author: HOUSES, J.

text:
    [L. A. No. 16885.
    In Bank.
    January 24, 1939.]
    JENNIE E. HAMILTON, Respondent, v. PACIFIC ELECTRIC RAILWAY COMPANY (a Corporation), Appellant.

      Frank Karr, E. E. Morris, C. W. Cornell and O. O. Collins for Appellant.
    Leo V. Youngworth and J. Harold Decker for Respondent.
   HOUSES, J.

The undisputed facts herein appear to be that on a specified date, at about 8:30 o’clock P. M., thereof, on the arrival within its station at the city of Los Angeles of an inter urban car that was operated by the defendant, plaintiff alighted therefrom and thereupon, pending the departure from such station of another car which plaintiff intended to use for the purpose of being thereon carried to her proposed destination, went into a waiting room which was located within such station and which was provided by the defendant for the use of its patrons. Plaintiff remained in the waiting room for a space of between 20 and 30 minutes and, although during such time there were “10 or 12 or 15 ’ ’ other persons therein, she “did not observe” any person either enter into or depart from the said waiting room. However, when the car arrived upon which plaintiff had intended to be transported, at the moment when she attempted to leave the waiting room, she slipped upon some oil that lay on the floor immediately in front of the exit door thereof, and thereby was caused to be thrown to the floor; from which fall she sustained the injuries that were the basis of her claim of damages against the defendant, and which form the subject-matter of the instant action. At the conclusion of plaintiff’s testimony, both parties rested. Prom a judgment which was rendered in favor of plaintiff, the defendant has appealed.

On the part of plaintiff no claim is made that preceding the instant when the accident occurred, the defendant, had actual notice of the fact that oil lay or ever had lain upon the floor of its waiting room. In such circumstances, the negligence, if any, of the defendant must rest upon the assumed fact that preceding that moment, the oil had lain upon the floor of the waiting room for such a length of time that the defendant was charged with notice of the fact of its said existence and location.

It is not denied that as a matter of protection of the safety of plaintiff, the defendant owed to plaintiff at least a reasonable inspection of its waiting room. As to the question of whether the defendant had given a reasonable inspection of such premises preceding the moment when the accident occurred, it is obvious that, prima facie, the length of time that the oil had been upon the floor thereof before that instant would be practically determinative. For example, if no inspection of the waiting room by the defendant had occurred within 24 hours preceding the accident, in the absence of defensive evidence, it might fairly be concluded by a jury that the defendant had failed in its duty to plaintiff in that regard. On the other hand, had inspection been made within one minute before the occurrence of the accident, it might very reasonably be held that the defendant had not so failed. But approximately what space of time had elapsed between the hour and minute when the oil was deposited upon the floor of the waiting room and the moment when plaintiff slipped on such oil and sustained the injuries of which she complained, does not appear from any direct evidence that was received in that behalf. In that regard, as hereinbefore has been stated, the only direct evidence consisted of testimony that was given by the plaintiff to the effect that although during the 20 or 30 minutes that she had occupied the waiting room, she observed no one who either entered it or left it,—notwithstanding the additional fact that there were “10 or 12 or 15” other persons in the waiting room during that time. Of course, it is possible that the oil was upon the floor at the time when plaintiff entered the waiting room and that it so remained until she attempted to leave it,—in which case the question of whether the defendant had performed its legal duty to plaintiff would be a question of fact for determination either by a jury or by the trial court. On the other hand, the bare fact that plaintiff “did not observe” any person either enter or leave the waiting room at any time during the 20 or 30 minutes of her stay therein would not constitute very strong or persuasive evidence that neither an inspector of the premises, in the performance of his duties as such, had not visited the waiting room at any given moment during such 20 or 30 minutes, nor that within that period no other person had either entered or departed from the waiting room. Indeed, considering the fact that at 8:30 o’clock P. M., many persons were making use of the waiting room, it is not improbable that during the time that plaintiff was an occupant thereof, several persons either did enter or leave it,—in which event it would have been possible that at any given moment of such time any one of them might have caused the oil to be deposited upon the floor of the waiting room. However, in order to arrive at the indicated conclusion it would be necessary that one inference be made to depend upon a precedent inference; and, as has been repeatedly ruled, such a course of reasoning is not permitted in the law.

By statutory provision, an inference is defined as “a deduction which (without an express direction of law to that effect) the reason of the jury makes from the facts proved”. (Sec. 1958, Code Civ. Proc.) But it is essential that an inference be founded either upon a fact that has been “legally proved”, or upon “a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature”. (Sec. 1960, Code Civ. Proc.)

In the case of Thomas v. Visalia Electric R. R. Co., 169 Cal. 658, 661 [147 Pac. 972], it is declared that “where mandatory presumptions are not exacted, it is the right and duty of the jury to draw such reasonable inferences from the evidence as may appeal to and satisfy their minds”. (Emphasis added.)

Again, in Rovegno v. San Jose K. of C. Hall Assn., 108 Cal. App. 591, 596 [291 Pac. 848], it was said:

“In California inferences in themselves constitute a recognized class of indirect evidence which a court or jury may not disregard. (Code Civ. Proc., secs. 1957, 1958.) Furthermore, ‘upon a trial of a ease the jury is to find not only the facts but also the inferences from them, if any may properly be drawn . . . When an inference is supported by the evidence, and is not opposed to human experience and reason, it cannot be disturbed by an appellate court’. (10 Cal. Jur. 738.) ” See, also, In re Estate of Moore, 65 Cal. App. 29 [223 Pac. 73],

It may be confidently declared that, founded upon the evidence, the jury not only is authorized to make any logical and reasonable deduction, but also that the jury is the exclusive judge of the weight and value of the inference that may be drawn by it; furthermore, as corollary thereto, that any attempt on the part of an appellate court to draw an inference of fact constitutes ‘ ‘ a usurpation of the province of the trial court ”. The fact that some inference other than that which has been drawn by a jury may appear to an appellate tribunal to be the more reasonable, affords no sufficient reason for disturbing the inference in question. (10 Cal. Jur., p. 735 et seq.) It also appears to be well-established law that notwithstanding the fact that the evidence upon which the inference is founded is undisputed or without conflict, an appellate court has not the power to draw an inference different from that which the jury has deduced.

In the case of Anderson v. Los Angeles Transfer Co., 170 Cal. 66, 67 [148 Pac. 212], the following language occurs:

“The question of negligence is one of fact for the jury, and the finding of the jury cannot be overturned by this court where the evidence is conflicting or where, although the evidence is without conflict, different inferences may reasonably be drawn from it.”

Likewise, in Mah See v. North American Acc. Ins. Co., 190 Cal. 421, 426 [213 Pac. 42, 26 A. L. R. 123], it was said:

“This court has frequently held that even though all the facts are admitted or uncontradicted, nevertheless, if it appears that either one of two inferences may fairly and reasonably be deduced from those facts, there still remains in the case a question of fact to be determined by the jury (or by the trial judge where the ease is tried without a jury), and that the verdict of the jury or the finding of the trial judge thereon cannot be set aside by this court on the ground that it is not sustained by the evidence. ...”

It is clear that the duty of establishing the existence of facts sufficient to create a liability in the defendant rested on plaintiff. Accordingly, she was obligated to prove a negative, to wit, that the defendant had given no reasonable inspection to the waiting room.

Such being the law, it remains to be considered whether the implied inference which was drawn by the trial court to the effect that prior to the happening of the accident the defendant had made no reasonable inspection of its said premises is sufficiently supported by the unquestioned fact that, during a space of time which was between 20 and 30 minutes, plaintiff “did not observe” that any person either entered into or departed from the waiting room.

In the case of Russell v. McDowell, 83 Cal. 70, 81 [23 Pac. 183], it is said that:

“Moreover, it is to be considered that the contestant was assuming the difficult task of proving a negative, i. e., the want of qualification of a large number of voters, and the doctrine is well established that slight' proofs make out a prima facie case where a negative is to be proved. In all such cases rebuttal is comparatively easy, and is consequently of imperative obligation. Here no proof in rebuttal was offered, and the evidence for contestant stands absolutely uncontradieted. ’ ’ ■

See, also, Parsons v. Weis, 144 Cal. 410, 420 [77 Pac. 1007]; Owens v. Carmichael’s U-Drive Autos, Inc., 116 Cal. App. 348 [2 Pac. (2d) 580]; People v. Macbeth, 104 CaL App. 690 [286 Pac. 448].

In the face of positive evidence to the effect that, a signal of warning was given of the approach of a car with which an automobile collided, it has been held that negative evidence by passengers in the automobile to the effect that they heard no such signal was sufficient to sustain a finding of fact by the jury that no warning was given. (Thompson v. Los Angeles etc. Ry. Co., 165 Cal. 748 [134 Pac. 709].)

To like effect see: Hunt v. Los Angeles Ry. Corp., 110 Cal. App. 456 [294 Pac. 745]; Takahashi v. White Truck etc. Co., 15 Cal. App. (2d) 107 [59 Pac. (2d) 161]. In the case of Lahey v. Southern Pac. Co., 16 Cal. App. (2d) 652, 661 [61 Pac. (2d) 461], it was said:

“The negative testimony or testimony of witnesses that they did not hear the ringing of a bell or the sounding of a whistle is admissible and sufficient to support a verdict of the jury as to the nongiving of signals. We need only to cite the following cases without quoting therefrom: Jones v. Southern Pacific Ry. Co., 74 Cal. App. 10 [239 Pac. 429]; Switzler v. Atchison, T. & S. F. Ry. Co., 104 Cal. App. 138 [285 Pac. 918].”

Analogously, where the issue of the reputation of a party litigant is involved, it has been ruled that testimony by a witness to the effect that, although favorably situated with reference thereto, he has never heard the reputation of the person in question discussed, affords cogent evidence that his reputation is good. (People v. Pauli, 58 Cal. App. 594 [209 Pac. 88]; People v. Adams, 137 Cal. 580 [70 Pac. 662]; People v. Stennett, 51 Cal. App. 370 [197 Pac. 372].)

