text:
    [Sac. No. 5037.
    In Bank.
    February 25, 1938.]
    F. A. SCHNEIDER, Respondent, v. H. B. TURNER et al., Appellants.

      Huston, Huston & Huston for Appellants.
    Rich, Weis & Carlin for Respondent.
   THE COURT.

This is an action to foreclose a deed of trust and a chattel mortgage executed by defendants II. B. Turner and Alice M. Turner, his mother, to secure a promissory note in the principal sum of $1250, payable to plaintiff. The court below found that in addition to the principal sum of $1250, there was due on said note interest from date of execution in the sum of $275.74. It further found that said deed of trust and said chattel mortgage also secured an unpaid balance of account in the amount of $232.58 due from defendant II. B. Turner to plaintiff, and attorney’s fees in the amount of $150. Defendants appeal from said judgment. They contend that said balance of account, or a portion thereof, is not secured by the deed of trust.

The chattel mortgage by its terms was security for all existing and future indebtedness owing from the mortgagors to the mortgagee, as well as for the promissory note. The deed of trust, however, was security for the promissory note and for “all amounts of principal hereafter borrowed by said grantors from said beneficiary to the limit aforesaid [$6,000] and interest thereon.” (Italics ours.)

Defendant H. B. Turner is a grower of prunes. Plaintiff F. A. Schneider conducts a business for the marketing of dried fruit under the name of Warren Dried Fruit Company. Plaintiff and Turner commenced to do business in 1930, when Turner contracted to dispose of his 1930 crop through plaintiff. Due to the prevailing economic depression a large part of the 1930 crop was not readily marketable. In this situation plaintiff made cash advances or loans to Turner against his prunes delivered to plaintiff, in advance of the sale of the prunes by plaintiff. In most instances a promissory note was given for cash advances made. On April 13, 1932, when the note for $1250 was executed, Turner was indebted to plaintiff in a large sum on account of cash advances and charges made against him on account of the undisposed portion of his crops. The note for $1250 and deed of trust and chattel mortgage were executed for a further cash advance of $1250 then made by plaintiff to Turner. The deed of trust covers an acre of land in Yuba County, while the chattel mortgage applies to fruit dehydrating equipment on said land. The mother joined in the deed of trust and mortgage by reason of her interest in the property subject thereto.

Thereafter plaintiff made further cash advances to Turner and additional charges against him in connection with his prunes delivered to plaintiff. Turner’s 1931 and 1932 crops were also delivered to plaintiff.

The instant action for foreclosure was filed in May, 1934. Upon the trial plaintiff introduced an instrument described as “a summary of the H. B. Turner account”, which had been prepared by plaintiff’s bookkeeper from plaintiff’s books of account. Said paper lists chronologically all charges against Turner from the time he commenced to deal with plaintiff in November, 1930, including the note for $1250, and other cash advances and charges on account of the fruit.

Following this list of charges against Turner is a list of credits in his favor, representing sales proceeds of his fruit marketed by plaintiff. The amount by which the charges exceed the credits represents the balance of indebtedness due from Turner, including principal and interest on the note of $1250. Deducting the unpaid principal of the note in the sum of $1250, and interest of $275.74 thereon, from the total indebtedness, the court found that a balance of $232.58 was due from Turner, in addition to the amount of principal and interest due on said note. The court found that this sum of $232.58, as well as the unpaid principal and interest on the note, was secured by the deed of trust and chattel mortgage.

We have heretofore stated that the deed of trust by its terms secured amounts thereafter borrowed by Turner in addition to the note for $1250. It was not also security for preexisting indebtedness as was the chattel mortgage. In computing the total of charges against Turner in accordance with the above described summary of account, the plaintiff included charges made against Turner before the execution of said deed of trust. The result, defendants contend, is that the figure of $232.58, held by the trial court to be secured by the deed of trust, includes a sum not secured thereby.

It does not appear from the summary of account, nor the testimony, that any portion of said figure comprises indebtedness which is unsecured because it represents a balance of indebtedness existing before execution of the deed of trust. The sales proceeds realized by plaintiff from Turner’s prunes subsequent to execution of the deed of trust exceed by several thousand dollars the amount of .his indebtedness at the time of execution of the deed of trust. Application of these sales proceeds to the earlier indebtedness not secured by the deed of trust would discharge said indebtedness in full, with the result that the balance of $232.58 would represent later advances which the deed of trust secures. (Bank of America Nat. T. & S. Assn. v. Kelsey, 6 Cal. App. (2d) 346 [44 Pac. (2d) 617]; sec. 1479, Civ. Code.)

If defendants were of the view that the figure of $232.58 included amounts unsecured by the deed of trust they had an opportunity during the trial of the case to elicit further facts. This they did not do.

Defendants further contend that a number of items included in the list of charges against Turner arising subsequent to the execution of the deed of trust are not secured by the deed of trust for the reason that they cannot be construed as “amounts borrowed” within the meaning of the deed of trust. The balance of account is the small sum of $232.58 (exclusive of the note of $1250 and interest). Here again it may be presumed in support of the judgment that credits arising after the execution of the deed of trust have been applied in payment of any items which may not have been secured by said deed of trust and that the sum of $232.58 represents cash advances made after execution of the deed of trust, which were clearly secured thereby.

Defendants also contend that the several items of interest included in the list of charges consist in part of compound interest on charges which did not bear such interest. Interest may not be compounded except pursuant to the agreement of the parties. (Stats. 1919, p. lxxxiii, sec. 2; Yndart v. Den, 116 Cal. 533 [48 Pac. 618, 58 Am. St. Rep. 200]; 14 Cal. Jur. 687.) It does not appear from the summary of account herein that it includes any unauthorized compound interest. Certain of the charges admittedly bore compound interest by virtue of the agreement of the parties. Defendants in the trial court did not challenge the correctness of the items of interest listed on the ground that they consisted in part of unauthorized compound interest, nor did they request a more detailed statement as to the interest computation.

It is further contended that an item of $801.11 has been charged against Turner improperly. One Isaacson secured a judgment against Turner and plaintiff on account of labor performed by'him on Turner’s prune ranch. Plaintiff paid the amount of the judgment against it, with interest and costs, amounting in all to $801.11. Isaacson had threatened to stop work on Turner’s land unless plaintiff would guarantee his payment. Plaintiff had contracted to buy Turner’s prunes and also had made large cash advances to him. In this situation it guaranteed payment to Isaacson, and by reason thereof was liable to Isaacson. But as between plaintiff and Turner, the charge for Isaacson’s labor should properly be borne entirely by Turner, on whose ranch the labor was performed. In settlement of the balance of accounts between them plaintiff was entitled to charge Turner for the amount of this payment.

The judgment is affirmed.


source: Caselaw Access Project

author: SEAWELL, J.

license: Public Domain

text:
    [Sac. No. 5182.
    In Bank.
    February 25, 1938.]
    TOWN OF YREKA CITY (a Municipal Corporation), Respondent, v. V. E. WARRENS et al., Appellants.
    William Y. Cowan and Montgomery G. Rice for Appellants.
    James M. Allen and Charles E. Johnson for Respondent.
   SEAWELL, J.

This is an action by the town of Yreka City to foreclose the lien of an assessment levied for street improvements completed under the Improvement Act of 1911, for which bonds were issued under the Improvement Bond Act of 1915. Defendant V. E. Warrens owns the land involved in this action and the other defendants claim an interest in or lien on said land. From a judgment for plaintiff town defendants prosecute this appeal.

Defendants contend that all proceedings were without jurisdiction and void for the reason that the resolution of intention to do the work was not published in a newspaper of “general circulation”, as defined in section 4460, Political Code. Under said section a newspaper of general circulation must have been published at least a year. The trial court sustained the contention of plaintiff that under the Street Improvement Act of 1911 the resolution of intention is not required to be published in a newspaper of general circulation as thus defined.

The case was tried on an agreed statement of facts. It appears therefrom that the resolution of intention was published in the “Siskiyou Times”, a semi-weekly newspaper which was first published on April 5,1927. Hence at the time of publication of the resolution of intention on July 22, 1927, and July 26, 1927, the paper had been published for slightly less than four months. At the time there were two weekly newspapers of “general circulation” in the town of Yreka City. The relative circulation of the semi-weekly compared with the older weeklies does not appear.

Section 3 of the Improvement Act of 1911 provided at the time here pertinent: “ . . . The city clerk shall cause said resolution of intention to be published twice in one or more daily newspapers published and circulated in said city; provided, if there be no daily newspaper, then the publication shall be made in one or more newspapers published and circulated therein less than six days a week, and said publication shall be had twice therein. ...” (Stats. 1911, p. 730, sec. 3, as amended Stats. 1923, p. 106; Deering’s Gen. Laws, Act 8199.)

Section 79 at the time of the publication of the resolution of intention herein, provided: “The notices, resolutions, orders or other matters required to be published by the provisions of this act, shall be published in a daily newspaper, in cities where such there is, and where there is no daily newspaper, in a semi-weekly or weekly newspaper, to be designated by the council of such city, as often as the same is issued, and no other statute shall govern or be applicable to the publications herein provided for; ... No publication or notice, other than that provided for in this act, shall be necessary to give validity to any of the proceedings provided for therein.” (Italics ours; subd. 4, sec. 79.)

Subsequent to the completion of the improvement herein, the provision was amended in 1929 to specifically provide that the provisions of part four, title five, of the Political Code, which includes sections 4458 and 4460, should have no application to publications under the act. (Stats. 1929, p. 1667; sec. 79e.)

