author: CURTIS, J. EDMONDS, J., Concurring.

text:
    [L. A. No. 17094.
    In Bank.
    October 2, 1939.]
    EDWARD WESTBERG et al., Respondents, v. STANLEY H. WILLDE et al., Appellants.

      Parker & Stanbury, Harry D. Parker and Vernon W. Hunt for Appellant Willde.
    Richard E. Reese for Appellant Talsky.
    F. Eldred Boland and Knight, Boland & Riordan, as Amici Curiae, on Behalf of Appellant.
    Earle M. Daniels and W. Eugene Craven for Respondents.
   CURTIS, J.

From a judgment for $5,650 entered upon a jury verdict for plaintiffs for the death of their son, defendants prosecute this appeal. Plaintiffs’ son, Morris E. Westberg, twenty-five years of age, received injuries from which he died when a Plymouth coupe which he was driving was struck by a Ford truck driven by defendant Stanley H. Willde and owned by defendant B. Talsky, doing business under the name of Reliable Delivery Service. The collision took place in the intersection of Twenty-third and Trinity Streets in the city of Los Angeles at 1,1:30 A. M. on March 12, 1937. It had been raining and the streets were wet.

The defendant Willde, driving west on Twenty-third Street, made a boulevard stop at San Pedro Street, one block east of Trinity. He then passed a dump truck on its left side and a Graham Paige touring ear on its right side. The decedent was driving north on Trinity Street.

The defendant Willde placed the point of impact as just over a manhole in the center of the intersection. There was evidence for plaintiffs that the cars collided in the northeast quarter of the intersection. The truck hit the right side of the coupe toward the rear. The coupe came to rest on the west side of Trinity Street north of the intersection, with its front wheels on the sidewalk. Morris Westberg was lying beneath the car. The Ford truck spun around and stopped on the north side of Twenty-third Street, west of Trinity, facing east, the opposite direction from that in which it had been proceeding.

The defendant Willde estimated his speed at 2'5 to 30 miles an hour in the block east of the intersection, and at about 25 miles an hour a,S he entered the intersection. He claims to have entered the intersection first. When he first saw the Plymouth coupe it was not yet in the intersection, he testified. As he observed the Plymouth he took his foot off the accelerator, put on the brake and swerved to the left. No one but Willde testified for defendants as to the facts of the accident.

The driver of the dump truck and the driver of the Graham Paige both testified for plaintiffs as eye-witnesses, as did a third witness, who was standing near the intersection. This last witness estimated the speed of the Plymouth car as 20 miles an hour, the speed of the Ford truck at 50 miles. The other two witnesses fixed the speed of both cars at 25 to 30 miles an hour. There was testimony on behalf of plaintiffs that the Plymouth entered the intersection first.

The defendants do not contend that the evidence will not support a verdict of negligence on the part of defendant Willde and freedom from contributory negligence on the part of the decedent. As grounds for reversal they claim error in instructions.

The instruction on which appellants’ principal attack is made reads as follows:

“The presumption is that every man obeys the law, and the presumption in this case is that the plaintiffs ’ son, Morris E. Westberg, was traveling at a lawful rate of speed, and on the proper side of the highway at all times. This presumption is in itself a species of evidence, and it shall prevail and control your deliberations until, and unless it is overcome by satisfactory evidence.”

This instruction is in almost the precise words of the instruction set out in the opinion in the case of Olsen v. Standard Oil Co., 188 Cal. 20, 25 [204 Pac. 393], which was approved by this court in the following language:

“The defendant claims that this is erroneous. We think it is correct. The rule that contributory negligence of the plaintiff must be alleged in the answer, or it will not be ■available to the defendant as a defense, is based on this presumption. So, also, is the rule that the burden of proving it by a preponderance of the evidence is on the defendant. The code expressly declares that this presumption is disputable, that it ‘may be controverted by other evidence’, and that unless so controverted the jury is bound to find in accordance with it. (Code Civ. Proc. secs. 1961, 1963, subds. 1, 33.) The instruction is, therefore, strictly in accordance with the code on the subject.”

In later cases we expressly approved our decision in that case (Rogers v. Interstate Transit Co., 212 Cal. 36 [297 Pac. 884] ; Smellie v. Southern Pac. Co., 212 Cal. 540 [299 Pac. 529] ; Mar Shee v. Maryland Assur. Corp., 190 Cal. 1. [210 Pac. 269]), and it has been followed by the District Court of Appeal in Ramsey v. Pasini, 108 Cal. App. 527, 529 [291 Pac. 884], and DeLannoy v. Grammatikos, 126 Cal. App. 79 [14 Pac. (2d) 542].

From these decisions, and others of this court which might be cited, the rule is firmly established in this state that a presumption is evidence and is sufficient to support a verdict of a jury or a finding of the court, unless overcome by satisfactory evidence. (People v. Milner, 122 Cal. 171 [54 Pac. 833] ; Sarraille v. Calmon, 142 Cal. 651 [76 Pac. 497] ; People v. Siemsen, 153 Cal. 387 [95 Pac. 863]; Pabst v. Shearer, 172 Cal. 239 [156 Pac. 466]; Thompson v. Davis, 172 Cal. 491, [157 Pac. 595] ; Gilmour v. North Pasadena Land etc. Co., 178 Cal. 6 [171 Pac. 1066]; Olsen v. Standard Oil Co., 188 Cal. 20 [204 Pac. 393] ; Mar Shee v. Maryland Assur. Corp., supra; Pacific Portland Cement Co. v. Reinecke, 30 Cal. App. 501 [158 Pac. 1041] ; Grantham v. Ordway, 40 Cal. App. 758 [182 Pac. 73].)

In the case of Mar Shee v. Maryland Assur. Corp., supra, this court had before it the question as to whether the presumption in favor of one of the parties to said action had been “overcome by satisfactory evidence”. In that case the rule was announced that “a fact is proved as against a party when it is established by the uncontradicted testimony of the party himself or of his witnesses, under circumstances which afford no indication that the testimony is the product of mistake or inadvertence; and that when the fact so proved is wholly irreconcilable with the presumption sought to be invoked, the latter is dispelled and disappears from the case.”

In the instant case the defendants do not contend that as a matter of law decedent must be held to have been guilty of contributory negligence. That is, they do not urge that the evidence is “wholly irreconcilable” with the presumption. It was therefore no error to give the questioned instructions under those circumstances. (Ellison v. Lang Transp. Co., 12 Cal. (2d) 355 [84 Pac. (2d) 510].)

The further claim is made that the giving of the said instruction was improper, in view of the fact that the witnesses on behalf of respondents and those of the appellants testified fully as to the acts and conduct of the deceased at the time of and immediately prior to the collision, and therefore that there was no place for a presumption as to his conduct on that occasion. Mundy v. Marshall, 8 Cal. (2d) 294 [65 Pac. (2d) 65], is cited in support of this last mentioned contention. In that ease, however, the court held that, 1 ‘ There is only one reasonable conclusion to be drawn from the facts established by the testimony of the plaintiff’s own witness”. That conclusion was that the deceased in that action had been guilty of contributory negligence. In other words, the court concluded that the deceased’s negligence was established by “uncontradicted testimony” of the witnesses of the plaintiff, and the case was therefore brought within the rule of the Mar Shee case.

Campbell v. City of Los Angeles, 28 Cal. App. (2d) 490 [82 Pac. (2d) 720], is also cited in support of this last mentioned contention. In that case the statement of facts is quite brief and so far as appears from the opinion the instruction was not qualified as in the instant case. (See, Ellison v. Lang Transp. Co., 12 Cal. (2d) 355, 359 [84 Pac. (2d) 510].) It cites the recent case of Engstrom v. Auburn Auto Sales Corp., 11 Cal. (2d) 64 [77 Pac. (2d) 1059], which followed the Mar Shee and Smellie cases. In so far as the decision in the Campbell case is inconsistent herewith it is disapproved. There is language in the cases of Lindley v. Southern Pac. Co., 18 Cal. App. (2d) 550, 556 [64 Pac. (2d) 490], and Varner v. Skov, 20 Cal. App. (2d) 232 [67 Pac. (2d) 123], cited in the Campbell case, which is perhaps only dicta, but which is apparently in conflict with the rule announced in the Mar Shee ease and the decisions of this court following the last named ease, and which, in so far as it departs from such rule, is not approved.

