author: SEAWELL, J.

text:
    [S. F. No. 16011.
    In Bank.
    October 31, 1938.]
    ELEANOR TAYLOR, a Minor, etc., Appellant, v. OAKLAND SCAVENGER COMPANY (a Corporation) et al., Defendants; OAKLAND HIGH SCHOOL DISTRICT OF ALAMEDA COUNTY, Respondent.

      Crozier C. Culp and Elliott Johnson for Appellant.
    Earl Warren, District Attorney, and Charles V. Barfield for Respondent.
   SEAWELL, J.

Plaintiff prosecutes this appeal from a judgment entered for defendant high school district after sustaining of its demurrer to the complaint without leave to amend. Plaintiff, sixteen years of age, brought this action to recover damages for personal injuries received when she was struck by a garbage truck on the grounds of the Castlemont High School, a public high school in the city of Oakland. She sued jointly the Oakland High School District, Albert Santucci, the driver of the truck, the Oakland Scavenger Company, a corporation, and the Russell City Hog Company, a partnership, employers of said truck driver. The present appeal involves only the question whether the complaint is good as against the general and special demurrer of the defendant Oakland High School District.

It appears from the complaint that plaintiff, a full-time student at the high school, was a member of a required class in physical education which was regularly held between 10 and 11 o’clock in the morning upon the school playgrounds. The class was in charge of Claire M. Johnston, teacher and head of the physical education department of the high school. It is alleged that on September 29, 1936, at about 10 -.10 o’clock A. M., “while plaintiff, Eleanor Taylor, in the company of the other young ladies who were members of the aforesaid physical education class, was proceeding, under the care, supervision and control of the said Claire M. Johnston, from the aforesaid gymnasium building to the aforesaid playgrounds where the aforesaid class in physical education was to be held and conducted, and while said plaintiff, Eleanor Taylor, was following the usual and regular course to said playgrounds, which course lay wholly within the private bounds and confines of the premises of said Castlemont High School, defendant Albert Santucci, did then and there so recklessly, carelessly and negligently drive, operate and propel the aforesaid Ford garbage truck” that it struck plaintiff and threw her down upon the paved and graveled surface of the ground, with the result that her left foot was mangled and mutilated and she was otherwise severely injured, as described in the complaint.

Plaintiff further alleges on information and belief that certain named agents, servants and employees of the high school district, to wit, the superintendent of schools of the city of Oakland, the principal of the Castlemont High School, the business manager of the board of education of the city of Oakland, and the three teachers in the physical education department of the high school were “charged with the duty, and invested with the power and authority to make and adopt any and all rules, regulations and measures necessary, expedient, desirable or appropriate to safeguard and protect any and all students enrolled in and attending the said Castlemont High School during regular school hours, from injury when said students were in, about and upon the buildings, premises, grounds and playgrounds of the said Castlemont High School”.

Plaintiff alleges upon information and belief that the garbage truck “at the time and place of said injuries . . . was then and there being driven and operated over and upon and within the confines of the grounds, playgrounds and premises of said Castlemont High School . . . pursuant and in obedience to the directions and orders of, and with the full knowledge, permission, consent and sanction of the high school district” and the above-named agents, servants and employees, and “each and all of the members of the Board of Education of the City of Oakland”.

The district, said named employees, and each and all the members of the board of education, it is alleged “were fully aware of the danger and peril to students Of the said Castlemont High School arising from and occasioned by the operation of motor vehicles over, upon and within the bounds and confines of the grounds, playgrounds, and premises of the said Castlemont High School, during regular school hours, and while regularly scheduled physical education classes were being held and conducted upon said grounds, playgrounds and premises of said High School, and while students were passing to and from the aforesaid Gymnasium Building and the aforesaid playgrounds ’ ’, but defendant high school district and said employees and the members of the board of education of the city of Oakland, and each of them, “negligently and carelessly failed, neglected and omitted to furnish, install, provide, formulate, or to place or put into effect or operation, any device, safeguard, safety measure, rule or regulation of any nature whatsoever to prevent the aforesaid injuries sustained as aforesaid by the plaintiff”.

The complaint also avers that the “specified acts of negligent omission” on the part of the defendant Oakland High School District operated proximately to cause the injuries to plaintiff, and that notice of plaintiff’s claim was given to the district as required by law.

Section 2.801, School Code, provides: “Boards of school trustees, high school boards, junior college boards and boards of education are liable as such in the name of the district for any judgment against the district on account of injury to person or property arising because of the negligence of the district, or its officers or employees; ...”

Under section 603, Vehicle Code, no person may drive upon the grounds “of any public school, State university, State college, State, county or municipal institution or building, or any educational institution exempted in whole or in part from taxation, except with the permission of, and upon and subject to such conditions and regulations as may be imposed by, the governing board or officer of such public school, State university, State college, State, county or municipal institution or building, or educational institution”. Appropriate signs .giving notice of “any special conditions or regulations” imposed under the section are required to be erected, and it is also required that a written statement of special conditions and regulations be available at the principal administrative office of such board. In cases where any governing board or officer “permits public traffic” upon the driveways, paths or grounds under their control then, “in the absence of any special conditions or regulations applicable to such traffic, all the provisions of this code relating to traffic upon the highways shall be applicable to such traffic”.

Under section 511 (a) (1) the prima facie lawful speed limit is fifteen miles an hour “when passing a school building, or the grounds thereof, contiguous to the highway during school recess or while children are going to or leaving such school during opening or closing hours or while the playgrounds of any such school are in use by school children”. Under section 511 (b) (2), the prima facie lawful speed limit is twenty miles an hour “when upon the grounds of any public school, State university, State college, or State, county, or municipal institution or building”.

The instant case, as described in the complaint, is one where the governing board of the district, that is, the board of education, had given permission to the garbage truck to drive upon school premises, but had not prescribed any “special conditions and regulations” for the entry of such truck. In such circumstances the driver of the privately owned vehicle was subject to special provisions of the Vehicle Code applying to school premises (sec. 511 [b] [2]) and to “all the provisions” of the Vehicle Code “relating to traffic upon the highways”.

Section 2.801, School Code, quoted above, makes school districts liable in broad general terms for injury to person or property arising because of the “negligence of the . district, its officers or employees”. The question in the instant case as presented by the complaint, is whether the district is liable for the injury to plaintiff arising from the failure of employees and agents of the district, including the members of the board of education, “to furnish, install, provide, formulate or to place or put into effect or operation, any device, safeguard, safety measure, rule or regulation of any nature whatsoever to prevent” the injuries to plaintiff. It is. alleged that the failure in this respect was negligent and careless. It is also averred that the named employees of the district and the members of the board of education “were fully aware of the danger and peril to students of said Castlemont High School” arising from the operation of motor vehicles within the school grounds while regularly scheduled physical education classes were being held upon said grounds, and while students were passing to and from the gymnasium building to the playgrounds. The alleged negligent omission of the board, it is averred, contributed proximately to the injury to plaintiff.

It is elementary that negligence may be pleaded generally. This means that after what was done has been stated, it is sufficient to allege that it was negligently done, without stating the particular omission which rendered the act negligent. (Barbieri v. Law, 209 Cal. 429 [287 Pac. 464]; Dunn v. Dufficy, 194 Cal. 383 [228 Pac. 1029]; Champagne v. A. Hamburger & Sons, 169 Cal. 683 [147 Pac. 954]; Bergen v. Tulare County Power Co., 173 Cal. 709 [161 Pac. 269]; 19 Cal. Jur. 871.) We are of the view that the complaint herein satisfies the requirements of this principle. It was not necessary that plaintiff enumerate one or more specific safety measures which in the exercise of due care the district might have prescribed to protect children on the school premises. Nor was it necessary that plaintiff give a factual description of the school premises, with a view of setting forth the physical factors on the grounds which contributed to the dangerous situation of which, it is alleged, agents and servants of the district, including the board of education, were fully aware. These are matters to be developed by the evidence. It is not contemplated under our system of pleading that evidentiary facts should be alleged. (Cragg v. Los Angeles Trust Co., 154 Cal. 663, 669 [98 Pac. 1063, 16 Ann. Cas. 1061]; Jacobson v. Oakland Meat etc. Co., 161 Cal. 425 [119 Pac. 653, Ann. Cas. 1913B, 1194]; Quinn v. Reilly, 198 Cal. 465 [245 Pac. 1091].)