From a consideration of the foregoing, it would seem well established not only that plaintiff had offered sufficient evidence to sustain a judgment in her favor, but also that it was within the province and the power of the trial court to draw therefrom the inference that the defendant had not performed its duty in giving a reasonable inspection to the premises in question.

It follows that the judgment should be, and it is, affirmed.

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

Behearing denied.


source: Caselaw Access Project

author: EDMONDS, J.

license: Public Domain

text:
    [L. A. No. 16635.
    In Bank.
    January 24, 1939.]
    A. A. BROCK, as State Director of Agriculture, etc., et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

      U. S. Webb, Attorney-General, Earl Warren, Attorney-General, Walter L. Bowers, Deputy Attorney-General, Ivan G. McDaniel and Ferrand & Slosson for Petitioners.
    J. H. O’Connor, County Counsel, A. Curtis Smith, Deputy County Counsel, Stewart, Shaw & Murphey, Arvin B. Shaw, Jr., and William L. Murphey for Respondents.
   EDMONDS, J.

By this proceeding in prohibition, the Director of Agriculture, certain officers of that department, and a number of growers of citrus fruits who are members of committees appointed for the administration of the Agricultural Adjustment Act of this state (Stats. 1935, p. 1032; Deering’s Gen. Laws, Act 146), seek to compel the respondent Superior Court to dissolve a temporary injunction which was issued in an action brought against them by Harry W. Forbes and others to enjoin the enforcement of a plan for the regulation of intrastate marketing of grapefruit. They contend that the validity of the statute has been upheld by this court in the case of Brock v. Superior Court, 9 Cal. (2d) 291 [71 Pac. (2d) 209, 114 A. L. R. 127], and that the complaint upon which the injunction was issued presents no questions of fact such as those which required the denial of a similar petition in the case of Agricultural Prorate Com. v. Superior Court, 5 Cal. (2d) 550 [55 Pac. (2d) 495],

Upon this petition an alternative writ of prohibition issued to which the respondents have filed a general demurrer. In support of the demurrer they contend that prohibition is not a proper remedy because the superior court has jurisdiction of the cause of action and that the constitutionality of a statute should be determined only in relation to the facts of a particular case as found by a trial court. 'By answer they allege facts which they contend show that the statute, as the Director of Agriculture is attempting to enforce it under a license issued by him for the purpose of regulating the marketing of citrus fruits, unlawfully interferes with the property rights of those persons who were granted an injunction. The respondents also attack on many different grounds the entire plan of agricultural regulation set up by this marketing license. According to them, the plan was devised for the purpose of putting into effect an economic theory known as “the philosophy of scarcity’’, which is based upon the assumption that the agricultural depression may be cured by restricting the production of food. By allowing only a portion of the grapefruit produced in this state to be marketed here, many growers will be unable to make a profit and will fail, with the result that a large number of acres will go out of production and with less fruit available, the consumer will be forced to pay higher prices. They allege that this amounts to the confiscation of property in violation of constitutional guarantees. More specifically, they charge that the license issued to regulate intrastate marketing and also the one which was adopted by federal authorities are invalid.

The record presented by the petitioners shows that the injunction which they are seeking to dissolve by this proceeding prevents them from enforcing or attempting to enforce the terms and provisions of a marketing license promulgated by the Director of Agriculture, and all rules and regulations made under the Agricultural Adjustment Act of this state. It was issued upon a complaint which alleges not only that the statute as written is unconstitutional, but also that as the defendants are attempting to apply it to the plaintiffs ’ property rights, it is discriminatory and confiscatory. The court is asked to (1) determine and declare the right of the Director of Agriculture to promulgate the license issued by him in 1936; (2) enjoin the defendants from prescribing any allotment, quota or prorate of grapefruit allowable to be packed, shipped or marketed by them; and (3) prohibit the enforcement as against them of any of the provisions of the act.

Another action brought by a group of orange growers to prohibit the enforcement of the Agricultural Adjustment Act in this state was commenced at the same time as the Forbes case. (Pico Citrus Assn. v. Brock, Los Angeles Superior Court, No. 401753.) In that case the act. was attacked upon grounds similar t.o those advanced in the Forbes case, and the Superior Court issued a preliminary injunction.

Thereafter, the Director of Agriculture and others enjoined upon the complaint of the Pico Citrus Association secured from this court a peremptory writ of prohibition restraining the Superior Court from enforcing its injunction. (Brock v. Superior Court, 9 Cal. (2d) 291 [71 Pac. (2d) 209, 114 A. L. R. 127].) After the determination of that proceeding the defendants in the Forbes case moved the Superior Court, to dissolve the preliminary injunction against them, which motion was denied.

The petitioners place their principal reliance upon section 3423 of the Civil Code which provides that “an injunction cannot be granted ... to prevent the execution of a public statute, by officers of the law, for the public benefit". This section has been construed as a limitation upon the power of a court to restrain public officers from enforcing a valid law (Reclamation District v. Superior Court, 171 Cal. 672 [154 Pac. 845]), but it has uniformly been held that one specially interested may enjoin the attempted execution of an unconstitutional statute. (Bueneman v. City of Santa Barbara, 8 Cal. (2d) 405, 407 [65 Pac. (2d) 884, 109 A. L. R. 895]; Jones v. City of Los Angeles, 211 Cal. 304 [295 Pac. 14]; Wheeler v. Herbert, 152 Cal. 224 [92 Pac. 353]; Schofield v. City of Los Angeles, 120 Cal. App. 240 [7 Pac. (2d) 1076].) And although certain provisions of the law under which the petitioners in the present proceeding assumed to act have been upheld (Brock v. Superior Court, supra), a statute valid upon its face may be unconstitutionally applied. (Yick Wo v. Hopkins, 118 U. S. 356, 373 [6 Sup. Ct. 1064, 30 L. Ed. 220].) Therefore, if the complaint in the action brought by Forbes and his coplaintiffs shows that the petitioners threatened to enforce an unconstitutional law against them, or that their acts in the attempted application of a valid law violated rights guaranteed to all citizens by either the federal or state Constitution, the Superior Court had jurisdiction to issue an injunction pending a hearing and decision upon the issues presented, and the petition for a writ of prohibition must be denied.

The allegations of the complaint cover a wide range. They present facts which the plaintiffs assert compel a conclusion that the license issued by the Director of Agriculture allowing each marketer of citrus fruits to ship, in intrastate commerce only the amounts of grapefruit to be fixed by that official from time to time, is invalid. Specifically, it is alleged that the license regulates the transportation of all oranges and grapefruit grown in the state of California and that the marketing of desert grapefruit is a specific and naturally inherently and intrinsically distinctive agricultural trade or industry which cannot be regulated under the provisions of the act in combination with other citrus fruits. In support of this contention the complaint states that the citrus business of California comprises at least three different agricultural industries, namely, the growing and marketing of oranges, coastal grapefruit and desert grapefruit. It is also alleged that 93 per cent of all oranges grown in California are shipped outside of the state but that more than 60 per cent of the crop of desert grapefruit and 40 per cent of all coastal grapefruit produced is consumed here.

According to the plaintiffs’ allegations the desert grapefruit of California differs materially from the coastal variety and' is grown under conditions which insure production at much less cost. The plaintiffs set forth at great length, the climatic characteristics of the counties in which each variety is raised and the culture which must be used under the various conditions. Because of the rainfall, soil and climate in the desert counties, say the plaintiffs, the grapefruit grown there has a sugar and juice content different from that grown in a colder temperature, and the crop must be picked and marketed during the period from November 1st of each year to March 15th of the succeeding year and consumed before the following May 1st. The coastal grapefruit is picked, sold and consumed from April to November of each year.

By their amended complaint the plaintiffs also assert that the purpose of the regulation placed upon the citrus industry by the defendants is to limit and reduce shipments of grapefruit grown in California and Arizona to such an extent as to cause an artificial scarcity in the market and thereby bring the price received by the grower to $2.57 per box; that the product cannot be sold at that price in competition with California and Arizona oranges and that by the device of fixing weekly allotments allowable for shipment in intrastate commerce the defendants will compel growers, including the plaintiffs, to allow one-third or more of their crop to spoil and be destroyed. That by reason of the temporary restraining order issued upon the original complaint, from November 1, 1935, to March 31, 1936, the producers and shippers of desert grapefruit were able to sell and deliver the fruit grown by them with an average price return within a few cents per box of that received during the prior four-year period; “that the amount of money returned in said five-months’ period of the crop year 1935-36 to the growers of said grapefruit, with which to operate their said grapefruit groves, was approximately four times the amount of money returned to said growers in the same five-months’ period of the crop year 1934-35 and approximately twice the amount of money returned to the said growers of said grapefruit in the same five-months’ period of the crop year 1933-34”.

Under the California Agricultural Adjustment Act of 1935, the Director of Agriculture has power to license persons engaged in intrastate marketing transactions, provided that “whenever one such person is licensed the director at the same time shall subject all persons engaged in the same specific and naturally, inherently and intrinsically distinctive agricultural business trade or industry to the same identical license provisions”. (See. 6a [b].) This language, as a matter of law, does not authorize the Director of Agriculture to regulate the marketing of all agricultural products by one general license fixing a total quota for them divisible ratably between shippers without regard to the difference in the nature of the crop, cost of production, time of harvest, facilities for shipment, amount of demand, price obtainable or other factors which make the conditions under which one agricultural product is marketed distinctly different from those which are applicable to another. The allegations of the plaintiffs’ complaint tender as an issue of fact the question whether the marketing of desert grapefruit is an agricultural trade or industry distinctly different from that of marketing other products, and, also, whether the producers of grapefruit are being discriminated against to the profit and advantage of the orange growers and their property. taken without due process of law. The plaintiffs are entitled to the findings of a trial court upon those issues.