The Campbell ease also cites the case of Paulsen v. McDuffie, 4 Cal. (2d) 111 [47 Pac. (2d) 709], in which the acts and conduct of plaintiff were shown not only by his witnesses but by his own testimony, and we raised the question whether a presumption as to his acts and conduct had any place in such case. We did not hold that the giving of the instruction given in that ease which is similar to the one given in the Campbell case was prejudicial error, but left the entire question open, as the contributory negligence of the plaintiff in that action, brought under the Jones Act (46 U. S. C. A., sec. 688), was not a defense to plaintiff’s cause of action based upon the defendant’s negligence. We therefore held that the giving of said instruction “worked no serious prejudice to the defendant”.

We think it well to state here that in our opinion there is a substantial difference in the situation before a court where the question of the plaintiff’s negligence is in issue, and both plaintiff and his witnesses testified to all his acts and conduct at the time of his alleged negligence, from a situation where the acts and conduct of a decedent are the issues before the court. In the first instance, all possible facts both in favor of and against the alleged negligence of the plaintiff are before the court, and it is difficult for us to perceive how any presumption as to his conduct can add to or detract from this evidence. Surely if this evidence conclusively supports the claim that he was negligent, then, according to our decisions cited above, the presumption as to his conduct has been dispelled. On the other hand, if the plaintiff has testified respecting his acts and conduct, and his testimony and that of his witnesses showed that he used ordinary care for his safety, an instruction to that effect would not be of any assistance to him; but if such evidence did not clearly and unmistakably clear him of the charge of negligence, then an instruction which would place his testimony in a more favorable light than it would be without such instruction would seem to be uncalled for, if not improper. In such ease the giving of any instruction as to the presumption of plaintiff’s conduct would seem to be of doubtful propriety. It has, however, been held that the giving of such an instruction under the circumstances just related was not prejudicial. (Tuttle v. Crawford, 8 Cal. (2d) 126 [63 Pac. (2d) 1128] ; Rogers v. Interstate Transit Co., 212 Cal. 36, 38, 39 [297 Pac. 884].) But in the other situation, where the acts and conduct of a deceased person are the subject of inquiry, and the testimony respecting such acts and conduct necessarily must be produced by witnesses other than the deceased, unless such testimony meets the requirement of the rule in the Mar Shee ease, and other cases decided by this court following the Mar Shee case, an instruction that the deceased is presumed to have exercised ordinary care for his own concerns is not only proper but this court in an unbroken line of decisions, has sustained the giving of such an instruction. (Ellison v. Lang Transp. Co., supra.)

In answer to the brief of amicus curiae in which the contention is made that the rule as sanctioned by this court in its decision in the Mar Shee, the Smellie, and kindred cases, is out of line with the decisions of the United States Supreme Court and particularly with the decision in Motile, J. & K. C. R. R. v. Turnipseed, 219 U. S. 35 [31 Sup. Ct. 136, 55 L. Ed. 78, Ann. Cas 1912A, 463, 32 L. R. A. (N. S.) 226], we need only refer to our decision in the Smellie case, at pages 553 and 554, where the Henderson case (Western & A. R. R. v. Henderson, 279 U. S. 639 [73 L. Ed. 884, 49 Sup. Ct. 445]), is discussed with our conclusion that “the laws of this state have never gone to the extent denounced by the Supreme Court in the Henderson case”, and the point here raised is decided adversely to the amicus curiae’s present contention.

Our conclusion therefore is that the giving of the criticized instruction, being instruction No. 17, was proper and that it was not an error on the part of the trial court to so instruct the jury.

It is next contended that instructions No. 14 and No. 18 are formula instructions and that they and each of them omitted the element of proximate cause. These instructions are not unlike an instruction considered by us in the case of Douglas v. Southern Pac. Co., 203 Cal. 390 [264 Pac. 237], in which it was held that the instruction there under review was not a formula instruction, the court stating (p. 394), “In our opinion the instruction constitutes nothing more than an expression of the doctrine of respondeat superior”.

Instruction No. 38 was not erroneous in that it ignored the defense of appellant Talsky that appellant Willde was not acting as the former’s agent at the time of the collision. It purported specifically to instruct the jury upon the question of negligence both of appellant Willde and of the decedent. No attempt was made in this instruction to instruct the jury upon the question of agency, which latter question was covered by other instructions.

A similar answer may be made with reference to instructions 15, 22, and 23, general instructions by which the jury was told that it is the duty of a driver to keep his automobile always under control and to use reasonable care. Appellants contend that the effect of these instructions by omitting any reference to the duty of the decedent to exercise ordinary care was to authorize the jury to find for plaintiffs regardless of how negligent the decedent may have been. The instructions as given were not applicable only to Willde, since they applied to the “driver of an automobile”. The question of the decedent’s contributory negligence was fully covered by other instructions.

However, we are of the view that the court committed prejudicial error in its instructions as to the law regulating the speed of automobiles. The court instructed the jury in the language of section 510, Vehicle Code, that “no person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property”. The court then read to the jury section 511 of the Vehicle Code, verbatim. This section fixes “prima facie” speed limits. It includes the following provision: “The speed of any vehicle upon a highway in excess of any of the limits specified in this section is prima facie unlawful unless the defendant establishes by competent evidence that any said speed in excess of said limits did not constitute a violation of the basic rule declared in section 510 hereof at the time, place and under the conditions then existing.”

The court gave the further instruction: “You are instructed that by Section 51,3 of the Vehicle Code of the State of California, in force at the time of the collision, it is provided: ‘In any civil action proof of speed in excess of any prima facie limit declared in Section 511 hereof at a particular time and place shall not establish negligence as a matter of law but in all such actions it shall be necessary to establish as a fact that the operation of a vehicle at such excess speed constituted negligence. ’ ’ ’

In Akers v. Cowan, 26 Cal. App. (2d) 694 [80 Pac. (2d) 143], and Anderson v. Mothershead, 19 Cal. App. (2d) 97 [64 Pac. (2d) 995], it is held that section 513 declares the rule as to burden of proof in civil cases, and that the above-quoted paragraph of section 511 is applicable only to criminal actions.

In Akers v. Cowan, supra, the District Court of Appeal reversed the judgment for plaintiff for instructions similar to those given in the instant case. There, as in the instant case, the court read both sections 511 and 513 to the jury. The court held that the effect of reading both provisions to the. jury was to give conflicting instructions. The court said:

“In connection with the prima facie speed limits thus given to the jury the above instruction included the second paragraph of Section 511 of the Vehicle Code, which sets forth the rule applicable in criminal actions where a defendant is charged with traveling on a highway at a rate of speed higher than the prima facie limits set forth in that section. In such a case the burden is placed upon the defendant of proving that any speed in excess of these limits did not constitute a violation of the basic rule set forth in Section 510. A contrary rule prevails in civil actions, which rule is set forth in Section 513 of this code. The question of speed was here material and important and the giving to the jury of this wrong instruction with reference to the burden of proof in connection with that issue was plainly erroneous. (Anderson v. Mothershead, 19 Cal. App. (2d) 97 [64 Pac. (2d) 995].)
“Since Section 513' was also read, the jury was given two conflicting instructions relating to the burden of proof in this connection, the first of which, although clearly erroneous, was particularly tied in with and directly related to two of the prima facie limits of speed referred to in the same section of the code. It has been frequently held that the giving of an erroneous instruction is not cured by the giving of other correct instructions, where the effect is simply to produce a clear conflict in the instructions and it is not possible to know which instruction was followed by the jury in arriving at a verdict. (Citing cases.)
“The evidence in this case is not only sharply conflicting, but is so nearly evenly balanced that it would seem from the written record that the matter of upon which side lay this burden of proof may well have been determinative upon the question of appellant’s negligence as presented to the jury. The appellant was entitled to have that matter clearly and correctly presented by the instructions. The first instruction on that subject contained matter which was not only erroneous but which had no place in any civil action and, under the circumstances here appearing, the giving of the same must be held to have been prejudicial. ’ ’

In Akers v. Cowan, supra, the court held that a further instruction tended to confuse, rather than to clarify the matter. But the language quoted above is applicable in the absence of a further instruction. The rule is thoroughly settled that where conflicting instructions are given the verdict of the jury cannot be sustained. Adherence to this rule impels a reversal of the judgment for respondents.

Appellants cite O’Meara v. Haiden, 204 Cal. 354, 355 [268 Pac. 334, 60 A. L. R. 1381], in support of their contention that it was error to introduce a photograph of the deceased in cap and gown taken upon his graduation with the B. A. degree from the University of Southern California, in that the effect was to arouse the sympathies of the jury. In the cited case, we disapproved the admission of the photograph, but did not find it ground for reversal. Mr. Justice Seawell in a concurring opinion declared that the photograph would give a truer conception of the youth’s physical appearance than could be conveyed by testimony, and would also reflect something of his mental force, which matters were pertinent in determining damages. In our view, considering the facts of the instant case, it may well be questioned whether the admission of the photograph constituted error. Surely it was not reversible error.

