text:
    [Sac. No. 5205.
    In Bank.
    May 18, 1939.]
    DOUGLAS AIRCRAFT COMPANY, INC., (a Corporation), Appellant, v. CHARLES G. JOHNSON, as State Treasurer, etc., Respondent. CHANSLOR-CANFIELD MIDWAY OIL COMPANY (a Corporation), Appellant, v. CHARLES G. JOHNSON, as State Treasurer, etc., Respondent. KETTLEMAN NORTH DOME ASSOCIATION (a Corporation), Appellant, v. STATE OF CALIFORNIA (a Body Politic), et al., Respondents.
    [Sac. No. 5208.
    In Bank.
    May 18, 1939.]
    [Sac. Nos. 5209, 5210, 5211, 5212, 5213, 5214.
    In Bank
    —May 18, 1939.]

      H. W. Elliott, Edward P. Fogg, L. W. Butterfield and George W. Nilsson for Appellants.
    U. S. Webb, Attorney-General, and H. H. Linney and James J. Arditto, Deputies Attorney-General, for Respondents.
   THE COURT.

The three named plaintiffs noticed these appeals from judgments entered by the court below following the sustaining of demurrers to their respective complaints. By stipulation the appeals have been consolidated.

The actions were instituted under section 29 of the Use Tax Act of 1935 (Stats. 1935, chap. 361, p. 1297) by plaintiffs to recover taxes paid by them under that statute. No question is raised regarding the compliance by plaintiffs with the procedural requirements of the act dealing with the recovery of taxes paid under protest. The only issues involved relate to the constitutional authority of the state to impose the tax in question.

From the complaints, which are substantially identical, it appears that the plaintiffs Kettleman North Dome Association and Chanslor-Canfield Midway Oil Company are each engaged in this state in the business of drilling for and producing oil, gas and other petroleum substances; that plaintiff Douglas Aircraft Company, Inc., is engaged in the business of designing, manufacturing and fabricating airplanes and airplane parts; that since the effective date of the Use Tax Act all of the plaintiffs have purchased and are still purchasing supplies, equipment and machinery used by them in their respective businesses; that these purchases were made outside the state of California and from dealers not maintaining a place of business in this state; that, as required by the terms of the Use Tax Act, plaintiffs filed with the state board of equalization returns disclosing the above purchases, and paid the amount of the tax imposed by the act; that with said returns plaintiffs filed written protests in which the unconstitutionality of the act was alleged. The plaintiff Douglas Aircraft Company, Inc., alleged, in addition, that much of the tangible personal property purchased by it outside the state consists of special tools, machinery, materials and supplies which cannot be purchased in this state, and can be acquired only from sellers not maintaining places of business within this state. It is conceded that in all of the cases the property was purchased by the plaintiffs outside the state for their own use, and not for resale, and was shipped direct to them in interstate transactions.

Appellants urge that the Use Tax Act is unconstitutional for two main reasons:

1. That the tax imposed by the act, in operation and effect, is a property tax, and is therefore unconstitutional because not levied in proportion to the value of the property and because it imposes double taxation, in violation of article XIII, sections 1 and 14 of the state Constitution; further, if the tax imposed is an excise tax, then it violates article I, section 1, of the state Constitution, in that it is a tax on the right of ownership as such, which is a nontaxable privilege; and
2. The tax constitutes a direct burden upon and discriminates against interstate commerce in violation of the commerce and due process clauses of the Constitution of the United States.

This last contention has been exhaustively briefed and vigorously argued by appellants. After the filing of all of the briefs, the United States Supreme Court passed upon this identical question. It held, in eases where the interstate nature of the transactions was much closer than in the instant cases, that the Use Tax Act of California does not violate either the commerce clause of or the Fourteenth Amendment to the federal Constitution. (Southern Pac. Co. v. Gallagher, (Jan. 30, 1939) 306 U. S. 167 [59 Sup. Ct. 389, 83 L. Ed. 586]; Pacific Tel. & Tel. Co. v. Gallagher, (Jan. 30, 1939) 306 U. S. 182 [59 Sup. Ct. 396, 83 L. Ed. 595] ; see, also, Felt & Tarrant Mfg. Co. v. Gallagher, (Jan. 30, 1939) 306 U. S. 62 [59 Sup. Ct. 376, 83 L. Ed. 488].) These decisions are conclusive on this court on these issues. On the authority of the above cases it must be held that appellants’ second point is without merit.

Equally untenable is the first contention of appellants. The argument on this point is that if the tax is a property tax it violates the provisions of article XIII of the Constitution. Section 1, of that article provides that “all property in the state except as otherwise in this Constitution provided . . . shall be taxed in proportion to its value”. Section 9a provides that taxes levied on personal property where not secured by real estate, shall be based on the tax levied on real property for the preceding year. Section 14, as amended in 1933, however, confers upon the legislature wide discretion in classifying or exempting from taxation any and all kinds of personal property. One of respondents’ contentions is that even if the tax is a property tax it would be valid under section 14. Appellants contend that any special tax on personal property violates section 1,, that section, according to their contention, requiring uniformity and equality in taxation, and prohibiting double taxation. We do not find it necessary to pass upon this point for the reason that we are of the opinion that the tax is an excise tax, and therefore the provisions of article XIII have no application. (Kaiser Land & Fruit Co. v. Curry, 155 Cal. 638 [103 Pac. 341] ; Ingels v. Riley, 5 Cal. (2d) 154 [53 Pac. (2d) 939, 103 A. L. R 1].)

Before directly discussing the contention of appellants that the statute in question imposes a property tax, some brief reference must be made to the provisions of the statute. The title of the act provides in part as follows: “An act imposing an excise tax on the storage, use or other consumption in this State of tangible personal property.” Section 2 (a) defines “storage” as “any keeping or retention in this State for any purpose except sale in the regular course of business of tangible personal property purchased from a retailer”. The term “use” is defined in section 2 (b) as “the exercise of any right or power over tangible personal property incident to the ownership of that property, except that it shall not include the sale of that property in the regular course of business”. Section 3 provides that “An excise tax is hereby imposed on the storage, use or other consumption in this State of tangible personal property purchased from a retailer on or after July 1, 1935, for storage, use or other consumption in this state at the rate of three per cent of the sales price of such property.” Section 4 exempts from the operation of the tax, among other things, the storage, use or other consumption of property the gross receipts from the sale of which are taxed under the sales tax,motor vehicle fuel, the gross receipts from the sale or distribution of which are taxed under the Motor Vehicle Fuel License Tax Act; and food products purchased for human consumption which are exempted from the sales tax.

Appellants concede that the sales tax and the motor vehicle license tax are excise and not property taxes. It will be noted that when the use tax is considered in connection with the other two taxes mentioned, the legislature has provided a comprehensive taxing system applicable to the sale, use, storage or consumption of personal property. The three taxes are mutually exclusive, each taxing privileges not taxed by the other two.

There can be no doubt of the propriety of considering all three taxes together, although only one of them is here under attack. The United States Supreme Court has ruled that in considering the validity of a use tax, other taxes to which it is complementary must also be considered. (Gregg Dyeing Co. v. Query, 286 U. S. 472 [52 Sup. Ct. 631, 76 L. Ed. 1232, 84 A. L. R. 831] ; see, also, Vancouver Oil Co. v. Henneford, 183 Wash. 317 [49 Pac. (2d) 14].)

The inherent fairness of the use tax, when it is read in conjunction with the statutes to which it is complementary, is obvious. The United States Supreme Court in Henneford v. Silas Mason Co., 300 U. S. 577 [57 Sup. Ct. 524, 81 L. Ed. 814], upheld as constitutional a Washington statute imposing a use or ‘‘ compensating tax” substantially similar to the one here involved. In so doing that court had the following to say about the purpose and effect of such statutes (p. 581):

‘‘ The practical effect of a system thus conditioned is readily perceived. One of its effects must be that retail sellers in Washington will be helped to compete upon terms of equality with retail dealers in other states who are exempt from a sales tax or any corresponding burden. Another effect, or at least another tendency, must be to avoid the likelihood of drain upon the revenues of the state, buyers being no longer tempted to place their orders in other states in the effort to escape payment of the tax on local sales.”

The determination of whether a particular tax is a property or excise tax is not always an easy matter. In discussing this problem in Ingels v. Riley, supra, page 159 it is stated:

“The distinction between a tax on a privilege and a property tax is many times a close one. Generally speaking, the function of a property tax is to raise revenue. Such a tax does not impose any condition nor does it place any restriction upon the use of the property taxed. A privilege tax, although also passed to raise revenue, and as such it is to be distinguished from the license tax on regulatory charge imposed under the state’s police powers, is imposed upon the right to exercise a privilege, a.nd its payment is invariably made a condition precedent to the exercise of the privilege involved. (37 Cor. Jur., p. 171, sec. 9, and cases cited.)
“It is impossible to lay down any positive rule by means of which the character of any given tax may be ascertained. In each case the character of the given tax must be ascertained by its incidents, and from the natural and legal effect of the language employed in the statute.”

Applying this test to the statute here under consideration we have no hesitancy in holding that the tax imposed is an excise tax, for revenue purposes, levied on the privilege of use, storage or consumption. In the first place, as indicated by the quotations from the statute, supra, the legislature has denominated the levy an excise tax. Although not conclusive this is entitled to considerable weight in ascertaining the nature of the tax. In Ingels v. Riley, supra, page 160, this rule of construction is stated as follows:

“Although the designation made by the legislature is not conclusive on the courts, some weight must be given such designation in determining the nature of the tax. In San Francisco v. Liverpool etc. Ins. Co., 74 Cal. 113 [15 Pac. 380, 5 Am. St. Rep. 425], this court in discussing the character of a tax, had recourse to this factor. In the Opinion of the Justices, supra, 250 Mass. 591, 597 [148 N. E. 889], the Massachusetts court, in advising the legislature of that state as to the nature of a proposed taxing statute on motor vehicles, based on value, identical in many respects with the one here involved, stated:
“ ‘Avowedly an excise tax is established. The declaration to that effect is explicit. Such statutory statement is to be accepted as true unless incompatible with the meaning and effect of the act as a whole.’
“In Storaasli v. State of Minnesota, 283 U. S. 57 [51 Sup. Ct. 354, 75 L. Ed: 839], the United States Supreme Court, in interpreting a statute almost identical with the one here involved, emphasized the fact that the legislature had denominated the charge a privilege tax.”