The validity of the license issued by the Director of Agriculture is also attacked by the plaintiffs. They allege facts tending to show that the Director of Agriculture had no authority to issue the license for marketing citrus fruits which is complained of because at the date it was promulgated, there was no valid “corresponding federal agreement or license regulating such business, trade or industry under the National Agricultural Adjustment Act’’ as required by the California law. (Sec. 6a.) Admittedly, however, the Secretary of Agriculture had issued a license under the federal statute, but the respondents contend that this license is invalid.

The facts relied upon by the plaintiffs in this connection are pleaded at length. They assert that some time before the Director of Agriculture issued the license in question the California Fruit Growers Exchange and others filed with the Secretary of Agriculture a petition for the purpose of invoking the provisions of the federal Agricultural Adjustment Act of 1933 (48 Stats, at Large, 31.) Thereafter the Secretary of Agriculture, claiming to act under that law, entered into an agreement with certain shippers of oranges and grapefruit in California and Arizona, not including the plaintiffs, and issued a license regulating the amount of such fruit which each one could market in interstate commerce. Later and in 1935, the Secretary of Agriculture issued a marketing order purporting to regulate the handling of oranges and grapefruit in these states. Pursuant to that order, the Secretary of Agriculture appointed certain persons as members of a "Growers Advisory Committee” and other persons as members of a “Distribution Committee”. All of these persons, or their successors, are defendants in the action brought by Forbes and are petitioners in the present proceedings.

The complaint charges that upon the hearing which preceded the issuance of this license, no evidence was taken respecting the purchasing power of grapefruit grown in California during the base period from November, 1924, to October, 1928, inclusive; that the license “has never been approved or favored by a vote of producers who during any representative period determined by the Secretary of Agriculture have produced for market two-thirds of the volume of oranges and grapefruit, or either thereof, produced for market within California or Arizona or by either of said states, nor by any other group, or number of producers required by said Agricultural Adjustment Act of 1933, as amended, to approve such order before it shall be effective ’ ’ that no desert grapefruit was grown or produced for market within the state of California in the base period established by the act; and that the order has never been approved by the President of the United States.

These allegations present the factual basis for the plaintiffs’ contention that when the California license for intrastate marketing was issued, there was no valid federal agreement or license regulating the same agricultural trade or industry under the national Agricultural Adjustment Act. The issue thus tendered does not involve the right of federal officers to enforce the license issued by the Secretary of Agriculture under the law of this state, and the superior court has jurisdiction to determine whether these conditions fixed by the legislature as a prerequisite for regulation of intrastate marketing existed at the time the Director of Agriculture assumed to act. (State v. American Express Co., 38 S. D. 227 [161 N. W. 132]; Stephenson v. New Orleans & N. E. R. R. Co., 180 Miss. 147 [177 So. 509].)

Also a broad principle underlying the construction of statutes which, it is charged, deprive one of constitutional rights compels a trial of the issues presented by the plaintiffs ’ complaint. One who attacks a statute upon that ground has the burden of showing that his rights have been invaded by the actual or threatened application of the challenged law to him. “But where the legislative action is suitably challenged,” said the Supreme Court of the United States in a recent case, “and a rational basis for it is predicated upon the particular economic facts of a given trade or industry, which are outside the sphere of judicial notice, these facts are properly the subject of evidence and findings. With the notable expansion of the scope of governmental regulation, and the consequent assertion of violation of constitutional rights, it is increasingly important that when it becomes necessary for the court to deal with the facts relating to particular commercial or industrial conditions, they should be presented concretely with appropriate determinations upon evidence, so that conclusions shall not be reached without adequate factual support.” (Borden’s Farm Products Co. v. Baldwin, 293 U. S. 194 [55 Sup. Ct. 187, 79 L. Ed. 281].) This rule has been applied in many cases (Chastleton Corp. v. Sinclair, 264 U. S. 543 [44 Sup. Ct. 405, 68 L. Ed. 841]; Hammond v. Schappi Bus Line, 275 U. S. 164 [48 Sup. Ct. 66, 72 L. Ed. 218]; Liverpool, N. Y. & P. Steamship Co. v. Emigration Commissioners, 113 U. S. 33 [5 Sup. Ct. 352, 28 L. Ed. 899]; Chicago M. etc. Ry. v. Tompkins, 176 U. S. 167 [20 Sup. C.t. 336, 44 L. Ed. 417]; Lincoln Gas & Elec. L. Co. v. Lincoln, 223 U. S. 349 [32 Sup. Ct. 271, 56 L. Ed. 466]) and was followed by this court in the case of Agricultural Prorate Com. v. Superior Court, supra.

Very recently the Supreme Court of the United States again restated the principle which it held controls a court’s decision when a defendant urges that constitutional questions presented by the allegations of a complaint should be determined upon demurrer. In the ease of Polk Co. v. Glover, 305 U. S. 2 [59 Sup. Ct. 15, 83 L. Ed. 78 (adv. opn.) ], plaintiffs, engaged in the business of canning citrus products grown in the state of Florida, challenged the validity of a statute of that state requiring that every label upon any container of canned citrus fruit or juice shall show accurately the name of the state or country in which the fruit or juice was produced and also that every container used for such fruit or juice produced in Florida “shall have stamped into or embossed upon the tin, glass or other substance of which such container is made” the word “Florida”. The bill of complaint set forth facts relating to the character of the trade, the process of canning and the trade practices as to labeling and the effect of a compliance with the statute upon plaintiffs’ trade was described in support of the claim that the enforcement of its provisions would inflict immediate and irreparable injury. The defendant officials filed answers putting in issue the allegations as to the injurious effect of the statute upon the plaintiffs’ operations and also moved to dismiss the bill upon the ground that it failed to state a cause of action. Injunction was denied, the motions to dismiss were granted and a final decree was entered accordingly.

In reversing the decree and remanding the cause for further proceedings the court said: “We think that the facts alleged in the bill were sufficient to entitle the plaintiffs to an opportunity to prove their case, if they could, and that the court should not have undertaken to dispose of the constitutional issues (as to which we intimate no opinion) in advance of that opportunity. The allegations of the bill as to trade conditions and practices, and as to the effect of the required embossing of cans, raise particular questions which can hardly be said to lie within the range of judicial notice. The salutary principle that the essential facts should be determined before passing upon grave constitutional questions is applicable. See Borden’s Farm Products Co. v. Baldwin, 293 U. S. 194, 211-213 [55 Sup. Ct. 187, 79 L. Ed. 281], and cases cited. And that determination requires a hearing in due course upon the issues raised by the pleadings. ’ ’

This principle is particularly applicable to the facts alleged by the complaint of the respondents which show that the Director of Agriculture asserts the right to say that only such amount of oranges and grapefruit may be shipped within the state as can be sold for a certain price, although the balance of the crop must spoil on the trees or be destroyed, no matter how great the need for food may be. Certainly such a novel exercise of power should be sustained only after a full showing of facts upon which a decision upholding it may be based.

The decision of this court in the case of Brock v. Superior Court, supra, is not inconsistent with these conclusions. That case was decided upon a complaint attacking the statute upon grounds different from those presented by the pleadings of Forbes and after the parties had entered into a stipulation eliminating issues of fact. The decision upon the particular questions presented to the court in that proceeding is not necessarily determinative of the rights of the plaintiffs in the Forbes case.

As another ground for the issuance of the writ demanded by the petitioners they assert that any defects in the license issued by the Director of Agriculture have been cured and validated by the amendments to the Agricultural Adjustment Act which were made in 1937. Section 18, which was added at that time, provides: “Any marketing agreement or license, or both, and each and every provision thereof heretofore executed or issued by the Director of Agriculture are hereby continued in effect and deemed to be within the standards and provisions of these amendments, subject however to the provisions hereof for amendment and termination. ...” (Stats. 1937, p. 2501; Deering’s Gen. Laws, 1937 ed., Act 146.)

However, the 1937 enactment changes the procedure which must be followed by the Director of Agriculture in issuing a license. For example, under the present law, shipments are to be regulated under a “marketing order” instead of a “license” and no such order “shall become effective (a) unless and until handlers, who, during a representative period determined by the director, handled not less than sixty-five per cent (65%) of the volume of the commodity regulated by such marketing order, or not less than 65 per cent of the number of handlers, who, during a representative period determined by the director, were engaged in handling such commodity, have assented thereto in writing, and (b) unless and until the director determines that the issuance of such marketing order is approved or favored, (1) by at least 65 per cent of the producers who, during a representative period determined by the director, have been engaged in the production for market of the commod^ regulated by such marketing order, or, (2) by producers who, during such representative period, have produced for market at least 65 per cent of the volume of such commodity produced for market and regulated by such marketing order.”

No such approval was required under the 1935 act. By another provision the Director of Agriculture is required to limit shipments so as to establish a price which will “provide an adequate standard of living to the farm operator and his family” (sec. 6), rather than on such basis as will reestablish prices to farmers and growers at. a level that will give agricultural commodities a purchasing power with respect to articles that farmers buy equivalent to their purchasing power during the period of 3 909 to 1914, or such other base period as may be selected under certain circumstances.

It seems apparent that any license issued under the 1935 act would not conform to the requirements and measure up to the standards fixed by the 1937 act and the attempted validation of licenses previously issued is, therefore, special legislation forbidden by article IV, section 25, of the California Constitution, which provides that no special law shall be passed “giving effect to invalid deeds, wills, or other instruments", or “legalizing, except as against the state, the unauthorized or invalid act of any officer; . . . " A special law has been defined as one which "confers particular privileges o.r imposes peculiar disabilities or burdensome conditions, in the exercise of a common right, upon a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law". (City of Pasadena v. Stimson, 91 Cal. 238, 251 [27 Pac. 604].) The provision enacted in 1937 purporting to validate licenses previously issued clearly falls within that definition. (See, also, Miller & Lux., Inc., v. Board of Supervisors, 189 Cal. 254 [208 Pac. 304]; Mordecai v. Board of Supervisors, 183 Cal. 434 [192 Pac. 40].)