In the present case, the verdict for $5,650 damages plainly is not excessive. The youth was a second year law student at the University of Southern California, and gave every promise not only of being a comfort and satisfaction to his parents, but also of being able to render them substantial assistance in a pecuniary way should they require such assistance in their future years.

The defendant Talsky further contends that the court erred in refusing to direct a verdict for him on the ground that Willde was not acting in the scope of his employment when the accident took place. The facts that Willde was an employee of Talsky and driving a ear owned by him, give rise to an inference that Willde was acting in the scope of his employment. (Pozzobon v. O’Donnell, 1 Cal. App. (2d) 151 [36 Pac. (2d) 236] ; Kruse v. White Bros., 81 Cal. App. 86 [253 Pac. 178] ; Maupin v. Solomon, 41 Cal. App. 323 [183 Pac. 198].) This inference was not dispelled as a matter of law by the evidence.

Talsky conducted a package delivery service under the name Reliable Delivery Service. Willde left his employer’s place of business at 8:30 in the morning in a Ford truck of his employer. After finishing deliveries and also picking up packages, as directed by his employer, he went to his home on East 24th Street for lunch. The collision occurred while he was on his way back to his employer’s office, with the packages in the truck which he had collected at his employer’s direction to be returned to his office. Willde testified that he planned to stop at the California Hospital, where his father was employed, to give him a letter telling of the serious illness of the father’s mother. The hospital lies between Willde’s home and his employer’s office, but several blocks to the west of the most direct route to the office, which is by way of Griffith Street. The collision took place before he reached the hospital, at Trinity Street, which is the third street west of Griffith. Both defendants testified that Talsky' had forbidden Willde to use the truck for purposes other than the employer’s business. It may be doubted whether such a slight deviation would be within the spirit of this general prohibition. However this may be, the jury was not bound to accept Willde’s testimony as to this personal errand. At the trial he testified that he wished to give his father a letter. Plaintiff Edward Westberg stated at the trial that at the coroner’s inquest Willde told him he was going to get money from his father to pay a telephone bill. The jury may have discredited his testimony that he was on a personal errand. (Market Street Ry. Co. v. George, 116 Cal. App. 572 [3 Pac. (2d) 41]. See note, 8 A. L. R. 796, 820.) His testimony as to the facts of the accident varied from that of plaintiffs’ witness. By returning the verdict for plaintiffs, the jury impliedly rejected his version of the accident.

Furthermore, giving full credence to Willde’s testimony as to his personal errand, it cannot be held as a matter of law that Talsky is not liable. The rule is stated in Kruse v. White Bros., 81 Cal. App. 86, 92 [253 Pac. 178], as follows:

“A mere deviation from the strict course of his duty does not release the master from liability. In order to have that effect it must be so substantial as to amount to an entire departure. (39 Cor. Jur. p. 1297, Master and Servant, sec. 1493.) As the rule has been stated, ‘One does not cease to be acting within the course of the master’s employment because his most direct and immediate pursuit of the master’s business is subject to necessary, usual or incidental personal acts, nor even by slight and immaterial delays or deflections from the most direct route for a personal or private purpose, the pursuit of the master’s business continuing to-be the controlling purpose. Such acts, not amounting to a turning aside completely from the master’s business so as to be inconsistent with its pursuit, are often only what might be reasonably expected, to which, therefore, the master’s assent may be fairly assumed; or they are in many instances the mingling with the pursuit of the master’s business some purpose of the servant’s own.’ (Shearman & Redfield on Negligence, 6th Ed., p. 362, sec. 147a.)
“Whether there has been a deviation so material or substantial as to constitute a complete departure is usually a question of fact. In some cases the deviation may be so marked, and in others so slight relatively, that the court can say that no conclusion other than that the act was or was not a departure could reasonably be supported; while in still others the deviation may be so uncertain in extent and degree in view of the facts and circumstances as to make the question of what inferences should be drawn from the evidence properly one for the jury ...”

In the above case an employee intending to call on a customer had driven beyond the point where he could have turned to reach the customer’s home in order to take a friend to her home. The accident took place before he reached the friend’s home. A judgment for plaintiffs against the employer was affirmed.

In Dennis v. Miller Automobile Co., 73 Cal. App. 293 [238 Pac. 739], it was the duty of the employee to transport packages from his employer’s garage to an express company. His usual and direct course was west and north. To accommodate two other employees who were going home to lunch he drove south several blocks and the accident occurred before he reached their residences. A judgment against the employer was affirmed. The court said: “We think the facts in this case bring it well within the principle applied to departures, incidental departures, and incidental services had or performed in connection with the main duties and obligations being performed by the employee, and did not constitute an abandonment for the time being of the employer’s service. There is presented no element of a junketing trip, or pleasure trip, nothing further than going to the express office by a different route. ’ ’

In the recent case of Cain v. Marquez, 31 Cal. App. (2d) 430 [88 Pac. (2d) 200], reviewing numerous authorities, the court declares the rule to be: “A deviation from the strict course of duty does not necessarily take him (the employee) out of the scope of employment if meanwhile his main purpose is still to carry on the business of his master.”

The court did not err in the present case in refusing to direct a verdict for Talsky.

Error of the court in instructing the jury that a presumption arose that the employee was acting in the scope of his employment from the fact that he was operating his employer’s automobile, can be corrected upon a retrial. An inference, rather than a presumption arises in such event. (Pozzobon v. O’Donnell, supra; Maupin v. Solomon, supra; Engstrom v. Auburn Auto Sales Corp., 11 Cal. (2d) 64, 69 [77 Pac. (2d) 1059].)

We have heretofore held that the court committed prejudicial error in its instructions as to the law regulating speed.

The judgment is reversed.

Shenk, J., York, J., pro tern., and Houser, J., concurred.

EDMONDS, J., Concurring.

I concur in the judgment because I am in accord with the holding of my associates that the instructions relating to the allowable speed of automobiles under stated conditions were prejudicially erroneous. However, I do not agree with their conclusions concerning the instruction relating to the presumption of due care.


source: Caselaw Access Project

author: SHENK, J.

license: Public Domain

text:
    [L. A. No. 17257.
    In Bank.
    October 5, 1939.].
    CHARLES H. CONNARD, Appellant, v. PACIFIC ELECTRIC RAILWAY COMPANY (a Corporation) et al., Respondents.

      Laurence B. Martin and Curtis G. Bird for Appellant.
    Prank Karr, E. E. Morris, C. W. Cornell and 0. O'. 'Collins for Respondents.
   SHENK, J.

This action was brought to recover damages for personal injuries received by the plaintiff while preparing to alight from a street car. Judgment was entered for the defendants on a directed verdict. Plaintiff has appealed. He contends that the trial court erred in taking the case from the jury.

The basis for the directed verdict was the court’s conclusion that plaintiff had violated ordinance No. 77,000 of the city of Los Angeles; that such violation was negligence per se; that it contributed directly to the injury; and that it therefore constituted contributory negligence as a matter of law. (Reeves v. Lapinta, 25 Cal. App. (2d) 680 [78 Pac. (2d) 465], and cases there cited.)

If the evidence had conclusively established a violation of the ordinance by the plaintiff, the above reasoning would have justified the entry of the judgment appealed from. The evidence bearing on the point, however, was in conflict; it raised a substantial issue of fact, which should have been submitted to the jury.

The pertinent sections of the ordinance read: Section 80.46. “No person shall board or alight from any street car or Vehicle while such street car or vehicle is in motion.” Section 80.47. “No person shall ride upon the fender, steps, or running board of any street car or vehicle.” The evidence leaves no doubt that the plaintiff, when injured, was using the steps of the street car preparatory to alighting therefrom, and that the street ear had not quite come to a complete stop. It leaves considerable doubt, however, as to whether the plaintiff was riding on the steps within the meaning of that term as used in the ordinance, and as to whether he attempted to alight when the ear was still in motion. These were questions of fact for the jury, and it was erroneous for the trial court to direct a verdict. (Estate of Lances, 216 Cal. 397 [14 Pac. (2d) 768]; Gish v. Los Angeles Railway, 13 Cal. (2d) 570 [90 Pac. (2d) 792], and cases there cited.)