Section 4460, Political Code, defines a newspaper of “general circulation” as follows: “A newspaper of general circulation is a newspaper published for the dissemination of local or telegraphic news and intelligence of a general character, having a bona fide subscription-list of paying subscribers, and which shall have been established, printed and published at regular intervals, in the state, county, city, city and county, or town, where such publication, notice by publication, or official advertising is given or made, for at least one year preceding the date of such publication, notice or advertisement. A newspaper devoted to the interests, or published for the entertainment or instruction of a particular class, profession, trade, calling, race, or denomination, or for any number of such classes, professions, trades, callings, races or denominations when the avowed purpose is to entertain or instruct such classes, is not a newspaper of general circulation.”

Section 4458, Political Code, provides that “whenever any publication, or notice by publication ... is required to be given or made by the provisions of . . . any law of the state, by any officer . . . such publication, or notice by publication . . . shall be given or made only in a newspaper of general circulation, where such newspaper is published within the jurisdiction of such official ...”

Defendants contend that said Political Code sections must be read together with the provisions of the Improvement Act of 1911 to require publications under the act to be made in a newspaper of general circulation. However, section 79, subdivision 4 (now 79c) of said Improvement Act expressly provided that “no other statute shall govern or be applicable to the publications herein provided for”. In view of this plain and unequivocal declaration it cannot be held that it was the legislative intent that sections 4458 and 4460, Political Code, should apply to proceedings under said act. The provisions of the act and the Political Code are otherwise inconsistent. If there is no paper of general circulation published in the city, section 4458, Political Code, requires publication “in a newspaper of general circulation, published nearest thereto”. Section 3 of the act permits publication under such circumstances in any “newspaper published in the county in which said city is located”. Under section 79 of the act the necessity of publication where there is no newspaper published and circulated in the city is dispensed with in some circumstances, and posting required in lieu thereof. The act requires publication in a daily newspaper in preference to a semi-weekly or weekly, although the daily has not been published for a year, and hence is not a newspaper of “general circulation”, as technically defined by section 4460, Political Code.

Under the act publication of the resolution of intention twice in a newspaper is not the sole means provided for giving notice of a contemplated improvement. In addition the street superintendent is required to post notices of the passage of the resolution at not more than three hundred feet in distance apart along the line of the contemplated improvement, or if the work is chargeable upon a district, on all open streets within the district. (Sec. 5.) At the time of the proceedings herein it was also provided in section 5 that the council, if it deemed it advisable, might direct the clerk to mail notices to the owners in the district. This provision is now mandatory.

Other improvement acts and street opening acts likewise do not provide for publication in a newspaper of general circulation as defined in the Political Code. (Stats. 1889, p. 70, Deering’s Gen. Laws, Act 8195; Stats. 1903, p. 376, Deering’s Gen. Laws, Act 8198; Stats. 1885, p. 147, Deering’s Gen. Laws, Act 8194; repealed Stats. 1933, p. 948; Stats. 1913, p. 954, Deering’s Gen. Laws, Act 8205.) The statutes of 1889 (see. 23, subd. 8) and 1903 (sec. 34) provide, as does the act before us, that “no publication or notice other than that provided in this act shall be necessary to give validity to any proceedings had thereunder”.

The Improvement Acts of 1901 and 1933, on the other hand, have required notices to be published in a newspaper of general circulation. (Stats. 1901, p. 34, Deering’s Gen. Laws, Act 8197, repealed Stats. 1933, p. 1274; Stats. 1933, p. 1458.)

In construing provisions for publication of notices in acts providing for other types of special districts it has been held that sections 4458 and 4460, Political Code, do not apply. (County Sanitation Dist. No. 4 v. Payne, 197 Cal. 448 [241 Pac. 264], construing Stats. 1923, p. 498, see. 2; Midwick Country Club v. County of Los Angeles, 11 Cal. App. (2d) 217 [53 Pac. (2d) 1006], construing Stats. 1923, p. 431, sec. 2, Fire Protection District Act; Palos Verdes Library Dist. v. McClellan, 97 Cal. App. 769, 777 [276 Pac. 600], construing Stats. 1909, p. 815, sec. 3.)

The purpose of notice of the resolution of intention is to afford interested persons an opportunity to oppose the proceeding. (Sacramento Pav. Co. v. Anderson, 1 Cal. App. 672 [82 Pac. 1069].) We are of the view that the notice provided by the act constitutes due process notwithstanding the notice is permitted by the act to be published in a newspaper which has been in existence less than a year.

Defendants further contend that in so far as the Improvement Act of 1911 is at variance with section 4458 and 4460, Political Code it is unconstitutional special legislation (Art. IV, sec. 25, subd. 7 and subd. 33, Const.; art. I, sec. 11.) Formerly street improvements were undertaken under special statutes relating to specific cities. (See 19 Cal. Jur. 157, listing numerous special laws.) But article IV, section 25, subdivision 7, prohibits such special legislation. A law which, like the Street Improvement Act of 1911, provides for all municipalities a system for opening and extending streets is not subject to the objection that it violates the rule prohibiting special legislation. (Frank v. Maguire, 201 Cal. 414, 422 [257 Pac. 515]; City of Los Angeles v. Zeller, 176 Cal. 194 [167 Pac. 849]; Clute v. Turner, 157 Cal. 73 [106 Pac. 240]; Hellman v. Shoulters, 114 Cal. 136, 147 [44 Pac. 915, 45 Pac. 1057]; City of Los Angeles v. Oliver, 102 Cal. App. 299, 320 [283 Pac. 298].) The several improvement acts provide alternative procedures available to all municipalities, with differences in the notices required as well as in other matters.

Proceedings for the opening, widening and improving of streets in municipalities are proceedings calling for special treatment and procedure. (Cases cited supra, preceding paragraph.) Therefore, acts providing for street improvements may remove proceedings thereunder from the application of general code sections. Thus in Los Angeles v. Oliver, supra, a provision of an improvement act which fixed a different date for ascertaining the value of land taken in eminent domain than the date provided by section 1249, Code of Civil Procedure, was sustained. In Frank v. Maguire, supra, an improvement act provision which provided a different method for fixing damages of property taken in eminent domain than the general law was upheld. In Los Angeles v. Zeller, supra, where it was contended that an improvement act provision for waiver of a jury trial in eminent domain proceedings had thereunder was at variance with section 631, Code of Civil Procedure, the court reaffirmed the rule that proceedings for the opening, widening and improving of streets in municipalities are proceedings calling for special treatment and procedure.

We have heretofore cited County Sanitation Dist. v. Payne, supra, Midwick Country Club v. County of Los Angeles, supra, and Palos Verdes Library Dist. v. McClellan, supra, which involved other types of special districts and held that sections 4458 and 4460, Political Code, did not apply to such districts. We conclude that the proceedings in the instant case were according to law.

The judgment is affirmed.

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

Rehearing denied.


author: EDMONDS, J.

text:
    [Sac. No. 5141.
    In Bank.
    February 25, 1938.]
    BEULAH A. BARTON, Respondent, v. WIRT LUDY, Appellant.

      Grayson Price and H. S. Clewett for Appellant.
    Geis & Hogle and Clyde H. Larimer for Respondent.
   EDMONDS, J.

The appellant in this case is a lessee of real estate and the respondent is the assignee of his colessee. The latter brought an action for partition of the leasehold interest and was awarded judgment. The appellant claims that the lease was made to him and his colessee as partners and is partnership property; that the title transferred by the assignment is subject to the interest of the partnership and that the respondent is not entitled to partition.

The property in controversy consists of 255 acres of laird in Glenn County and is part of one of the farms which was leased by Sarah E. Ludy to her two sons, John Ludy and the appellant. By the terms of this agreement, which was recorded, Mrs. Ludy leased her property to “Wirt Ludy and John Ludy” without further description of the interest created in the lessees. Later, Mrs. Ludy died and upon the administration of her estate, the respondent, who is her daughter and the sister of Wirt and John Ludy, became the owner of the 255 acres of land which is now in dispute. John Ludy then transferred to the respondent by a written “assignment” his “rights as lessee” in the 255 acres of land to which the respondent had acquired title and she brought this action against her other brother as a tenant in common with her of the leasehold.

The issue between the parties is presented by the separate defense of the appellant. He pleaded that he and his brother John were partners and took the lease as such; that no assignment of any interest in the lease had been made by the partnership and that the leasehold interest is partnership property. Upon this issue the trial court found that the brothers had acquired the lease and had farmed the land as partners but that the partnership was secret and undisclosed as to respondent, and that, as to her and as to her mother before her, the lessees held the lease merely as cotenants. It further found that respondent was a transferee of John Ludy’s undivided one-half interest in the leasehold of the 255 acres for a valuable consideration and without notice of the partnership.

The appellant makes his chief attack upon the sufficiency of the evidence to support these findings. He contends that the evidence offered by the respondent, consisting of the lease, the assignment to her by John Ludy and the decree made in the administration of the estate of Sarah E. Ludy distributing the 255 acres of land, subject to the lease, to her, does not entitle the respondent to a partition of the leasehold interest in this property. The respondent rests her case upon the proposition that the appellant had the burden of proof to sustain his position and did not meet this requirement. She contends that the evidence that for fifteen years he and his brother, “as partners” had farmed the land leased to them by their mother, does not establish a partnership interest which will defeat the title shown by her.