Defendant relies strongly on the provisions of section 603, Vehicle Code, in support of its contention that the complaint is insufficient. Said section, quoted above, recognizes the right of boards of education to prescribe “conditions and regulations” for the entry of vehicles on school premises, or to exclude them altogether. This right would exist independently of the recognition given it in said section. Section 6.1, School Code, provides: “Boards of school trustees and city boards of education shall have power, and it shall be their duty to manage and control school property within their district.”

In the absence of “special conditions and regulations”, section 603, Vehicle Code, makes the provisions of the Vehicle Code pertaining to traffic on the highways applicable to vehicles permitted by the school authorities to enter on school premises. Said section, applicable to a wide variety of other public buildings and institutions, as well as to schools, does not attempt to determine when it shall be the duty of school boards, in the exercise of due care for the safety of children on school property, to impose special regulations and conditions. Nor does the section relieve the district of liability if its officers negligently fail to impose conditions and regulations which an exercise of due care dictates for the safety of the school children. By section 2.801, School Code, school districts, without qualifying language (except as to the filing of a claim), are made liable for injury “to person or property arising because of the negligence of the district, or its officers or employees”.

The above holding does not make school districts insurers of the safety of children on the premises. The question whether there has been negligence in permitting vehicles on school premises subject only to the provisions of the Vehicle Code relating to traffic on the highways is to be determined on the facts of each case. That there was such negligence in the instant case is alleged in the complaint. The evidence may or may not establish'facts which will support a conclusion of negligence. The burden is on plaintiff who claims that the school authorities have been derelict in their duty in this respect to establish negligence.

Traffic regulations designed to control traffic upon the public highways of the state may be entirely inadequate and unadapted to meet the entirely different situation presented by motor vehicles on school grounds where large numbers of children are gathered for study and recreation.

We conclude that the complaint states a cause of action. Defendant district also demurred specially ón a number of grounds. These specifications are largely a particularization of defendant’s contention that the complaint fails to state a cause of action, and are concluded by what we have said above as to the general demurrer. It is also urged as a ground of special demurrer that it does not appear that the claim filed with the secretary of the district was verified. It is alleged that a claim was filed “in accordance with and in obedience to the law of the State of California in said connection”. This is tantamount to an averment that the claim was verified, since the law (see. 2.801, School Code) requires verification. The complaint is good as against both the general and special demurrer.

The judgment is reversed.

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

Shenk, J., and Langdon, J., dissented.

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


source: Caselaw Access Project

author: CURTIS, J.

license: Public Domain

text:
    [S. F. No. 16120.
    In Bank.
    November 9, 1938.]
    DAVID F. SUPPLE, Receiver, etc., Respondent, v. EDGAR F. LUCKENBACH et al., Appellants.

      Phillip Barnett and Samuel Vartan for Appellants.
    Leo A. Cunningham for Respondent.
   CURTIS, J.

Motion to dismiss appeal on the ground that the notice of appeal was given prior to the entry of judgment and, therefore, the appeal was prematurely taken. It is well settled in this state that an appeal from a judgment taken prior to the rendition of the judgment is prematurely taken and does not vest the appellate court with jurisdiction to entertain the attempted appeal. (Aspegren & Co., Inc., v. Sherman, Swan & Co., 199 Cal. 532 [250 Pac. 400].)

In this action the trial court on January 13, 1938, filed a paper entitled, “Memorandum Decision and Order for Findings” in which he stated that judgment should be for the plaintiff, and directed plaintiff’s counsel to prepare and present appropriate findings of fact and conclusions of law in accordance with the view of the court as expressed in said memorandum of decision. Plaintiff prepared a draft of proposed findings of fact and conclusions of law, served the same upon the defendants’ counsel, and presented the same to the clerk of the court. After receiving a copy of the proposed findings, the attorney for the defendants met the trial judge, and stated to him that he had no objections to the findings as prepared by the attorney for the plaintiff. On March 24th, the clerk inadvertently filed said findings without the same having been signed by the trial judge. The trial judge was from a county outside of the county in which the action was tried, and on May 23d, under the impression that he had signed the findings, he signed a judgment in the action, and on the next day said purported judgment was filed with the clerk of the court. On June 9th, defendants filed a notice of appeal from said judgment. Thereafter the attorney for plaintiff discovered that the findings as proposed by him had not been signed by the judge before they were filed. He accordingly, through correspondence with the trial judge, had new findings of fact and conclusions of law signed by the judge, and filed on July 12th, in the exact language of the proposed findings, with the exception that the word “proposed” was not in the draft of the findings and conclusions of law which were signed by the judge. No appeal has been taken from this judgment, although the defendants’ attorney had knowledge that the proposed findings, which were inadvertently filed by the clerk, had not been signed by the trial judge, and that the plaintiff’s attorney and the trial judge were corresponding with each other with a view to having new findings signed by the judge, and a proper judgment rendered thereon. In fact, defendants’ attorney was solicited to join in these endeavors but declined to have any part therein. It is true that no notice of the entry of this second judgment was ever served upon defendants’ attorney. No such notice was required in order to start running the time in which he might appeal from said judgment. No advantage was taken of defendants’ attorney by reason of the failure to give him notice of the entry of said judgment, as he was put upon notice as a reasonable man that proper findings would probably be filed and a judgment thereon rendered. Had he used reasonable diligence, he could have ascertained by the examination of the record in the clerk’s office that new findings and a proper judgment had been filed in the office of said clerk.

He contends now in opposition to the notice of motion to dismiss that a stipulation was entered into, in which each of the parties to this action joined, which covered all the material facts of the case and for that reason no findings in the case were required and the judgment filed May 24, 1938, was valid in the absence of any findings. The record does not support this contention. Aside from the stipulation of facts, the court took evidence upon a number of contested matters not covered by the stipulation. This evidence is contained in the reporter’s transcript, and covers forty-seven pages of said typewritten transcript. This contention is, therefore, without merit.

It is next contended that the recital in the first judgment that findings had been filed was a sufficient compliance with section 632, Code of Civil Procedure, respecting the making and filing of findings of fact and conclusions of law. This recital is as follows: “After due consideration the court files its findings of fact and conclusions of law in writing and orders that judgment be entered herein in favor of plaintiff, David F. Supple, as Receiver, and against the defendants, Edgar F. Luckenbach and Lewis Luckenbach, and each of them, in accordance therewith.” In support of this contention, the appellants cite the cases of Estate of Exterstein, 2 Cal. (2d) 13, 15 [38 Pac. (2d) 151], and Consolidated Irr. Dist. v. Crawshaw, 130 Cal. App. 455, 462 [20 Pac. (2d) 119]. Neither of these cases is in point. In each of them the findings and conclusions of law were contained in the judgment itself. This practice was sustained by the court in the following statement: “There were no separate findings filed, they being incorporated in the decree of foreclosure. While this is not the usual practice it is permissible. ’ ’

Finally, the appellants contend that although the judgment rendered before the findings were filed may be a void judgment, nevertheless an appeal may be taken from a void judgment, and therefore there is a valid appeal in this action, and the motion to dismiss such appeal should be denied. The case of Easterly v. Cook, 140 Cal. App. 115 [35 Pac. (2d) 164], is practically identical with the instant action. In that case documents which were intended as the findings and conclusions of law were filed without being signed by the trial judge, who rendered a judgment based upon said findings. Thereafter the error was discovered, and the plaintiff made a motion to set aside the purported judgment on the ground that it was prematurely rendered due to the fact that no findings had been signed by the judge. The court granted the motion, and then signed findings of fact and conclusions of law and a judgment was rendered thereon. In passing upon the status of the judgment which was purported to have been rendered in pursuance of the unsigned findings, the court said (p. 125): “Since the challenged unsigned findings did not constitute a determination of the facts or a decision of the case, the document was a nullity and may not be deemed to constitute findings ‘made by the court’. The judgment which was dependent thereon was therefore invalid. It was unnecessary to set that document aside. The fact that it was vacated on motion of the plaintiff under 663, Code of Civil Procedure was harmless. The court had a right to strike that invalid instrument from the records on its own motion. ’ ’

While the court in the instant ease did not strike the judgment rendered upon the unsigned findings from the records, it did treat this purported judgment as a nullity, which in fact it was, and signed new findings of fact and conclusions of law upon which judgment was rendered. This judgment was the only valid judgment rendered' in said action, and as appellants’ notice of appeal was filed prior to the rendition thereof, said appeal was prematurely taken, and the motion to dismiss the same upon said ground should be granted, and it is so ordered.