The accident occurred on February 25, 1937, about 7 P. M., when the plaintiff was returning in his customary manner by interurban street car from his place of employment to his home near Barham Way station. He testified that after the car left Holly Crest station, and as it was approaching the next stop, Barham Way, he got up from his seat in the middle of the ear, and started toward the rear, passing the conductor in the aisle. The conductor asked him if he wanted to get off at Barham Way. He replied that he did, whereupon the conductor reached up and pulled the signal cord. He then heard the usual “toots” with which the motorman responded to a stop signal. He proceeded rearward, and the car began to slow down. It had slowed to two or three miles an hour when he reached the back, and was continuing to decrease speed. It had already entered the area of the long dirt station platform at Barham Way. He recognized this from the click of the car wheels going over a switch located between the end of the platform and a waiting bench. Believing that the car would come to a full stop, he started down the steps. There were three, including the car platform. As he reached the second, or middle step, while at the same time grasping the hand rod or stanchion, the ear approached a standstill. It did not come to a full stop, however, but suddenly gave a jerk, or lurch, followed by a rapid forward movement. This unexpected occurrence threw plaintiff off the steps, broke his handhold, and cast him onto the station platform. The injuries which he sustained were most severe. The car continued on until, in response to an emergency signal given by the conductor, it was finally halted at a point across the Street intersection beyond the station.

Plaintiff contends that because, according to his evidence, his course of conduct preparatory to getting off of the ear at the station was one of continuous movement and progress toward that end, it could not be said as a matter of law to constitute unlawful riding on the ear steps in violation of the ordinance. This contention must be sustained. It is obvious that one cannot get off a street car without descending the steps, and customarily passengers are justified in preparing to alight as the car starts to slow down in response to the signal of the conductor at a regular stopping point. There is a clear distinction between the conduct of one who over a period of time deliberately stands or “rides” on the steps of a moving car, and the conduct of one who merely undertakes, after the signal to stop has been given, to use-the steps in the course of a continuous route from car seat to station platform. The former conduct may be a violation of the ordinance, negligence per se, and the latter not come within the terms of the prohibition. Thus, where evidence adduced as to the nature of the conduct is such as would support a finding of either the one type, or the other, a question of fact for the jury is presented. In the present case, it was for the jury to say whether, under the evidence, plaintiff’s position on the steps was so maintained over a period of time as to constitute “riding” thereon, or whether he was attempting to alight from the car while in motion, or whether he was merely making a proper and necessary use of the steps as a means of exit, timing his descent to the station platform to occur simultaneously with the anticipated full stop of the ear. Had these questions been submitted to the jury under proper instructions, and had the jury credited the testimony of plaintiff and the evidence favorable to him, it might well have concluded that there was no violation of the ordinance on his part.

The distinction between a proper, transitory, temporary, or necessary use of the platform and steps of a car, and “riding” on such platform or steps in violation of an ordinance, statute, or company regulation, has for many years received recognition in both this and other jurisdictions (Pruitt v. San Pedro etc. Co., 161 Cal. 29 [118 Pac. 223, 36 L. R. A. (N. S.) 331], and review of authorities therein; Mitchell v. Southern Pac. Co., 87 Cal. 62 [25 Pac. 245, 11 L. R. A. 130], citing Buel v. N. Y. C. R. R., 31 N. Y. 314, 319 [88 Am. Dec. 271]; Froeming v. Stockton Elec. R. R., 171 Cal. 401 [153 Pac. 712, Ann. Cas. 1918B, 408]; Thomas v. San Pedro etc. R. Co., 170 Fed. 129; Chicago etc. Co. v. Grace, 61 Okl. 12 [159 Pac. 1011] ; Standard Life etc. Ins. Co. v. Thornton, 100 Fed. 582 [49 L. R. A. 116]; Central R. & R. Co. v. Miles, 88 Ala. 256 [6 So. 696]; 10 Am. Jur., p. 294, sec. 1503.) These cases, it is true, involve railroad accidents. But it is immaterial, so far as the point under discussion is concerned, whether the carrier be a railroad passenger car or an interurban street car, for in either instance the distinction must be applied if the circumstances demand it.

Respondent relies on Reeves v. Lapinta, supra. That decision contains a correct statement of the general rule as to the effect of negligence per se, but it gives only a meager statement of the facts which gave rise to application of the rule. It indicates that plaintiff, a bus passenger, was injured while standing on the step as the bus approached an intersection, and then announces the bare conclusion that in “riding upon the step of the automobile bus, she was guilty of negligence per se”. It is quite likely that the factual situation in that case was distinguishable from that of the present one. If it was not, the decision cannot be harmonized with the authorities above cited, and should not be followed.

The judgment is reversed.

Edmonds, J., Curtis, J., Pullen, J., pro tem., Spence, J., pro tem., and Houser, J., concurred.


author: THE COURT.

text:
    [L. A. No. 17226.
    In Bank.
    October 5, 1939.]
    PACIFIC INDEMNITY COMPANY (a Corporation), Appellant, v. R. T. HARPER et al., Defendants; W. A. MOSES, Respondent.

      Charles E. R. Fulcher for Appellant.
    C. H. Hartke and Freeman R. Brant for Respondent.
   THE COURT.

This appeal is from a judgment in favor of the defendant Moses, whose demurrer to the complaint was sustained without leave to amend. A purported appeal also has been taken from an order denying plaintiff’s motion to file an amended complaint.

From the allegations of the complaint on file herein, it appears that some time prior to the filing of the instant action, at the instance of the defendant Moses and his employer, the West American Finance Company, the plaintiff surety company had issued a fidelity bond in a sum not to exceed $10,000, under the terms of which the surety company agreed to pay any financial loss which the employer finance company might sustain by reason of any act of larceny, embezzlement, theft, or any other fraudulent or dishonest act committed by the employee, Moses. Thereafter the finance company instituted an action against the surety company only, for damages in the full amount of the bond, by reason of financial losses the finance company alleged it had sustained on account of asserted fraudulent acts of the employee, Moses. The latter was not made a party to that action.

In the instant complaint it is further alleged that the plaintiff herein, the surety company, had prevailed in the former action, both at the trial and on the appeal (West American Finance Co. v. Pacific Indemnity Co., 17 Cal. App. (2d) 225 [61 Pac. (2d) 963]), its demurrer to the complaint having been sustained; but that, in connection with its defense of that action, the surety company alleges it had been necessary for it to expend various sums of money for investigations, court costs, attorneys’ fees, the printing of briefs, etc., which expenditures assertedly amounted to the total sum of $4,015.11. Based upon the contention of the surety that it is entitled to recover the latter sum from the principal on the bond, the instant action was brought to impose such liability.

It is not alleged in the complaint herein that the appellant surety company has ever paid the whole or any part of the principal obligation of the bond, nor that respondent Moses had ever entered into an agreement to indemnify the appellant for the expenses sought to be collected in this action, or otherwise. The question presented for determination, therefore, is: If a surety is sued alone upon a contract of suretyship in an action brought by a third'party, and the surety successfully defends the action so that it is not required to pay the principal sum of the bond, or any portion thereof, but the surety does expend certain moneys for attorney’s fees, court costs, etc., is the surety entitled to recover from the principal—who was not a party to the former action—the disbursements so made in defending the action, where the surety has not exacted an agreement of indemnity therefor from the principal?