In the second place it is obvious, from a reading of the act, that the tax here levied is not imposed on the ownership of property as such. It does not apply to the use of property to be resold. It does not recur annually, but falls due only once. It is not imposed on a fixed day, although it is collectible quarterly—in short, it does not fall upon the owner because he is the owner, regardless of the use or disposition he may make of the property. It is imposed on certain of the privileges of ownership, but not on all of them.

The contention made by the appellants that a use tax, such as is here involved, is in fact a tax on ownership of property and is not a tax on the privilege of use, storage or consumption, is not a new one. It has been made in one form or another in attacking nearly every use tax statute that has been enacted. There is a long line of authorities, most of them of recent date, holding that use taxes, including taxes imposed on the privilege of use, or storage, or withdrawal from storage, are excise taxes and not property taxes. In Gregg Dyeing Co. v. Query, supra, the United States Supreme Court upheld as imposing an excise tax a South Carolina statute levying a tax on the storage of foreign gasoline when stored for future use. When the same cause was before the South Carolina court the tax was designated by it (166 S. C. 117 [164 S. E. 588]) as “an excise tax and not a property tax”. The same court in Nashville C. & St. L. Ry. v. Wallace, 288 U. S. 249 [53 Sup. Ct. 345, 77 L. Ed. 730, 87 A. L. R. 1191], upheld a Tennessee statute imposing a tax on the privilege of selling, storing or distributing gasoline, the tax being payable on the withdrawal from storage. In Bowman v. Continental Oil Co., 256 U. S. 642 [41 Sup. Ct. 606, 65 L. Ed. 1139], the court, in answering the contention that a New Mexico statute levying a tax on the sale or use of gasoline was in fact a property tax and therefore void under the state Constitution, stated (p. 649) : “The tax imposed by the act under consideration upon the ‘sale or use of all gasoline sold or used in this State’ is not property taxation, but in effect, as in name, an excise tax.” In West India Oil Co. v. Gallardo, 6 Fed. (2d) 523, the court upheld a 10 per cent tax levied by Porto Rico on all automobiles produced, manufactured, sold or used in Porto Rico. The court stated (p. 525) : “We think it plain that this is an excise tax on sale or use, and not an import tax. . . . Equally untenable is the contention that this is a tax on property and void for lack of uniformity. The tax is upon automobiles ‘manufactured, sold or used in Porto Rico’. It is not a tax upon ownership as distinguished from the production, sale or use.” In American Airways v. Wallace, 57 Fed. (2d) 877, the court had under consideration the validity of a Tennessee statute imposing a tax on persons engaged in the business of selling, storing or distributing gasoline. In discussing the nature of the tax the court stated (p. 880) : “The statute in question does not impose a property tax upon the gasoline, but it imposes an ‘excise’ or ‘privilege’ tax upon the business of storing and withdrawing the gasoline and the amount is computed upon withdrawals.” In Central Vermont Ry. v. Campbell, 108 Vt. 510 [192 Atl. 197, 199, 111 A. L. R. 175], the Supreme Court of Vermont, in upholding that state’s tax upon the “use, distribution or sale” of gasoline, declared: “It is an excise tax upon the domestic sale or use of the gasoline, measured by gallonage. ” Many of the use tax cases are reviewed in this opinion. In Commonwealth v. Dixie Greyhound Lines, 255 Ky. 111 [72 S. W. (2d) 1032, 1033], the court described the Kentucky gasoline use tax as “an excise tax on distribution, consumption or use”. It is also worth noting that the United States Supreme Court in Southern Pac. Co. v. Gallagher, supra, in analyzing the nature of the very tax here challenged, refers to it as one that (p. 391) “imposes an excise on the consumer . . . for the storage, use or other consumption in the state of such property”. There is an excellent discussion of the problem in Henneford v. Silas Mason Co., supra,—the case which upheld as an excise tax the use or “compensating” tax of the state of Washington, a tax substantially similar to the one here under attack. After holding that the tax was an excise tax, in further discussing the nature of the tax the court stated (p. 582):

“The tax is not upon the operations of interstate commerce, but upon the privilege of use after commerce is at an end.
“Things acquired or transported in interstate commerce may be subjected to a property tax, nondiscriminatory in its operation when they have become part of the common mass of property within the state of destination.....For like reasons they may be subjected, when once they are at rest, to a non-discriminatory tax upon use or enjoyment. . . . The privilege of use is only one attribute, among many, of the bundle of privileges that make up property or ownership. ... A state is at liberty, if it pleases, to tax them all collectively, or to separate the faggots and lay the charge distributively. ”

The eases of Dawson v. Kentucky Distilleries & Warehouse Co., 255 U. S. 288 [41 Sup. Ct. 272, 65 L. Ed. 638], and City of Los Angeles v. Lankershim, 160 Cal. 800 [118 Pac. 215], cited and relied upon by appellants are not in point. In the Dawson case the court held that a Kentucky statute imposing a gallonage tax on persons engaged in the business of owning and storing whisky in bonded warehouses, such tax being payable when the whisky was either withdrawn from bond or transferred in bond from Kentucky to a point outside the state, was in fact a property tax upon ownership as such, and was not a license tax. This conclusion was predicated upon the peculiar terms of that statute, and upon the fact that the emergency clause of the statute indicated that the legislature of Kentucky considered that it was taxing the whisky and not a privilege. This case is not contrary to nor inconsistent with the later Supreme Court cases cited, supra, holding that use taxes are excise taxes. In the Lankershim case this court expressly refused to determine whether a so-called license tax, payable yearly by persons engaged in “maintaining, managing or conducting a building for the purpose of letting rooms”, the tax being measured by the size of the building, was a property or an excise tax.

The appellants’ last contention (urged in their closing briefs) is that under the declaration of rights of the California Constitution (art. I, sec. 1) every person possesses ‘ ‘ certain inalienable rights among which are those of . . . acquiring, possessing or protecting property”; that under this section an excise tax upon the privilege of ownership and use may not be levied by the state, although concededly the section does not prohibit property taxes. The contention is obviously unsound. As already held, the tax is not upon ownership as such, but upon the privilege of use, storage or consumption. The cited provision no more prohibits a tax on the privilege of use than it does a tax on the property itself.

For the foregoing reasons the judgments appealed from should be and each is hereby affirmed.


source: Caselaw Access Project

author: SHENK, J.

license: Public Domain

text:
    [S. F. No. 16187.

      In Bank.
    May 22, 1939.]
    COUNTY OF LOS ANGELES (a Body Corporate and Politic), Petitioner, v. ALFRED JONES, as County Surveyor, etc., Respondent.

      J. H. O’Connor, County Counsel, and A. Curtis Smith, Deputy County Counsel, for Petitioner.
    O’Melveny, Tuller & Myers and James L. Beebe for Respondent.
   SHENK, J.

A rehearing was ordered for the purpose of giving counsel an opportunity to discuss the method of spreading the refunding assessments under the act here involved, and to give consideration to the contention that the interpretation of section 31 thereof (Stats. 1937, p. 2381), announced in our previous decision would make multiple district refunding proceedings unworkable and therefore unavailing for the purpose intended by the legislature.

Our prior opinion with some modification is adopted in part as follows:

" The County of Los Angeles seeks the issuance of the writ of mandamus to compel the respondent, as its county surveyor, to spread a reassessment upon the real property in districts numbers 32, 40 and 240 in said county pursuant to the Assessment Bond Refunding Act of 1933. (Stats. 1933, p. 1915, as amended; Stats. 1937, p. 2381.)
“The petition shows that Acquisition and Improvement District No. 32 was organized under the Acquisition and Improvement Act of 1925. Bonds were issued on April 4, 1937, in the sum of $48,151.94, bearing interest at seven per cent annually. The bonds represented the cost of installation of an ornamental street lighting system. District number 40 is a special improvement district organized also under the act of 1925, for the same class of improvements. Bonds of that district were issued on the same date in the sum of $34,864.06, bearing interest at seven per cent. Similarly under the 1925 act, district number 240 was organized for the purpose of installing a sanitary sewage system and to meet the cost thereof. Bonds of that district were issued on February 3, 1930, in the sum of $170,086.83, with an interest rate of six per cent.
“The board of supervisors of the county of Los Angeles instituted the original proceedings in each instance. On January 18, 1938, the board of supervisors determined that the public interest, convenience and necessity required the refunding of the bonds of all three districts in one proceeding pursuant to the provisions of section 31 of the 1933 refunding act as amended by Statutes of 1937, page 2370, at page 2381.
“The proceeding progressed to the point where, after due demand by the board, the respondent county surveyor refused to make a diagram of the property upon which the reassessment was proposed to be levied and to prepare one reassessment on the various parcels for the proportion of the refunded unpaid balance of the cost of all improvements in proportion to the benefits received.
“The regularity of the proceedings thus far is not questioned. The demurrer filed by the respondent raises the question of the constitutionality of the 1937 amendment to section 31, which provides for so-called ‘multiple district refunding’ in one proceeding. The portions of the amended section which are pertinent to the present discussion are:
“ ‘When all or any part of the lands in any district, the indebtedness of which could be refunded under the provisions of this act, lie in any other district or districts, the indebtedness of which could be refunded under the provisions of this act, all or any number of such districts which wholly or partially overlap may be included in one refunding proceeding and the total indebtedness of all of the districts so included in one proceeding may be refunded in such proceeding and one issue of refunding bonds issued and one reassessment levied therefor. It is the intent of this section to permit, but not to require, the refunding in one proceeding of the indebtedness of all districts which wholly or partially overlap, and to authorize the refunding in one proceeding of the indebtedness of any number of districts where some part of the area of each of the districts lies wholly or partially within the boundaries of one or more of the other districts included in the same refunding proceedings, and such refunding in one proceeding of the indebtedness of two or more districts may be called “multiple district refunding”. . . . The provisions of this section are to be liberally construed, to the end that jurisdiction to refund in one proceeding the indebtedness of any and every combination of districts now existing shall be full and complete. ’
“It is further provided by the section that the resolution of intention and all the required notices shall state ‘that the refunding shall not be authorized unless the consent of the owners of a majority in area of the lands included within each of the districts, who shall likewise be the owners of a majority in area of the lands included within the exterior boundaries of the total area which comprises the districts, is filed with the clerk of the legislative body conducing the proceeding, ... If, at the hearing provided in section 3 hereof, the legislative body determines that the written consent of the owners of a majority in area of the lands in each of the districts, who are likewise the owners of a majority in area of the lands included within the exterior boundaries of the total area comprising the districts, has been filed, it shall be authorized to proceed with such multiple district refunding and to make a reassessment and issue refunding bonds therefor as in this act provided. The reassessment shall be spread over all of the lands in the total area comprising the districts and subject to tax or assessment for the payment of principal and interest of any of the bonds of the districts to be refunded in the proceeding. ’ The total reassessment is provided to be spread ‘ against all of the lands subject to reassessment hereunder within the total area comprised by the districts and benefited by the acquisitions or improvements or acquisitions and improvements, and upon each lot, piece or parcel thereof in proportion to the estimated benefits received by each such lot, piece or parcel of land from the acquisitions or improvements or acquisitions and improvements to pay for which the indebtedness proposed to be refunded was incurred ’. The section also contains the following provisions: ‘In the event that the holders of one or more of the outstanding bonds of any of the districts included in the multiple district refunding proceeding do not enter [into] any contract with the legislative body to refund the same, nevertheless, if the holders of 75% or more of the total amount of the outstanding bonds of all of said districts do contract with the legislative body which conducts the refunding proceedings for the refunding of the bonds owned or held by them, said legislative body shall have authority to refund all of the indebtedness of the districts included in such multiple district refunding proceeding under the provisions of this act, but, in such event, prior to recording the reassessment levied under this act, sufficient moneys to adequately provide for the retirement or payment of the bonds of the nonconsenting holders must be provided and set aside in the proper fund or funds for that purpose.’
‘ ‘ The petition herein also discloses that districts numbers 32 and 40 do not overlap each other, but that district number 2'40 partially overlaps district number 32 and wholly overláps district number 40. The outstanding indebtedness of district number 32 is $16,815.43; of district number 40, $16,878.85; and of district number 240, $190,901; a total for all three districts of $224,595.28. The proposed total maximum reassessment for all three districts is $139,980.29, payable over a nine-year period, with the interest rate reduced to five and one-half per cent annually. It also appears that a hearing was duly noticed and held at which protests of property owners were considered; that written consents were on file of the owners of a majority in each of the districts who likewise are owners of a majority in area of the land within the exterior boundaries of all three districts. In the pending reassessment proceeding it is contemplated that the ad valorem method of assessment under the 1925 act shall be replaced by a specific lien assessment against the lands included within the exterior boundaries of all three districts in proportion to the benefits received by each parcel from the improvements to pay which the indebtedness proposed to be refunded was incurred. No contention is made that at least 75 per cent of the bondholders have not consented, or that sufficient moneys are not provided for the retirement of the bonds of any noneonsenting bondholders.
“The question posed by the respondent is: ‘Do the provisions of the Assessment Bond Refunding Act of 1933, authorizing the refunding in one proceeding of the indebtedness of two or more ad valorem assessment districts by the levy of one specific lien reassessment and the issuance of one issue of refunding bonds, when the owners of a majority in area of the land in each of said districts constituting the owners of a majority in area of the land in all of said districts, have consented thereto, impair contract rights or vested rights of property owners in the respective districts?’
“The respondent concedes the practical necessity for multiple district refunding proceedings, that is, the impossibility, practically, to refund or adjust the indebtedness of one of several overlapping districts without at the same time adjusting the indebtedness of the others. He contends, however, that to spread the multiple district refunding reassessment upon all the lands in the total area comprised of the three original districts in proportion to benefits from all of the acquisitions and improvements of the several districts violates the contract clause of the state and federal constitutions, impairs vested rights, and takes property without due process of law.
“The validity of the refunding statute of 1933 as amended has been considered and determined in the recent cases of County of Los Angeles v. Jones, 6 Cal. (2d) 695 [59 Pac. (2d) 489]; City of Los Angeles v. Aldrich, 8 Cal. (2d) 541 [66 Pac. (2d) 647], and City of Culver City v. Reese, 11 Cal. (2d) 441 [80 Pac. (2d) 992], Each of those cases involved the refunding of the indebtedness of but one improvement district.
“The petitioner relies on cases such as City of Los Angeles v. Los Angeles Flood Control Dist., 11 Cal. (2d) 395 [80 Pac. (2d) 479]; (affd. 306 U. S. 459 [59 Sup. Ct. 622, 83 L. Ed. 921]); Ferry v. O’Brien, 188 Cal. 629 [206 Pac. 449] ; Palo Verde Irrigation District v. Seeley, 198 Cal. 477 [245 Pac. 1092]; Cowart v. Union Paving Co., 216 Cal. 375 [14 Pac. (2d) 764, 83 A. L. R. 1185], and others, which upheld legislation providing for reassessment for public improvements under special circumstances not here involved.
“If the plan of .reassessment proposed by the petitioner contemplates that land in one of the overlapping districts may bear a proportion of the assessment for improvements in another district, although such land was not included in the latter district originally and, inferentially, at least, found not to have been benefited by the improvement, difficulties might be encountered giving rise to questions which are not here necessary to decide. The petitioner emphasizes, however, that the additional assessment will not he levied unless such land in one district is shown actually to have benefited by the improvements in the other district. Both the petitioner and the respondent seem to assume that the language of section 31 as amended directs or authorizes the reassessment on lands not originally found to have been benefited by the improvements. We find no expression in section 31 which would warrant this court in concluding that the legislature intended the authorization thus apparently assumed. The pertinent language of the section which bears upon the extent of the area to be affected by the reassessment is the following:
‘ ‘ ‘ The reassessment shall be spread over all of the lands in the total area comprising the districts and subject to tax or assessment for the payment of principal and interest of any of the bonds of the districts to be refunded in the proceeding . . . The total amount . . . shall be assessed upon and against all of the lands subject to reassessment hereunder within the total area comprised by the districts and benefited by the acquisitions or improvements or acquisitions and improvements, and upon each lot, piece or parcel thereof in proportion to the estimated benefits received by each such lot, piece or par-eel of land from the acquisitions or improvements or acquisitions and improvements to pay for which the indebtedness proposed to be refunded was incurred.’

“ Does the foregoing language indicate a legislative intent that the ‘estimated benefits’ shall include benefits derived from all public improvements involved in the multiple district refunding proceeding, even though such land was not determined originally to have been benefited thereby? Or does the language import an intent that the ‘estimated benefits’ are restricted to benefits which were determined to have been received in the original proceeding? It might be argued that the use of the conjunctive and disjunctive in referring t.o the acquisitions and improvements of all districts indicated the interpretation suggested by the first question. But that interpretation would contemplate that by the refunding an additional assessment could be levied upon lands for an improvement on account of which they were not theretofore assessable. We take it that if the alternative construction indicates the proper intent and meaning of the statute, no possible objection could be presented against reassessing upon each parcel of land in one sum the proportionate amounts which would be due for each of the improvements from which originally it was determined to have derived a benefit. This conclusion might not permit the petitioner to go the full length intended by the present refunding proceeding; but in our opinion it accomplishes the object of the statute within its express terms.

“The language presented for interpretation by this proceeding is subject to the rule of strict construction. (East Bay Municipal Utility Dist. v. Garrison, 191 Cal. 680, 688 [218 Pac. 43] ; Mulvill v. City of San Diego, 183 Cal. 734 [192 Pac. 702]; Merced County v. Helm, 102 Cal. 159 [36 Pac. 399] ; Creighton v. Manson, 27 Cal. 614, 629; 23 Cal. Jur., pp. 805, 806; 24 Cal. Jur., pp. 22, 28, and cases cited.) The rule of interpretation is stated in Merced County v. Helm, supra, p. 165, as follows: ‘Any attempt on the part of the state, or of the county as one of the subdivisions of the state, to take the property of an individual for public purposes by way of taxation, must find an express statutory warrant, and all laws having this object are to be construed strictly in favor of the individual as against the state . . . the proceeding is in invitum, and no presumption is to be indulged in favor of the right to take the property or of any intention that is not distinctly expressed in the statute under which it is sought to be taken . . . (Citing cases.) A tax can never be extended, by construction to things not named or described in the statute as the subject of taxation. ’

“The application, of the foregoing rule would result in confining the estimated benefits’ intended as the measure of the reassessment, to those benefits determined in the original proceeding or proceedings to have been received -by the land within the district or districts. If the legislature intended to authorize .the extension of the assessment for the improvement to lands not originally determined to have been benefited thereby, it could have said so in unmistakable terms, in which event other objections not now necessary for determination could be presented.