Waste, C. J., Houser, J., Seawell, J., Edmonds, J., Lang-don, J., and Shenk, J., concurred.

Rehearing denied.


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

text:
    [L. A. No. 16060.
    In Bank.
    November 14, 1938.]
    JUSTESEN’S FOOD STORES, INC. (a Corporation), Appellant, v. CITY OF TULARE (a Municipal Corporation) et al., Respondents.

      Hugo McKinley and Joseph A. Brown for Appellant.
    Breed, Burpee & Robinson, as Amici Curiae, on Behalf of Appellant.
    Israel H. Ham, City Attorney, for Respondents.
    Orrick, Dahlquist, Neff & Herrington, as Amici Curiae, on Behalf of Respondents.
   THE COURT.

The question involved in this action concerns the validity of an ordinance of the City of Tulare prohibiting stores and establishments (with certain exceptions) dealing in foods for human consumption from remaining open for business between designated hours and on Sundays or holidays, and from receiving, selling or distributing such foods in any manner during the proscribed hours and periods.

Plaintiff, who for a number of years has conducted a general grocery store in the City of Tulare, brought this action in the Superior Court of Tulare County to have declared unconstitutional and to enjoin the enforcement of an ordinance of that city “creating the office of Municipal Meat and Food Inspector and a Municipal Meat and Food Inspection Department, providing for the inspection of uncured or uncooked meats and other foods and for the condemnation and destruction of the same when found unwholesome or deleterious as food; fixing the hours of duty of the Inspector and of the Inspection Department, establishing opening and closing hours for places of business selling uncured or uncooked meats or any other foods, making a violation hereof a misdemeanor, and prescribing a penalty therefor”. A demurrer, which was general and special, to plaintiff’s complaint was sustained without leave to amend, the temporary restraining order theretofore issued was discharged, and the action was dismissed. Plaintiff appeals, contending that the ordinance, and particularly sections 7 and 8 thereof, are in derogation of the Constitutions of the United States and of the state of California, in that they deprive plaintiff of its liberty and property without due process of law, and deny to it the equal protection of the laws; and, furthermore, that the ordinance is based on a classification that is unconstitutional, arbitrary and unreasonable.

Section 2 of the ordinance declares that “the public health, convenience and general welfare of the people of the City of Tulare require that markets, establishments, stores, and places of business dealing in, distributing, offering for sale, selling or in any manner handling food of any kind and of every kind intended for human consumption, be regulated”. Sections 3 to 6, inclusive, provide, respectively, for the creation of the office of municipal meat and food inspector of the city, for the creation of the office of the meat and food inspection department and designates the members thereof, the powers and duties of the inspector, and the hours of duty of such inspector and the inspection department. Sections 7 and 8, which are particularly challenged by appellant, read as follows:

“Section 7. It shall be unlawful for any person, firm, association or corporation, maintaining, or that may hereafter maintain, a place of business, store or establishment in the City of Tulare, engaging in the business of selling, offering for sale, distributing, or in any way or manner disposing of any uncured or uncooked meats or other foods of any kind intended for human consumption, to keep any place of business or establishment open for the transaction of business to any extent whatever, or permit such place to be kept open for business, or to receive at such place of business any uncured or uncooked meats or other foods of any ldnd intended for human consumption, except between the hours heretofore established for the hours of duty of the Municipal Meat and Food Inspector and the Municipal Meat and Food Inspection Department, or to have open any such place of business where any uneured or uncooked meats or other foods of any kind intended for human consumption are handled, sold or distributed, for transaction of business, or for selling or in any manner whatever distributing, any uncured or uncooked meats or other foods on any holiday or on any Sunday, or between the hours of 9 o’clock p. m. on every Saturday and 7 o’clock a. m. on every Monday.
“Section 8. The provisions of this Ordinance shall not apply to persons, firms, associations or corporations, engaged in operating Iona fide hotels, boarding houses, lodging houses, restaurants, drug stores, confectionery stores, dispensers of beverages, distributors of milk and cream, ice cream and soda fountains, provided that in case one or more of the excepted businesses is carried on in the same room with any business coming within the provisions of this Ordinance and thereby required to be kept closed on Sundays and certain hours of other days, the part of the room in which said excepted business is carried on shall be separated and set apart from the said business coming under the operations of this Ordinance, by a permanent partition, without opening, not less than five feet in height, and said permanent partition shall enclose and separate said place where said excepted business is carried on, from the remaining part of the room or space where the business coming under the operation of this Ordinance is operated.”

Section 11 declares the ordinance to be an emergency measure “designed to protect the'public health”, the reasons for the emergency being that foods “intended for human consumption are being sold and distributed in the City of Tulare which are unfit, unwholesome, deleterious and injurious, and that the public health requires immediate supervision and inspection of the same”.

There is, and can be, no denial by appellant of the right of the City of Tulare to insure protection of the public health against the manufacture and sale of unwholesome foods, and to that end to regulate certain occupations; but such regulation of a lawful business must be reasonable. The test of the reasonableness of a measure involves a determination as to whether it is for the benefit of the community in general, that is, for the public health and general welfare, and whether the means adopted to produce the public benefit are “reasonably necessary to accomplish that purpose and not unduly oppressive upon individuals”. (In re Miller, 162 Cal. 687, 694 [124 Pac. 427].) Appellant freely concedes, as indeed it must, that if the sole purpose of the ordinance was to control the sale of uncooked and uncured meats, and it was intended by the law to regulate the opening and closing only of markets dealing in such products on Sundays and holidays, it could have no objection to the measure. (See In re Sumida, 177 Cal. 388 [170 Pac. 823].) The conduct of meat markets has always been the subject of regulation under the police power of the state or a municipality. (In re Lowenthal, 92 Cal. App. 200 [267 Pac. 886].) A city has full power, under the Constitution (art. XI, see. 11), to adopt and enforce laws having for their object the protection and preservation of the health of the people.

Appellant asserts that an examination of the ordinance will disclose that it is an attempt to close grocery stores under the guise of a health measure. The motive of a city council in passing an ordinance designed to safeguard the public health cannot be questioned; but, if the ordinance is discriminatory, irrespective of the purpose for which it is passed, it must be declared invalid. If it “applies to all persons conducting a business which comes reasonably within the same classification, it will be upheld, .but if it excepts any particular business which comes within the same reasonable classification, it must be held discriminatory”. (Deese et al. v. City of Lodi, 21 Cal. App. (2d) 631 [69 Pac. (2d) 1005].)