Both parties to this appeal agree that no appellate court decision of this state has involved the identical question here to be determined. They concede, however, that in a situation where the facts show that a surety has, in whole or in part, satisfied the obligation of the principal, the surety is entitled to be reimbursed by the principal for necessary expenses incurred because of the contract of suretyship. But it is contended by the respondent that where, as here, the surety was not required to satisfy any part of the principal’s obligation, and no contract of indemnity was entered into, the surety has no right of reimbursement for the expenses here sought to be collected, either under the provisions of section 2847, Civil Code, or under the common law. On the other hand, the appellant contends that, with regard to the subject of suretyship, statutory enactments have taken away no rights of a surety which existed at common law, and that, under the said common law there exists an implied obligation against a principal to reimburse a surety for expenditures such as are involved here. In support of his contention that at common law the only implied obligation of a principal to reimburse his surety arises when, and only when, the surety has satisfied the obligation of the bond, or some part thereof, respondent cites the case entitled Title Guaranty & Surety Co. v. Burke, 134 Ark. 499 [204 S.W. 215], which, it appears, involved a situation somewhat analogous to that here concerned. In that case the principal, Burke Bros., a firm of contractors, and the latter’s surety defended on a cross-complaint which sought to establish the default of the principal under a fidelity bond. The principal and the surety were each represented by separate counsel and after judgment had been rendered in favor of both the principal and surety, the latter brought an action against the principal to collect attorneys’ fees incurred by the surety in the former action. On appeal, the court upheld an instruction which had been given by the trial court to the effect that no recovery could be had by the surety unless it first showed that the principal had defaulted in the obligations of the bond. In that case it was said:

“ . . . counsel for appellant cite and rely upon the case of United States Fidelity & Guaranty Co. v. Hittle, 121 Iowa, 352 [96 N. W. 782], where the court said that, in the absence of such bad faith as would operate as a fraud, the surety upon a bond had the right to employ and pay counsel to defend an action against it arising out of the bond upon which it was surety. But in the statement of the facts in that case it appears that the application for the bond contained the recital that the principal would ‘indemnify and keep indemnified’ the company ‘from and against all losses, costs, charges, suits, damages, counsel fees, and expenses of whatever kind or nature which said company shall or may, for any cause, at any time, sustain or incur or be put to for or by reason or in consequence of said company having entered into or executed said bond. ’ This agreement distinguishes that case from the instant case, and clearly entitled the surety company, acting in good faith, to employ counsel, as it did do. Other cases cited by counsel are likewise distinguishable from the instant case. Here the surety company was not given the right to employ counsel at its discretion. Upon the contrary, Burke Bros, agreed only ‘to indemnify the surety company against losses, costs, damages, charges, and expenses resulting from any of their acts, default, or neglect’. It is true Burke Bros, were sued, and judgment for a large sum of money was asked against the surety company on account of the default and neglect of Burke Bros. But it was determined that Burke Bros, had been guilty of no acts, default, or neglect out of which any liability against the surety company arose. The surety company did not reserve to itself in the written application the right to employ counsel at Burke Bros. ’ expense, as was done in the Iowa ease, supra, and the condition against which it had contracted did not arise, because it did not sustain or incur any liability on account of the acts, default, or neglect of Burke Bros., and the court properly so instructed the jury, ...”

Respondent contends that in the present case the facts are even more favorable to a ruling such as was made in the last cited case than was the factual situation in the Burke ease, in that here there was no express indemnity agreement whatever entered into by respondent. In further support of his contention that at common law there was no implied obligation on the part of a principal to reimburse his surety for such expenses as are here sought to be recovered, the respondent cites the case entitled Armstrong v. Anderson, (Tex. Civ. App.) 91 S. W. (2d) 775, wherein recovery of attorneys’ fees from the principal was sought by the surety on an appeal from a judgment rendered against both the principal and the surety in an action on the bond. In that case it appeared that at the time the bond was given the principal had not entered into an indemnity agreement with the surety, although at a later time he did so. The court there held that the indemnity agreement subsequently executed was invalid, since it was not entered into until after the bond had been executed, and with regard to the contention of the surety that the law would imply an agreement on the part of the principal to pay the attorneys’ fees, the court said:

“The surety company’s position that the law will imply an agreement upon the part of a principal to repay to the surety the money it might be compelled to pay as attorney’s fees in defending both itself and the principal cannot be sustained. The general rule is that when a surety is forced to pay the debt of his principal a promise on the part of the principal to repay him the amount so paid is implied and that the surety becomes a simple contract creditor of the principal. We know of no rule of law which allows a simple contract creditor to recover attorney’s fees. That a surety is not entitled to recover attorney’s fees in the absence of a contract therefor was held in Hays v. Housewright, (Tex. Civ. App.) 133 S. W. 922.” (Italics ours.)

Likewise, the text writers agree that in the absence of an express contract of indemnity no cause of action to recover costs such as are here involved arises by implication of law in favor of a surety and against the principal unless the surety has satisfied all or some part of the principal’s obligation.

Thus, in Spencer, on The General Law of Suretyship, 1913 edition, section 122, pages 161, 162, under the caption, “When the surety’s Action for Reimbursement or Indemnity Accrues”, the author says:

“In the absence of express contract, the surety’s right to indemnity matures and is directly enforceable at law only when he has paid or discharged, in whole or in part, the debt or obligation of his principal. . . . the right to indemnity becomes enforceable whenever the surety has paid any part of the debt for which he is liable, ... ”, and in section 131, page 172, the author also says: “Generally, as we have seen, the principal is under no implied duty to indemnify the surety or guarantor until the latter has paid the debt or discharged the liability imposed upon him by his undertaking, . . . But the surety may by express agreement contract for more or less than strict indemnity ...”

Also, in Stearns, The Law of Suretyship, fourth edition, sections 279, 280, pages 503, 507, it is said: "If the promisor in suretyship pays the debt of the principal in whole or in part, he ■ is entitled to recover the amount paid from the debtor. If the principal makes no express promise to indemnify the one who engages to answer for his debt or default, the law will imply a promise. . . . But a cause of action against the principal does not arise until the promisor makes payment.”

Appellant has cited the cases entitled Ellis v. Norman, (Ky.) 44 S. W. 429, and Abeles v. Mitchell, 13 Phila. (Pa.) 81, in support of its claim against the respondent herein. It appears that in each of those eases the plaintiff was a surety under a bail bond which was forfeited for nonappearance of the defendant. Thereafter each surety was successful in securing an advantage to itself as the outcome of proceedings to secure a reduction in the amount of liability on the bonds, and in each instance a civil action was brought by the surety to secure reimbursement from the principal for attorneys’ fees incurred in the former proceedings. The claim of the sureties was upheld in each of those cases. However, we think those authorities are distinguishable from the present case in that in those cases each surety had become liable on the bond due to the default of the principal, whose acts had resulted in a forfeiture of the bond; and the principal thereupon became liable to the surety for the amount the latter would be compelled to pay. The proceedings taken by the sureties to reduce the bail had the effect of extinguishing the liability altogether in the one case, and of reducing it substantially in the other. The result of the action taken by the sureties in each case operated as a distinct benefit to the respective principals.

The theory of law which implies an obligation on the part of a principal to reimburse his surety, if and when the surety pays the obligation of the principal, is based upon equitable considerations. The liability of the latter is made to depend upon the damage suffered by the surety because of the default of the principal, and it is but equitable, in circumstances where the surety has satisfied the principal’s obligation, that the latter should reimburse the surety. However, where the surety has not been called, upon to answer for the default of the principal, and has not paid any part of the principal obligation, it would seem equally just that no recovery of expenses should be imposed against the principal where the litigation out of which the expenses arose, in effect, resulted in a determination that there was no default upon the part of the principal. Where the contingency against which the surety has contracted does not arise, and the surety sustains no damage and incurs no liability on account of the acts, neglect or default of the principal, in the absence of an express contract of indemnity, the latter ought not to be charged with the payment of expenses incurred by the surety in an action brought by a third person.

Notwithstanding what has been said hereinbefore with regard to equitable considerations, it appears that the provisions of section 2847, Civil Code, preclude the recovery herein sought. That section reads:

“If a surety satisfies the principal obligation, or any part thereof, whether with or without legal proceedings, the principal is bound to reimburse what he [the surety] has disbursed, including necessary costs and expenses; ...”

That section presupposes the existence of a legal obligation against the principal, and the subsequent satisfaction or discharge of some part of such obligation by the surety before necessary “costs and expenses” of the latter may be recovered. The section only provides for a recovery of costs when the surety has disbursed some amount “including necessary costs and expenses”. (Italics ours.) However, the appellant argues that the word “satisfies”, as used in the section, does not necessarily mean to “pay” the amount of the bond or some part thereof, but that, in the circumstances existing here, the termination of the former action in favor of the surety should be deemed to have been a “satisfaction” of the principal obligation, so far as respondent’s liability thereon is concerned. We do not believe the section was intended to have that construction. Furthermore, there was no judicial determination in the former action that the principal had defaulted. In Bouvier’s Law Dictionary, third revision, volume 3, page 3007, the word “satisfied” when applied to a note or bond is said to mean that the instrument has been “paid”. (To the same effect is Windt v. Covert, 152 Cal. 350, 354 [93 Pac. 67]; Anderson’s Dictionary of Law, p. 920.) Furthermore, section 2847 also refers to that which the surety has “disbursed”. The latter word, in its general usage, usually has reference to the paying out or the expending of moneys or currency. (Anderson's Dictionary of Law, p. 359; Bouvier’s Law Dictionary, 3d rev., vol. 1, p. 878.)