Section 2404 of the Civil Code reads in part as follows : “(4) Where the title to real property is in the name of one or more of all the partners, or in a third person in trust for the partnership, a conveyance executed by a partner in the partnership name, or in his own name, passes the equitable interest of the partnership, provided the act is one within the authority of the partner under the provisions of paragraph (1) of section 2403.” The section referred to provides: “ (1) Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on [in] the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority. ’ ’ These provisions, which are a part of the Uniform Partnership Act added to the law of this state in 1929, required the appellant to prove not only his brother’s lack of authority to make an assignment but also that his sister had knowledge of that fact. The same rule has been applied without statutory authority. In Dimity v. Dixon, 74 Cal. App. 714, 719 [241 Pac. 905], it was held that the law casts upon one seeking to impress a trust upon property of a partnership which has been held in the name of one of the partners and conveyed by his heirs after his death, the burden of showing that the grantee was either not a purchaser for value or that she took title with knowledge of the alleged infirmities. "Undoubtedly the reason for such a rule is that at common law a partnership was a trust relationship; hence a partner suing to recover trust property is in a situation similar to that of a beneficiary of a trust who brings an action to recover trust property alleged to have been conveyed in violation of the terms of the trust. In such a case and where the trustee held title without terms indicating the trust, “it has been invariably held”, this court said in Bell v. Pleasant, 145 Cal. 410 [78 Pac. 957, 104 Am. St. Rep. 61], that it is incumbent upon the plaintiff “not only to prove the facts establishing a trust, but also to prove that the grantee of the trustee took his conveyance with notice of the equities of the plaintiff”. The same conclusion was reached m Kowalsky v. Kimberlin, 173 Cal. 506 [160 Pac. 673], where the court said: “The burden of proof is upon plaintiff to show due and sufficient notice to defendant of matters outside the record title tending to establish any resulting or constructive trust in plaintiff's favor.”

The cases cited by appellant are not at variance with these, conclusions. Azevedo v. Sequiera, 132 Cal. App. 439 [22 Pac. (2d) 745], involved merely the rights of the partners as between themselves to certain property after dissolution of the partnership. The case of Perelli-Minetti v. Lawson, 205 Cal. 642 [272 Pac. 573], while nearer the mark, is still not controlling. There the plaintiffs were the heirs of a deceased partner who sought to partition the partnership property which had been held in cotenancy. The court held that the surviving partner had the right under section 1585 of the Code of Civil Procedure (now sec. 571 of the Probate Code) to continue in possession for the purpose of winding up the partnership affairs. No rights of third persons were involved.

The appellant insists that the provisions of subdivision 3 of section 2404 of the Civil Code places the burden of proof on one claiming partnership property against the partnership as a bona fide purchaser without knowledge. But that provision is limited by its terms to an action brought by a partnership to recover its assets; it has no application here.

Another contention of the appellant is that the respondent may not claim as a holder for value and without notice because her assignment from John Ludy purports to transfer only the interest he had. “That a deed conveys merely ‘the right, title and interest’ of the grantor does not prevent the grantee from being a purchaser for a valuable consideration, without notice, within the recording laws, so as to be protected from unrecorded instruments affecting the title to the property of which he had no notice.” (Beach v. Faust, 2 Cal. (2d) 290, 293 [40 Pac. (2d) 822].)

The judgment is affirmed.

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


author: LANGDON, J.

text:
    [Sac. No. 5165.
    In Bank.
    February 25, 1938.]
    FRED NAIFY et al., Respondents, v. PACIFIC INDEMNITY COMPANY (a Corporation) et al., Appellants.

      Jerome D. Peters and Cooley, Crowley & Supple for Appellants.

      Bronson, Bronson & Slaven, Frank V. Campbell, T. L. Chamberlain, Conley, Conley & Conley, Nathan L. Coombs, Crosby & Crosby, Gerald M. Desmond, Geary & Geary, C. J. Tauzer, Griffin & Boone, Hadsell, Sweet, Ingalls & Lamb, Hoey, Hamilton & Turner, Keyes & Erskine, Hugh K. Landram, Mannon & Brazier, Neumiller & Dietz, O’Connor, Fitzgerald & Moran, Redman, Alexander & Bacon, Andrew R. Schottky, Wyckoff, Gardner & Parker, as Amici Curiae, on Behalf of Appellants.
    J. Oscar Goldstein, P. M. Barceloux and J. M. McPherson for Respondents.
   LANGDON, J.

This is an action by the injured party and the insured to recover on a policy of automobile liability insurance. Upon a trial by the court, plaintiffs had judgment and defendants appealed.

On October 15, 1932, plaintiff Naify contracted to purchase an automobile from defendant Pacific Nash Motor Company. A conditional sale contract was executed with the understanding that the same was to be financed by and assigned to defendant Pacific Finance Corporation, and that said defendant would procure a policy of insurance with defendant Pacific Indemnity Company, covering the respective interests of the seller and buyer. The payments called for by the conditional sale contract were $118.75 per month for 12 months, and this sum included pro rata payments on the insurance premium, which was thereby included in the total purchase price of the car. Upon the execution of the conditional sale contract on said date of October 15, 1932, the motor company obtained the insurance policy from the indemnity company, covering fire, theft, collision, property damage and personal liability. The motor company, seller, assigned the conditional sale contract to the finance corporation, and delivered the insurance policy to said assignee.

It is to be noted that the transaction was one in which Naify, the buyer, had no choice of insurance carriers, but was, under the agreement, obligated to pay the premium for insurance procured by the finance corporation in a company of its own selection. It further appears that no copy of the policy was delivered to Naify, and he was given no information as to the terms thereof.

On July 18, 1933, the assured’s brother, driving the ear with the assured’s consent, collided with a car driven by plaintiff Clark. Clark filed suit for damages. Naify gave due notice to the indemnity company of the accident and requested that the company undertake his defense. The indemnity company refused, stating that the policy coverage for public liability, property damage and collision had been cancelled on December 17, 1932, over six months previously. Clark secured judgment against Naify. The latter paid $300 on account, and thereupon both plaintiffs brought this action, Naify seeking reimbursement, and Clark demanding the balance due on the judgment by virtue of the statutory liability of an insurance company to an injured party after judgment.

The facts set forth by the defendants in opposition to this claim are as follows: On December 17,1932, about two months after issuance of the policy, an officer of the indemnity company delivered a note to the manager of the insurance department of the finance corporation, stating that it had heard reports indicating that Naify was not a desirable risk, and requesting that the finance corporation recall the policy for cancellation. The finance corporation thereupon, according to the testimony on its behalf, mailed a letter to Naify stating that pursuant to instructions and in conformity with the policy it was cancelling his coverages, effective December, 1932; and that as legal owner of the car, it had instructed the indemnity company to remit the unearned premium not to Naify but to itself, which it would credit against the balance due on the contract. The letter was sent to the address given the insurance company by Naify’s agent and stated in the policy; but it was not his true address and the letter was never received by Naify. He had no knowledge of the cancellation until the answer to his notification of the collision and request to defend, in July, 1933.

The policy provided that it was subject to cancellation at any time by the insurance company on five days’ written notice; and it also contained the following provisions upon which defendants chiefly rely: “Notice of cancellation mailed to the address of the Assured stated in this policy shall be a sufficient notice. Where the term Assured is used in this paragraph it shall mean the Pacific Finance Corporation of California only during the time the Pacific Finance Corporation of California has any financial interest in the automobile insured hereunder. If the Pacific Finance Corporation of California has no financial interest, then the term Assured shall mean the purchaser.” Another provision in this same paragraph, upon which plaintiffs rely, reads: “Notice of cancellation shall state that said excess premium (if not tendered) will he refunded on demand

Before proceeding to a discussion of the legal issues, it may be well to review briefly just what was done by the parties. Plaintiff Naify, an automobile buyer, signed a contract, agreeing to pay for the ear and for insurance coverage, in installments. He performed both obligations fully. The finance corporation, as assignee of the seller, collected the installments, including that part allocated to the insurance premium; and the indemnity company, insurance carrier, received its premium for the insurance coverage. Without the knowledge of the buyer, the insurance was purportedly canceled, and for over six months plaintiff Naify was left without protection for which he nevertheless continued to pay, and the payments were received and kept by one of the defendants. Meanwhile, though collecting the full premium and canceling all plaintiff’s protection, the finance corporation was permitted by the. insurance company to retain all coverage protecting itself, namely, fire and theft insurance.

Plaintiffs pleaded several causes of action, and the court found in their favor against all defendants. The theory of the judgment is that the three defendants acted in concert; that the conditional sale contract, the assignment, and the insurance policy were all included within a single transaction; that the notice of cancellation was ineffective; and that the defendants had agreed to insure Naify but left him unprotected. We are in full accord with the court’s conclusion that plaintiffs should recover, and there are sound reasons for recovery against each of the defendants according to different inferences which may be drawn from the facts. But defendants argue that the judgment, as rendered, is inconsistent, in that it declares the insurance company liable on the policy, yet holds the other defendants liable for failure to keep the plaintiff insured. It is, of course, true that Naify could not be both insured and uninsured at the same time, and accordingly it is necessary to determine whether he was or was not, or, in other words, whether his policy was effectively canceled prior to the accident.