Respondents submit that the Tulare ordinance is directed in its entirety to the subject of health, and that a relation to the public health gives it a character distinguishing it from other ordinances hereinafter referred to. They further state that there is a well-founded distinction in the ordinance between those businesses which are allowed to keep open and those required to remain closed during certain hours. The ordinance under consideration prohibits the receiving and selling during stated periods, not alone of uncured and uncooked meats, but of “other foods of any kind intended for human consumption”, by all establishments other than those designated. Among the latter exceptions are boarding houses, restaurants, dispensers of beverages and confectionery stores. Manifestly, so far as the serving of food to their patrons is concerned, these excepted establishments are permitted, without restriction, to distribute and deal in the very products which the ordinance prohibits grocery stores from handling in any manner, during the fixed periods, thus arbitrarily imposing burdensome conditions upon a selected class of merchants. In fact, ami& curiae on behalf of respondents admit that “interpreting section 7 of the ordinance in the light of the exceptions ol section 8 thereof, it would appear that the ordinance was designed primarily to regulate establishments handling groceries and meats. ’ ’ We do not perceive by what process of reasoning the conclusion is reached that restaurants, confectioneries, dispensers of beverages, and the other excepted businesses dealing in food for human consumption, should be free from inspection on nights, Sundays and holidays, while grocery stores, in the interests of health, require such inspection. Can it be said that food products are more dangerous to health when sold in a grocery store than when sold, for example, in a restaurant or confectionery store ? From the standpoint of health, what distinction is there between selling food to customers for consumption on the premises and selling it to customers to be taken to their homes? Or, why should a bottle of milk left on a doorstep by a dairy delivery company be deemed more sanitary or less subject to contaminating influences than a similar bottle sold over the counter of a grocery store? In discussing the reasonableness of a classification excepting from the provisions of a closing ordinance, among other businesses, ‘ ‘ a place where liquid beverages or refreshments are sold” and cigar and tobacco stores, the District Court of Appeal, in Deese et al. v. City of Lodi, supra, at page 627, said: “ . . . just how the conduct of a grocery store in the City of Lodi is more inimical to the cleanliness, orderliness and public health of the City of Lodi than such a beverage establishment, is difficult to perceive. Again, what logical distinction is there between a tobacco store and a grocery store which gives to the tobacco store a higher status as to cleanliness, orderliness and public health than a grocery store ? Is the nicotine and smoke-laden atmosphere of a tobacco store more salubrious, more promotive of public health than the atmosphere of a grocery store containing peaches, apricots, grapes, watermelons and other like products grown in the vicinity of Lodi ? ’ ’ Respondents and amici curiae assert that the Tulare ordinance is entirely a health and sanitation law, essentially different from the ordinance under consideration in the Lodi case which, they state, “makes no reference to public health” except in one section. With that statement we are not entirely in accord. The title of the Lodi ordinance expressly declared that it was “An Ordinance safeguarding the public health of the inhabitants of the City of Lodi by regulating the hours of certain business within said City.” We are of the view that the observations of Mr. Justice Plummer in the case of Deese et al. v. City of Lodi, supra, above quoted, apply with equal force to the ordinance in the present case, and that, as a “health measure”, it is unreasonable and arbitrary. If its provisions related only to food susceptible to quick spoilage, including meats, uncooked and uncured, there could be no question as to its validity as a health-promoting law; but, in extending its operation to include ‘ ‘ other food of all kinds”, including bottled, packaged and canned products, the ordinance clearly oversteps the bounds of reasonableness, so far as concerns the promotion and preservation of the public health, and resolves itself into a discriminatory closing law.

The real necessity for the passage of the ordinance in the present case would seem to arise from the fact that the hours of duty of the food inspector and the food inspection department do not extend to nights, Sundays or holidays. In the case of Skaggs v. City of Oakland, 6 Cal. (2d) 222 [57 Pac. (2d) 478], the question involved concerned the validity of an ordinance enacted by the Oakland city council making it unlawful for any person to deliver bakery goods in the city on Sundays and holidays and between certain hours. The plaintiff in that case contended that the delivery of bakery products differed in no way from the delivery of other food products, such as confectioneries, milk, butter, etc., which deliveries were permitted at any hour without restriction. This court held that the provision was not a valid exercise of the city’s police power; that the restriction constituted an unwarranted and unreasonable interference with the carrying on of a lawful business, and was based upon an arbitrary classification, and therefore was invalid. In attempting to justify the ordinance, the respondents there urged that it was a reasonable health and sanitation regulation, and served a two-fold purpose, the first of which was that it restricted deliveries to reasonable times within which the food and sanitary inspectors employed by the city of Oakland could reasonably be expected to be on duty, thus enabling them to detect violations of health requirements and trace to their source impure bakery goods. As to this argument, the court held (page 224) that “it is not a valid exercise of police power to restrict unnecessarily a lawful occupation conducted in a reasonable manner, merely that it may accord with the convenience of inspectors”. That statement is particularly pertinent to the ordinance now before us.

In Olds v. Klotz, 131 Ohio St. 447 [3 N. E. (2d) 371], it was held that an ordinance limiting and fixing the hours per day during which a retail food and grocery establishment was permitted to keep open for business with the public was not a valid exercise of the police power, and was in contravention of the federal and state Constitutions. The ordinance there under consideration, after defining the term “retail food and grocery establishment”, provided: “Nothing contained herein shall be construed so as to apply to the selling of food in restaurants for consumption upon the premises, or the selling of confections including ice cream, or the selling of milk or its products by delivery from house to house upon regular routes.” The court confined its consideration to the relation of the ordinance to the public health and general welfare. Its declarations are so applicable to the instant ease that we quote at length from the opinion: “ . . . places for distribution of foodstuffs are wholly necessary in order to furnish daily nourishment to the masses of our people. Wisely, laws have been enacted to assure the purity and wholesomeness of food; but the limitation of hours that products of that kind may be sold by retail to the public seems to be of minor consideration in relation to the public health in comparison with the necessity of having food available at the time it may be required to supply pressing human want. Food is vital to health, and even to life itself. Its need for nourishment to sick and well, to adult and child, is quite as pressing a consideration from a health standpoint as that which requires that food be retailed in stores under conditions which are consonant with proper requirements of sanitation. . . . Every business has some relation to the general welfare, because there is none which is operated to supply consumers generally that does not have some public aspect; but the regulation thereof is not within. the police power unless the relation to the public interest and the common good is substantial and the terms of the law or ordinance are reasonable and not arbitrary in character. The exercise of the police power is inherent in government and essential to its existence and inevitably comes into conflict with the constitutional guaranties of the right of property and liberty of contract. In each case presented the court must draw the line of demarcation. Courts do not attempt to define police power with exactness, and inevitably the individual case must stand upon its own footing.

“This court cannot protect the rights of property and liberty of contract if it allows the passage of an ordinance of the character involved here. ’ ’

Our attention has been directed to the recent case of Allen v. City of Colorado Springs, 101 Colo. 498 [75 Pac. (2d) 141] (rehearing denied Jánuary 10, 1938), involving an ordinance making it unlawful for any person to keep open any store for the sale of merchandise on Sundays, except when required by necessity, but exempting certain stores and establishments, including drug stores. It was held that, inasmuch as drug stores sold certain products similar to those usually carried by grocery stores, such as soaps, flavoring extracts, spices, etc., “the ordinance creates a condition whereby it was perfectly lawful for a retail drug store on Sunday to sell staple groceries, while the same ordinance at the same time prohibited the operatbr of a grocery store from selling these identical items”, and was therefore invalid on the ground of unwarranted discrimination. While it is true this ordinance was passed to further the observance of the Christian Sabbath, and makes no reference to its being in the interests of public health, the discrimination referred to bears a close relation to the provisions of the ordinance passed by the city council of Tulare in the present case.

In view of what has already been said, we do not deem it necessary to pass upon other points raised by counsel on both sides. In our opinion, sections 7 and 8 of the ordinance of the City of Tulare here under consideration are based upon an arbitrary classification and constitute an unwarranted and unreasonable interference with the carrying on of a lawful business, and are therefore violative of the federal and state Constitutions in that they deprive appellant of its liberty and property without due process of law, and deny to it equal protection of the laws.

Nothing herein contained is intended to apply to other sections of the ordinance with reference to the creation of the office of municipal meat and food inspector and of the meat and food'inspection department of the City of Tulare and their powers to inspect. Such portions of the ordinance are clearly severable from sections 7 and 8, at which appellant’s attack is directed, and which are herein held to be arbitrary and unreasonable in their classification.

Examination of the complaint discloses that the grounds of special demurrer were not well taken. We need not, therefore, concern ourselves with the rule announced in Haddad v. McDowell, 213 Cal. 690 [3 Pac. (2d) 550], and Consolidated R. & P. Co. v. Scarborough, 216 Cal. 698 [16 Pac. (2d) 268],

The judgment is reversed, with directions to the trial court to overrule the demurrer and permit the defendants to answer, if they be so' advised.

CURTIS, J., Dissenting.

I dissent. I am in agreement with the decision of this case by the Fourth District Court of Appeal. That decision was based largely upon the conclusion reached by this court in the case of In re Sumida, 177 Cal. 388 [170 Pac. 823], written by former Chief Justice Shaw, in which an ordinance of the town of Fowler, containing provisions similar to those found in the Tulare ordinance was sustained. The decision in the case of In re Sumida, supra, has never been overruled, or even criticized by this court. The majority opinion merely calls attention to that decision but does not attempt to distinguish it from the present proceeding.


author: BARNARD, J., pro tem.

text:
    [L. A. No. 16445.
    In Bank.
    November 16, 1938.]
    META LONG, Respondent, v. HENRY C. RUMSEY, as Executor, etc., Appellant.