The demurrer of the respondents is sustained, the alternative writ of prohibition is discharged and the petition for a peremptory writ is denied.

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

Rehearing denied.


author: THE COURT.

text:
    [L. A. No. 16335.
    In Bank.
    January 24, 1939.]
    JAMES T. JOHNS, Respondent, v. LENA A. SCOBIE, as Administratrix, etc., Appellant.

      Harvey, Johnston & Baker and T. H. Werdel for Appellant.
    Samuel Taylor for Respondent.
   THE COURT.

A hearing was granted in this case after decision by the District Court of Appeal, Fourth Appellate District, in order to give further consideration to the problem of adverse possession by one cotenant against others. On the other issues we are satisfied with the conclusions reached by said court, and accordingly adopt the following portion of the opinion of Mr. Justice pro tempore Haines, as part of the opinion of this court:

“This action was commenced by respondent James T. Johns, as plaintiff, against appellant Lena A. Scobie, as administratrix of the estate of Issae Johns, deceased, to obtain the reformation of a deed dated March 8, 1920, alleged to have been executed and delivered by the decedent in his lifetime to respondent and to be defective in describing less land than that intended to be conveyed. Appellant filed an answer denying everything alleged in the complaint, which answer she subsequently amended by pleading additional defenses which need not for our present purposes be recited in detail. She also filed a cross-complaint seeking, in behalf of the decedent’s estate, to quiet title, both to the property described in the complaint, as actually mentioned in the deed, and also to the additional property claimed by respondent as constituting the rest of that intended to be included in the conveyance. Respondent answered this cross-complaint claiming, as against the decedent’s estate, and appellant as administratrix thereof, title by adverse possession to the whole of the property mentioned, asserting that such adverse possession had been maintained for more than five years before the commencement of the action, and that it was under a claim of title on respondent’s part, exclusive of other right and hostile to any claim or title on th'e part of the decedent’s estate, asserting that respondent had, during such five years paid all taxes levied and assessed on the land and further invoking the bar of sections 318, 319 and 322 of the Code of Civil Procedure. The trial court found in respondent’s favor on the issues tendered by the cross-complaint and his answer thereto and on that basis rendered judgment quieting his title to the entire property without passing on any question of reformation of the deed. The present appeal is from this judgment.
“The evidence disclosed that respondent was a nephew of the deceased and that both were bachelors; that for many years prior to the decedent’s death the two lived together in a two-room adobe cabin on part of the land here in dispute, had their beds in the same room, and both kept their papers in the same trunk which was at some times locked and at other times unlocked. Uncle and nephew were jointly engaged in the cattle business on the property. The land embraced 157.55 acres, for which the uncle held a government patent, also kept in the trunk referred to. On March 8, 1920, the deceased caused to be prepared by one Allen, signed and acknowledged, a grant deed in respondent’s favor for about 45 acres of land, the rest of the 157.55 acres having, according to respondent’s claim, been omitted by reason of a mistake in the description. This deed, according to respondent, was brought into the house of decedent, who said to respondent, ‘Here is the deed,’ whereupon respondent looked at it and put it in the trunk. Something like a year later respondent had Allen prepare another deed in decedent’s favor, said to have described all of respondent’s property so far as patented. This deed, respondent testified that he gave to decedent to read, after which decedent placed it also in the trunk ‘with the rest of the papers’. ' According to respondent, however, it did not include the property embraced in the deed from his uncle to him but only affected property other and different from said 157.55 acres, which other property was owned by the respondent and over which he and his uncle were accustomed to run their stock.
“Respondent testified that he did not intend to pass title by this last-mentioned deed to his uncle, the decedent, but as to its purpose that:
“ ‘If anything happened to me so I would have it, if I happened to die or get killed I had no certainty of life. I was trying to protect him.’
"Thereupon the following colloquy ensued:
“ ‘Q. And the same thing applied with the deed made out by your uncle to you, made out to protect you in the event he died ? A. That was the understanding, he was trying to protect me and the interest I had there. Q. If he died then you would have the deed? A. Yes. Q. If you died he was to have the other deed, that was it, wasn’t it? A. I deeded mine to him in case anything happened to him before I passed away, I was protecting him as our partnership. Q. And if he passed away first he was to protect you? A. Certainly. Q. And in the event both lived both kept your own properties? A. Yes sir.’
‘ ‘ Isaac Johns, the uncle, died on December 26, 1924, whereupon respondent promptly recorded the deed from the decedent to himself and later burned the deed from himself to the decedent. Respondent has ever since occupied the whole 157.55 acres in controversy, all of which has been and is under fence, and has erected an 8-room dwelling upon it. No question about the ownership of the property appears to have been raised by anybody until 1936, in February of which year respondent says that he was told through an abstract company that his title was defective, and on April 8th of which year appellant Lena A. Scobie secured letters of administration on the decedent’s estate, whereupon the present litigation ensued.

“In our opinion it sufficiently appears from the record that Isaac Johns died intestate and that his heirs at law are five nephews and nieces, to-wit, W. E. Johns, Elizabeth A. Wood, respondent James T. Johns, appellant Lena A. Scobie (administratrix) and Jonathan Johns. At the trial Mrs. Scobie was asked directly what heirs decedent left and answered giving this list. No objection was made to this testimony at the time it was given, though counsel for respondent now claims that it ought to be disregarded, both because the subject is not involved in the pleadings and for the further reason that the testimony is a conclusion of law since, although the evidence itself disclosed that the decedent died a bachelor, there is nothing in it specifically to negative the possibility of his having left parents, brothers or sisters surviving him. The inquiry as to who are the decedent’s heirs is not an inquiry as to an ultimate fact in the present case, but only as to probative facts involved in the effort to determine whether respondent’s possession of the land involved has been adverse to the estate as claimed. The circumstance that merely probative facts are not pleaded is no obstacle to proving them if relevant to the issues that are pleaded. Counsel for respondent had full opportunity to cross-examine Mrs. Scobie and inquire whether or not decedent left any nearer relatives than the nieces and nephews named and omitted either to do so or to move to strike out as a conclusion her statement that they were decedent’s heirs. Neither did he introduce any evidence to the contrary or make any statement at the trial of any claim to the contrary. In these circumstances we think Mrs. Scobie’s undisputed statement on the subject must be taken to be true.”

The trial court did not expressly find on the issue of delivery of the deed, but it is clear from the testimony quoted above that the grantor did not intend to relinquish all control over the property prior to his death, and therefore there was no legal delivery. Hence plaintiff obtained no title by the deed itself, and his demand for reformation must fail. It remains to be determined whether he acquired title to the property in whole or in part by adverse possession, bearing in mind that the trial court found that such a title was acquired to the entire property.

All of the' elements of adverse possession are clearly established save one, the element of hostile or adverse claim. The decedent died intestate, and upon his death title to the property became vested in his heirs (Prob. Code, sec. 300) whether such heirs were known or unknown. (State v. Miller, 149 Cal. 208 [85 Pac. 609].) In the present case the heirs, all nephews and nieces, were entitled to equal shares under the laws of succession, and therefore took title as tenants in common. It is a fundamental rule that each tenant in common has a right to occupy the whole of the property. The possession of one is deemed the possession of all; each may assume that another in exclusive possession is possessing for all and not adversely to the others; and consequently one tenant in common does not, merely by exclusive possession, gain title by adverse possession against the others. Such possession will be presumed to be by permission and rightful, unless notice is brought home to the others that it has become hostile. (Wood v. Henley, 88 Cal. App. 441 [263 Pac. 870]; Nelson v. Sweitzer, 22 Cal. App. (2d) 382 [71 Pac. (2d) 85].)

But it is equally well settled that where notice of the hostile claim, either actual or constructive, is brought home to the other cotenants, adverse possession may be gained. (See Akley v. Bassett, 189 Cal. 625 [209 Pac. 576]; Unger v. Mooney, 63 Cal. 586 [49 Am. Rep. 100]; Winterburn v. Chambers, 91 Cal. 170 [27 Pac. 658]; Smith v. Barrick, 41 Cal. App. 28 [182 Pac. 56]; Beitz v. Buendiger, 144 Minn. 52 [174 N. W. 440]; May v. Chesapeake etc. Ry. Co., 184 Ky. 493 [212 S. W. 131]; Tiffany, Real Property, (2d ed.) p. 2017; Thompson, Real Property, pp. 995, 996, 1005; note, 4 So. Cal. L. Rev. 325.) The erection of the house by plaintiff might perhaps offer a basis for the claim here if the evidence were more satisfactory as to the time it was built or the other facts that might tend to establish notice reasonably to be derived from it. But in any event the recordation of the deed from decedent to plaintiff does, in our opinion, establish the necessary notice.

Although there are some decisions to the contrary, the weight of authority seems to support the doctrine that where a tenant in common enters into possession and claims under an invalid deed purporting to convey the property to him, the recordation of the deed is notice to his cotenants of its existence and therefore of the adverse character of his claim, so as to start the statute of limitations running, at least where, as here, he knew nothing of the existence of the other cotenants. (See Tiffany, Real Property, (2d ed.) p. 2018; Thompson, Real Property, p. 1008, see. 1838, 1929 Supp., p. 630; Elder v. McClaskey, 70 Fed. 529; Akley v. Bassett, 189 Cal. 625, 642 [209 Pac. 576]; McCann v. Welch, 106 Wis. 142 [81 N. W. 996]; Bourne v. Wiele, 159 Wis. 340 [150 N. W. 420]; Puckett v. McDaniel, 8 Tex. Civ. App. 630 [28 S. W. 360], followed in Morgan v. White, 50 Tex. Civ. App. 318 [110 S. W. 491], and Ames v. Howes, 13 Idaho, 756 [93 Pac. 35]; Keyser v. Brown, 80 Ind. App. 504 [138 N. E. 514]; Quarels v. Bradshaw, 200 Ky. 475 [255 S. W. 124]; Peeples v. Boykin, 132 Miss. 359 [96 So. 177]; Craven v. Craven, 68 Neb. 459 [94 N. W. 604].)