At the outset we are met with a question raised by amici curiae on behalf of various insurance companies, namely, whether a notice of cancellation, sent to the address of the assured as stated in the policy, and pursuant to a provision in the policy stating that the mailing thereof shall be sufficient notice, is effective despite lack of receipt by the insured. In this simple form, the question may perhaps be answered in the affirmative (see Raiken v. Commercial Cas. Ins. Co., (N. J.) 135 Atl. 479), though it has not yet been directly ruled upon in this jurisdiction. (See American Building Maintenance Co. v. Indemnity Ins. Co., 214 Cal. 608 [7 Pac. (2d) 305].) But the special circumstances of this case make such a doctrine entirely inapplicable. Ordinarily the insured chooses his company and his policy; here the insured had no choice but to accept the selection of the seller. Ordinarily the insured receives his policy and is for this reason presumed to have read it; here the insured did not receive either the policy or a copy of it; and none of the provisions relied upon here was brought to his attention. Ordinarily, when the insurance company cancels a policy, it gives notice, by whatever method is chosen, to the insured; here the insurance company did not notify the insured buyer, but merely the insured seller, and it was the latter who is supposed to have notified the plaintiff. Ordinarily, the notice given complies with the policy requirement of tendering the unearned premium; here the notice did not do so. Finally, the normal effect of repudiation of a contract and refusal to perform on one side is the excuse of performance on the other side; here the insurance company purported to terminate its obligations to the insured, but performance by the insured continued, and the pro rata payments on the premium were still accepted. In the light of these facts, can it be said that the policy was canceled by a mailed notice not received by the insured? We think not.

But if we assume the applicability of the provisions for mailed notice, defendants must show a strict compliance with its terms in order to effect a cancellation. (B. & B. Trucking, Inc., v. Home Fire & Marine Ins. Co., 125 Misc. 312 [209 N. Y. Supp. 511], aff. 216 App. Div. 710 [214 N. Y. Supp. 812], Id., 243 N. Y. 558 [154 N. E. 604]; Levan v. Pottstown etc. Ry. Co., 279 Pa. 381 [124 Atl. 89]; Fox v. Connecticut Fire Ins. Co., (Mo.) 268 S. W. 393; Nederland Life Ins. Co. v. Meinert, 127 Fed. 651.) They have not done so, for neither of the two notices relied upon was sufficient. The first, the letter mailed by the finance corporation to plaintiff Naify, was fatally defective. The policy provides that notice shall state that the excess premium will be refunded on demand. The letter contained no such statement. Instead, the finance corporation, seeking to improve its position as holder of the conditional sale contract, stated “ ... we have instructed the Pacific Indemnity Company to remit the unearned premium to us and when it is received, we will credit it against the balance due on your contract . . . ” In other words, it baldly informed the insured that although the insurance company was remitting the unearned premium, it (the finance corporation) was appropriating the sum to its own use for a period of some six months, following which it would give the insured credit for the same on another obligation, the last payment due on the car. To the extent that it collected pro rata premium payments and diverted them to other uses the finance corporation was guilty of conversion, and still more obviously of a breach of the plain provisions of the policy. Hence, in so far as the insurance company seeks to establish cancellation through the agency of the finance corporation, by means of the letter sent to Naify, its position is untenable.

The second theory advanced is that cancellation was effected by the prior letter of the insurance company to the finance corporation, which states: “Kindly recall policy for cancellation.” Defendants point to the provision of the policy that the finance corporation shall be deemed the assured while it has any interest in the automobile, and assert that it was proper to terminate Naify’s policy by notice to the finance corporation alone. Were the validity of this provision squarely presented, we would have serious doubts thereon. Parties are, within reason, free to contract as they please, and to make bargains which place one party at a disadvantage ; but a contract must have mutuality of obligation, and an agreement which permits one party to withdraw at his pleasure is void. (Shortell v. Evans-Ferguson Corp., 98 Cal. App. 650 [277 Pac. 519]; Williston, Contracts, 2d ed., sec. 104.) By analogy, it seems questionable whether a contract can validly provide that A is bound thereunder unless B decides to withdraw, and that B's notice of withdrawal may be given to X, a third party who is not A’s agent, and who in fact occupies two positions antagonistic to A: a creditor of A, and an agent of the adverse party. The only basis upon which such withdrawal could be justified would be that X was authorized by A to act as his agent to cancel the contract; that is, that the finance corporation was authorized by Naify to act as his agent in canceling the policy. It is elementary that actual agency must rest on agreement or consent. (Restatement, Agency, see. 15.) What if the policy made such a provision, a point not free from doubt? Naify never saw the policy, his attention was never called to the provision, and therefore it cannot be said that he agreed to such an agency. (See Los Angeles Inv. Co. v. Home Sav. Bank, 180 Cal. 601 [182 Pac. 293, 5 A. L. R. 1193].) Does the conditional sale contract, which Naify signed, so provide ? Clearly it does not; it states only that the finance corporation may procure insurance, but it gives no inkling of a proposed extraordinary agency in the finance corporation to cancel Naify’s insurance. It is impossible, therefore, to find any factual or legal basis for the asserted right of the insurance company to cancel by giving notice to the finance corporation.

We may, however, assume for the moment that the provision authorizing notice to the finance corporation alone was binding on Naify despite his total lack of assent thereto. Still defendants cannot prevail, for this notice, like the other, failed to comply with the provisions of the policy. In the first place, the letter to the finance corporation was not a notice of cancellation, but a request that the corporation recall the policy for cancellation. The finance corporation was thereby made agent of the insurance company to procure the policy, and neither in terms nor in effect was this letter a notice of cancellation. Indeed, it is shown in the record that the purported assured here, the finance corporation, did not suffer any cancellation of its coverages, and that the whole purpose of the letter was to have the finance corporation give actual notice of cancellation of the coverages of Naify. In the second place, even if the letter might be construed as an actual notice of cancellation, it was, like the letter to Naify, utterly lacking in a statement that the unearned premium would be repaid on demand. It is suggested by defendants that this requirement could be waived by the finance corporation, but inasmuch as the letter is relied upon to effect a cancellation of Naify’s coverages, only he could waive compliance with the requirement. If this were not true, then the insurance company could cancel at will, without five days’ notice, or without any notice, and its so-called “assured”, the finance corporation, having fully protected itself, could “waive” all the policy requirements as to Naify. We find nothing either in the policy or the conditional sale contract which gives any such extraordinary authority to the finance corporation. The contract merely authorizes the seller to keep the property insured in a company or companies selected by it, and obligates the buyer to pay the premiums. It is impossible to construe it as an authorization of the seller or its assignee to collect the premiums and contemporaneously to “waive” all of the buyer’s rights under the policy.

We conclude, therefore, that the insurance policy was in full force and effect at the time of the accident, and that plaintiffs were entitled to recover under its terms. This being so, it would appear that the defendant finance corporation cannot be held liable on the theory that it failed to keep plaintiff Naify insured. It may be true, as indicated by the trial court, that all of the defendants acted in concert in an attempt to deprive Naify of his insurance coverage, but since, under our holding, the attempt was unsuccessful, plaintiff suffered no appreciable damage therefrom. In short, defendant finance corporation would undoubtedly have been liable in the full amount of the loss sustained by Naify, if the policy had actually terminated while it continued to collect premium payments therefor, but the conclusion that the policy was not terminated is inconsistent with such liability.

All defendants were, however, properly joined in the action in an attempt to discover which was liable for plaintiff’s claims; and since all denied and contested plaintiffs’ rights of recovery under the policy, none should recover costs.

The judgment against defendant Pacific Indemnity Company is affirmed, with costs to respondent. The judgments against defendants Pacific Nash Motor Company and Pacific Finance Corporation are reversed, neither party to recover costs.

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


author: THE COURT.

text:
    [L. A. No. 16417.
    In Bank.
    March 15, 1938.]
    WILLIAM HENRY IRONS, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.
    William H. Irons, in pro. per., for Petitioner.
    Philbrick McCoy for Respondent.
   THE COURT.

By this proceeding, a review is sought of the recommendation by the Board of Governors of The State Bar, of petitioner’s suspension for a period of eighteen months from the practice of the law within this state.

By the terms of the notice that was given to petitioner to show cause why he “should not be disciplined for professional misconduct”, in substance, the ultimate facts which purportedly constituted such asserted misconduct were set forth, together with the allegation that “All of said acts so committed by you during the course of your relations as an attorney and counsellor at law involve moral turpitude and dishonesty within the meaning of subdivision 5 of section 287 of the Code of Civil Procedure.”

On the part of the prosecution, briefly, the record establishes the existence of the following facts: In satisfaction of a judgment in an action in which petitioner had represented one Lampe, petitioner was paid the sum of $250, of which amount, in accordance with an agreement between him and his client, petitioner was entitled to retain for his own use the sum of $83.33. Instead of paying to his client the remainder of the amount thus collected, by means of false and misleading statements made by petitioner to his client, he “stalled” for a period of five months, at the expiration of which time he was informed by his client that he knew of petitioner’s deception in the matter. Within a few days thereafter, petitioner paid to his client the amount to which he was entitled. In the meantime, the client had entered complaint of petitioner’s misconduct to the proper officials who represented The State Bar of California, with the result that about a month after petitioner had paid his client, he was served with the said notice to show cause why he should not be disciplined. At the time when petitioner paid the money to Lampe, petitioner had no knowledge that Lampe had complained of petitioner’s misconduct in the premises.