      George W. Downing, Jr., and Carey McWilliams for Appellant.
    Fall & Fall and W. Bobbitt, as Amici Curiae, on Behalf of Appellant.
    Edwin J. Miller and Ralph W. Miller for Respondent.
   BARNARD, J., pro tem.

This is an action for the reasonable value of services alleged to have been performed by the plaintiff, a claim therefor having been filed with the executor of the estate of Ida Pricke and rejected.

Ida Pricke and her husband, August Pricke, ran a bakery in Los Angeles, and lived in the same building. A cousin of Mrs. Pricke, Meta Klatt, who was then seventeen years of age, arrived in Los Angeles on March 23, 1913, and thereafter, for a period of about six years, lived with the Frickes and assisted them in the work of the bakery and the home. She was married to a Mr. Long on February 28, 1918, but continued her work at the bakery until June 1, 1919, when her husband returned from the war, at which time they went to housekeeping and the services in question were discontinued. August Fricke died in 1927, and Ida Fricke died in 1935, her estate being appraised at $30,013.63, with a net value of $23,500. Her will made no provision for Meta Long, and this action followed.

The complaint alleged that pursuant to a letter she received the plaintiff arrived in Los Angeles on March 23, 1913, and that on that day Mr. and Mrs. Fricke "entered into an oral agreement with claimant, which said contract and promises were reiterated and restated by said August Fricke and Ida Fricke many times thereafter, whereby they orally covenanted and agreed with claimant that if she would perform said work and services, and work in their bakery and in their home as should be required by them, for as long as they desired her to do so, that instead of paying her in cash during said employment the prevailing and current wages therefor, that they, or the survivor of either, would leave to claimant by deed or will all the property of which they, or the survivor of either, should die possessed, as compensation to her for the performance of said services; and that in order to further induce claimant to perform said services for them, and to assure claimant that she would be compensated for said services in the manner aforesaid, the said August Fricke and Ida Fricke, and each of them, covenanted and agreed with claimant that they would legally adopt her, and make her their sole legal heir”.

It is then alleged that the plaintiff performed all of the labor and services required of her under said oral agreement ; that her term of service terminated on or about May 1, 1919, with the consent and approval of Mr. and Mrs. Fricke; that they failed to legally adopt her; and that the reasonable value of the services so performed was $30,013.63.

At the trial, the following evidence was received: A Mrs. Greiler testified that she worked for the Frickes in their bakery in March, 1913, and intermittently until 1917; that Mrs. Fricke told her she had a cousin, Meta Klatt, who was one of a family of ten or eleven children whose financial condition was not the best, and that she would like to have this girl come to Los Angeles, “to work for her, to make it her home”; that the Frickes were German and could not write English, and at their request she wrote a letter to Meta Klatt; that the letter contained just a few words asking her if she would like to come to Los Angeles “and if she would like to make this her home ’ ’; that in a few days the Frickes told her they had had a reply; that at their request she bought a money order for enough to cover the railroad fare and wrote a second letter sending the money order to Meta Klatt in Wisconsin; that in about three weeks Meta Klatt arrived in Los Angeles; that they introduced her to Meta and Mrs. Fricke said she was going to be their adopted daughter; that three weeks later Mrs. Fricke gave birth to a child which lived only three days, and they never had any other children; that she saw Meta working around the bakery from 1913 until 1919; that once in a while Meta would complain that the work was heavy and Mr. Fricke or Mrs. Fricke would say that she should not mind that because she was young; that at other times when she complained they said “Never mind, Meta, it is for your interest as well as for ours. When we both are dead and gone, everything will be yours”; that she heard them say this many times over a period of four years; that on one occasion she heard Mr. Fricke say that “he went down to get adoption papers, but they were refused on account of him not having his citizen papers”; that she later heard Mrs. Fricke say she would like to adopt Meta as they had nobody here at the time and she was working very hard and “of course it was for her interest as well as for theirs”; that they bought her clothes and gave her spending money; that a few months after Meta came Mrs. Fricke asked her to take Meta down town and buy her a dress saying, “You know, we are just giving Meta spending money and buying her clothes, but there is no salary”; that Mrs. Fricke said: “We are not paying Meta any wages. We are all working hard here and someday all of this will be hers”; that in 1918 Mr. Fricke said there was a rumor around that he was working Meta too long hours and that if anyone from the labor commission came to investigate “you tell them that she is our adopted daughter; this is her home, and she is not on no salary’ ’; that they repeated many a time that they would provide for her; that about two years after Meta came she packed her clothes and went to the home of a friend of the witness; that she had a conversation with Mr. Fricke in German in which Mr. Fricke asked her to persuade Meta to come back saying, "We need her. She would be very foolish if she didn’t come back because some day everything will be hers, all property after we are both dead and gone ’ ’; that she told Mr. Fricke he should put that in writing and he replied "We have plenty of time, time enough when we are ready to die”; that she then told Meta to go back and try it over again which she did; that at that time Meta said she could not do enough for them and Mr. Fricke replied: "Well I know it is hard work, but it is for your interest as well as for ours”; that Mr. and Mrs. Fricke were in favor of Meta’s marriage to Mr. Long and Mr. Fricke bought her wedding trousseau and also gave her a wedding dinner; that after the wedding Mr. Fricke asked Mr. Long if Meta could continue to work and Mr. Long replied that she could until he came back from the war; and that after the marriage Meta continued to work for about a year.

A Mrs. Duby testified that she was working at the bakery when Meta came; that Mrs. Fricke introduced her saying "This is Meta” and told her to show Meta what work was to be done; that she heard her mother complain to Mr. Fricke that the work was too hard for Meta and Mr. Fricke replied: "She is a young girl and she ought to be able to stand it. In Germany we work much harder. She does not have to worry, if she is good to us she will get everything we have”; and that she frequently heard Mr. and Mrs. Fricke say that they would see that Meta was always provided for and would get all "especially after papa died”. When asked if she had heard any conversation when Meta first came, concerning whether or not they were to pay any wages for her work, the witness replied that shortly after the girl arrived "they said they would provide for her, buy clothes for her, and give her some spending money”. When asked if she had ever heard any conversation about adopting Meta the witness said that this conversation came up quite frequently after the baby died and the Frickes said "that their baby was dead now, and they thought Meta was a good girl, and they would adopt her”. She further testified that the Frickes were enthusiastic about Meta’s marriage to Mr. Long, that they made big preparations, bought her a "lovely outfit” and had a big dinner; that after the dinner Mr. Fricke said to Mr. Long, “Meta has been a good girl to me. I want you to take good care of her”; that Meta continued to work in the bakery while Mr. Long was in the service; and that she left and went to housekeeping when he returned.

A Mr. Hermans testified that more than once he heard Mr. Fricke say that Meta would not regret her work, that he intended to reward her for it. Mr. Long testified that when he asked Meta about marriage she told him he would have to talk to Mr. and Mrs. Fricke “as I am making my home with them; I am the same as one of the family”; that when he asked Mr. and Mrs. Fricke for her hand they replied: “She is our girl, we think just as much of her as if she were ours ’ ’; that they asked him if she could “continue to stay with us as she has been before” while he was away in the service, to which he gave his consent; that before the marriage Mr. Fricke said to him, “You ought to be able to take care of her. If you don’t, she will always have a home with us” and then stated that he would give a dinner and see that she had nice clothes for the wedding, “which he did”; that after the wedding Mr. Fricke said to him “Meta can continue to stay with us, as I told you before. We will take good care of her, I will assure you of that. If you don’t return, she will always be our girl, and she can make her home with us”; that he returned from the war on June 1, 1919, and he and his wife went to housekeeping; that they visited the Frickes frequently until Mr. Fricke’s death in 1927, after which they continued to visit Mrs. Fricke; that she frequently praised Meta and said, “She don’t have to worry, she will be well taken care of when we are dead and gone”; that on one occasion, in talking about the death of another person, Mrs. Fricke said: “When I go I am going to make a provision so that I will carry out my promises; it will go to those who helped earn it”; that on another occasion she said to him “You have always provided well for Meta, I will take care of her some day, she has it coming”; and that in 1922 Mr. Fricke asked him if Meta might come down and “give them a hand” two or three days a week, to which he consented.