“It therefore becomes unnecessary to decide in this proceeding the question of the constitutionality of the section ■had it authorized such additional assessment on lands outside of the district originally determined to include all the lands benefited by the improvement. No contention is made, nor could a contention successfully be made, that the sectiqn as amended does not otherwise conform in all respects to the requirements' of the Constitution as expounded in the cases hereinabove cited bearing upon the validity of refunding assessment acts. The fact that the outstanding obligations of three improvement districts are permitted to be refunded in one proceeding and by the imposition of an assessment in one sum on each parcel of land affected thereby, may not alone be the basis of any meritorious objection on constitutional grounds. ’ ’

It is now contended that the foregoing precludes the spread of overages, which occur in computing the specific reassessments, to any district included in the proceedings other than the district as to which the particular overage is applicable. Counsel urge the court to decide the question whether the method of computation and levy of the reassessment in the multiple district refunding proceeding permits • the spread or apportionment of overages amongst all the districts in the refunding proceeding without regard to district boundaries.

Counsel now set forth the method of spread so far used in applying the provisions of section 31 of the act, as follows: “First, the county surveyor takes the total amount of the proposed reassessment and apportions that between the districts in accordance with the outstanding indebtedness of each. Then to the sum so apportioned to each district he adds the amount of the ad valorem assessments, paid into the interest and sinking fund of that particular district. The total of these two amounts is spread upon all of the lands in the district in proportion to the benefits from the improvements constructed for the district. When this separate spread has been made for each of the districts involved in the multiple refunding, the amounts spread upon any parcel of land lying in two or more districts are added together and make a total sum. This spread of the assessment is sometimes referred to by engineer and attorneys as the gross spread or gross assessment. When this gross spread or gross assessment has been made, then the credits to which each parcel of land is entitled, by reason of the ad valorem assessments levied upon it and paid into the interest and sinking fund of all of the districts in the multiple refunding proceeding, are deducted from the gross assessment spread upon the parcel.”

It is contended that this or some similar method of gross spread and computation of credits is prescribed by the provisions of section 31 of the act, as opposed to the single district method of arriving at the amount of the net reassessment ; that a method of employing a gross spread is necessary in order to accomplish the objects of multiple districts refunding, namely, so to reduce and redistribute the burden of the original assessment that all delinquent lands will be restored to the tax roll, and in the process to change the ad valorem method of assessment on one parcel of land lying within several districts to one specific lien for the entire balance due from that parcel on account of the indebtedness of the several districts within which it lies. The provisions alluded to are, that the total amount of the proposed reassessment shall be fixed in the resolution of intention; that the reassessment shall be spread over all of the lands in the total area comprising the districts; that to the total sum of the reassessment shall be added the total sum of all assessments, including interest and penalties, paid into the interest and sinking fund of any of the districts; that the total amount of the two sums thus ascertained shall be assessed upon and against all of the lands subject to reassessment within the total area comprised by the districts and benefited by the acquisitions or improvements in proportion to the estimated benefits received by each parcel of land.

Counsel argue that it is apparent that there is but one assessment to be levied which shall be fixed in the resolution of intention and be spread over all the lands in the total area without any requirement that any individual district be used as a basis for refunding. Nevertheless there is also included in the section the provision that the assessment must be spread “in proportion to the estimated benefits received by each such lot, piece or parcel of land from the acquisitions or improvements or acquisitions and improvements to pay for which the indebtedness to be refunded was incurred”. It would appear that the gross reassessments and credits may be calculated for all districts before the individual reassessment is determined. But in computing the gross amount to be levied upon any specific parcel of land, the legislature nowhere has expressly declared that the amount so levied may be in proportion to benefits received by such parcel from improvements in districts in which that parcel was not originally included and therefore as to which it was not originally declared to have been benefited. The legislature has not expressly nor by necessary implication found that the lands in one district have been benefited by improvements in such other districts, as was the case in City of Los Angeles v. Los Angeles Flood Control District, supra.

Counsel invoke the further provision of section 31, which reads: “This act is remedial in nature and shall be liberally construed.” Liberal construction may be accorded to the remedial provisions of said section and of the act, including provisions pertaining to the regularity of the refunding proceeding and to the method of redistribution on reassessment. But the legislative exhortation is not to be extended to justify a declaration of a power to tax which was not granted either expressly or by necessary implication. This conclusion is not in disregard of the provision enjoining a liberal construction of the statute. On the other hand, our conclusion defining the extent of the exercise of the taxing power does not prevent full scope and broad application being given to the remedial provisions of the act in the absence of any showing that the constitutional rights of the property owner would thereby be violated. We are of the opinion that such a showing has not herein been made. It is of no legal concern to the property owner that overages may be created and that such overages may be distributed to equalize the burden upon such lands so as to effect the salutary purposes of the act. The property owner has no vested or contract right to any particular application of overages, contributions, readjustments, or reductions from any source in computing the amount of the gross reassessment. He may therefore have no valid objection to a distribution or redistribution of such overages or other credits in reduction of the gross reassessment, on any appropriate basis determined by the legislative body conducting the refunding proceeding.

The petitioner therefore is entitled to the issuance of the writ directing the respondent, as surveyor of the County of Los Angeles, to prepare a diagram and make the reassessment upon the lands involved in the pending proceeding in conformity with the views herein expressed.

Let a peremptory writ issue accordingly.

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


text:
    [S. F. No. 16193.
    In Bank.
    May 25, 1939.]
    THE PEOPLE, Appellant, v. ONE 1933 PLYMOUTH SEDAN DELUXE AUTOMOBILE, Engine No. P. D. 165124, Respondent.

      Earl Warren, Attorney-General, U. S. Webb, Attorney-General, Seibert L. Sefton, Deputy Attorney-General, and J. Albert Hutchinson, Deputy Attorney-General, for Appellant.
    Alfred J. Hennessy for Respondent.
   SHENK, J.

The People have appealed from an adverse judgment in a proceeding to obtain a forfeiture of the title and interest of the owners and others in a 1933 Plymouth sedan automobile.

Caroline Sarubbi, as owner of the automobile, was duly served with the notice required by section 15 (b) of the State Narcotic Act as amended. (Stats. 1935, p. 2'212.) The notice stated that the vehicle “was seized by the Division of Narcotic Enforcement of the State of California on or about the 12th day of August, 1937, while said vehicle was being used to unlawfully conceal, convey, carry or transport narcotics contrary to the force and effect of section 15 of the State Narcotic Act as amended, in the City of San Francisco, County of San Francisco, State of California”; that the state intended to forfeit her interest in said automobile, and that twenty days were permitted within which to file answer to establish any claim pursuant to subdivision (e) of said section 15.

Caroline Sarubbi filed her answer within due time, admitting ownership of the vehicle and denying the other allegations in the notice. She averred specially that on the date mentioned the automobile was being driven without her consent or knowledge; also that she had not given her consent for a use “to conceal, convey or transport any of the drugs mentioned in Section 1 of the State Narcotic Act of California”.

The trial court found Caroline Sarubbi to be the owner of the seized car, and that the automobile had been used at the time and place mentioned unlawfully to conceal, convey, carry and transport narcotics, contrary to the force and effect of section 15 of the State Narcotic Act. The court also made the following finding: “That it is true that said Caroline Sarubbi consented to and gave permission to her son, William Sarubbi, to use said Plymouth Sedan automobile on the 12th day of August, 1937, but that at said time she did not know that said automobile was to be used for the unlawful transportation of narcotics and did not give her permission to her son, William Sarubbi, to use said automobile for said purpose, nor did she at the time that she gave permission to her son to use said car intend that it should be used to unlawfully transport narcotics.” Prom the foregoing findings the court concluded that the plaintiff was not entitled to judgment of forfeiture.

The appeal was taken on the judgment roll. It is the appellant’s contention that the findings do not support the judgment; that when the court found that the car was used to transport narcotics contrary to the provisions of the statute, a judgment of forfeiture must follow; that lack of knowledge of the unlawful use or failure to give permission for use for the specific purpose did not absolve the owner who had given consent for the use of the ear at the time of the seizure.

The contention of the appellant must be upheld. Section 15 of the act provides that “any automobile or other vehicle used ... to conceal, convey, carry, or transport any of the drugs mentioned in section 1 of this act . . . shall be forfeited to the State of California as in this section provided”. Subsection (a) requires seizure of such an automobile by a peace officer of the state. Subsection (b) provides for notice of seizure and intended forfeiture to be filed with the county clerk and served on all persons claiming any right in the automobile, and for answer of those served within twenty days. Subsection (c) deals with proceedings in default of answer. Subsections (d) and (e) provide for the hearing on the issues raised by the notice and the answers on file, and they permit a claimant under a lien, mortgage or conditional sales agreement to prove the bona fides of his contract. Subsection (f) permits the release of the vehicle under certain circumstances to an innocent claimant as defined in subdivision (e). The owner in this case, however, was not a claimant within the meaning of those sections and did not file a claim as such.

It has long been the settled law that the owner of a vehicle who has given consent to its operation by another, is not deprived of any constitutional right by the forfeiture of his property on account of the operator’s violation of a statute such as is here involved, even though such owner is without knowledge of or has failed to acquiesce in its illegal use. (Van Oster v. Kansas, 272 U. S. 465 [47 Sup. Ct. 133, 71 L. Ed. 354, 47 A. L. R 1044] ; Goldsmith, Jr., Grant Co. v. United States, 254 U. S. 505 [41 Sup. Ct. 189, 65 L. Bd. 376] ; People v. One Ford V-8 Tudor Sedan, 12 Cal. App. (2d) 517, 522 [55 Pac. (2d) 908]; People v. One Ford Coupe, 10 Cal. App. (2d) 321 [51 Pac. (2d) 882].)

In Van Oster v. Kansas, supra, we find the following applicable language: “It is not unknown or indeed uncommon for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it . . . They (examples cited) suggest that certain uses of property may be regarded as so undesirable that the owner surrenders his control at his peril. The law thus builds a secondary defense against a forbidden use and precludes evasions by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner. So here the legislature, to effect a purpose clearly within its power, has adopted a device consonant with recognized principles and therefore within the limits of due process.”