It follows from that which has been said hereinabove that there was no error in the ruling of the trial court.

The judgment is affirmed. The attempted appeal from the order denying the motion to file an amended complaint is dismissed.

Rehearing denied. Houser, J., did not participate.


text:
    [Crim. No. 4248.
    In Bank.
    October 5, 1939.]
    THE PEOPLE, Respondent, v. ROBERT C. PERRY, Appellant.

      No appearance for Appellant.
    Earl Warren, Attorney-General, R. S. McLaughlin, Deputy Attorney-General, James B. Abbey, District Attorney, H. Pitts Mack, Deputy District Attorney, and Hervey & Holt for Respondent.
   THE COURT.

Principally, the facts in this ease were supplied from the testimony which was voluntarily given by defendant at a coroner’s inquest, and introduced in evidence on the trial of the action. From all the evidence which was adduced therein, it appears that defendant is a fairly well-educated man of 70 years of age; that his home is in some remote spot in Alaska, from which, ordinarily, mail may not be received in this state at times more often than once during a period of one year; that, at the place of his residence in Alaska, defendant is possessed of some financial means and has a family consisting of five children, besides some grandchildren and great-grandchildren; and that following the death of the mother of his children which occurred some years ago, defendant married a woman much younger than himself, who, soon after her marriage to defendant, deserted him and took with her approximately the sum of $27,000 in cash, which, at the instance of the said wife, had been deposited in their joint bank account. Trailing her to impose revenge, “according to the law of the North”, defendant went to San Diego, where he found himself without money. Furthermore, a large tumor had developed at one side and the back of his neck, which caused great disfigurement in his personal appearance, and which tumor he was most desirous of having removed by a surgical operation. Because of the long time which ordinarily elapsed between mails from his home, defendant felt that he could not wait until money necessary for his needs could be secured from that source. Hesitating between suicide and robbery as a means of solution of his problems, he finally conceived a plan of robbing a certain bank in the city of San Diego, which employed as its watchman and janitor a young man named Anthony, 29 years of age. Early in the morning of March 16, 1939, defendant saw the janitor sweeping the sidewalk in front of the bank, preparatory, as defendant thought, to the janitor’s leaving the premises. Thereupon defendant accosted the janitor and asked him for a ride “down town”, which request the latter promised to fulfill. Shortly after the two men had become seated in an automobile which the janitor was driving, defendant exhibited a gun, told the janitor that it was a “hold-up” and demanded that the janitor deliver to him the key to the bank. Having thus secured the said key, defendant asked the janitor whether he would prefer to be “tied up” in the bank, or elsewhere,—to which query the janitor responded “somewheres else”. Thereupon the janitor continued to drive the automobile until it had arrived at a point near one end of a large park, where the automobile was stopped and both men alighted therefrom and went a short distance into the park,—defendant carrying the gun in his right hand. The janitor then suddenly attacked defendant by striking him a blow on his head, which caused defendant to fall to the ground, and the janitor fell on top of him, with the result that defendant pointed his gun into the air and thereupon discharged it. The shot was fatal to the janitor. Defendant left the latter in the park—having concluded, as defendant later testified, that the janitor had fainted from fright, since he, the defendant, had had no thought of committing murder. On his return to the automobile, after leaving the park, defendant found the janitor’s wallet lying on the front seat thereof. He then drove to his lodgings, for the purpose, assertedly, of removing some ‘ ‘ grass stains” from his clothing. During the time he was at his room, defendant examined the wallet, which contained a few dollars in currency. He testified, however, that he did not disturb the contents of the wallet, but that he placed it in his dresser and left it there. He then drove the automobile to the bank where the janitor had worked and opened the front door thereof with the key which had been obtained by defendant in the “hold-up”. Since valuables in possession of the bank were locked in its vault, defendant decided to wait inside the bank until it should be regularly opened by some of its employees. Some time later, the manager and a teller of the bank arrived thereat for that purpose. The double entrance doors were unlocked by them and, in accordance with their custom, while the manager remained at the front door, the teller proceeded to make a tour of the banking rooms to see that everything was in order. In the course of his inspection, the teller suddenly encountered defendant, who, with gun in hand, ordered the teller to call the manager “inside”. The teller obeyed the command, but, from his manner, the manager suspected that the teller was about to be “held up” and, instead of “coming in”, he went outside and summoned help, which included the police. Having noticed the action taken by the manager, the teller suggested to defendant that he make his escape while it seemed possible for him to do so. Defendant then discarded a mask which he was wearing and, after having shut the teller in a washroom, left the premises. However, after a short pursuit by civilians, defendant voluntarily surrendered to the police who had arrived on the scene. At that time he admitted that he was “the man they wanted”, handed them his gun and an extra “clip” of cartridges, and said that he could not “bring himself to shoot it out in the bank”. The bank key was taken from his person.

Defendant was convicted by a jury of the crime of murder in the first degree. For the reason that the verdict was returned without recommendation that defendant be imprisoned in the state prison for life, it became imperative upon the trial judge to pronounce a judgment by which defendant was sentenced to suffer the penalty of death. Although section 190, Penal Code, does not require a jury to specify the death penalty in its verdict,—where the crime of murder in the first degree is found, and no recommendation is made as to the punishment, the law imposes the death penalty (People v. LaVerne, 212 Cal. 29 [297 Pac. 561]; People v. Farrington, 213 Cal. 459 [2 Pac. (2d) 814]; People v. Farolan, 214 Cal. 396 [5 Pac. (2d) 893]); and if a new trial be not granted, it thereupon becomes the duty of the court to pronounce sentence in accordance therewith. (People v. Superior Court, 202 Cal. 165 [259 Pac. 943]; People v. Adams, 199 Cal. 361 [248 Pac. 186]; People v. Bollinger, 196 Cal. 191 [237 Pac. 25]; People v. Welch, 49 Cal. 174.)

In part, section 1239 of the Penal Code provides that, “ . . . When judgment of death is rendered, upon any plea, an appeal is automatically taken without any action by the defendant or his attorney. ’ ’

Although on the trial of the action defendant was represented by an attorney, neither that attorney nor any other counsel has appeared in this court on the appeal from the judgment in behalf of defendant,-—nor has any brief or argument been presented herein in his behalf. It therefore has devolved upon this court to make an examination of the complete record of the proceedings had in the trial court, to the end that it be ascertained whether defendant was given a fair trial on the charge that was preferred against him. In that connection, it is noted that by an information filed in the clerk’s office of the county of San Diego, acting for the superior court of this state therein, it was regularly charged that on or about- the 16th day of March, 1939, in said county of San Diego, defendant “did then and there wilfully, unlawfully and feloniously and of his malice aforethought kill and slay one J. R Anthony, a human being, then and there being and existing”. Neither demurrer nor plea other than “not guilty” and “not guilty by reason of insanity” was interposed by defendant to said information.

In effect, section 189 of the Penal Code includes the provision that a murder which is committed in the perpetration of or attempt to perpetrate robbery is murder of the first degree; and by section 211 of the same code, robbery is defined as “ . . . the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear”.

There can be no serious question presented respecting the nature of the crime which was committed by defendant. At the time when he shot the janitor, defendant was engaged in the execution of his plan to commit the crime of robbery. The fact that up to that time he had not entered the bank had no legal effect upon the nature of the offense which he had intended to commit. Bach of his several acts, at and after the moment when he asked the janitor for a ride in his automobile, was overt and was done in pursuance of the ultimate object. And although the murder was committed at a place far removed from the bank which defendant had intended to rob, the character of the offense was not affected by that fact. In its legal aspect, it was exactly the same as though the janitor had been “held up” on the sidewalk in front of the bank and then compelled to admit defendant into the bank. Neither does the assumed fact that, in accordance with defendant’s testimony, the janitor attacked defendant before the janitor was shot, nor that as a result of such attack defendant’s pistol was accidentally discharged, have the effect of relieving defendant from the consequences of his act. (People v. Manriquez, 188 Cal. 602 [206 Pac. 63, 20 A. L. R. 1441] ; People v. Hadley, 175 Cal. 118 [165 Pac. 442]; People v. Milton, 145 Cal. 169 [78 Pac. 549]; People v. Witt, 170 Cal. 104 [148 Pac. 928].)