In Elder v. McClaskey, supra, the court declares that the presumption of a tenant in common holding by permission of other cotenants only applies where the possession was avowedly begun as a tenant in common, and not where it commenced under a deed purporting to give the fee, which is the exact situation before us here. And in emphasizing the proposition that constructive notice is sufficient, and actual notice not essential, the court says (p. 545): “If a tenant in common, in order to make his possession adverse to a co-tenant, is obliged to seek the latter out and actually inform him of his intention, then it would become impossible to set the statute running against absent heirs, whose existence and whereabouts were unknown to the tenant, and whose heirship and interest in the property were unknown to themselves . . . Cases can be stated, doubtless, where the fiduciary relation between the possessor and the owner is actual, and not created alone by the legal character of their respective titles, in which the dependence of the one upon the loyalty of the other is so complete that nothing but actual notice of the change from a subordinate to an adverse possession would suffice to set the statute running. In such cases it would seem that the relation must be of such a nature as affirmatively to discourage the owner from giving attention to conduct of the tenant. But the authorities cited show conclusively that no such rule obtains where the fiduciary relation, if such it can be properly called, is created merely by the character of the respective titles, and not by an actual personal dependence of the owner upon the possessor, and that in such cases the owner is bound at his peril to take notice of acts of the possessor of such open and notorious character, and so unmistakably indicative of an intention to exclude others from any interest in the land, that the world about, including the real owner, must be presumed to know and act upon them.”

The above decision and the statement that the ordinary presumption does not apply where the possession was not avowedly begun as a tenant in common, were approved and followed by this court in Akley v. Bassett, supra.

Similarly, in Bourne v. Wiele, supra, the court said (p. 421): “If it appeared that either the widow or the defendants (the adverse claimants) had ever recognized or acknowledged that the plaintiffs had title as cotenants to any part of the premises, it would probably be necessary that actual knowledge of the changed and hostile character of the defendants’ possession be brought home to the plaintiffs before such possession could be held adverse ... No such acknowledgment appears, however. On the contrary, all the evidence on the subject indicates that neither the widow nor the present defendants ever knew of the existence of the plaintiffs, and hence never acknowledged that the plaintiffs had any interest in the premises.”

There are a few contrary decisions, based on facts substantially different from those presented by the record herein. They are cases, e. g., in which a person knowingly begins his possession as a tenant in common, and attempts to secure full ownership against the other tenants by taking a deed from a third party, or purchasing at a tax sale. In the latter situation it is properly held that his acts amount to nothing more than payment of the tax, and entitles him only to contribution from the others. (See Cocks v. Simmons, 55 Ark. 104 [17 S. W. 594, 29 Am. St. Rep. 28].)

The argument is also made that an undelivered deed cannot constitute color of title. A few cases contain expressions to this effect. (See Casady v. Casady, 184 Iowa, 1241 [169 N. W. 683]; Stearns Coal & Lumber Co. v. Boyatt, 168 Ky. 111 [181 S. W. 962]; 2 C. J. S. 595.) On its facts, the Casady case is not in conflict with our present decision, for there the making of the purported deed was never disclosed to the grantee, and the instrument remained in the grantor’s personal possession until he died. The contention that adverse possession begun during the grantor’s lifetime with the deed still in his possession and the grantee unaware of it, could be deemed under color of title, was properly rejected by the court. The Stearns case states the above-mentioned rule in a brief dictum, but the case was chiefly concerned with the extent of the land alleged to be adversely possessed. On the other hand, numerous authorities have stressed the point that color of title is merely a means of showing hostility of possession; that it is never a good title but merely an appearance of title. Almost every kind of void or voidable deed has been held to be color of title, including those where the defect appeared on the face of the instrument. "Generally speaking, any instrument, however defective or imperfect, and no matter from what cause invalid, purporting to convey the land, and showing the extent of the tenant’s claim, may be color of title . . . ” (1 Am. Jur. 901; see authorities collected in 1 Am. Jur. 894, 902-905, 907; Thompson, Real Property, 1929 Supp., p. 844; McCann v. Welch, supra.) The California decisions are to the same effect. (Wilson v. Atkinson, 77 Cal. 485 [20 Pac. 66, 11 Am. St. Rep. 299]; Packard v. Moss, 68 Cal. 123 [8 Pac. 818].)

If a deed wholly void by reason of lack of title in the grantor or because of defects in its execution or the proceedings upon which it is based may constitute color of title (see cases cited, su,pra), we think a deed believed valid by grantor and grantee, but failing to measure up to the legal requirement of delivery, may likewise be sufficient for this purpose. The fact that lack of delivery makes it void is utterly immaterial; the question is not whether the title is good, but whether it appears to be good, so as to be notice to others of the claim of the adverse possessor. In the instant case the technical defect in delivery did not detract in the slightest degree from the notice conveyed by the recordation of a deed good on its face, and it must therefore be held that the requirement of notice of the hostile claim was fulfilled.

It is further objected that even if plaintiff could and did hold adversely to his coheirs, the other tenants in common, he did not establish adverse possession against the estate. The cases relied on in this connection, however, are clearly distinguishable. They involve situations where administration was commenced, and thereafter an heir or devisee made his entry and set up his hostile claim. In such cases it is properly held that the heir or devisee cannot acquire title by adverse possession against the executor or administrator, any more than can a tenant against his landlord, while holding under the tenancy. (See Blair v. Hazzard, 158 Cal. 721 [112 Pac. 298]; Phelps v. Grady, 168 Cal. 73 [141 Pac. 926]; Smith v. Barrick, 41 Cal. App. 28 [182 Pac. 56].)

The instant case presents an entirely different situation. Plaintiff went into possession and recorded his deed twelve years before the issuance of letters of administration. He did not take the property during administration, or from the estate. His title by adverse possession, if it could be acquired, was complete before administration began. The mere possibility of some future proceedings in administration could not completely bar the acquisition of an adverse title. It would seem clear that if adverse possession can be gained against the other heirs, who have the legal title, it certainly can be gained against such claims as the executor or administrator may have for purposes of administration. The case of Mawson v. Gray, 78 Utah, 542 [6 Pac. (2d) 157], is closely in point, and the opinion therein distinguishes our decision in Blair v. Hazzard, supra.

We conclude, therefore, that the elements of adverse possession have been established, and that plaintiff has acquired title against his coheirs and against the estate. The remaining question is as to the extent of the land thus acquired. If, as we hold, the hostile claim rests upon the deed, it only extended to the 45 acres described by it, and that is all that plaintiff may claim. If evidence is presented to establish notice from the structure erected or other acts of possession indicating a claim to the entire parcel, it might be possible to sustain the claim as to the whole. It would not, of course, be possible to establish constructive adverse possession to the whole from possession of a part, since the color of title relied on here (the deed) does not describe the whole property. (See Johnson v. Buck, 7 Cal. App. (2d) 197, 202 [46 Pac. (2d) 771]; In re Wasson, 54 Cal. App. 269, 273 [201 Pac. 793].) On this issue the record is too unsatisfactory to sustain the judgment for plaintiff. As we have already pointed out, the deed itself is the only clear basis for the adverse possession, and that only serves to make out the claim for the 45 acres described. Unless other evidence is forthcoming to justify a greater claim, the court cannot give judgment for more than that.

The judgment is reversed and the cause remanded for new trial or other proceedings in conformity with the above opinion.


text:
    [Sac. No. 5218.
    In Bank.
    January 25, 1939.]
    THEODORE VIERRA et al., Respondents, v. A. T. PEREIRA et al., Appellants.
    Wilcox & Rodin and E. H. Zion for Appellants.
    Harold L. Hjelm and Hjelm & Hjelm for Respondents.
   EDMONDS, J.

During the cropping season of 1937 a controversy arose over the plaintiffs’ interest in thirteen acres of alfalfa land owned by the defendants husband and wife as community property. The plaintiffs claimed that they were entitled to possession of the property pursuant to the terms of an oral lease thereof made to them by the defendants for the period of three years from December 1, 1935. In April, 1937, they commenced this action to quiet title to their leasehold interest and to restrain any interference by defendants with it. The trial court upheld their contentions and the defendants appealed from the judgment.

The complaint alleged the making of the oral agreement of lease, a promise to reduce it to writing, and failure on the part of the defendants to keep the promise. The defendants, by way of answer, denied the existence of the lease for the term stated and pleaded the statute of frauds. They also cross-complained for restitution of the premises, damages, and other equitable relief. The problem on appeal is to determine whether the trial court correctly concluded that the case is a proper one in which to apply the doctrine of equitable estoppel. Were the defendants estopped to rely upon the statute of frauds (sec. 1624, Civ. Code; sec. 1973, Code Civ. Proc.) as a bar to any recovery by the plaintiffs? And was the defendant wife further estopped to avoid the oral agreement upon the ground that it was made without her written consent or authorization (see. 172a, Civ. Code) ?