Another witness testified that for several months in 1922 Meta worked in the bakery three days a week and was paid in cash each Saturday night, receiving the same wages as other workers. And another testified that shortly before her death Mrs. Frieke told him that Meta was her adopted daughter; that she had brought her from the middle west and she had worked in the bakery; that they had clothed and fed her and given her some little spending money; and that “they had promised her that when they both passed away she would be in the will to receive her part of the estate, which was—she waved her hand—she said ‘You know half of this belongs to Meta Long, she helped us in every way, and she worked for us all these years, and she never got anything for it except the little spending money we gave her’

A jury awarded the plaintiff $11,750, which happens to be one-half of the net value of the estate, as shown by the evidence. The defendant has appealed from the judgment which followed, and from an order denying a motion for a judgment notwithstanding the verdict.

The alleged oral contract to compensate the respondent by leaving her the entire estate upon the death of the Frickes is unenforceable (sec. 1624, Civ. Code; sec. 1973, Code Civ. Proc.), and a recovery, if any, must be based upon the theory of quantum meruit. The main question presented is whether or not such an action is barred by the statute of limitations, it being conceded that the last services under the alleged contract were performed some sixteen years before the death of Mrs. Frieke. The appellant contends that where continuous services are performed under a contract which is unenforceable under the statute of frauds, the law implies a promise to pay the reasonable value thereof at the termination of the services, at which time the statute of limitations begins to run. The respondent’s position is that the services were rendered under an agreement to convey or devise all of the property owned by the testatrix at her death; that this express agreement, although it could not be specifically enforced, was voidable only and until repudiated or breached, was valid and subsisting; that the law will not imply a promise when there is a subsisting express promise but will wait until the same has been repudiated or breached by the promisor; that upon such breach the law implied a promise to pay the reasonable value of what had been received under the agreement; and that the cause of action then arose and the statute of limitations began to run.

While a contract of this nature is unenforceable, recovery from the estate for services rendered to a decedent has frequently been permitted in this state in an action upon quantum meruit. (Mayborne v. Citizens T. & S. Bank, 46 Cal. App. 178 [188 Pac. 1034]; Warder v. Hutchison, 69 Cal. App. 291 [231 Pac. 563]; Lauritsen v. Goldsmith, 99 Cal. App. 671 [279 Pac. 168]; Burr v. Floyd, 137 Cal. App. 692 [31 Pac. (2d) 402]; Zellner v. Wassman, 184 Cal. 80 [193 Pac. 84]; Seib v. Mitchell, 10 Cal. App. (2d) 91 [52 Pac. (2d) 281]; Estate of Rohrer, 160 Cal. 574 [117 Pac. 672, Ann. Cas. 1913A, 479]; Robinson v. Chapman, 98 Cal. App. 278 [276 Pac. 1081]; Wax v. Adair, 16 Cal. App. (2d) 393 [60 Pac. (2d) 904]; Turell v. Anderson, 16 Cal. App. (2d) 445 [60 Pac. (2d) 906].) In many of these cases, where the services were continuous, it was held that the statute of limitations did not begin to run until the termination of the services. In some of them language is used to the effect that under the circumstances there existing the law will imply a promise to pay the reasonable value of the services rendered when an express promise to compensate by will has failed of fulfillment. It happens, however, that in each of these cases the termination of the services coincided with the death of the employer.

The cases permitting recovery on quantum meruit for services performed over a period of years which continued up to the death of the promisor were cases where the circumstances justified the inference that it was the intention or expectation of the parties that the services were to be rewarded when terminated. These cases are largely based upon the rule that where the contract is for an indefinite time and no time for payment is specified the statute does not begin to run until the services end. Under well-established principles the law implies a promise to pay for services performed under circumstances disclosing that they were not gratuitously rendered. One circumstance which naturally tends to indicate such a situation is the fact that increasingly onerous services are rendered to a person in his declining years by one under no obligation to do so. It may be observed that it would be equally in accord with common experience to regard the fact that a youth makes his home with and renders service of a general nature to an able-bodied relative as much less persuasive in that regard.

It may be taken as established by these cases that ordinarily a promise to pay the value of such services is implied by law at the termination thereof, and that the statute of limitations then begins to run. The respondent argues that a different rule prevails where the parties have expressly agreed upon a time for payment which is subsequent to the completion of the services, in which case the implied promise to pay the value and the cause of action do not arise until the contract is broken. In effect, the contention is that such a situation constitutes an exception to the usual rule and delays the running of the statute until the breach of the contract.

Under the facts here appearing it is unnecessary to decide the question of law suggested by the respondent, or as to whether such an exception to the usual rule should be established. If the rule be as she contends she must still bring herself within it. Assuming, but not holding, that the respondent’s contention is correct it presupposes the making and continued existence of an express contract calling for payment at such a future time. The existence of the express contract would have to be proved, which would necessarily require evidence of a more convincing and definite character than that sufficient to show, merely, that the services were not gratuitously rendered. In the cases heretofore cited, where the services were continuous up to the time the supposed contract was breached, it was not only unnecessary to rely on any express contract but it was not necessary that the evidence be sufficient to establish a contract since the promise to pay at the termination of the services, implied by law, was sufficient. “Under this test the claimant is not required to prove any express contract, but it is sufficient if from the facts and circumstances it reasonably can be inferred that compensation was in the view and contemplation of the parties.’’ (Mayborne v. Citizens T. & S. Bank, supra.) While it was held in some of those eases that evidence similar in some respects to that found here was sufficient to justify the inference that the services were not gratuitously rendered and to support an implied promise to pay the value thereof at their termination, it does not follow that such evidence is sufficient to establish the existence of an express contract to pay at a future time.

In Monsen v. Monsen, 174 Cal. 97 [162 Pac. 90], it is said: “It may not be amiss to point out the manifest danger of fraud, perjury, and injustice that may inhere in a recognition of the right to alter, by parol testimony, the course of disposition of the property of a decedent.” The statutes which prevent the direct enforcement of the contract here relied upon were adopted for the purpose of removing at least a part of that danger. While there may be equitable grounds for permitting recovery of the value of services shortly after their termination, in the absence of a written contract, the rules and the opportunity to evade the statute should not be unduly extended. Before these statutes were adopted an agreement to leave property by will could be enforced in equity but only upon clear, definite and satisfactory proof. (Monsen v. Monsen, supra.) Much of the danger which has been referred to would still exist if claims based upon an alleged oral contract are permitted to be raised many years after the services were completed. If this should be allowed at all, the rules of the former equity eases requiring clear and satisfactory proof of the contract should be continued and applied, since it involves, in effect, specifically enforcing that part of the contract which fixes the date of payment. If the breach of the supposed contract is relied on in order to avoid the bar of the statute of limitations, which would otherwise apply, the terms of the contract must be proved in order to establish that a breach has occurred. The law cannot imply the essential terms of the contract in order to determine whether or not it has been breached, and then imply a promise to pay at the later date merely because originally the services were not gratuitously rendered. The only promise implied by law is a promise to pay based upon the equitable doctrine that the promisor, having received the benefit, should pay its reasonable value. A promise to pay at some time to become fixed in the future must be based upon the agreement of the parties and not upon a rule of law. It follows that, in any event, it was incumbent upon this respondent to clearly and definitely prove an express contract to pay for certain services at a future time. Even if an oral contract, required by the statute to be in writing, is voidable only and is to be considered effective until its enforcement is voided upon the ground that it is not in writing, it must be otherwise unobjectionable in all respects and must conform to the requirements of a contract. (Producers Fruit Co. v. Goddard, 75 Cal. App. 737 [243 Pac. 686].) In Spinney v. Downing, 108 Cal. 666 [41 Pac. 797], one requirement is thus stated: “It is essential to the existence of every contract that there should be a reciprocal assent to a definite proposition.”