On the trial of the action, few objections to any part of the proceedings were made by able counsel who represented defendant. One of the objections which was presented related to the introduction of certain exhibits, which were material to the prosecution of the action,-—particularly of memoranda in writing that appeared on scraps of paper which were found in a bureau drawer of the room which for a short time that preceded the commission of the' offense had been occupied by defendant. Whether such memoranda had been made by defendant was not shown, but since defendant had already confessed the commission of the crime, and, on his arraignment for sentence, made the statement that he had written the several memoranda, it is clear that defendant suffered no prejudice on the trial by reason of the fact that objection to the admission in evidence of such exhibits was overruled by the trial court.

Another objection was made to the introduction in evidence of certain testimony which was given by defendant at the coroner’s inquest over the body of the man who had been killed. But in view of the fact that, immediately preceding the moment when defendant made such statement, defendant was fully advised by the coroner of his constitutional rights in the premises, and the additional fact that his statement was freely and voluntarily made,—the objection to its admissibility was not well taken.

An additional point made by defendant at the trial arose from the fact that the trial court refused to permit the arresting officer to testify whether at the time of arrest defendant was “in a sort of daze”. It is apparent that the question called for a conclusion by a non-expert witness, and for that reason properly was objectionable (Holland v. Zollner, 102 Cal. 633, 637 [36 Pac. 930, 37 Pac. 231].) However, in that connection, it should not be assumed that had a question been asked whether defendant “appeared to be in a sort of daze”, it properly would have been subject to a similar ruling. (Holland v. Zollner, supra; People v. Arrighini, 122 Cal. 121 [54 Pac. 591] ; People v. Wong Loung, 159 Cal. 520 [114 Pac. 829]; People v. Vaughan, 131 Cal. App. 265 [21 Pac. (2d) 438]; 8 Cal. Jur. 152, 153.)

In his argument to the jury the deputy district attorney, who was in charge of the prosecution, made some remarks which on first consideration might seem objectionable. For example, he said: “We have the defendant hearing all of this evidence; he has been here in court. We have given him his chance to take the stand, if he so desires, and he has not seen fit to do that. . . . There is not one contradiction in the ease, as I see it from the evidence, because there is no denial of anybody. . . . Not only from the evidence, but also from the fact that the defendant did not even see fit in this case to take the stand to make any explanation of any kind to you as to what occurred up there and he did not take the stand; he didn’t see fit to take the stand because he didn’t want to submit himself to cross-examination, Ladies and Gentlemen, to test out something ... I personally myself, don’t think there is anything you can do but to bring in a verdict of first degree, without any recommendation whatsoever. . . . The defendant’s Counsel has told you in his argument to you that he has done the best he could. Well, I submit to you that he probably has, but what did he have? He didn’t have much to go on and he had this general evidence which pointed irrevocably at the defendant and it will always point at him and you cannot get away from it, no matter how long you think it over, and if you do not find the defendant guilty of first degree murder, Ladies and Gentlemen, with no recommendation, I will not be pleased, although Mr. Hache [attorney for defendant] would have you believe that I will be, because I did not get this defendant into this spot. . . . You have got the ease already of this man not taking the stand, . . . ” (Emphasis added.)

With reference to the comments made by the deputy district attorney regarding the failure of defendant to take the witness stand in his own behalf or to deny any of the incriminating evidence against him, it may be noted that by constitutional amendment, adopted in 1934, section 13 of article I thereof was amended to read that “ ... in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.” And the same matter is covered by the provisions of section 1323 of the Penal Code.

With respect to the statements which were made by the deputy district attorney concerning Ms own view of the case, the impropriety thereof is covered by American Bar Association Canon 15 and Boston Bar Association Canon XYI, respectively, as follows: “It is improper for a lawyer to assert in argument his personal belief in his client’s innoeence or in the justice of his cause.” “ ‘It is improper for a lawyer to assert in argument his personal belief in his client’s innocence, in the truthfulness or untruthfulness of a witness, or in the justice of his client’s cause, that belief being neither competent evidence nor fair argument.’ ” Although the expression by the deputy district attorney of his personal opinion of the effect of the evidence probably was contrary to the strict ethics of the profession and in the particular circumstances constituted mild misconduct on his part, nevertheless, no objection thereto was interposed by counsel who represented defendant on the trial of the action; neither did he make a motion to strike such remarks from the record, nor that the jury be instructed to disregard them. It becomes apparent, therefore, that defendant is in no position to complain of any of such comments.

Another matter of procedure regarding which counsel for defendant complained at a time when the motion for a new trial was presented to the trial court, was based in part upon the defendant’s withdrawal of his plea of ‘.‘not guilty by reason of insanity”. It appears that, although on his arraignment for plea defendant had pleaded both “not guilty” and “not guilty by reason of insanity”,—after the trial on the issue of “not guilty” had ended, and the trial judge had directed that counsel proceed with the trial of the issue of “not guilty by reason of insanity”,—defendant, in person, withdrew his said plea of “not guilty by reason of insanity”. That he did so is clearly indicated by the following excerpt from the record of the proceedings had at the time mentioned, to wit:

“Mr. Hache: Well, I don’t know—Mr. Perry thinks—I informed Mr. Perry that I am willing to proceed with this insanity plea but Mr. Perry says that he doesn’t want any more publicity and does not want anything about his family brought in. He doesn’t want his family to know anything about it. He would rather waive any further proceedings, and says he would take it on the chin. The Court: Is that correct, Mr. Perry? Do you at this time withdraw your plea of not guilty by reason of insanity, heretofore entered, and do you at this time consent, and do you now waive and withdraw your plea of not guilty by reason of insanity heretofore entered? Defendant Perry: Yes. The Court: Very well. Mr. Hache: Do you understand that Mr. Perry? Do you understand what he said? If you didn’t, come up here and you can hear a little bit better. The Court: You may read that to the defendant, Mr. Reporter. Thereupon the statement of the Court is read by the Reporter. Defendant Perry: Yes. The Court: You understand that thoroughly, Mr. Perry? Defendant Perry: Yes, it means not to take the stand on the insanity plea, is that it? The Court: It means that you are withdrawing your plea of not guilty by reason of insanity heretofore entered. Defendant Perry: Now if I was to take the stand, I know that my lawyer, the questions that was put to me by him would be all right. The Court: Well, the sole question I am interested in, Mr. Perry, is do you at this time withdraw your plea of not guilty by reason of insanity heretofore entered, and do you at this time withdraw and waive that plea of not guilty by reason of insanity ? Defendant Perry: Yes. The Court: Very well. Defendant Perry: I will join my boy that I lost in the World War.”

In that connection, at the time when the motion for new trial was argued defendant’s counsel suggested that the actions and conduct of defendant throughout the commission of the crime, and at all times thereafter, were those “of a man that is not in his right mind”; and that especially was that conclusion deducible from the fact that defendant had precluded himself “from at least attempting to prove that he is [was] insane”. Defendant’s counsel then made the implied motion that “the question as to the sanity” of defendant be judicially determined,—which motion was denied by the trial court.

By the terms of section 1367 of the Penal Code it is provided that, “A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insane”. And, in substance, section 1368 of the Penal Code provides that, “If at any time during the pendency of an action and prior to judgment a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to be determined by a trial by the court without a jury, or with a jury, if a trial by jury is demanded; ...”

The principle of law by virtue of which an insane man, even though incontestably guilty of the commission of a criminal offense, may neither be tried, sentenced, nor punished for his dereliction in that regard, is of long standing. In 4 Blackstone Commentaries, 24, it is said: “Also if a man in his sound memory commits a capital'offense, and before arraign^ ment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of non-sane memory, execution shall be stayed; for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged [25] something in stay of judgment or execution. Indeed, in the bloody reign of Henry the Eighth, a statute was made, which enacted that if a person, being compos mentis (of sane mind) should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed by the statute 1, and 2 P. and M., c. 10. For, as is observed by Sir Edward Coke, ‘the execution of an offender is for example ut poena ad paucos, metus ad omnes perveniat (that the punishment may reach the few, but the fear of it affect all): but so it is not when a madman is executed; but should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others.’ ”

In the case of Freeman v. People, 4 Denio (N. Y.), 9, 20 [47 Am. Dec. 216], after having referred to the foregoing common-law rule, it is said that: “As is said in 4 Harg. State Trials, 205, ‘there may be circumstances lying in his private knowledge, which would prove his innocency, of which he can have no advantage, because not known to the persons who shall take upon them his defence.’ The most distinguished writers on criminal jurisprudence concur in these humane views, and all agree that no person, in a state of insanity, should ever be put upon his trial for an alleged crime, or be made to suffer the judgment of the law. A madman cannot make a rational defence, and as to punishment, furiosus solo furore punitur. (1 Hale, P. C. 34, 35; 4 Bl. Com. 395, 6; 1 Ch. C. L. ed. 1841, p. 761; 1 Russ, on C. ed. 1845, p. 14; Shelf, on Lunacy, 467, 8; Stock, on Non Com. 35, 6.) ” Practically an identical reference to the history of and the reason for the rule may be found in the case entitled In re Buchanan, 129 Cal. 330 [61 Pac. 1120, 50 L. R. A. 378]. (See, also, 1 Chitty Crim. Law, 619 [*761].)