The trial court found that on December 1, 1935, the defendants orally agreed to lease the thirteen acres to plaintiffs for a period of three years. The transaction, so the findings recite, was handled entirely by defendant husband, who acted with the authority, knowledge and consent of his wife, and as her agent. Although the wife denied that she authorized or agreed to a lease to plaintiffs for more than one year, she admitted having seen plaintiffs at work on the land, and she also testified that her husband was renting, managing and caring for the property with her consent. At no time did she repudiate any of his acts or take any steps to dis-affirm his agreement with plaintiffs. According to the testimony, a request was made by plaintiffs that the lease be put in writing, but the defendant husband stated that it was not necessary; his word was good. It appears that he had known plaintiffs since their childhood, for the families were neighbors; the plaintiffs relied upon his assurance, and were led to believe that a written lease was not necessary.

Under the terms of the oral agreement plaintiffs, at their own expense, were required to level, prepare for irrigation, and plant the entire thirteen acres. In return for this work they were to have the use and occupation of the premises as tenants for the years 1936, 1937, and 1938, together with the exclusive ownership of all crops produced thereon during 1936, and an equal share, with defendants, of all crops produced during 1937 and 1938. They agreed to plant and produce all of these crops at their own expense and to deliver defendants’ share to them on the premises.

This agreement was fully performed throughout the year 1936. Plaintiffs entered upon the raw, rolling land. They cut down the high places and put in fills. After the ground was scraped and leveled they disked it twice. They put up levees. They plowed and chiseled the field and strip-cheeked ten cheeks. They then harrowed, seeded with seed supplied by the defendants, and harrowed again. Practically the entire first growth of alfalfa was cut, hauled, and burned. All this required an estimated 200 hours of labor and an expenditure of over $688, which was the reasonable value of the work performed. With care and irrigation of the land, several additional cuttings were obtained during the 1936 season and the plaintiffs’ right to these crops was not questioned.

During the early months of 1937, plaintiffs again entered upon the property and performed preliminary work for that cropping season. In April, while they were engaged in cutting hay, the defendant husband came to them and told them that he claimed the entire crop. He informed them that their lease had terminated; that it had only been for one year; and that they should have asked for a renewal. Upon their refusal to surrender possession, he caused a written notice to be served upon them stating that their right of occupancy had expired, and ordering them to quit the premises within three days. The filing of this action followed. The cause was tried in June, 1937; findings and judgment in favor of plaintiffs were entered in October, but it was agreed that plaintiffs would continue in possession of the land during 1937, and that defendants would accept, without prejudice to their rights herein, one-half of the crops produced for that year.

The court, having heard the cause ivithout a jury, reached the conclusion that plaintiffs had a binding enforceable lease upon the property for the three years, with the right to the 1936 crops, and an equal share of the 1937 and 1938 crops. It concluded that in negotiating for and completing the lease, defendant husband was the agent and servant of his wife and acted with her knowledge, consent, and approval, and that defendants were estopped to deny the execution and existence of the lease, or to raise the bar of the statute of frauds.

Appellants challenge the correctness of these conclusions and they further assert that testimony is lacking to support particular findings. Neither contention can be sustained. Upon the controverted issues of fact the testimony of plaintiffs is a flat contradiction of that of defendants. The court was privileged to credit the statements of plaintiffs and to discredit those of defendants, and each of its findings is supported by substantial competent evidence.

Clearly the facts which were found to be true warrant the application of the doctrine of equitable estoppel. The rules governing that doctrine are well established. The conduct of defendants was such as to estop them to make the defense of the statute of frauds (Seymour v. Oelrichs, 156 Cal. 782 [106 Pac. 88, 134 Am. St. Rep. 154]; Needham v. Abbot Kinney Co., 217 Cal. 72 [17 Pac. (2d) 109]; Notten v. Mensing, 3 Cal. (2d) 469 [45 Pac. (2d) 198]; Wilson v. Bailey, 8 Cal. (2d) 416 [65 Pac. (2d) 770]), and, in particular, under the provisions of section 172a of the Civil Code, the defendant wife was estopped by her conduct from avoiding the agreement. (Mark v. Title Guar. & Tr. Co., 122 Cal. App. 301 [9 Pac. (2d) 839]; Schelling v. Thomas, 96 Cal. App. 682 [274 Pac. 755]; Rice v. McCarthy, 73 Cal. App. 655 [239 Pac. 56].)

The judgment is affirmed.

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


text:
    [L. A. No. 16786.
    In Bank.
    January 26, 1939.]
    MAXINE D. RIDEAUX, Appellant, v. JOHN TORGRIMSON, Jr., as Administrator, etc., Respondent.

      Aaron Sapiro, Samuel De Groot, Samuel A. Rosenthal and Burton Briggs Crane for Appellant.
    W. M. Greathouse for Respondent.
   EDMONDS, J.

The question presented for decision by this case is whether an action for damages sustained by an employee because of personal injuries survives the death of his employer under the provisions of the Workmen’s Compensation, Insurance and Safety Act of 1917, as they existed in 1936. (Stats. 1917, p. 831, as amended; Deering’s General Laws, 1931 ed., Act 4749.)

By the plaintiff’s complaint she alleged that while employed by John and Anna Torgrimson and acting in the course and scope of her employment, she suffered personal injuries as a result of the negligent operation of an automobile by John Torgrimson; that John and Anna Torgrimson died as a result of injuries received in the same accident; and that they had failed to secure to her the payment of compensation as required by law. To this complaint a demurrer was sustained without leave to amend and the appeal is from the judgment subsequently entered.

The compensation act defines the term employer as used in sections 6 to 31, inclusive, of it, to mean “ . . . every person . . . who has any person in service under any appointment or contract of hire, . . . and the legal representative of any deceased employer”. (Sec. 7.) It also provides: “If any employer shall fail so to secure the payment of compensation, any injured employee or his dependents may proceed against such employer by filing an application for compensation with the commission, and, in addition thereto, such injured employee or his dependents may bring an action at law against such employer for damages, the same as if this act did not apply, and shall be entitled in such action to the right to attach the property of the employer, at any time upon or after the institution of such action, in an amount to be fixed by the court, to secure the payment of any judgment which may ultimately be obtained. Such judgment shall include a reasonable attorney’s fee to be fixed by the court. The provisions of the Code of Civil Procedure, except in so far as they may be inconsistent with this act shall govern the issuance of and proceedings upon such attachment; provided, that if as a result of such action for damages a judgment is obtained against such employer in excess of the compensation awarded under this act, the compensation awarded by the commission, if paid, or if security approved by the court be given for its payment, shall be credited upon such judgment; provided, further, that in such action it shall be presumed that the injury to the employee was a direct result and grew out of the negligence of the employer, and the burden of proof shall rest upon the employer, to rebut the presumption of negligence. In such proceeding it shall not be a defense to the employer that the employee may have been guilty of contributory negligence, or assumed the risk of the hazard complained of, or that the injury was caused by the negligence of a fellow-servant. No contract, rule or regulation shall be-allowed to restore to the employer any of the foregoing defenses. ’ ’ (See. 29b.) The appellant contends that the legislature by defining the term “employer” as including “the legal representative of any deceased employer”, has given injured employees a cause of action for damages which survives, notwithstanding the rule of the common law.

By section 29b the legislature has provided a statutory cause of action for personal injuries quite different from that of the common law. If an employer fails to secure the payment of compensation, either an. injured employee or his dependents may sue the employer, or “the legal representatives of any deceased employer”, for damages. In such an action the plaintiff may attach the property of the employer and is given the benefit of a presumption that the employer was negligent. The employer may not defend upon the ground that the employee was contributorily negligent, or assumed the risk of the hazards attending his employment, or that he was injured through the negligence of a fellow servant.

When a legislative body enacts a statute which prescribes the meaning to be given to particular terms used by it, that meaning is binding upon the courts. (In re Monrovia Evening Post, 199 Cal. 263, 270 [248 Pac. 1017]; 23 Cal. Jur. 751.) Giving effect to the definition stated by the legislature, it has provided that under particular circumstances an injured employee or his dependents may sue the employer, or the legal representatives of any deceased employer, independently of the right to claim compensation in a proceeding before the industrial accident commission. The words “the same as if this act did not apply” make certain that the statutory cause of action may be maintained when an employer has failed to secure compensation, regardless of the general provisions of the statute for compensation in lieu of damages (Marshall v. Foote, 81 Cal. App. 98 [252 Pac. 1075]; Rosslow v. Janssen, 139 Cal. App. 81 [33 Pac. (2d) 705]); they do not refer to the common law action for personal injuries.

The social public policy of the state is declared in the statute, which, it is said, is intended to make effective a complete system of workmen’s compensation irrespective of the fault of any party, and, also to require full provision for adequate insurance coverage against the liability to pay or furnish compensation. (Sec. 1.) For those injured employees who find themselves without the protection of the insurance required by the compensation law, the legislature has provided a remedy having somewhat the nature of a penalty. In such a case the burden of proof is largely upon the employer. To escape liability he must prove that he was not guilty of negligence, notwithstanding the presumption to the contrary provided by the statute.

There is sound reason for making such a cause of action survive the death of the employer. By provisions of the statute which cover the subject in detail, an employee’s right to compensation continues notwithstanding the death of his employer, and it is clear that the legislature, by its definition of the term “employer”, intended to place an injured employee for whom no compensation has been secured upon the same basis, so far as his right to recover after the death of his employer is concerned, as one who is protected by insurance.

This construction is compelled by the plain language of the statute. Unless the words “and the legal representative of any deceased employer” were intended to give this right they have no purpose. If any ambiguity may be said to exist, the doubt must be resolved in favor of the appellant. The statute by its terms requires that it shall be liberally construed “with the purpose of extending the benefits of the act for the protection of persons injured in the course of their employment”. (Sec. 69.)