Counsel for the respondent does not question the applicability of the foregoing decisions in support of the conclusion that the findings herein do not support the judgment. He rests upon the presentation of the point that the notice filed and served in the forfeiture proceeding was insufficient. There is no indication in the record that the judgment was based upon any defect in the notice. In the absence of any such showing, an erroneous judgment for the defendant ordinarily will not be affirmed on the ground urged by the respondent for the first time on appeal that the complaint (or notice, as in this case) failed to state a cause of action. It must also appear that there is a total absence of some fact essential to the existence of the cause which cannot be cured by amendment, or that there is present some averment which destroys the plaintiff’s right to prevail. (Ransome-Crummey Co. v. Bennett, 177 Cal. 560 [171 Pac. 304] ; 3 Cor. Jur. 785-787.) There is no such showing in this record. The notice served on the owner was in conformity with the statutory requirements. The proceeding under such a statute is one in rem. (Traffic Truck Sales Co. v. Justice’s Court, 192 Cal. 377, 384 [220 Pac. 306].) But it appears that the notice in the present case acquainted the persons interested with the nature of the proceeding. It also stated the date and place of the alleged violation, the statute claimed to have been violated, and the character of the relief sought, namely, the forfeiture of the seized property. Such a notice was sufficient. (People v. Lee Foon, 275 N. Y. 229 [9 N. E. (2d) 847].) If the notice be subject to any ground of special demurrer, further particulars could have been supplied upon request. The notice herein, however, contained averments of all the essential elements of the cause for forfeiture. It may be added that the principal defect relied upon, that is, the failure to make any reference in the notice to “drugs mentioned in section 1 ’ ’ of the act, was not jurisdictional and any omission appearing in that respect was supplied by the allegations in the answer of the owner.

The judgment is reversed.

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

Rehearing denied.


author: HOUSER, J.

text:
    [L. A. No. 17009.
    In Bank.
    May 25, 1939.]
    KATHERINE M. GISH et al., Appellants, v. LOS ANGELES RAILWAY CORPORATION (a Corporation), Respondent.

      John F. Poole and H. E. Gleason for Appellants.
    Gibson, Dunn & Crutcher, Penn Cummings and John Henry Peckham for Respondent.
   HOUSER, J.

While riding as a passenger on one of the street cars of the defendant corporation, plaintiff, Katherine M. Gish, assertedly sustained injuries. With relation thereto, as a foundation for an action for the recovery of a judgment for damages against the defendant, the complaint which was filed by the plaintiffs contained the following allegation, to wit:

" That on or about the 30th day of July, 1936, while plaintiff, Katherine M. Gish, was riding as a passenger for pay on the ‘L’ ear of said defendant at or near Ninth and West-lake in the City of Los Angeles, County of Los Angeles, State of California, defendant, without regard to the rights of plaintiff, so negligently, carelessly and recklessly suddenly stopped said car with a tremendous jolt and shock as to throw plaintiff, Katherine M. Gish, against the inner portion of said railway car, severely and seriously injuring said plaintiff physically in such a manner as to cause her severe and grievous physical and mental suffering. ’ ’

On the trial of the action, concerning the manner in which the accident occurred, in substance, the said plaintiff testified that after she had “boarded” an “L” car and had walked to a place therein at which she had expected to become seated, “there was a man had some packages, and he moved the packages back for me to sit down; and as he was moving those packages back, just as he had it all back, and I bended my knees just enough that I had really lost control of my feet, in a way, and just then the old ‘L’ car gave a tremendous jerk and lunge and it threw me against an upright post—solid wood post. . . . the car gave a tremendous jerk, jerk or lunge, and landed me against that post, . . . ” Thereafter in her testimony the said plaintiff narrated facts which related to an oral complaint which, within a few minutes after the accident had occurred, she had made to the conductor of the street car regarding the happening of the accident, the events which were connected with the manner in which shortly thereafter she had traveled to her home, and the various and sundry injuries and ills which she had sustained and suffered by reason of the accident,—in which latter facts her testimony was corroborated by other witnesses. On behalf of the defendant, both the conductor and the motorman, in substance, respectively testified that neither had knowledge of any unusual jerk or motion of the street car at or about the time when, according to the testimony of plaintiff, the “tremendous jerk” of the street ear had occurred. In addition thereto, a physician testified regarding the physical condition of said plaintiff after the accident. Following some rebuttal testimony on the part of plaintiffs, the defendant presented its motion to the court that the jury be directed to return its verdict in favor of the defendant,— which motion was granted. The jury returned its verdict as directed and thereupon judgment was entered in favor of the defendant. From such judgment the instant appeal has been taken.

In making the order for a directed verdict, the trial judge indicated that the reason therefor was that the evidence was insufficient to support a judgment, if any, which might be rendered in favor of plaintiff.

Both by statutory provision and by judicial determination, it is well established that “a carrier of persons for reward must use the utmost care and diligence for their safe carriage, ...” (Sec. 2100, Civ. Code, and annotations connected therewith.) Likewise, with reference to the authority of the trial court to direct a verdict, the various pertinent rules that relate thereto are of long standing in this state. In the opinion rendered by this court in the case of Hunt v. United Bank & Trust Co., 210 Cal. 108, 117 [291 Pac. 184], it was ruled as follows: “Unless it can be said that, as a matter of law, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that an appellate court would be impelled to reverse it upon appeal or a trial court set it aside, a court is not justified in taking a case from a jury and itself rendering the decision. (Umsted v. Scofield Eng. Const. Co., 203 Cal. 224 [263 Pac. 799].) Such a motion is in the nature of a demurrer to the evidence, and is governed by practically the same rules, and concedes as true the evidence on behalf of the adverse party, with all fair and reasonable inferences to be deduced therefrom. (Butler-Veitch, Inc., v. Barnard, 77 Cal. App. 709 [247 Pac. 597].) Even though a court might be justified in granting a new trial it would not be justified in directing a verdict on the same evidence. (Estate of Caspar, 172 Cal. 147 [155 Pac. 631].) The power of a court in passing upon such motions is strictly limited. It has no power to weigh the evidence, but is bound to view it in the most favorable light in support of the verdict. The right of a court to direct a verdict is the same as the right of a court to grant a non-suit. This can be done only when, disregarding conflicting evidence and giving plaintiffs ’ evidence all the value to which it is legally entitled, including every legitimate inference which may be drawn therefrom, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such verdict was given. (Newson v. Hawley, 205 Cal. 188 [270 Pac. 364].) ” To the same effect, see McCurrie v. Southern Pacific Co., 122 Cal. 558 [55 Pac. 324], wherein it is declared (syllabus) that: “Evidence tending to show that plaintiff was injured at a regular station at which the train had stopped, owing to the sudden jerking of the train backward and forward, by reason of which he lost his balance, and was compelled to steady himself by taking hold of the casing of the door, when the door swung to and injured his hand, is sufficient to authorize a jury to find a verdict in his favor, and it is error for the court, upon such evidence, to direct a verdict for the defendant.”

It becomes obvious, therefore, that, after according to the evidence which was adduced by the plaintiffs all the value to which in law it was entitled, unless such evidence was insufficient legally to support a verdict in favor of the plaintiffs, no authority was vested in the trial court to direct the jury to return its verdict in favor of the defendant. With that principle of law in mind, appellants direct attention to the language employed by them in the allegation of their complaint (hereinbefore set forth), together with the substance of the evidence that was adduced in their behalf; and in that connection, it is contended by them that, having established the fact that at a time when the said plaintiff was a passenger on a street car, she sustained an injury which was caused by some act of the defendant in operating the same, by application of the doctrine known as res ipsa loquitur, a presumption of negligence on the part of the defendant was created,—which in itself constituted sufficient evidence to entitle plaintiff to have the issue of negligence, and the cause, generally, submitted to the jury for its determination. On the other hand, although not questioning the general effect of the doctrine of res ipsa loquitur in a proper situation, it is urged by the respondent that by reason of the language in which the allegation which relates to the asserted negligence of the defendant was couched, plaintiffs were precluded from relying upon the benefit of the rule in that regard, and, as a consequence thereof, that only in the event the remainder of the evidence was sufficient to support a verdict which might have been returned in favor of the plaintiffs, were the plaintiffs entitled to have the jury pass upon the question of whether the defendant had been negligent in the operation of the street car upon which Mrs. Gish was a passenger at the time when she sustained the injuries of which she had complained. More particularly, in effect, the respondent contends that, having alleged the particular means by, or the manner in which, the said plaintiff sustained the injuries of which she complained, and, within the same allegation or count of the complaint, having declared on the general negligence of the defendant,—the plaintiffs thereby had precluded themselves from the benefit which, in the absence of such form of pleading, ordinarily would or might have accrued to them. In that regard, as authority for its position, the respondent has cited the case of Connor v. Atchison etc. Ry. Co., 189 Cal. 1 [207 Pac. 378, 26 A. L. R. 1462]. Therein it appears that while the plaintiff was “acting as a fireman” on a train that then was being operated by the defendant, he sustained injuries which were caused by the derailment of said train at a time when it was crossing a bridge. In ruling upon the question of the applicability of the doctrine of res ipsa loquitur, it was held (syllabus) that: “The doctrine of res ipsa loquitur is not applicable to an action for personal injuries received by a locomotive fireman from the giving away of an abutment of a bridge while his train was passing over it, where, instead of alleging negligence in general terms and proving the happening of the accident, the plaintiff both alleged and proved that the support was washed away by a cloudburst shortly before the accident and predicated his charge of negligence on the failure to inspect the track after the cloudburst and before the train had passed over the bridge.” (Emphasis added.) Similar rulings were made where it was alleged: (1) That the defendant’s track was uneven and unsafe; (2) that the defendant’s car was not equipped with a rear-view mirror in front of the motorman; (3) that the exit of the car was not guarded by a door or gate; (4) that the motorman negligently failed to stop the car at Q Street after having been requested to do so; (5) that he negligently propelled the car past Q Street at a dangerous rate of speed” (Marovich v. Central California T. Co., 191 Cal. 295 [216 Pac. 595]); and that “ ‘"... at the time the defendants parked said automobile, as aforesaid, they so carelessly and negligently applied the brakes of said automobile as to permit the said automobile to roll down said slope . . . and to strike plaintiff . . . ’ ” (Porter v. Bassmussen, 127 Cal. App. 405 [15 Pac. (2d) 888]); also, in an action to recover damages from a lighting company, which damages ensued by reason of the destruction of certain property by fire alleged to have been caused by the negligence of the defendant, where the defendant was specifically charged with negligence, namely: “‘(1) In installing transformers improperly and insufficiently grounded. (2) In installing fuses between its transformers and power lines of such size and strength as to afford inadequate or no protection to plaintiffs’ property against excessive voltage. (3) In holding closed the breakers at its substation for several minutes after they had kicked out. ... ’ ” (Harker v. Southern Cal. Edison Co., 83 Cal. App. 204 [256 Pac. 848].) To like effect, see Hall v. San Joaquin L. & P. Corp., 5 Cal. App. (2d) 755 [43 Pac. (2d) 856]; Matthews v. Southern Pac. Co., 15 Cal. App. (2d) 36 [59 Pac. (2d) 220].