On the hearing of the notice to show cause, although petitioner admitted the truth of the foregoing statement, his defense thereto consisted of testimony given by him, which in part was corroborated by his law partner, to the effect that on the date when he received the said sum of $250, he deducted his fee therefrom and then placed the balance thereof in an envelope which he gave to his law partner, with the understanding then had between them that on the evening of that day he would deliver the envelope and the money to petitioner’s client; that the next day at about 3:30 o ’clock P. M., for the asserted reason that he had been unable to find his client, his partner returned the envelope to petitioner. Without any corroboration thereof, petitioner also testified that upon receipt of the envelope from his partner he had placed the envelope in a drawer in his roll-top desk, which he believed he thereupon locked; that petitioner had been engaged in court all of that day, but that on the day following, when he looked for the money that should have been in the envelope he discovered the fact that someone had taken it; that he registered no complaint with the police department regarding such theft; neither did he report to his client the fact that the money had been stolen. To the contrary, for the reason, as testified by him, that:

“I was confident that he wouldn’t believe it, that somebody had gone south with his money, and I think my opinions in that regard have been substantiated because other men more intelligent than Lampe believe that and don’t believe it now. I was simply stalling for time for the purpose of getting the money, and at that time I had an opinion as to where the money had gone, and I am still of the same opinion. ’ ’

Instead of telling his client that which petitioner now asserts was the truth regarding the disappearance of the money, the record indisputably shows that on several occasions, during a period of some months next ensuing, he represented to Lampe that due to the fact that the defendant had taken an appeal from the judgment the money had not been collected; that upon one of those occasions petitioner stated to Lampe that the “opposite side” had appealed and that “the other side” was entitled to thirty days in which to perfect such appeal, which period of time would be followed by a thirty or forty-day period to be accorded Lampe for his “answering” papers upon appeal, and thereafter “they” would be given sixty days for “their (defendant’s) final appeal”. About four months after petitioner had received the money from defendant’s attorney (in carrying out the fiction of an appeal by defendant), in substance, petitioner stated to Lampe that the defendant.had not prevailed upon his appeal from the judgment, but that additional time would be required during which certain formalities in regard to court procedure would have to be complied' with; that petitioner would have to file certain papers in court after they had been “sent down on appeal”, and that a few days thereafter Lampe would get his money. However, because of some asserted error in those “papers”, represented by petitioner to Lampe to have occurred, and the consequent delay in their transmission from the appellate court, petitioner thus acquired a few more days’ additional time in which to account for the money which theretofore had been received by him. Thereupon Lampe apparently became suspicious of the representations made by petitioner to him, and began an investigation relative to the asserted appeal. About two months thereafter, with the assistance of another attorney, he examined the records of the court in which the action was brought and therefrom ascertained the fact that not only had no appeal ever been taken, but that the judgment had been satisfied several months previously. Thereafter, upon being advised by Lampe of the latter’s knowledge of petitioner’s deception, in effect, petitioner stated that he was sorry he had had to “string (Lampe) along”, but that he was having some trouble with his law partner in the matter of the collection of fees belonging to petitioner, and that petitioner did not have the cash to pay Lampe then, but would have to “raise the money”. He further stated that previously he had given the money due Lampe to his partner to deliver to Lampe, but that his partner thereafter stated to petitioner that he had used it for his own purposes, and that he would repay petitioner, and the latter could in turn “give it back to” Lampe. In that regard Lampe testified that petitioner stated he had made the statements to him regarding the defendant’s purported appeal because petitioner “had to have some excuses to raise this money”.

In substance, the local administrative committee before which the proceeding against petitioner was heard, found against the truth of the several statements that had been made by him and in his behalf, and thereupon made its recommendation to the Board of Governors of The State Bar, that because of the “professional misconduct” of petitioner as an attorney at law, he be suspended from the practice of law within this state for a period of eighteen months;—in which conclusion, on a review of the record of the proceedings therein, together with an additional affidavit which was made by the partner of petitioner in his behalf,—with the exception of one member thereof, the Board of Governors of The State Bar concurred, with the additional exception that two of the members of such board were of the opinion that instead of an eighteen months’ suspension, petitioner should be disbarred.

Notwithstanding the fact that in effect petitioner admits the truth of each of the incriminatory facts to which reference hereinbefore has been had, petitioner seeks favorable action by this court in his behalf, upon the asserted grounds that the Board of Governors of The State Bar “acted arbitrarily and in excess of its jurisdiction in that it concurred in the findings, conclusions and recommendations of the Local Administrative Committee and based its recommendations to this Court thereon and upon the minutes and record of the hearing before said Board of Governors on May 14th, 1937; that the findings, conclusions and recommendations of said Administrative Committee and the concurrence therein by and the recommendations of said Board of Governors, were not based upon evidence adduced before said Committee or before said Board of Governors”.

Particularly, petitioner asserts that there was an entire lack of evidence to support the conclusion that petitioner had converted to his own use the funds of the complaining witness. In that regard, his argument is to the effect that his own testimony, together with that of his partner, established the truth of the asserted fact that someone stole the money that belonged to his client. But on consideration of all the evidence, the weakness of petitioner’s story and its improbability seem so apparent that to comment upon it would appear unnecessary. However, it may be pointed out that the testimony which was given by the partner of petitioner went only to a corroboration of the fact that in the first instance, after petitioner had received the money and had deducted his rightful fee therefrom, an attempt was made by petitioner to pay the balance thereof to his client, and that having been unsuccessful in that regard, the money was returned to petitioner. After that incident, the incriminatory facts are all against petitioner’s contention. For example: petitioner’s statement that he placed the money in his roll-top desk was not corroborated. He never informed the police department of the asserted fact that the money had been stolen; nor, with the exception of his partner, his brother, and his secretary, did he ever tell anyone that he had sustained such a loss. And in the latter connection, on the hearing which took place before the local administrative committee, he failed to present any corroborative evidence or testimony that (with the exception of his partner) he had ever informed either of the other persons that the money had been stolen. Although petitioner suspected some mysterious individual as the culprit, he declined to give his name. Even in order to clear his own good name in the premises, as far as his client was concerned, petitioner never at any time made any representation to him that the money had been stolen. From the beginning, petitioner deliberately resorted to the most flagrant falsehoods and deception of the worst type to “stall off” his client’s demands that he be paid the money to which he was entitled. Even assuming the truth of the story that was told by petitioner, it is significant that at no time during a period of five months which succeeded the receipt of the money did petitioner pay his client either the whole or any part of the money. It was only after petitioner had been informed by his client that he had obtained conclusive evidence of the deception, that petitioner had practiced, that petitioner paid his client the greater part of the money which theretofore should have been placed in his hands. Nor does the record contain any evidence that before petitioner had been confronted by his client and had been charged with 11 professional misconduct ’ ’, did he make even the slightest effort to replace the money which he now asserts had been stolen from him. When petitioner did pay the money to his client, he had no knowledge that his client theretofore had lodged a complaint against him with the local administrative committee of The State Bar.

Prom the foregoing, it is clear that petitioner’s contentions are wholly without merit. Other than petitioner’s unsupported statement to the effect that his client’s money had been stolen, with the exception of the testimony that was given by petitioner’s partner, to which reference hereinbefore has been had, every other bit of evidence points almost beyond the possibility of doubt, to the conclusion that petitioner wilfully and wrongfully misappropriated money that was the property of his client.

In the circumstances, the recommendation of eighteen months’ suspension of petitioner from the practice of the law within this state, which was made by the local administrative committee, and in which recommendation the Board of Governors of The State Bar concurred, was most lenient.

It is ordered, that petitioner be and he is denied any relief from the recommendation of which he complains; to the contrary, it is ordered that the said recommendation be and it is approved and adopted. It is further ordered that the license of William Henry Irons to practice law within this state, and in each and all of the courts thereof be, and it is, suspended for a period of eighteen months, effective thirty days after the filing of this order.


author: CURTIS, J.

text:
    [L. A. No. 16432.
    In Bank.
    March 21, 1938.]
    LOTUS HOWLAND, Respondent, v. GEORGE D. HOWLAND et al., Appellants.
    George D. Howland and Frank M. Benedict for Appellants.
    Glen Behymer for Respondent.
   CURTIS, J.

Motion by respondent to dismiss an appeal from a judgment made and entered in favor of respondent and against appellants. Two appeals were taken by appellants to this court: (1) An appeal from a judgment in an action to quiet title to certain real property located in Los Angeles County, and (2) an appeal from an order of the superior court of said' county of date July 2, 1937, denying appellants’ motion to settle the bill of exceptions and granting respondent’s motion to terminate all proceedings for the settlement thereof.

The motion to dismiss the appeal from the main judgment, which is the motion now before us for disposition, is made upon the ground that no transcript has been filed and that the lower court has made its order terminating proceedings on the appeal. The following proceedings took place in the lower court. Plaintiff on October 11, 1934, commenced an action to quiet title to certain real property in Los Angeles County. Judgment for the plaintiff was signed and filed July 22, 1935. On February 4, 1936, hearing upon the settlement of a proposed bill of exceptions was had, and the court entered its order requiring defendants to draw and prepare a new proposed bill of exceptions. On February 17, 1936, the same bill of exceptions having been resubmitted for settlement, the bill of exceptions was ordered off the calendar to be reset at a later date. On July 2, 1937, respondent moved the trial court to terminate proceedings for settlement of the bill of exceptions and all other proceedings in the trial court with respect to the appeal therein. Appellants at the same time made a motion to settle the proposed bill of exceptions. Respondent’s motion to terminate all proceedings was granted, and appellants’ motion was denied. On August 18, 1937, appellants filed their notice of appeal from said order of July 2, 1937, and served a proposed bill of exceptions on appeal from said order within the proper time.