The respondent asserts that even if the cause of action survived, the allegations of appellant’s amended complaint are insufficient to establish an employer-employee relationship between the decedents and the appellant because it was not alleged that they agreed to pay her any consideration for her services. The contention has no merit. The complaint alleges that the appellant “was employed by and was in the employ of said John Torgrimson and said Anna Torgrimson, to assist them in driving their automobile while traveling from their home in the County of Los Angeles to, in and about the State of Oregon . . . and during said trip . . . to render her services as a companion in caring for and attending John Torgrimson and Anna Torgrimson, and at all times herein mentioned, plaintiff was engaged and was acting within the course and scope of her said employment”. These allegations, at least against a general demurrer, were clearly sufficient to entitle the plaintiff to present evidence tending to show that, at the time of the injury, she was an employee within the meaning of the Compensation Act.

Since this ease was argued the respondent has called the attention of the court to proceedings instituted by the petitioner before the Industrial Accident Commission to obtain compensation for the injuries for which damages are sought in the present action. The commission denied her an award upon the ground that she was not an employee of the class entitled to protection under the Workmen’s Compensation Act. A petition to review that decision was denied by this court and it has since become final. (Rideaux v. Industrial Acc. Com., L. A. No. 16954.) Assuming that this court can take judicial notice of the finality of the decision in that proceeding, the question arises whether the conclusion reached therein to the effect that the appellant was not an employee within the meaning of the compensation statute can be considered as res judicata upon this appeal.

A consideration of the nature of a plea of res judicata indicates that this question must be answered in the negative. A defense founded upon the conclusiveness of a former adjudication must be either pleaded or proved. (Brown v. Superior Court, 13 Cal. App. (2d) 693 [57 Pac. (2d) 965]; Spitzer v. Superior Court, 74 Cal. App. 494 [241 Pac. 270].) Such defense is waived if not raised either by the pleadings or the evidence. (Domestic and Foreign Petroleum Co. v. Long, 4 Cal. (2d) 547 [51 Pac. (2d) 73]; 15 Cal. Jur., p. 210.) Since the scope and validity of the prior judgment may require scrutiny, a plea of res judicata does not oust the court of jurisdiction. (Reidy v. Superior Court, 220 Cal. 111 [29 Pac. (2d) 780]; United Security Bank & Trust Co. v. Superior Court, 205 Cal. 167 [270 Pac. 184]; Baird v. Superior Court, 204 Cal. 408 [268 Pac. 640].) In view of these principles, this court cannot now consider the effect of an adjudication which may never be relied upon as a bar to the action for damages, or which the appellant may be able to show does not estop her from prosecuting this suit.

The judgment is reversed.

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

Rehearing denied.


text:
    [Crim. No. 4193.
    In Bank.
    January 26, 1939.]
    THE PEOPLE, Respondent, v. CLAUD DAVID, Appellant.

      Edmund M. Moor for Appellant.
    U. S. Webb, Attorney-General, Ralph H. Cowing and J. Q. Brown, Deputies Attorney-General, and Clair Engle, District Attorney, for Respondent.
   EDMONDS, J.

By indictment, the defendant was charged with the crime of murder and with a violation of section 2 of the Concealed Weapons Act. (Stats. 1923, p. 695, as amended.) Upon his sole plea of not guilty by reason of insanity, he was tried by a jury and found sane. After hearing additional evidence, the trial judge determined the degree of the crime to be that of murder of the first degree without mitigating or extenuating circumstances, and rendered a judgment imposing the death penalty. Under the provisions of section 1239 of the Penal Code, an appeal from that judgment was automatically taken to this court.

From the facts shown by the defendant’s admissions and by numerous connecting circumstances, the crime appears to have been committed deliberately and in cold blood. For several weeks before the crime, the defendant had been dickering with Earl Gofer for the purchase of some field glasses and other articles. On the fatal day, at the defendant’s request, Gofer came to the ranch where the defendant worked as a farm hand. Shortly after his arrival, the defendant suddenly confronted him with a pistol and bound his hands together with wire. The defendant then went into the house, changed his clothes, returned and drove Gofer along a lonely road. There he took him out of the automobile and smashed his skull with the stock of a rifle, leaving him dead beside the road. There was evidence tending to show that he robbed the .deceased of a watch and some $30 in cash. Under these circumstances the trial judge was warranted in imposing a death sentence, the jury having found the defendant sane at the time the crime was committed.

As grounds for reversing the judgment the defendant contends that persons on the panel from which the jury was drawn were prejudiced against him by reason of the fact that at the trial a deputy sheriff was seated immediately behind him; that the district attorney was guilty of prejudicial misconduct in his questioning of witnesses and in his argument to the jury; and that certain testimony was erroneously admitted into evidence. No claim is made that the evidence was insufficient to support the jury's finding of sanity.

At the outset of the trial the defendant was brought into the courtroom by the sheriff and his deputies. The panel from which the jury was to be selected was present, and as the defendant took his seat inside the rail one of the deputy sheriffs drew up a chair immediately behind him. Counsel for the defendant moved to discharge the panel upon the ground that the conduct of the deputy sheriff had created prejudice in the minds of the prospective jurors. The court requested the deputy to move back to the rail and denied the defendant’s motion. The defendant contends that because of the misconduct of the deputy sheriff and the refusal of the trial court to discharge the jury panel, he was deprived of a fair trial. In this connection he relies upon People v. Harrington, 42 Cal. 165 [10 Am. Rep. 296], But the facts in that case which, it was held, tended to bias the jury were vastly different from those shown in the present one. There several defendants, who were on trial for robbery, were brought into the courtroom with their legs in irons. The trial court denied a request that they be unshackled during the trial. This ruling was held to constitute reversible error in the absence of a showing of necessity for such precautions. In the case now before the court it does not appear that in the position he took in the courtroom, the deputy was even touching the defendant, and there is nothing to show that his conduct prejudiced the defendant in any way.

During the trial the defendant’s mother took the witness stand in his behalf and testified concerning various portions of his life, omitting only two periods. In each of these he was serving a sentence imposed upon him after he .was convicted of a felony. During the cross-examination of this witness, after the district attorney had questioned her further concerning her son’s life, the following occurred: “Q. I am talking about sixteen. A. After seventeen I didn’t see him very often. Q. Where was he after seventeen years of age? Mr. Moor: I will object to that question . . . for the reason that it is an attempt to prejudice and bias the defendant. Counsel well knows the answer, for the reason that certain of the pleas were not read in court this morning. Mr. Engle: If counsel thinks he is going to be able to keep out of this record the fact that this defendant was in the State Prison at San Quentin and in a Federal Government jail, he is all wrong, and if that is prejudicial error to have it in, we will have to commit it, because this woman has testified—Mr. Moor (interrupting): I cite the statement of the District Attorney as misconduct and prejudicial error, an attempt to prejudice the defendant.” The court sustained the objection to the question and, at the request of the defendant, cautioned the jury to disregard the district attorney’s remark. On several later occasions the district attorney adverted to the same line of inquiry but was stopped by timely objections interposed by counsel for the defendant.

The prosecution’s claim that these questions were within the proper scope of cross-examination cannot be sustained. No part of the direct examination had referred to this portion of the defendant’s life, and the trial court’s rulings were entirely correct. But it does not follow that the defendant is entitled to a reversal of the judgment. The jury was admonished to disregard the district attorney’s direct allusions to the defendant’s prior convictions. Furthermore, the defendant was being tried solely upon the question of his sanity at the time the offense with which he was charged was committed, and a reference to those matters was less calculated to bias the jury than if his guilt or innocence had been in issue. Moreover, at a later time when the defendant was a witness in his own behalf, he was properly asked about the prior convictions. His criminal record was shown by his own testimony which was admissible to impeach him; therefore, the examination of the mother, which brought out only the same facts, does not constitute reversible error. (Const., art. VI, see. 4]^.)

When the defendant took the witness stand in his own behalf, upon cross-examination, reference was made to his previous convictions, but the prosecution was not allowed to go beyond the fact of such convictions and the nature of the crimes committed. In this state the testimony of á witness may be impeached by proof that he has suffered the prior conviction of a felony. (Code Civ. Proc., sec. 2051.) This rule applies to a defendant who testifies in his own behalf in a criminal trial notwithstanding the fact that such evidence tends to prejudice him in the eyes of the jury. (People v. Romer, 218 Cal. 449 [23 Pac. (2d) 749]; People v. La Verne, 212 Cal. 29 [297 Pac. 561].) The nature of the crime or crimes of which he was convicted is a proper subject of inquiry in establishing the fact of his conviction. (People v. Higbee, 78 Cal. App. 455 [248 Pac. 927]; People v. Craig, 196 Cal. 19 [235 Pac. 721].) But details and circumstances comprising the prior offenses are not admissible. (People v. Eldridge, 147 Cal. 782 [82 Pac. 442]; People v. Muchupoff, 79 Cal. App. 306 [249 Pac. 240].) The record in this case shows that the cross-examination with respect to the defendant’s prior convictions was properly curtailed in compliance with these rules.

At the time of the trial an indictment for robbery was pending against the defendant growing out of a separate incident which occurred ten days prior to the alleged murder. One Ballarena, the complaining witness, charged that the defendant came to his cabin late at night, confronted him with a gun; bound his hands behind him with wire, forced him to ride around the countryside; finally robbed him of about $15 and threatened to kill him if he reported the matter to the authorities. During the cross-examination of the defendant the district attorney, over the defendant’s objection, questioned him concerning this incident, and the defendant replied : “I was supposed to have held the man up but I don’t remember” and “They said that I went over there but I don’t remember.” Upon advice of counsel the defendant then refused to answer any more questions pertaining to this affair, but the district attorney persisted in alluding to the same subject-matter in several subsequent lines of inquiry. The defendant’s claim that this constituted prejudicial misconduct cannot be sustained, for the attempted inquiry appears to have been within the proper scope of cross-examination. It was the theory of the defense that the defendant was suffering from amnesia at the time he killed Earl Gofer. Upon direct examination he testified that on different occasions throughout his life he had suffered from mental lapses, that he had no recollection of the killing but realized that he must have done it when he found himself standing over the body of the deceased at the scene of the crime. He also denied having robbed Gofer and was unable to assign any motive for his conduct. The Ballarena robbery was so close to the murder in point of time and was so similar in its modus operamdi that proof of his conduct and state of mind during that incident tended to contradict the defendant’s testimony both as to motive and mental lapse.