On the other hand, repeatedly it has been ruled that, notwithstanding the fact that in a single count of a complaint for damages, the plaintiff therein alleges both general negligence and specific acts of negligence, he is not precluded from, but, to the contrary, is entitled to, the benefit in his favor which arises from the application of the doctrine of res ipsa loquitur,—the only requirement in such circumstances being that the plaintiff has the burden of establishing the specific acts of negligence which he alleges.

The respective conclusions which were reached by appellate tribunals in each of the following cases attest and apply the foregoing principle, to wit: In the case entitled Mudrick v. Market Street Ry. Co., 11 Cal. (2d) 724 [81 Pac. (2d) 950, 118 A. L. R. 533], in which it was contended that the plaintiff, a passenger, sustained injuries by reason of the jerking of a cable ear, the complaint contained allegations of both general and specific negligence. The defendants contended that there was no place in the case for the application of the doctrine of res ipsa loquitur. In refusing to sustain that contention, this court there said: “The point has been directly ruled against the contention of the defendants. (McComas v. Al. G. Barnes Shows Co., 215 Cal. 685, 697 [12 Pac. (2d) 630].) The other contentions made by the plaintiff during the presentation of his case ... if they had also been alleged in his pleading would have constituted other specific allegations of negligence and would not have changed the rule.” (Emphasis added.) Likewise, it was held that plaintiff was entitled to the application of the rule (Roberts v. Sierra Ry. Co., 14 Cal. App. 180 [111 Pac. 519]) where allegations that were contained in a complaint were to the effect that while the plaintiff was a passenger on a train which was transporting both passengers and freight, which included a carload of dynamite, the “defendant carelessly and negligently allowed its railway track upon which said train was running to become obstructed, and said defendant carelessly and negligently allowed certain obstructions to fall or become placed thereon, and so negligently and carelessly managed and operated its said locomotive and train that a portion of said train, to wit, several cars thereof, including said carload of dynamite, became and were, on said day last aforesaid, wholly derailed. That by reason of the derailment of said ears and the concussion caused thereby, said carload of dynamite was instantly exploded and by reason thereof a violent explosion occurred.” In the case entitled Murray v. United Railroads, 49 Cal. App. 462 [193 Pac. 596], it was held that the doctrine might be invoked. In that case it was alleged that on a specified date when the street car upon which plaintiff was a passenger “was run or operated around the curve or loop in defendant’s tracks at that point, and while on said curve or loop was stopped by said defendant for the purpose of enabling passengers to alight therefrom; that after said ear had been stopped by said defendant for said purpose the plaintiff arose from her seat within said ear for the purpose of walking to the end thereof and alighting therefrom, and that after she had thus arisen and was about to walk toward the end of said ear in order to alight therefrom the defendant ‘negligently and carelessly and without allowing said plaintiff sufficient time to walk toward the end of said car to alight therefrom, suddenly started said car, and then and there and by reason thereof caused said plaintiff to lose her balance and fall with great force and violence upon the floor of said car’, from which she received the injuries complained of. ... ” In a comprehensive opinion in the case of Atkinson v. United Railroads of San Francisco, 71 Cal. App. 82 [234 Pac. 863], it was ruled that the allegation and “proof” of specific acts of negligence that the defendant “ ‘negligently and carelessly, and without any notice or warning, ran and operated said street car ... at a greater rate of speed than fifteen miles per hour, in violation . . . ’ of the municipal ordinance ...” did not deprive the plaintiff of the benefit of the doctrine of res ipsa loquitur as far as those specific acts of negligence were concerned. In commenting upon the apparent strictness of the rule that hereinbefore has been stated, in part, the court said: “In adopting a rule for this state, we are of the opinion that it was not intended to declare an absolute and unqualified rule, that is, one so drastic as to deny plaintiffs in all cases, and under all circumstances, the benefit of the doctrine of res ipsa loquitur, merely because they have voluntarily gone further than the law required them to go, in particularizing the specific acts of negligence upon which they relied for a recovery; but that it was intended that the more liberal rule should be followed which restricts plaintiff, in his proof and recovery, to the specific acts alleged, and relieves the defendant from the burden of exculpating himself from any other acts of negligence than those alleged, but which does not, so far as those particular acts of negligence are concerned, deprive plaintiff of the benefit of the doctrine of res ipsa loquitur.” The ruling in the ease just cited has been followed in many succeeding cases. See Queirolo v. Pacific Gas & Flee. Co., 114 Cal. App. 610, 616 [300 Pac. 487], where the allegation in the complaint was “that due to the negligent operation of the truck by defendant’s driver the same ran off the highway and turned over causing injury to the plaintiff”; Chauvin v. Krupin, 4 Cal. App. (2d) 322 [40 Pac. (2d) 904], where in addition to an allegation of negligence in general terms, the plaintiff “alleged generally the acts performed by defendants in the course of their work, namely, the adjustment of the heater to the head, the use and manipulation of the heater, and the failure to protect plaintiff sufficiently against contact therewith”. Similar rulings appear in each of the following cases, to wit: McCole v. Merchants Express Corp., 19 Cal. App. (2d) 149 [64 Pac. (2d) 1130]; Ellis v. Jewett, 18 Cal. App. (2d) 629 [64 Pac. (2d) 432] ; Mintzer v. Wilson, 21 Cal. App. (2d) 85 [68 Pac. (2d) 370] ; Phillips v. Southern Cal. E. Co., Ltd., 23 Cal. App. (2d) 222 [72 Pac. (2d) 769]; Lynch v. Market Street Ry. Co., 130 Cal. App. 433 [19 Pac. (2d) 1009] ; Lippert v. Pacific Sugar Corp., 33 Cal. App. 198 [164 Pac. 810]; Soto v. Spring Valley Water Co., 39 Cal. App. 187 [178 Pac. 305].

It thus becomes manifest that, in an appropriate case, in pleading not only general negligence, but also specific acts which lie at the foundation of the civil wrong of which the plaintiff complains, and which purport to account for or explain the underlying reason for the happening of the accident with its consequent injuries to the plaintiff, which may have resulted in the premises, the plaintiff is not penalized by a complete loss or forfeiture of the rights and benefits to which he is or may be entitled under the doctrine of res ipsa loquitur. They still remain intact, but are confined in their operation to a narrower scope; that is to say, that, although in a general way the inference of negligence on the part of the defendant still persists, it applies only to the acts, conduct, manner or means that the plaintiff has particularized or specified in his complaint. In the matter of his “proof”, the plaintiff is restricted to evidence that may be supportive of his specific allegations; and ordinarily, in such circumstances, the defendant is required to rebut that evidence only. As to the cause of action, in general, the burden of “proof” still remains with the plaintiff. As a consequence, in the instant case, even assuming that, in “proof” of the specific acts and conduct of the defendant which the plaintiffs alleged, they produced but little evidence of a substantial character,—nevertheless, since (as hereinbefore limited) the original inference of negligence of the defendant was left undisturbed, notwithstanding the assumed strength of the evidence that was presented by the defendant, —the plaintiffs were entitled to have the question of whether the injuries of which they complained were occasioned by the negligence of the defendant, submitted to the jury for its determination. (19 Cal. Jur., p. 717.)

However, aside from the legal effect of a pleading of negligence generally, which is coupled with an allegation of the specific act or conduct of the defendant as the asserted cause of the accident, it appears from a consideration of the several adjudications of the appellate tribunals of this state which bear upon the question of the “form” of an allegation of specific acts, where the form of the pleading involved in the respective cases was such that the plaintiff would be deprived of the full and undiminished benefit of the application of the doctrine of res ipsa loquitur,—it becomes apparent that, in the instant case, measured by the pleading in question, the plaintiffs should not be adjudged to have forfeited any part of their original rights in the premises.