It is well settled that the order terminating proceedings in the lower court with respect to the preparation of a record affects the judgment appealed from, and is an appealable order. (W. J. Somers Co. v. Smith, 45 Cal. App. 703 [188 Pac. 311]; Struck v. Superior Court, 138 Cal. App. 672 [32 Pac. (2d) 1110]; Wood v. Peterson Farms Co., 214 Cal. 94 [3 Pac. (2d) 922].) This being so, it follows that during the pendency of the appeal from the order terminating in the lower court the proceedings for a record, the motion of respondent to dismiss the appeal from the main judgment is premature and should be denied. (W. J. Somers Co. v. Smith, supra.)

The motion to dismiss the appeal from the main judgment is denied without prejudice to renew the motion if the appeal from the order terminating proceedings for a record in the lower court is decided adversely to appellants.

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


text:
    [Crim. No. 4145.
    In Bank.
    March 22, 1938.]
    In the Matter of the Application of EARL KENNETH MIZE for a Writ of Habeas Corpus.

      Clarence P. Wallick for Appellant.
    Buron Fitts, District Attorney, and Jere J. Sullivan, Deputy District Attorney, for Respondent.
   SEAWELL, J.

This is a proceeding in habeas corpus to secure the release of Earl Kenneth Mize from the custody of the sheriff of Los Angeles County. Mize was convicted' of failure to provide for his infant child (see. 270, Pen. Code) in the Justice’s Court of Compton Township, Los Angeles County. He was placed on probation for two years on condition that he pay $15 a month for the support of said child. Upon his default in making said payments his probation was revoked, and said justice’s court on May 20, 1937, sentenced him to one year’s imprisonment in the county jail. The court directed that he should work during said term upon the public roads or other public works and that his pay, received from the board of supervisors at the rate of $1 per day, should be paid to the probation officer for the support of said child.

Petitioner contends that the Justice’s Court of Compton Township is without jurisdiction of violations of section 270, Penal Code, for the reason that it is a class B justice’s court. Class B justice’s courts exist in townships having a population of less than 30,000. (See. 81, Code Civ. Proc.) Such courts have jurisdiction in criminal cases amounting to a misdemeanor only punishable by fine not exceeding $1,000, or imprisonment not exceeding six months, or by both such imprisonment and fine. (See. 1425, Pen. Code.) The offense of failure to provide for a minor child as defined in section 270, Penal Code, is subject to imprisonment in the county jail not exceeding two years or by a fine not exceeding $1,000, or by both. In the case herein petitioner’s term of imprisonment is one year.

Petitioner cites County of Los Angeles v. Justice’s Court, 208 Cal. 429 [281 Pac. 611], decided in 1929, wherein it was held that the Justice’s Court of Compton Township was a class B justice’s court. It appears from the showing made by respondent upon the return to the writ, however, that the present Compton township includes a larger area than the former Compton township, which was found in the case cited to have a population of less than 30,000.

The complaint against petitioner was filed on July 2, 1936. On May 28, 1934, the board of supervisors of Los Angeles County enacted an ordinance redistricting judicial townships in the county, which became effective January 1, 1935. The power of a county board of supervisors to change the boundaries of judicial townships under section 4015, Political Code, has been recognized repeatedly. (See, also, sec. 4041.10, Pol. Code; People v. Chaves, 122 Cal. 134 [54 Pac. 596], under the County Government Act, Stats. 1893, p. 346; Proulx, v. Graves, 143 Cal. 243 [76 Pac. 1025]; Osborn v. Board of Supervisors, 27 Cal. App. 85 [148 Pac. 970]; Deupree v. Payne, 197 Cal. 529 [241 Pac. 869]; Shea v. Kerr, 1 Cal. (2d) 604 [36 Pac. (2d) 189]; In re Stanton, 128 Cal. App. 659 [18 Pac. (2d) 384]; 6 Cal. Jur. 10-Year Supp. 510.)

Compton township as established by the ordinance of 1934 is the successor of Compton township and Dominguez township theretofore existing. (Sec. 31.) The new township is coterminous in bounds with the two former townships. The federal census of 1930 shows the former Compton township to have a population of 31,012, the former Dominguez township a population of 4,267, making a total population of 35,279 for the new Compton township.

At the time County of Los Angeles v. Justice’s Court, supra, was decided, determining that the former Compton township had a population of less than 30,000, the statute did not provide the manner of ascertaining the population of a judicial township. Under the 1933 amendment to section 81, Code of Civil Procedure, the population of a judicial township “shall be deemed to be as shown by the last preceding census taken under the direction of the Congress of the United States”, unless the population had been determined in a proceeding in mandamus prior to January 1, 1931, by this court. Since the enlarged Compton township did not come into existence until after 1931, the population thereof must be determined by reference to the federal census of 1930, which shows it to be in excess of 30,000. This statutory method of ascertaining population was upheld in Shea v. Kerr, supra, which involved the same ordinance as the instant case. Petitioner herein does not contend that the present population of the new Compton township is in fact less than 30,000.

Petitioner further contends that the judgment against him is void for the reason that it fails to show that his failure to provide for his child was wilful and without lawful excuse. (Sec. 270, Pen. Code.) The complaint charged that petitioner “wilfully, unlawfully and without lawful excuse” failed to provide for said child. The case was tried by the court sitting without a jury. The verdict or finding of the court, as entered in the clerk’s minutes, is as follows: “Guilty as charged in the complaint.” This reference to the complaint constitutes a finding that the failure to provide was wilful and without lawful excuse. (People v. Cummings, 117 Cal. 497 [49 Pac. 576]; People v. Sam Lung, 70 Cal. 515, 518 [11 Pac. 673]; People v. Du Fault, 1 Cal. App. (2d) 105 [36 Pac. (2d) 196]; People v. Camp, 42 Cal. App. 411, 421 [183 Pac. 845]; 8 Cal. Jur. 403.)

It is true that the judgment imposing sentence thereafter pronounced by the court (sees. 1445, 1449, Pen. Code), as entered in the clerk’s minutes (see. 1453), contains no statement of the offense, but merely recites the sentence imposed on petitioner. However, the verdict of the jury or finding of the court adjudging the defendant guilty is part of the record or judgment roll in criminal cases tried in the justice’s court. (See. 1468, Pen. Code; Rule 3, Rules Adopted by the Judicial Council, effective July 1, 1936.) Where it appears from said record, as in this cáse, that the defendant has been convicted of the offense defined in section 270, Penal Code, he will not be released for the reason that the minute entry of the judgment entered following said conviction fails to repeat the offense.

In view of the fact that a certified copy of the judgment as entered in the minutes constitutes the commitment or warrant under which the defendant is imprisoned (sec. 1455, Pen. Code), it is proper that such entry should state the offense of which defendant has been convicted. In the case herein the minute entry of judgment did not itself recite the offense, but nevertheless a statement thereof was made in preliminary recitals of the commitment, certified by the justice of the peace. Petitioner was not prejudiced by the failure of the minute entry of judgment to recite the offense.

Section 1207, Penal Code, relating to criminal trials in the superior court, provides that the clerk in entering the judgment rendered upon a conviction must state briefly “the offense for which conviction was had”. Section 1453, Penal Code, providing for entry of the judgment in justice’s court cases, does not make this requirement. We are not to be understood as .indicating that by reason of section 1207, Penal Code, the defendant in a superior court case would be entitled to release on habeas corpus if the minute entry of judgment failed to state the offense. If prejudiced by the omission, his remedy would be to secure a correction of the entry to state the offense of which he had been convicted by verdict of the jury or finding of the court entered in the minutes. The clerk’s record may be amended to speak the truth. (In re Barnes, 127 Cal. App. 708 [16 Pac. (2d) 309]; In re Glavich, 74 Cal. App. 144 [239 Pac. 707]; In re Huewitt, 102 Cal. App. 24 [282 Pac. 406]; Kaufman v. Shain, 111 Cal. 16 [43 Pac. 393, 52 Am. St. Rep. 139]; 6 Cal. Jur. 10-Year. Supp. 524; 8 Cal. Jur. 477.)

It has been held that where there is a valid conviction by court or jury, but the judgment of imprisonment is void, as for the reason that it was entered on a holiday, or exceeds that allowed by law, the prisoner will not be discharged on habeas corpus, but held awaiting pronouncement and entry of a valid judgment. (Matter of Smith, 152 Cal. 566 [93 Pac. 191]; In re Lee, 177 Cal. 690, 696 [171 Pac. 958]; In re McCready, 179 Cal. 514 [177 Pac. 459]; Ex parte Fritz, 179 Cal. 415 [177 Pac. 157]; In re Adams, 61 Cal. App. 239 [214 Pac. 467]; 13 Cal. Jur. 280.) In view of this rule, it is plain that a defendant is not entitled to release where the judgment of imprisonment is valid, but the only irregularity is that the entry thereof in the minutes fails to include a statement of the offense.

Petitioner relies strongly on In re Cowan, 137 Cal. App. 209 [30 Pac. (2d) 443], In that case the petitioner was discharged on the ground that the judgment for six months’ imprisonment failed to show that the failure to provide was wilful and without lawful excuse. It does not appear from said decision that there was any adjudication to that effect in the record. In the ease herein the finding of the court, as entered in the minutes, constituted an adjudication that the offense was wilful and without lawful excuse. Said finding supports the judgment imposing a year’s imprisonment.