The complaint here, after stating that the respondent came to Los Angeles in response to a letter from the Frickes requesting her to come and work for them, alleges the making of a definite agreement in advance that she would work in their bakery and in their home “as long as they desired her to do so”, and that as compensation therefor they would leave to her by deed or will all of the property of which the survivor of them should die possessed, and that for the purpose of insuring this result they would legally adopt her and make her their sole heir. Turning to the evidence we find nothing of such an express contract before the services began, which is not surprising in view of the fact that the Frickes were expecting the birth of a child which was born some three weeks later. There is no evidence that anything was said in advance as to how long she should work and no evidence about anything being said at any time about her working as long as they desired. The only evidence of any definite thing being said at the beginning of her service is that shortly after she arrived the Frickes told her they would provide for her, buy her clothes and give her spending money.

No definite agreement is shown during the first two years, after which the respondent left the home saying she was unable to do enough to please the Frickes, which tends to indicate that she was not then relying on an express agreement. Mr. Fricke’s only reply to the respondent was “It is for your interest as well as for ours.” While he then told another party that Meta would be foolish if she did not come back because some day everything would be hers that conversation was in German and it is not even shown that the respondent understood it or that it was translated for her. When her hand was asked in marriage, instead of saying that she had a contract from which she must be released she told Mr. Long he would have to talk to the Frickes as she was making her home with them and was the same as one of the family. When his permission for the marriage was asked Mr. Pricke did not mention any agreement for her services, and his only concern was whether her prospective husband could take good care of her. Although he still desired her services during her husband’s absence, he did not assert a contractual right thereto but asked permission for her to remain, promising to take good care of her if her husband did not return. When she left and went to housekeeping in 1919 nothing was said about her services being no longer desired and there is nothing to indicate any understanding at that time that the services she had already performed were to be taken as full performance on her part of an existing contract. It is significant that when her services were later desired the parties did not proceed in accordance with any such contract as is alleged but the permission of the respondent ’s husband was asked and she was paid regular wages.

While the Prickes treated the respondent like a member of the family as long as she remained with them and while the evidence justifies the inference that for a time they intended to adopt her it does not disclose an agreement to do so, and they never did. While they talked on a number of occasions about leaving all of their property to her these statements seem to have been made, largely if not entirely, at a time when such adoption was possible, and are consistent with such an intention. It can hardly be said that the evidence shows either an express agreement to leave her all of their property in return for any definite amount of service, or that any such specific service was rendered as a result of or in reliance upon such a promise. Although Mr. Pricke lived nine years after the marriage there is a noticeable absence of any testimony showing any recognition of such a contract on his part during that time. While Mrs. Pricke, during the last years of her life, did mention leaving something to the respondent, the evidence as to this is not only indefinite but considerably at variance with the claimed agreement to leave her all of the remaining property. At one time she said her property would “go to those who helped earn it”, and at another she stated that Meta would “be in the will to receive her part of the estate”, and that “half of this belongs to Meta Long”, waving her hand at something.

It can neither be told when a contract was made, how much service was to be performed, or what the future compensation was to be. The evidence is not sufficient to show that the minds of the parties met at any time on a definite agreement for the rendering of services which should be compensated for at the death of the Frickes. The following language from Monsen v. Monsen, supra, is applicable here:

“All of this evidence is similar in character to that under consideration in Ackerman v. Ackerman’s Exrs., 24 N. J. Eq. 585, 586 (cited with approval in Owens v. McNally, 113 Cal. 444, 33 L. R. A. 369 [45 Pac. 710]), of which the court said ‘the complainant’s evidence chiefly consists of loose conversations had by different persons with the testator ... all of which evidence is consistent with a purpose, at one time, on the part of the father, to devise the farm to Gilbert and Gilbert ’s expectation that he would . . . but which fails to show any contract for the conveyance or devise of the farm, intended to be obligatory either upon the father or son’.”

A further consideration is that if any such contract as the one alleged ever existed it is not shown that it continued until the death of Mrs. Fricke. Any agreement to adopt the respondent was broken some time in 1917 when she became of age. If the agreement to leave her all of their property as compensation for her services “as long as they desired” still remained, something later happened to that. She left in 1919 and thereafter, although they still wanted her services, at least at times, they paid her and she accepted regular wages. So far as appears from the evidence they entered into a new arrangement, saying nothing about any previous contract. The subsequent conduct of the parties is inconsistent with the continuance of the asserted contract, in the absence of evidence to show that certain rights had accrued thereunder and were to be preserved, and indicates that if such a contract ever existed it was abandoned. (Klein Norton. Co. v. Cohen, 107 Cal. App, 325 [290 Pac. 613]; Treadwell v. Nickel, 194 Cal. 243 [228 Pac. 25].)

The evidence not being sufficient to meet the test above set forth, any cause of action resting upon an implied promise to pay the value of the services rendered arose at their termination. This action, having been brought more than sixteen years later, was barred by the statute of limitations. This defense was raised and should have been sustained.

The judgment and order appealed from are reversed with directions to the trial court to enter judgment in favor of the appellant.

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

Rehearing denied.


author: LANGDON, J. EDMONDS, J., Dissenting.

text:
    [Sac. No. 5192.
    In Bank.
    November 16, 1938.]
    M. R. SYLER, Respondent, v. HERMANN E. KATZER, as Executor, etc., Appellant.

      King & King for Appellant.
    T. F. Peterson for Respondent.
   LANGDON, J.

Plaintiff brought an action to recover for the value of services performed by him to the decedent, H. G. Halkett, during his lifetime. The complaint alleged an implied contract for services which were to be continuously performed and were so performed from January 1, 1930, until the death of the decedent. (See Turell v. Anderson, 16 Cal. App. (2d) 445 [60 Pac. (2d) 906].) The answer denied the material allegations and pleaded the statute of limitations and statute of frauds as a defense. The court, sitting without a jury, found that the decedent had requested plaintiff to render such services as he might require continuously for the remainder of his life,- that decedent had agreed to pay for them by leaving him all of his estate, or else property or money equal to the reasonable value of the services; that plaintiff rendered the services; that decedent failed to leave property or pay for them; and that the value of the services was $2,820. Judgment in that sum, together with interest was accordingly entered in favor of plaintiff.

The only substantial issue presented by this appeal relates to the sufficiency of the creditor’s claim filed by plaintiff. The written claim was filed within the prescribed time, and was treated by plaintiff as rejected after the executor’s failure to approve the same within ten days. The claim states that it was “for services in caring for deceased during his period of illness” describing the services and listing the amounts due. It is contended by defendant that the claim fails to indicate any contract for continuous services which would call for payment at the end of the period, and constitutes merely a statement of ordinary services, for which payment was due at once. Under defendant’s theory, the two-year statute of limitations would apply and constitute a bar to recovery for most of the services, that is, those performed prior to August 15, 1933, decedent having, died on August-15, 1935.

The contention is then, that the claim was insufficient in form, and reliance is placed on such cases as Etchas v. Orena, 127 Cal. 588 [60 Pac. 45], and Estate of Stuer, 77 Cal. App. 584 [247 Pac. 211]. Without discussing these in detail, it may be said that there is no necessity that a creditor’s claim be drafted with precision and completeness of a pleading. The only requirement is that it state such facts as will apprise the executor or administrator of the amount of the demand. (See Standiford v. Cantrell, 87 Cal. App. 736 [262 Pac. 800]; United States Gypsum Co. v. Shaffer, 7 Cal. (2d) 454 [60 Pac. (2d) 998].) The claim in the instant case clearly called to the attention of the executor the fact of the services, the period during which they were rendered (up to the time of death), and the amount demanded. If any uncertainty remained, it was incumbent upon the executor to call for clarification (Standiford v. Cantrell, supra); and in the instant ease defendant did demand and receive a bill of particulars and a copy of plaintiff’s book account. No demurrer was filed to the complaint on the ground relied upon herein, and the case was tried on other issues. The present contention appeared for the first time on motion for new trial. Under such circumstances, any formal defects in the creditor’s claim must be deemed waived by the trial on the merits. (See Standiford v. Cantrell, supra; Merrill v. Kohlberg, 29 Cal. App. 382 [155 Pac. 824].)

No other points require discussion. The judgment is affirmed.

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

Houser, J., concurred'in the judgment.

EDMONDS, J., Dissenting.

The decision in this case sweeps aside rules long established and which necessarily follow from the code provisions concerning actions against the estates of decedents, reaching a conclusion which is not supported by the authorities cited.

