant, plaintiff was severely scalded and burned. ...”

The defendant denied'the allegations charging negligence and interposed the affirmative defense of contributory negligence on the part of the plaintiff. The case was submitted to the jury upon the instruction, among others, that if the jury should find that the plaintiff “in the exercise of ordinary care, could or should have determined which faucet was hot and which was cold before using the shower bath, and you further find that Mr. Lowen did not so ascertain which was hot and which was cold, but nevertheless used the shower bath, and if you further find that such action on his part, if any, proximately contributed to his injury, then you are instructed that your verdict must be in favor of defendant. ’ ’ There was also submitted to the jury the following special interrogatory: “At the time and place of plaintiff’s accident, were there any signs or lettering plainly designating as to which faucet was hot and which was coldf. The answer is to be ‘yes’ or ‘no’ and signed by the foreman of the jury.” The jury returned a general verdict for the plaintiff in the sum of $8,000 and answered “yes” to the special interrogatory. As noted, the court granted the defendant’s motion for judgment on the ground that the general and special verdicts were inconsistent.

The judgment herein may be sustained only if it may be said that under no circumstances within the issues could the defendant be held liable to a plaintiff who had turned on the hot water without any admixture of cold water. We think the ease does not permit of so positive a statement. Such a statement would be tantamount to a declaration that a plaintiff could not recover even though it could be found that, irrespective of the plaintiff’s negligence, the defendant’s negligence was the sole proximate cause of the injury. If under the pleadings evidence might be introduced showing the defendant’s negligence, which, apart from any negligence on the part of the plaintiff, could be found to be the proximate cause of the injury, the judgment herein may not be sustained. It is apparent that under the issues of the defendant’s negligence and the plaintiff’s contributory negligence, the issuable facts might develop a situation where the defendant’s negligence could be deemed to be the sole contributing and proximate cause of the injuries suffered by the plaintiff. In other words, it may not be said that, on the pleadings, the question of liability may be disposed of by an answer to the question contained in the special interrogatory submitted to the jury, namely, whether the designations of hot and cold were plainly indicated with reference to the shower taps. Therefore, if the jury found, as we must assume it did, that although the plaintiff was negligent the defendant also was negligent and that the negligence of the defendant was the sole proximate cause of the injury, the verdicts cannot be said to be so inconsistent as to be irreconcilable. The court’s instruction covered the subjects of contributory negligence and proximate cause. If the special interrogatory had been as comprehensive, the ambiguity between the general and the special verdicts would have been obviated. On the record presented, we must conclude that there is no failure of- consistency between the special and general verdicts, and that the intendments in favor of the general verdict should govern. By that verdict the jury must be deemed to have found that the defendant was negligent and that his negligence was the sole proximate cause of the plaintiff’s injuries. On this record the answer to the special interrogatory was not irreconcilable with those findings. Judgment should have been entered in accordance with the general verdict. (Tremble v. Tuman, 175 Cal. 696 [167 Pac. 142] ; Hudgins v. Standard Oil Co. of California, 136 Cal. App. 44 [28 Pac. (2d) 433]; Koskela v. Albion Lumber Co., 25 Cal. App. 12 [142 Pac. 851].)

The judgment is reversed with directions to the trial court to enter judgment for the plaintiff on the general verdict.

Curtis, J., Gibson, J., Edmonds, J., Waste, C. J., and Carter, J., concurred.

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