Beverting to the essential language employed in the instant case in the allegation of negligence of the defendant, it will be noted that it is charged that the defendant “so negligently, carelessly and recklessly suddenly stopped said car with a tremendous jolt and shock ... ”, Admitting the existence of the rule that a specific allegation of the cause of the injury may have the effect of depriving the plaintiff of a part of the benefit of the application of the doctrine of res ipsa loquitur, in each of several cases decided by the appellate court of this state—in which the facts which related to the immediate cause of the injury were alleged more specifically and with greater particularization than were the facts in the instant ease—it has been held that the plaintiff was not “prohibited from relying upon the doctrine”. To illustrate:

In the case of Soto v. Spring Valley Water Co., 39 Cal. App. 187 [178 Pac. 305], it appears that the defendant therein was engaged in the work of the construction of a dam, in connection with which it “operated a stationary steam-engine which rotated a drum, on which ran a wire cable”, which “was attached to a metal scoop, or scraper, which it pulled back and forth over a gravel pit to the top of a sieve, or screen, supported by timbers. On the last-named date, the defendant was employed moving rock under this structure”. With respect to the point here under consideration, in part, the court said: “Defendant claims, however, that as the complaint alleged specifically negligence in the operation of this machinery, and defects in the strength of the timbers, that the plaintiff cannot invoke the doctrine of the maxim; and further contends that the evidence showed the specific cause of the accident, and that, therefore, the maxim may not be invoked, . . . We think, however, that this question is foreclosed in this state by the doctrine of the case of Lippert v. Pacific Sugar Corporation, 33 Cal. App. 198 [164 Pac. 810]. It may be added that in this case the real moving cause of this accident is not shown. It is true that it appears that the scraper, for some reason, was dragged too far by the cable, thus wrecking the timbers, but this is only the result of some other cause which must have been the underlying reason for the accident. This underlying cause is not proven, but it does seem to us that nothing could be clearer than that somebody’s carelessness must have caused it.” (Emphasis added.) And it was ruled (syllabus) that a “plaintiff is not prohibited from relying upon the doctrine because she alleged specifically negligence in the operation of the machinery and defects in the strength of the timbers”.

Likewise, in the ease of Queirolo v. Pacific Gas & Elec. Co., 114 Cal. App. 610, 616 [300 Pac. 487] (hereinbefore referred to), where, in substance, it was alleged that “due to the negligent operation of the truck by defendant’s driver the same ran off the highway and turned over, causing injury to plaintiff”, it was held that the plaintiff was entitled to the full and undiminished application of the doctrine.

In the case of Lejeune v. General Petroleum Corp., 128 Cal. App. 404 [18 Pac. (2d) 429], it appeared that in weighing anchor of a boat on which the plaintiff was employed and, according to the allegation contained in his complaint “ ‘ “while plaintiff was engaged in stowing away the anchor chain in the performance of his duties as aforesaid the officers, servants and employees of said defendant herein, and each of them, so carelessly and negligently operated a certain winch and its appliances used to haul in said anchor and to stow said anchor chain, and said winch and its appliances and said anchor chain were, by reason of the negligence of defendants and each of them, so defective and insufficient that said anchor chain, while the same was being hauled in by defendant, its officers, agents and employees as aforesaid, and stowed by plaintiff and another employee in the ‘starboard’ chain locker on said steamer ‘Lebec’, suddenly reversed and violently proceeded in the opposite direction, and plaintiff was thereby violently thrown from his feet against some portion of said chain locker, and as a proximate result thereof plaintiff sustained great bodily injury”, ... ’ ” It was there held that such allegation “did not prevent the operation of the doctrine of res ipsa loquitur where the allegations did not attempt to explain or set out the cause of the accident or the specific manner in which it occurred, but were merely general allegations of negligence”.

The syllabus in the case of Armstrong v. Wallace, 8 Cal. App. (2d) 429 [47 Pac. (2d) 740], contains the following declaration of the law, to wit: “ . . . where the complaint alleged that defendant doctor negligently and carelessly deposited and left an abdominal sponge or gauze pad within the abdomen of plaintiff wife and that he negligently and carelessly closed the incision and sutured the same without first removing said sponge or gauze pad, and no attempt was made to describe the negligence in detail nor charge why or under what circumstances it occurred, the form of the complaint was not such as to prevent the application of the doctrine of res ipsa loquitur-, ...”

Analogously, in an action for the recovery of damages which resulted from injuries caused by falling plaster while the plaintiff was occupying a room in a hotel, it was ruled (syllabus) that, “where the complaint alleged merely that the ceiling ‘was of a faulty construction and its condition had been allowed to become defective and unsafe by the defendants through their failure to properly operate, manage, control and maintain said building in which said hotel was conducted’, and there was no attempt to explain or set out in detail wherein the construction of the ceiling was faulty, nor to state specifically the reason why the plaster fell”,— the allegations were “nothing more than general allegations of negligence”, and the plaintiff was not precluded from invoking the doctrine of res ipsa loquitur. (Mintzer v. Wilson, 21 Cal. App. (2d) 85 [68 Pac. (2d) 370].)

In an action to recover a judgment for damages sustained by a plaintiff by reason of the wrongful death of her husband, which occurred at a time when he was being transported on an auto stage as a passenger for “reward” by the defendant in the action, it was held (syllabus) that an “allegation in the complaint that defendant operated the stage ‘in such careless, reckless, wanton and negligent manner that said auto-stage was overturned’ and deceased was instantly killed, did not deprive plaintiff of the benefit of the doctrine of res ipsa loquitur; neither was plaintiff deprived of the benefit of such doctrine by reason of the fact that plaintiff went further than required in proving her prima facie case in offering some testimony as to the manner in which the overturning occurred, where such proof was a part of the res gestae and did not disclose the cause of the overturning as a definite fact.” (Seney v. Pickwick Stages, 82 Cal. App. 226 [255 Pac. 279].)

It appears in the ease of Murray v. United, Railroads, 49 Cal. App. 462 [193 Pac. 596] (hereinbefore cited), the facts were similar to those that are alleged in the instant case, particularly with reference to the fact that, as far as the plaintiff knew, and as was related by witnesses, the direct cause of the accident was the “suddenness and jerkiness and jolting” which ensued on the starting of a street car on which the plaintiff was being transported. With reference thereto, in part, the court said: “Whether this method of starting a car after it had been stopped for the purpose of enabling passengers to alight and while passengers were in the act of alighting was or was not negligence on the part of the defendant was clearly a question for the jury. . . . The trial court, therefore, properly denied the defendant’s motion for a directed verdict.”

The ruling in the case of Chauvin v. Krupin, 4 Cal. App. (2d) 322 [40 Pac. (2d) 904], hereinbefore referred to, is also in point. That action was for the recovery of a judgment for damages alleged to have been caused by the defendants in negligently inflicting a burn upon the scalp of the plaintiff at a time when she was receiving a “permanent wave” in a “beauty parlor” that was operated by the defendants. It was held (syllabus) that “the original complaint was sufficient to charge negligence in general terms and to allow the application of the doctrine of res ipsa loquitur, where it alleged generally the acts performed by defendants in the course of their work, namely, the adjustment of the heater to the head, the use and manipulation of the heater, and the failure to protect plaintiff sufficiently against contact therewith, which acts constituted the entire operation undertaken by defendants in which plaintiff might have received her injuries, and they were all charged to have been done in a negligent manner”. With reference to the effect of the allegations, in part, the court said: “Under the original complaint, plaintiff was entitled to describe, as she did in her testimony, the acts of the defendants in the course of their work. She was not required under these allegations, nor did she undertake to attribute the injury to any specific act of either defendant; nor did she attempt to explain how it occurred. Both the complaint and the testimony of plaintiff clearly show that she did not know, or claim to know, the particulars in which defendants acted negligently, whether in the placing of the heater upon her head, its use or manipulation, or the inadequate protection provided against injury from burns.”

Again, in the instant case, referring to the language which was employed by the plaintiffs in their allegation of the negligent act of the defendant, to wit, that the street car was negligently and suddenly stopped “with a tremendous jolt and shock”, it is apparent that plaintiffs merely alleged the effect of the act of the defendant in causing the street car to be suddenly stopped. The particular conditions which may have been the inducing cause of the “tremendous jolt and shock” which occurred to the street car on the sudden stopping thereof were omitted from the allegations that were contained in the complaint. Not a word was used by plaintiffs to describe in detail or otherwise any assumed negligent act of the defendant, or to narrate any facts with reference to the control by it of the street ear, which either immediately or ever preceded the happening of the accident. In other words, no attempt in any way was made by plaintiffs to account for the sudden stop, or to explain the cause thereof. All that was disclosed by the facts which were alleged by plaintiffs in their complaint was the result which ensued from some apparently unknown primary cause.

It becomes manifest, therefore, that notwithstanding the fact that by their pleading both general and special negligence was alleged, plaintiffs should not have been deprived of the benefits to which they were entitled in the application of the doctrine of res ipsa loquitur.

It is clear that an inference of the truth of facts essential to a cause of action will support a judgment which may be rendered in accordance with such facts. (19 Cal. Jur., pp. 704, 717.) And although to the comprehension of a trial judge, evidence to the contrary of such an inference may greatly preponderate, nevertheless the ultimate question of the weight that should be accorded to the evidence which may have been presented by the respective parties to the litigation is one for the exclusive original determination by the jury.

In the instant case, it follows that the jury should not have been directed to return its verdict in favor of the defendant. It becomes unnecessary to devote attention to other contested points of law which have been suggested for consideration.

The judgment is reversed.

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


author: SHENK, J. CURTIS, J., Dissenting.

text:
    [L. A. No. 17080.
    In Bank.
    May 29, 1939.]
    SHY ZOLKOVER et al., Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION and HARRY F. ROBINSON, Respondents.

      C. W. Bowers for Petitioners.
    Everett A. Corten and Eldon B. Spofford for Respondents.
   SHENK, J.

The petitioners seek an annulment of the order of the Industrial Accident Commission, granting compensation to the applicant, Harry F. Robinson.

Robinson was employed by Shy Zolkover as a salesman in a store dealing in men’s wear and furnishings in the city of Los Angeles. About 1.1 o’clock on the morning of July 13, 1937, Robinson was sent by his employer to obtain some grey thread from Mr. Weiner’s Army and Navy Store adjoining. Robinson testified before the commission that while he was in the latter store he observed that Mr. Weiner had hold of a Mexican by the hair; that the Mexican was attempting to steal shirts; that Robinson saw the Mexican pull a knife; that he warned Weiner to “look out”; that Weiner loosed his hold on the Mexican who fled from the store, slashed at Robinson as he went by, cutting the index finger of his left hand. Robinson gave chase. He observed that the Mexican stabbed another by-stander, cutting him in the abdomen. Robinson caught up with the Mexican and held him until peace officers arrived, receiving additional cuts on the fingers of his left hand while attempting to take the knife away. The commission’s implied finding that the above facts are true is binding on this court. In its first order the commission con-eluded that the injury sustained by the employee to the index finger of the left hand was an injury arising out of and occurring in the course of the employment. On June 1, 1938, it awarded compensation based on permanent disability of 3% per cent, entitling the employee to $18.52 a week for fifteen weeks, or a total sum of $277.80.