A cognate question is raised by the defendant’s contention that the testimony of Ballarena concerning the details of the robbery was improperly admitted into evidence. While it is true that evidence of particular wrongful acts is not generally admissible where the defendant has not put his character in issue, it seems clear that under the circumstances of this case the evidence was properly admitted. The prosecution was entitled to show not only a motive for the crime but a deliberately conceived plan to carry it out. As shown by the evidence the acts of the defendant were substantially the same on both occasions. In each ease a gun was held on the victim, his hands were tied behind him with wire and he was forced to ride in his own ear over various roads in Tehama County. In each case the defendant made the claim that he was unable to remember the details, although he later confessed to a knowledge of the details of the robbery. By producing Ballarena the prosecution presented evidence concerning the defendant’s conduct and conversation in a similar transaction which had occurred only a few days prior to the death of Gofer.

Evidence which tends to prove a sane motive for the crime and an ability on the part of the accused to devise and execute a deliberate plan is material to the issue raised by a plea of not guilty by reason of insanity. (People v. Sloper, 198 Cal. 238 [244 Pac. 362]; People v. Donlan, 135 Cal. 489 [67 Pac. 761].) Furthermore, it is the rule that where a defense of insanity is interposed and evidence of the previous conduct of the defendant is offered by him, the prosecution is not limited to an explanation or denial of the particular conduct of the defendant, but may offer evidence of other acts which he committed within a reasonable time before or after the crime as tending to show that he was sane at the time of the offense for which he is then being tried. (People v. Willard, 150 Cal. 543, 550 [89 Pac. 124]; State v. Spangler, 92 Wash. 636 [159 Pac. 810]; Wigmore on Evidence, 2d ed., vol. 1, p. 473.) The period of time over which an inquiry of this character should be extended is a matter which rests largely within the discretion of the trial court. (People v. Kimball, 5 Cal. (2d) 608, 611 [55 Pac. (2d) 483]; People v. Aranda, ante, p. 307 [83 Pac. (2d) 928].)

As further grounds for reversal of the judgment the defendant contends that various other portions of the evidence introduced by the prosecution were erroneously admitted over his objections. A psychiatrist from the state prison at San Quentin was permitted to give an opinion concerning the defendant’s mental condition at the time Gofer was killed, although the witness had not been present in court during the introduction of most of the defendant’s testimony. But this fact went only to the weight of the witness’ testimony. He had observed the defendant in routine examinations at San Quentin and, also, just before testifying, he examined the defendant in the county jail, where he was able to observe and talk to him at some length. In People v. T>elhantie, 163 Cal. 461 [125 Pac. 1066], the evidence showed that six days prior to the trial one of the physicians who testified had observed the defendant for an hour. It was held that this was sufficient to warrant the court in allowing his opinion to go to the jury.

Certain letters written by the defendant while he was out of San Quentin on parole were admitted over objection. These letters were clear and rational and were shown to have been in the defendant’s handwriting. Inasmuch as they clearly reflected his mental condition during the several months leading up to the crime, they were competent evidence. The claim that they were inadmissible because the prosecution failed to show that they were “the products of the defendant’s mind” and not dictated by someone else, has no merit. One witness testified that he had helped the defendant write letters, but it did not appear that these were the letters referred to. A sufficient foundation for the introduction of the letters was laid by proof of his handwriting, and the defense then had the right and was given the opportunity to explain them.

Also introduced by the prosecution were several transcribed statements of conversations between peace officers and the defendant which occurred after the latter had been taken into custody. When first questioned concerning the Ballarena robbery he doggedly denied any knowledge of it. Later he confessed to the commission of the crime in a statement showing a knowledge of all its details. He also confessed to the murder, but in this confession, as .in his testimony at the trial, he maintained an inability to remember the events surrounding the actual killing of the deceased. Each confession clearly shows attempts to cover up the crimes after their commission. It is contended that this evidence was competent only to show that the defendant was aware that his conduct was wrongful, and since he had taken the witness stand and testified to such subsequent awareness, it is argued that the evidence should not have been admitted. But the transcripts of these interviews tended to prove more than a consciousness of guilt. They present a complete record of the defendant’s conversations made several weeks after the commission of the offense, and indicate a logical and rational process of mind which was inconsistent with the defense of insanity.

As previously stated, the conduct and declarations of the defendant occurring within a reasonable time before or after the commission of the alleged act are admissible in proof of his mental condition at the time of the offense. Particularly is this so where the insanity sought to be proved is of a temporary character, for this is often the only factual evidence which the prosecution can bring to bear on the question. (People v. Willard, supra; 8 Cal. Jur. 51.) Because the extra-judicial declarations amount to confessions of the crime with which he is charged or of other crimes does not render them inadmissible. (United States v. Chisolm, 153 Fed. 808; People v. Sloper, 198 Cal. 238 [244 Pac. 362].)

Undoubtedly certain portions of this evidence, such as the defendant’s first statement concerning the robbery which was a persistent denial of all guilt, or the portion containing an extra-judicial identification of the defendant by a person who was not a witness at the trial, would not have been admissible had the defendant’s guilt or innocence been in issue before the jury. But it was not offered in proof of the facts stated, but to show the defendant’s reactions at a time shortly after the commission of the crime. The complete statements were competent evidence of his mental condition.

The defendant’s final contention relates to the conduct of the district attorney in his opening statement and argument to the jury. Objection is made to portions of the opening statement reciting evidence which the- defendant claims was inadmissible. Instead of being a recitation of the facts which the prosecution expected to prove, many parts of the statement were more in the nature of an argument. But in opening his remarks the district attorney told the jury that his statement was not intended to be either evidence or argument and should not be taken by them as such. Under these circumstances, the remarks which he made were not so improper as to require a reversal, although, unquestionably, he overstepped the bounds of propriety. He dwelt at length upon the facts bearing upon the defendant’s guilt, speculating in detail upon the manner in which the crime might have been committed, and indulged in rhetorical invective against the accused as though his guilt, rather than his mental balance, were in issue. Such conduct cannot well be justified in a proceeding to determine sanity, but it must be presumed that the jury followed the instructions which fully and fairly covered the real issues of the case and arrived at its conclusion upon a fair consideration of the evidence. There was ample testimony, both medical and lay, to support the verdict. The weight of this evidence tends strongly toward a conclusion that the defendant was sane at the time of the commission of the crime. The defendant was ably represented by counsel, and an examination of the whole record discloses that he was given a fair trial.

The judgment is affirmed.

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


author: WASTE, C. J.

text:
    [Sac. No. 5203.
    In Bank.
    January 30, 1939.]
    In the Matter of the Estate of JOSEPH LOPUS, Deceased. HATTIE LOPUS, as Administratrix, etc., Appellant, v. FRANCES LOPUS, as Administratrix, etc., Respondent.

      Lelia R. Leep for Appellant.
    W. H. Early and Clarendon W. Anderson for Respondent.
   WASTE, C. J.

The former administratrix of the above-entitled estate noticed this appeal from an order or decree of the probate court denying her application “for settlement of her amended first and final account and specifically from that portion . . . decreeing and adjudging that the item of two thousand five hundred dollars . . . was not her separate property . . . but that the same was and is property of the estate . . . and ordering [her] to account to said Court for the same.” Subsequently, there was filed with this court a typewritten transcript of the judgment roll duly certified by the clerk of the court below. In some manner this transcript was inadvertently forwarded to this court for, at a later date, the appellant tendered a duly certified printed record containing a transcript of the judgment roll and a bill of exceptions. Appellant thereupon moved this court for an order substituting the printed record for the previously filed typewritten record or declaring it to be supplemental thereto. That motion is now before us for determination. Whether we grant or deny it will be of little moment to the appellant-movant for an examination of either or both of said records discloses that the appeal was prematurely filed and must therefore be dismissed. Under settled principles, a prematurely noticed appeal fails to confer jurisdiction and an appellate court of its own motion may dismiss the same.

It appears that on May 25, 1937, the probate judge rendered what is expressly captioned in the record an “Opinion” which concluded with the words “Let a formal order be presented.” On June 17, 1937, the appellant filed her notice of appeal. But, it was not until June 24, 1937, that the court signed and filed its findings of fact and judgment. It is immediately apparent that the notice of appeal antedated the judgment by several days.

Appellant urges that contrary to the early rule, it is now provided by statute that “No appeal . . . shall be dismissed on the ground that it was taken after the rendition of such judgment or order and before formal entry.” (Sec. 939, Code Civ. Proc.; sec. 1233, Prob. Code.) However, it is definitely settled that the “rendition” of a judgment, within the meaning of the quoted language, occurs upon the signing and filing of the findings of fact and conclusions of law. (Aspegren & Co. v. Sherwood, Swan & Co., 199 Cal. 532 [250 Pac. 400]; 2 Cal. Jur. 398, sec. 167.) Here, as stated, the findings and judgment were signed and filed several days after the filing of the notice of appeal. There had been no “rendition” of judgment at the time of the noticing of the appeal.

In conclusion, it should be mentioned that the “Opinion” of the court below which appears in both transcripts here involved, has no place therein. It has been held in many cases that an “opinion” of the trial court is no part of the record on appeal. (Estate of Finkler, 7 Cal. (2d) 97, 103 [59 Pac. (2d) 801]; Fechtner v. Costa, 16 Cal. App. (2d) 691 [61 Pac. (2d) 473] ; 2 Cal. Jur. 488, sec. 235.) This being so, appellant in support of her appeal may not rely on the “Opinion” of the trial court which is improperly included in the record and in the proposed substituted record.

The motion is denied and the appeal is dismissed.

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