In the first cause of action of his complaint, the plaintiff alleged that the deceased became indebted to him “upon a book account for work and labor performed and services rendered by plaintiff to said decedent at his special instance and request, continuously during the period commencing January 1, 1930, and ending August 15, 1935, which . . . the decedent promised and agreed to pay to plaintiff upon demand”. By a second cause of action the plaintiff alleged: “That on or about the 1st day of January, 1930, the said decedent, Hermann G. Halkett, requested the plaintiff to render services continuously during such part of the remainder of said Hermann G. Halkett’s life as he might require ; that the said Hermann G. Halkett promised and agreed to pay the plaintiff at the time of Ms, said decedent’s death, by giving, devising and bequeathing to him all of his, said decedent’s estate, or in default thereof, that he would give, devise and bequeath to the plaintiff a sum equal to the reasonable value of the plaintiff’s services.” As a third cause of action it was alleged that in his lifetime the deceased became indebted to the plaintiff in the sum of $2,820 for services rendered by the latter “to said decedent at his special instance and request, which said services were agreed to be and were in fact continuous, from the 1st day of January, 1930, to and including the 15th day of August, 1935, and which said sum of $2820.00 the decedent promised and agreed to pay the plaintiff at the termination of said services or upon demand”.

The executor by answer denied all of the allegations of the complaint, and as a separate defense to each cause of action alleged the bar of the statute of limitations prescribed by section 337, subdivision 2, and section 339, subdivision 1, of the Code of Civil Procedure. As an additional defense to the second cause of action the defendant alleged that it is barred by the provisions of section 1971 of the Code of Civil Procedure, which requires the transfers of certain interests to be in writing.

The claim filed by the plaintiff and afterwards sued upon is in the following form:

“Herman G. Halkett to M. R. Syler, Dr.
“Por services in caring for deceased during his period of illness, consisting of taking care of all business affairs, cooking and carrying meals to said deceased, daily delivery of mail, and transporting to and from places desired by deceased, and making all arrangements for medical and hospital care.
1930— 12 months at $50.00 per month.............$ 600.00
1931— 12 months at $50.00 per month............. 600.00
1932— 12 months at $50.00 per month............. 600.00
1933— 12 months at $50.00 per month............. 600.00
1934— month of January......................... 50.00
Feb. to Dec. —11 months at $20.00 per month ............................. 220.00
1935— Jan. 1 to Aug. 15, 7% months at $20.00 per month .................................. 150.00
Interest on above account at 6 per cent per annum.. 156.93
$2976.93”

There is nothing in this claim to indicate that the services were rendered under a continuing contract which terminated at the death of Mr. Halkett, or that he had agreed to pay the plaintiff for them except on a month to month basis. On its face, all of the amount except that claimed for services rendered within two years of Mr. Halkett’s death was barred by the statute of limitations, and under the provisions of section 708 of the Probate Code it could not have been allowed by either the executor or the probate judge. Nor did two bills of particulars filed, by the claimant pursuant to the executor’s demands therefor give any further information concerning the nature of the claim for which payment was demanded.

It has uniformly been held that the claim filed against an estate measures the right to the claimant’s recovery. In other words, the claimant may not recover upon a cause of action not stated in the claim. (Pearson v. Parsons, 173 Cal. 336 [159 Pac. 1173]; Morehouse v. Morehouse, 140 Cal. 88 [73 Pac. 738]; Brooks v. Lawson, 136 Cal. 10 [68 Pac. 97]; Giles v. Reed, 44 Cal. App. 367 [186 Pac. 614]; Enscoe v. Fletcher, 1 Cal. App. 659 [82 Pac. 1075]; 11 Cal. Jur. 800.) The leading case on the subject is Etchas v. Orena, 127 Cal. 588 [60 Pac. 45], decided in 1900 and consistently followed since. The facts there passed upon are practically identical with those now before the court, that case having been brought to recover upon a claim for services alleged to have been rendered to the deceased for a period of ten years prior to her death. In reversing a judgment for the plaintiff, this court said: "We think that upon the trial the evidence should have been confined to such services as became due under the rejected claims within two years of the death of deceased. It is claimed that the deceased, during her life, made a contract with plaintiff that, in consideration of the services to be rendered, and which it is claimed were rendered, deceased would compensate plaintiff by making provision in her will. No question as to the enforcement or validity of such contract need be here determined. If the plaintiff could maintain such action for a breach of contract to pay for services continued for a period of over ten years, it would be necessary to first present a claim against the estate. (Code Civ. Proc., sec. 1493.) It is argued that such presentation was made in the claim of November 30, 1896, for a balance of twelve hundred dollars, but we do not think so. The claim presented was simply for services by the month from June 1, 1885, to June 1, 1895. No contract is set forth as to when the wages were to be paid, and in such case the presumption is that the hiring was by the month. (Civ. Code, sees. 2010, 2011.) (Emphasis added.)

"It appears, therefore, on the face of the claim as presented, that all that part of it was barred by the statute except for services that became due on or after January 19, 1894. If barred by the statute of limitations the claim could not be allowed by the executor or the judge. (Code Civ. Proc., see. 1499.) The executor therefore had no right to allow any part of the claim for services that became due under the claim as set forth prior to January 19, 1894.

"The claim, as presented and passed upon by the executor, was the foundation of the plaintiff’s cause of action. She could not come into court and allege and prove any other or different cause of action from that stated in the claim. The executor was entitled to have the claim presented in sufficiently intelligent form to enable him to pass upon it legally. If it was founded upon a promise or agreement, under the terms of which continuous services were performed, to be paid for at the death of the deceased, the claim should have so stated. It is the policy of the law that all just debts of an estate shall be paid, and that creditors having claims shall duly make out, verify and present them in such manner, and with such statement and vouchers, that the representative of the deceased may allow them if legal, and reject them if in law they should be rejected. The claim in this case, as founded upon the promise, to provide in the will, was contingent upon the failure of deceased to so provide. If the services were performed in consideration of an agreement to compensate for them in the "will, no claim could exist against the estate, except one founded upon the fact that such services were performed and no provision made in the will for compensation. The particulars of the claim should have been stated.”

In the later ease of Estate of Steuer, 77 Cal. App. 584 [247 Pac. 211], the Etchas case was followed and the principles laid down in it were applied to facts substantially the same as those in the present case. The claim there sued upon was for room, board and care of the decedent for “thirty-six months at $70. per month—$2520”. Discussing the form of the claim, the court said that the portion “covering services rendered beyond the two-year limitation of the statute is barred and was improperly allowed by the administratrix and the probate judge. ”

The decision in the case now before the court is based upon the ground that a creditor should not be compelled to draft his claim with the precision and completeness of a pleading; “the only requirement”, states the opinion, “is that it state such facts as will apprise the executor or administrator of the amount of the demand”. Standiford v. Cantrell, 87 Cal. App. 736 [262 Pac. 800], and United States Gypsum Co. v. Shaffer, 7 Cal. (2d) 454 [60 Pac. (2d) 998], are cited as authority for these statements. But the claim in the Standiford case was for the “reasonable value of services in supplying a blood transfusion to said deceased and to damages consequent thereupon”. The defendant executrix contended that the claim as presented limited the plaintiff’s recovery to the reasonable value of the services which she rendered and precluded any recovery for damages. No issue based upon the statute of limitations was tendered. The court held that “the claim as presented fairly covered both provisions of the contract, it being expressly set forth in the claim that the demand was for the reasonable value of the services rendered and for damages consequent thereupon”.

In the other case suit was brought-upon an amended claim which the probate court allowed to be filed after the statutory period for filing claims had expired. The administrator eon-ceded that the court has power under certain circumstances to make such an order but he contended that a notice of motion which had been filed within the required time and was relied upon as a claim could not be considered as such, hence there was nothing to amend. The court held that “the code docs not state what precise form such a claim shall take, and any notice presented to the executor or administrator which informs him of the outstanding claim is sufficient at least upon which to base an order permitting an amendment to supply the missing formalities or any deficiencies (Emphasis added.) This is far different, however, from holding that a claim in the form sued upon in the case now being considered, is sufficient as the basis for a suit upon a cause of action entirely different from that stated in the claim.

In my opinion the judgment should be reversed.

Seawell, J., concurred.