The writ is discharged and the petitioner remanded.

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


author: WASTE, C. J.

text:
    [L. A. No. 16410.
    In Bank.
    March 24 1938.]
    AUSTIN M. FARNSWORTH et al., Respondents, v. CARRIE L. HUNTER, Appellant.

      . John H. Gordon for Appellant.
    Richard F. Bailey and Ralph C. Curren for Respondents.
   WASTE, C. J.

On January 28, 1936, defendant Carrie L. Hunter contracted to sell a lot owned by her in Los Angeles County to plaintiffs Austin M. and Mildred C. Farnsworth, for the sum of $650. Plaintiffs paid $100 on account of the purchase price, and on March 17, 1936, tendered the balance. Defendant, however, refused to perform the contract on her part and convey the property. This action followed.

Plaintiffs’ original complaint, filed April 7, 1936, alleged in addition to the above facts, that the property was particularly suited to plaintiffs’ purposes, and that the specified price was its fair and reasonable value as of the date of the purchase contract. The prayer of the complaint was that defendant be ordered to specifically perform said contract, and for general relief.

An answer to this complaint was filed on behalf of defendant which, among other defenses, pleaded inadequacy of consideration. Upon trial of the cause evidence was adduced to show that the reasonable market value of the property was greatly in excess of the specified purchase price. From this evidence the court drew the conclusion that at the time the purchase contract was executed, and also on March 17, 1936, when it was breached by defendant, the property was of the reasonable market value of $1250; that therefore the agreed consideration was inadequate, and plaintiffs must be denied specific performance. Following this conclusion, the court, at the close of the evidence on August 14, 1936, ordered judgment for defendant with directions that the $100 paid by plaintiffs be returned to them, and ordered defendant’s attorney to prepare findings. Before such findings were signed or entered, plaintiffs moved for permission to file an amended complaint to conform to proof. The motion was granted, and plaintiffs thereupon filed an amended complaint wherein they alleged that at the time of execution of the purchase contract, the reasonable value of the property was the specified purchase price, but at the time of breach of said contract the market value of the property was $1250, and that as a direct and proximate result of defendant’s refusal to convey in accordance with said contract, plaintiffs were damaged in the sum of $600. The prayer of this amended pleading was for specific performance, or in the event plaintiffs were not entitled to that relief, for $600 damages for breach of contract.

Defendant demurred to the amended complaint, and also moved to strike the paragraph thereof containing the allegation of damage. The court overruled the demurrer and denied the motion to strike. Defendant then filed an amended answer. On January 22, 1937, the cause was resumed for further trial on the amended pleadings. As it then appeared that no further evidence was required or offered, by consent of both parties the cause was ordered submitted for decision. On January 25th the court filed a memorandum decision, and ordered judgment for plaintiffs in the sum of $600, which order was followed by the entry of formal findings and judgment denying specific performance but awarding plaintiffs $600 and costs. Defendant appealed. The cause is now under submission on motion of plaintiffs to dismiss the appeal or affirm the judgment, and on the merits. It is our view that the judgment should be affirmed.

The contentions of appellant may be summarized in the statement that she claims that all proceedings had upon the reopening of the cause were erroneous, and that the trial court erred in allowing plaintiffs to file an amended complaint which, appellant contends did not in fact conform to proof but introduced a new and different cause of action, and prayed for new and additional relief.

Similar contentions were advanced in the case of Peters v. Binnard, 219 Cal. 141 [25 Pac. (2d) 834], and were found to be untenable. There the action went to trial on issues framed by a second amended complaint seeking damages for failure to cancel a note, and answer thereto. At the close of evidence, and while the cause was under submission, the trial court permitted the filing of a third amended complaint to conform to proof, which prayed for cancellation of the note, or damages. A motion to strike this amended pleading was denied, demurrer thereto overruled, and answer filed. Thereafter submission of the cause was set aside, further evidence taken, and the relief prayed by the amended pleading was granted. Discussing the questions raised on appeal as to the propriety of such procedure, this court said (219 Cal., at pp. 148, 149, 150) : “It is contended that the trial court erred in its order authorizing the filing of the third amended complaint. This contention is largely based on the apparent change of remedies found in the third amended complaint, and on the ground that new issues were brought in by this complaint. . . . It is, of course, elementary that the allowance or refusal of the trial court of permission to file amendments to pleadings to make them conform with the proof is a matter largely in the discretion of the trial court, and its exercise ordinarily will not be disturbed in the absence of gross abuse. (Armstrong v. Lassen Lumber & Box Co., 204 Cal. 529 [269 Pac. 453].) The third amended complaint did not bring in any new cause of action. A change by amendment from one kind of relief to another is not a change in the cause of action if the transaction is the same. (Rosemead Co. v. Shipley Co., 207 Cal. 414 [278 Pac. 1038].) Other than the change in remedy, the only new matter inserted in the third amended complaint was the change in the nature of the contract between Peters and the appellants, and that had been fully developed on the trial. Moreover, just how appellants were injured by permitting the new complaint to be filed does not satisfactorily appear. Assuming that new issues were thus introduced into the case, the trial court, after the new complaint had been filed and appellants had answered, permitted the taking of further evidence, and both sides introduced further evidence at some length. Appellants, therefore, had ample opportunity to present their evidence on any of these issues. . . . Appellants also contend that their demurrer to the third amended complaint should have been sustained. This contention is largely based on the theory that this complaint was for specific performance, and that the allegations contained therein are not sufficient to grant that relief. Some objection also seems to be made to the joining of a request for relief addressed to the law side of the court with a request for equitable relief. Under our system of code pleading it is elementary that a plaintiff may blend with an action at law a petition for ancillary equitable relief. It is also quite clear that where a party is entitled to legal and equitable relief the whole matter should be litigated and finally settled in the same action.” (See, also, Rosemead v. Shipley, 207 Cal. 414 [278 Pac. 1038]; Pascoe v. Morrison, 219 Cal. 54 [25 Pac. (2d) 9]; note 22 Cal. Law Review, pp. 208 et seq.; 9 Cal. Jur. Supp., pp. 249, 250.)

In the present case there is no showing of abuse of discretion on the part of the trial court in allowing the amendment to conform to proof. Although no evidence was taken upon the reopening of the cause, nevertheless both parties were accorded the opportunity to produce further proof. Appellant at that time could also have asserted her right to a jury trial on the issue of damages (see discussion 22 Cal. Law Review, pp. 216, 217, 218), but she chose to consent to submission of the cause. It cannot be said that appellant was prejudiced by the fact that in order to establish inadequacy of consideration as a defense to specific performance, she was compelled to show a high value of the property and thus prove, by her own evidence, plaintiffs’ right to damages. If appellant’s evidence showing a value of $1250 was true and was offered in good faith, then plaintiffs were in fact damaged in the sum of $600, and appellant’s rights were not prejudiced. If appellant’s evidence was offered wrongfully and deliberately to prove a false high value for the purpose of defeating plaintiffs’ right to specific performance, then appellant cannot complain that this same false evidence worked to her disadvantage in the matter of plaintiffs’ claim for damages. If a litigant proves the fair value of property for one purpose, he suffers no prejudice by not being allowed to prove, for another purpose, a different fair value. To protect such tactics would be to invite and condone perjury. Furthermore, appellant’s answer to plaintiffs’ amended complaint admitted that the market value of the property on March 17, 1936, date of breach of contract, was $1250.

Appellant pleaded, as further defenses to plaintiffs’ claim, incompetency and undue influence. The trial court found against her on these issues. It found that the purchase contract was consummated as the result of negotiations between plaintiffs and a real estate agent representing appellant, and that plaintiffs never saw or talked with appellant until. after execution of said contract. It further found that appellant, a widow 79 years of age, was in normal physical condition, was fully competent to understand business transactions, and completely understood the character, extent, and nature of the contract into which she entered with plaintiffs. The evidence fully supports these findings. Appellant herself took the witness-stand and her testimony, in our opinion, would warrant no other conclusion than that she was competent at the time of the transaction here involved.

The amount of damages awarded to plaintiffs is eminently fair. While it gives them the difference in value of the property, it does not refund to them the sum of about $100 which they paid on the purchase contract. The evidence establishes the fact that appellant’s failure to perform said contract was without cause. The findings and judgment of the trial court have effected substantial justice between the parties.

The judgment is affirmed.

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


text:
    [Sac. No. 5160.
    In Bank.
    March 24, 1938.]
    EVELYN E. DRYDEN, Respondent, v. CONTINENTAL BAKING COMPANY (a Corporation) et al., Appellants.

      Harry J. Colding, Theodore Hale and Carroll B. Crawford for Appellants.
    Schell & Delamar and Earle M. Daniels as Amici Curiae, on Behalf of Appellants.
    Clifford A. Russell and A. M. Mull, Jr., for Respondent.
   WASTE, C. J.

This was an action for damages for personal injuries to plaintiff alleged to have resulted from eating bread manufactured by defendants and in which particles of glass were imbedded. In the original complaint it was alleged that the bread had been purchased by plaintiff. During the trial, it developed that plaintiff’s husband was the actual purchaser, and it was ordered that the complaint be amended to conform to the proof in that respect. The amended complaint set forth two causes of action, one based on breach of warranty and the other charging negligence, and prayed for damages in the sum of $20,000. Defendants’ answer denied the allegations of the complaint, and set up a defense of contributory negligence. The trial court found that there was a breach of implied warranty running to plaintiff, and that defendants were guilty of negligence as alleged, and awarded plaintiff damages in the amount of $750. From that judgment defendants appeal, claiming that the findings of the trial court are not supported by the evidence.