The employer and his insurance carrier petitioned for a rehearing on the ground that the evidence did not warrant the finding that any injury occurred while the employee was in Weiner’s store and that none of the alleged injuries arose out of the employment. The petition was denied on August 20, 1938, but at the same time the commission, on its own motion, opened the case for a rehearing on the question whether both injuries were compensable, namely, the injury inflicted in the store as to which compensation was awarded by the order of June 1, 1938, as well as the injury inflicted during the scuffle in the street.

The commission, on September 13, 1938, made another order whereby it set aside its first order, and concluded that both injuries were compensable. It thereupon awarded $18.52 a week for sixty-one weeks, a total of $1129.72, based on 15¼ per cent of permanent disability. Subsequently the commission amended its order to provide for an award of $18.52 a week for thirty weeks based on 7½ per cent of permanent disability.

There is no merit in the contention that the petition for review was filed too late. It was filed in the District Court of Appeal on October 13, 1938. Inasmuch as it was filed on the thirtieth day after the decision on rehearing, it was within the time prescribed by section 67 (a) of the Workmen’s Compensation Act.

The question for determination is whether any of the injuries sustained by the employee arose out of and occurred in the course of the employment.

The commission takes the position that both stabbings were a part of the res gestae; that there was such a close sequence of events between the first assault and the second stabbing that it is “impossible fairly to split this activity into parts, and they must be regarded as part of the same transaction. An industrial assault remains an industrial assault so long as events occur in continuous sequence without opportunity for reflection. If the injury from the first assault herein is compensable, the second one is also compensable.”

It is the petitioners’ contention that the employee was performing no service for his employer at the time he was injured, and that therefore neither injury was one which arose out of and occurred in the course of the employment. We observe, however, that the employee was serving his employer when he went to the store to obtain a spool of thread. Any ordinary risk that he was subjected to while performing that service and which resulted in injury would be chargeable to industry and be compensable. That the employee was serving his employer at the time he received the first cut from the knife of the Mexican assailant must be deemed concluded by the decision in Frigidaire Corp. v. Industrial Acc. Com., 103 Cal. App. 27 [283 Pac. 974], and the cases therein cited.

The petitioners rely upon such eases as San Francisco & Sac. Ry. Co. v. Industrial Acc. Com., 201 Cal. 597 [258 Pac. 86], Northwestern Pac. R. R. Co. v. Industrial Acc. Com., 174 Cal. 297 [163 Pac. 1000, L. R. A. 1918A, 286], Pacific Ind. Co. v. Industrial Acc. Com., 27 Cal. App. (2d) 499 [81 Pac. (2d) 572] (July, 1938), Jenks v. Carey, 136 Cal. App. 80 [28 Pac. (2d) 91], and Lumbermen’s Mutual Cas. Co. v. Industrial Acc. Com., 134 Cal. App. 131 [25 Pac. (2d) 22], wherein it was held under the particular facts of each case that the employee had not shown that at the time he sustained injury he was on an errand for his employer or engaged in an act within the scope of his duties. None of those cases involves facts as to which the rule invoked by the commission could be made applicable. Nevertheless the petitioners seek the application of the general rule there recognized, that an injury sustained while voluntarily doing something outside of the employment is not an injury suffered in the course of the employment. It is argued that even though, under the Frigidaire case, it be considered that the first injury is compensable, the additional injuries inflicted on the employee after he followed the Mexican into the street and attempted to take the knife from him, were the result of a voluntary act without the scope of the employment and could have no connection therewith.

The commission on the other hand argues the applicability of the decisions in Matter of Field v. Charmette Knitted Fabric Co., 245 N. Y. 139 [156 N. E. 642], and Pendi v. Haenel, 229 App. Div. 52 [241 N. Y. Supp. 59]. In the first of these cases, Field, superintendent of a mill, ordered a knitter, Magid, discharged for unsatisfactory work. Words and threatening gestures ensued between the two men. After closing time Magid waited for Field in the street a few feet from the door of the mill. When Field came out Magid struck him a blow which caused him to fall backward and fracture his skull, and from which he died. A similar argument was there presented in resisting a death benefit award, the contention being that because the injury was inflicted while the men were on the street, the resulting death did not flow from any industrial hazard. In that case it was said: “We think the line of division is drawn too narrowly and closely when circumstances of place are thus considered to the exclusion of all others. The quarrel outside of the mill was merely a continuation or extension of the quarrel begun within . . . The situation would be hardly different if a struggle, begun back of the threshold, had ended in a fatal blow delivered on the walk. No reasonable opportunity had been offered the assaulted man to separate himself from the plant, its animosities and dangers. Continuity of cause has been so combined with contiguity in time and space that the quarrel from origin to ending must be taken to be one. ’ ’

It is true that in that case the court thus reasoned in applying the rule that an employee was entitled to a safe retreat from the premises of his employer. However, in the present case the assault commenced on premises which must be considered to have been the proper location for the discharge of the duty which Eobinson was sent to perform. If at the time of the first injury Eobinson had grappled with his assailant and attempted to disarm him while still within the four walls of the premises, it could not be said that additional injuries so received would not be compensable. As the facts in Field v. Charmette, supra, demonstrate that the same assault may be continuous and be carried outside of the premises, the facts in the present case lead to the conclusion that the sequence of events occurring without opportunity for reflection formed a part of the res gestae and constituted one continuous assault. The reasoning of the decision of the New York Court of Appeals was followed in the case of Pendi v. Haenel, supra, wherein the decedent, a janitor, was stabbed by a negro whom he found loitering about the employer’s premises and had pursued some 150 feet into the street.

It is to be expected that cases wherein the foregoing reasoning may apply will differ on the facts. The point where spontaneity ceases and reflection commences indicating a departure from the field of industrial hazard is a question of fact for the commission to determine. When the fact-finding body may conclude, as the commission did in this case, that the assault commenced at a time and place which would make resulting injury compensable, and such assault continued under circumstances which would justify the conclusion that the assault was a continuing one, the entire injury may properly be held to result from a single assault. Such a case appears to have been presented to the commission in this proceeding. The award based on 7% per cent of permanent disability was therefore within the proper exercise of its jurisdiction.

The award is affirmed.

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

CURTIS, J., Dissenting.

I dissent. I agree with the opinion in awarding compensation for the injury sustained by the employee while in the store where his employer had directed him to make a purchase. I cannot agree, however, with the majority opinion holding that the employee was entitled to an award for the injury sustained by him after he had left the store and was in pursuit of his assailant. The facts of-this case bring it clearly under the rule announced in Northwestern Pac. R. R. Co. v. Industrial Acc. Com., 174 Cal. 297, 306 [163 Pac. 1000, L. R. A. 1918A, 286], and kindred cases cited in the majority opinion, which hold that, “When a servant of his own accord and without the direction of his master, steps outside the scope of his employment, whether on the master’s business or his own, the master owes him no duty as to the dangers he encounters, and is not liable for the injury received.”

I can see but little resemblance in the facts in this case and the ease of Matter of Field v. Charmette Knitted Fabric Co., 245 N. Y. 139 [156 N. E. 642]. In that case the superintendent of a mill had some words with an employee a few minutes before closing time. The employee waited outside of the mill, and as the superintendent stepped out of the mill, he was struck in the face by the employee. The court held that, “Here, almost in the very act of putting his foot without the mill, the employee is confronted by a danger engendered by his work within. The situation would be hardly different if a struggle, begun back of the threshold, had ended in a fatal blow delivered on the walk. No reasonable opportunity had been offered the assaulted man to separate himself from the plant, its animosities and dangers.” What similarity can there be in those facts and the facts in the present case?

In the case now before us, the injured employee when he left the store was in no danger whatever. He not only had reasonable opportunity to separate himself from the dangers within the store, but the dangers within the store had ceased to exist. He then exposed himself to a further danger, not only outside, but some distance from the store in which he received his first injury. He thereby stepped outside the scope of his employment, and was at a place where his master owed him no duty as to the dangers there encountered.

The ease of Pendl v. Haenel, 229 App. Div. 52 [241 N. Y. Supp. 59], is equally ineffectual to take the present case out of the general rule which denies compensation to an employee for an injury received by him outside of his employment. In the Pendí case, the injured party was the superintendent of the building in which he found a negro wandering around in the basement who had exhibited a knife and frightened the superintendent’s wife, and then fled from the building. The superintendent pursued the negro and was stabbed by the latter some one hundred and fifty feet from the building. The court held: “We are not to determine whether the pursuit was negligent or even sensible, but only whéther it was in connection with his master’s business. Decedent had to deal with a vicious criminal who came in the building of which he was superintendent. Persons lawfully there might be injured, or the property of his employer destroyed or stolen. The intruder might have had a design to ascertain the plan of the interior of the building in preparation for a later burglarious or felonious entrance. The continuation of the pursuit for one hundred and fifty feet beyond the basement store was not an abandonment of the employment. ’ ’ In that case the pursuit of the intruder by the superintendent outside the building was held to have been made “in conneetion with his master’s business”, as it was done for the purpose of protecting his employer’s property. In the instant case, it cannot be said that the pursuit by the injured party had any connection with or relation to the property of his master. Whatever may have been the purpose of the pursuit, it was wholly disassociated from the interests or property of the master. The Pendí ease fails to furnish any exception to the general rule that when a servant of his own accord steps outside the scope of his employment, the master is not liable for any injury received by the servant while acting beyond the scope of his employment.

Houser, J., concurred.

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