In December of 1933, Dr. Dryden, respondent’s husband (respondent being present), purchased at a neighborhood grocery store, for consumption by himself and his family, a loaf of wrapped, sliced rye bread baked by appellants. A portion of the loaf was served at respondent’s table that evening, and was found to contain what was assumed to be grit. The bread was served toasted for breakfast the following morning, when it was again found to contain some gritty substance. The respondent testified that she ate one slice of the bread at the evening meal and two or three slices of the toast in the morning, prior to the discovery by her husband, on eating some of the toast, that the supposed “grit” was glass. Appellants assert that the bread contained caraway seeds, and that the gritty substance may have been these seeds and not necessarily glass. Upon' discovering the ‘1 glass ’ ’ in the bread he had partly masticated, respondent’s husband expelled that portion from his mouth and submitted it, with the remainder of the loaf—possibly eight slices still in the original cellophane wrapper—and several slices of the toasted bread, to a chemist for examination. At the trial, the expert testified that he “made one composite sample composed of a portion of each of these slices. ... So the sample examined was a composite sample of all the remaining slices of bread in the package.” A separate analysis was made of the toasted bread and likewise of the portion that had been partially masticated, and particles of glass, were found in each sample examined.

Appellants contend that, since glass was not found in every slice of the bread, the finding of the trial court that plaintiff actually swallowed glass is unsupported by the evidence. In view of the report of the chemist and of the fact that respondent, as well as other members of her family who partook of the bread, detected the “gritty substance”, which her husband found to be glass, it is reasonable to assume that respondent did actually swallow glass in the bread eaten by her, and the trial court was justified -in so finding. It is elementary, of course, that all reasonable inferences and assumptions must be indulged in to support the judgment.

It was alleged in the complaint that, as a result of eating the bread containing glass, plaintiff suffered the following injuries: Nervous shock, mental suffering and agony, inflammation of the stomach and intestines, and sharp cutting pains in the region of the stomach and intestines, which allegation the lower court found to be true. Appellants attack this finding on the ground that the record contains no evidence that respondent ever suffered physical or other actionable injury from the presence of glass in her system, and that her own physician testified he could not detect any glass in her system. Respondent’s testimony discloses that, within a day or so after eating the bread, she suffered from indigestion and abdominal pains that continued for some months; that she had been working in an office and was unable to carry on this work continuously; that she worried and was unable to eat; she became nervous and irritable and lost weight, and the trouble finally resulted in chronic indigestion. Dr. Dryden testified as to the change in his wife’s physical condition after eating the bread. “She gradually got worse up until about two weeks before she developed a regular chronic indigestion with acute pains in her stomach, and she was in ill health for a great many months afterward. ’ ’ This testimony is corroborated by that of her physician, Dr. Jones, who stated that when called by respondent’s husband to examine her he found her in a “very nervous state”, and that she complained of the irritation of the stomach and of indigestion, although at the time he could find no evidence, “from an outside examination”, that she had swallowed glass. He also testified that “she had intestinal irritation due to her lack of eating properly . . . her resistance was lowered and on several occasions she was quite sick”. This condition continued until respondent (in July or August of 1934) was compelled to undergo an operation due to other causes. Following the operation, during which he had examined the wall and lining of the stomach and intestines, Dr. Jones assured respondent that he could find no injury to the intestines caused by swallowing the glass, whereupon respondent’s health began to improve. Dr. Turner,, whose offices adjoined those of Dr. Dryden, testified that he had known respondent, who was her husband’s assistant or nurse, for a year and a half or two years prior to December, 1933; that subsequent thereto he noticed a change in her physical condition; that she was unable to do the office work and was “continually on the couch, complaining of intestinal pains ’ ’; that she rarely went to lunch, and told him she was unable to “keep meals on her stomach”; and that she was extremely nervous and irritable. In view of this and other corroborating testimony, the finding of the trial court that plaintiff suffered the injuries complained of was amply supported.

In objecting to the finding of the lower court that there was a breach of implied warranty, appellants urged that it is indispensable to such an action that there be privity of contract, and as respondent’s husband was the actual purchaser, there was no such privity and therefore there was no implied warranty to respondent as to the character or quality of the bread sold, citing the case of Binion v. Sasaki, 5 Cal. App. (2d) 15 [41 Pac. (2d) 585]. In view of our conclusion that the evidence supports the finding that appellants were negligent, we do not find it necessary to determine whether a wife may recover in an action ex contractu for breach of an implied warranty in the sale of foodstuffs made to her husband. Assuming that privity is an essential element of such an action, it might well be urged that the wife, under the circumstances here disclosed, was a third party beneficiary of the contract. It is a well-settled rule that one not a party to an implied warranty in the sale of foodstuffs may recover in tort in the event negligence be shown. (17 A. L. R. 709; 39 A. L. R. 1000; 42 A. L. R. 1255; 60 A. L. R. 371.)

Appellants urge that they were not guilty of negligence. They assert that more than ordinary care was observed in their bakery to protect bread from broken glass, and that the law has no fixed standard of care other than the general one that it must be such as a person of ordinary reason, prudence and caution would use under the same circumstances, citing 19 California Jurisprudence, page 577, and the numerous eases there set forth. An examination discloses that these cases are not factually in point. In an action for damages for personal injuries caused by broken glass in a package of rolled oats purchased as food by plaintiff, the court, in passing upon the question of negligence, said: “It goes without saying that any food manufacturer intending his product for human consumption should exercise a very high degree of care to see that it is free from any foreign substance which, if swallowed, might cause bodily injury or death to the consumer. Fortunately such care is the usual rule. . . . However, in the process of manufacture, the most careful hand may become careless; a moment’s inattention may allow some foreign substance of a harmful character to become mixed with the food, and in a large plant with numerous employees there are many opportunities for acts of negligence. The various steps in a system of manufacture, of course, are wholly under the control of the manufacturer. . . .

“In view of the above considerations, it seems only fair to presume that the presence of deleterious substance in a packaged food occurs through some negligent act of omission or commission on the part of the agents of the manufacturer.” (Linker v. Quaker Oats Co., 11 Fed. Supp. 794, 796.) See, also, Rozumailski v. Philadelphia Coca-Cola Bottling Co., 296 Pa. 114, 116 [145 Atl. 700], holding that those engaging in the business of manufacturing food for consumption must use a high degree of care to see that the food is free from deleterious substances which may injuriously affect the user, and that even where all reasonable scientific methods are employed to obviate the presence of any injurious substances, “where such substances get into the product, whose presence there might possibly be due to that uncertain human quality, —carelessness,—somewhere along the line, the manufacturer is responsible to a member of the public injured thereby.”

The next contention of appellants is that where the doctrine of res ipsa loquitur is not claimed to apply, as in the present case, a defendant may not be held “guilty of negligence without proof of any specific negligent act or omission and in the presence of affirmative proof that defendant was guilty of no negligent act”. In Rozumailski v. Philadelphia Coca-Cola Bottling Co., supra, plaintiff swallowed glass which he testified came from a bottle of coca-cola served to him at a restaurant. The points chiefly urged on appeal were that the evidence was insufficient to prove negligence and that the lower court invoked the doctrine of res ipsa loquitur to sustain the action. The court held that “the manufacturer was for all purposes in exclusive control of the bottle and its contents, as its contents were undisturbed until it reached the consumer’s hands. It is a case where the accident proves its own negligent cause,” and negligence could be inferred "from the fact that ground glass had been found in the bottom of the bottle. The particular dereliction is not shown, nor was it necessary; the negligent act is demonstrated by showing glass in the bottom of the bottle. ” (Italics added.) It is our opinion that the trial court was correct in finding-appellants guilty of negligence.

The issue of contributory negligence as the proximate cause of the injury was properly disposed of by the trial court. Appellants’ contention that respondent was highly negligent in continuing to masticate and swallow the bread after discovering the gritty substance therein, showing thereby a want of ordinary care (sec. 1714, Civ. Code), is without merit. This was obviously a question of fact for the trial court. (See, particularly, Ternay v. Ward Baking Co., 167 N. Y. Supp. 562.)

Another objection of appellants is directed to the right of the respondent to recover for mental suffering without physical injury. As we have already held that the trial court was warranted in finding that plaintiff suffered the injuries complained of, this contention needs no discussion. Furthermore, even were the injuries confined to nervous shock, the right to recover for subsequent disturbances of the nervous system is settled by the decision in Sloane v. Southern Cal. Ry. Co., 111 Cal. 668 [44 Pac. 320, 32 L. R A. 193], where this court said (p. 680): “Whatever may be the influence by which the nervous system is affected, its action under that influence is entirely distinct from the mental process which is set in motion by the brain. The nerves and nerve centers of the body are a part of the physical

system, and are not only susceptible of lesion from external causes, but are also liable to be weakened and destroyed from causes primarily acting upon the mind. If these nerves or the entire nervous system is thus affected, there is a physical injury thereby produced, and, if the primal cause of this injury is tortious, it is immaterial whether it is direct, as by a blow, or indirect through some action upon the mind.” (See, also, Lindley v. Knowlton, 179 Cal. 298 [176 Pac. 440].) Definite nervous disturbances or disorders, caused by mental shock, excitement, and so on, are classed as physical injuries. (8 Cal. Jur., p. 772, citing the two cases last mentioned.)

The judgment is affirmed.

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