It therefore becomes clear that the governing statute, in reality, is but a codification of an already existing common-law rule, which, in effect, is so declared in each of the cases hereinbefore cited. Also, in each of those latter authorities the basis for a correct conclusion respecting the mental condition of the person whose sanity is in question is declared to be that if he is capable of understanding the nature and object of the proceedings against him and can conduct his defense in a rational manner, he should be deemed sane for the purpose of being tried, though on some other subjects his mind may be deranged or unsound. (See, also, People v. Ziegler, 142 Cal. 337, 340 [75 Pac. 1090]; People v. Kirby, 15 Cal. App. 264, 268 [114 Pac. 794] ; People v. West, 25 Cal. App. 369, 372 [143 Pac. 793]; People v. Vester, 135 Cal. App. 223 [26 Pac. (2d) 685].)

From a consideration of the language employed in section 1368 of the Penal Code, it becomes obvious that the “doubt” as to the sanity of a defendant is one that must arise in the mind of the trial judge, rather than in the mind of counsel for the defendant or in that of any third person. (People v. Rosner, 78 Cal. App. 497 [248 Pac. 683] ; People v. Lee Fook, 85 Cal. 300 [24 Pac. 654] ; People v. Fountain, 170 Cal. 460 [150 Pac. 341]; People v. Huntoon, 41 Cal. App. 392 [182 Pac. 776].)

Ordinarily, the question whether a “doubt” has arisen as to the sanity of the defendant is for the determination of the judge of the trial court. (People v. Keyes, 178 Cal. 794, 802 [175 Pac. 6]; People v. Hettick, 126 Cal. 425, 428 [58 Pac. 918]; People v. Fountain, 170 Cal. 460, 467 [150 Pac. 341] ; People v. West, 25 Cal. App. 369 [143 Pac. 793].) And it is only where, as a matter of law, a “doubt” may be said to appear, or where there has been an abuse of the discretion that is vested in the trial judge, in the determination of the question, that the conclusion of the latter properly may be disturbed on appeal therefrom. (People v. Gilberg, 197 Cal. 306, 317 [240 Pac. 1000]; People v. Moriarity, 61 Cal. App. 223 [214 Pac. 485]; People v. Rosner, 78 Cal. App. 497 [248 Pac. 683]; People v. Kirby, 15 Cal. App. 264 [114 Pac. 794]; People v. Little, 68 Cal. App. 674 [230 Pac. 178]; People v. Hettick, 126 Cal. 425 [58 Pac. 918].)

Furthermore, on again reverting to the record of the proceedings herein, and particularly to that part thereof which purports to set forth the testimony which was given by defendant at the coroner’s inquest, as well as a sworn statement which was made by him immediately after his motion for new trial was denied, it becomes indisputable that defendant thoroughly understood “the nature and object of the proceedings against him”, and that he was “capable of conducting his defense in a rational manner”. Therefore, it follows that no error was committed by the trial court in its order denying defendant’s motion that the question of his sanity should be determined before judgment be pronounced against him.

The instructions which the trial court gave to the jury included the following language, to wit: “The importance of your duties requires that you consider the right of the People of the State of California to have the laws properly executed and that it is with you, citizens selected from the County, that finally rests the duty of determining the guilt or innocence of those accused of crime and unless you do your duty, laws may as well be stricken from the statute books. You should also ever keep in mind the importance to the accused of the result of your deliberations and be just to him, as well as to the People of the State of California.”

Considered in the abstract, and consequently dissociated from the facts and pertinent law of the case, such language may not appear to be objectionable. But, on reflection, it is evident that this was not the ordinary criminal case. A murder trial was in progress. All the sordid facts, as placed in evidence, were fresh in the minds of the respective jurors and probably were indelibly impressed thereon. The law, in minute detail, was solemnly declared by the judge; and he then added the admonishing words that unless the jurors performed their sworn duty with reference thereto, such laws might “as well be stricken from the statute books”. It is obvious that such a declaration does not constitute the law, nor any part of it. It amounts to a statement of the personal opinion only of the judge with reference to asserted facts or an assumed civic consequence or condition. He clearly overstepped his prerogative as an official exponent of the law. In effect, such language was in the nature of a lecture on economics. Although no law was erroneously stated, the jury may not have understood the full import of his words, nor may it have been influenced thereby. However, in a “close” case, such a statement might become a potent factor in the process of reaching a verdict of “guilty”. But ordinarily, however ‘1 dangerous ’ ’ in fact such an instruction might be to the rights of a defendant in a criminal case, it appears that in each of several adjudicated cases in this state, a similar instruction has been held not to have been prejudicial. In the case of People v. Stevens, 78 Cal. App. 395, 409 [248 Pac. 696], wherein the question was first presented, it was said: “It is claimed that the trial court erred in giving the following instruction: ‘ The importance of your duties requires that you consider the rights of the people of the State of California to have the laws properly executed, and that it is with you, citizens selected from the county, that finally rests the duty of determining the guilt or innocence of those accused of crime, and unless you do your duty, laws may as well be stricken from the statute books. ’ It is said that by this instruction the jury was told that ‘laws should be stricken from the statute books if they do not convict’ and that it was the duty of the jury to convict. This part of the instruction was not as carefully drawn as it might have been, but we think it contains language that saves it from the condemnation which is now sought to be placed upon it. The jury was told that the duty of its members was to see that the laws were properly executed. This language informed the jury, in effect, that it was to discharge its duties under the law as given in the entire instructions of the Court. The jury was also told that it was its duty to determine the guilt or innocence of the defendants, and that, in effect, unless this duty was performed, laws might as well be stricken from the books. As thus viewed we think the instruction was proper. It was not greatly different in legal effect from some parts of the instruction approved by us in People v. Selby, 76 Cal. App. 715 [245 Pac. 792]. It must be observed that the court gave to the jury, in connection with and following the language upon which appellants base their claim of error, this further statement : ‘You should also ever keep" in mind the importance to the accused of the result of your deliberations and be just to him, as well as to the People of the State of California. Both the public and the defendant have a right to demand, and they do so demand and expect, that you will carefully and dispassionately weigh and consider the evidence and the law of the case and give to each jmur conscientious judgment; and that you will reach a verdict that will be just to both sides, regardless of what the consequences may be.’ This language, taken together with that to which appellants take exception, made the instruction eminently fair. ’ ’

The question was again before the court in the ease of People v. Harshaw, 128 Cal. App. 212, 219 [16 Pac. (2d) 1025], In that case the court declared that: “The appellant challenges an instruction as erroneous which was given to the jury regarding the weight, sufficiency and manner of considering the evidence. This instruction informs the jury they are the sole judges o£ the weight and sufficiency of the evidence and of the credibility of witnesses. After charging them that they are not to be governed by passion, prejudice or sympathy, the following language is employed: ‘The importance of your duties requires that you consider the right of the people of the state of California to have the laws properly executed, and that it is with you, citizens selected from the county, that finally rests the duty of determining the guilt or innocence of those accused of crime, and unless you do your duty, laws may as well be stricken from the statute books.' The jury was elsewhere fully and fairly instructed regarding the law of the case. This challenged instruction also contains a clear and impartial statement of general principles of law respecting the weight, sufficiency and manner of considering the evidence, in view of which it is quite likely the jury was not misled by the warning language above quoted. (People v. Stevens, 78 Cal. App. 395, 409 [248 Pac. 696].) However, that language does unduly emphasize the enforcement of the law as the only proper fulfillment of the duty of a jury, with the final warning that ‘unless you do your duty, laws may as well be stricken from the statute books'. This language is misleading. It is in the nature of a warning. It may be misconstrued by jurors. In the interest of clarity and justice, it should be omitted.” (Emphasis added.)

In the case of People v. Navarro, 135 Cal. App. 535 [27 Pac. (2d) 652], a similar conclusion was reached. It was there said: “We have read the entire charge and are unable to say any of the instructions are open to serious criticism. One paragraph taken from a lengthy statement of general principles which were announced as rules to govern the jury’s consideration of evidence is challenged. It includes the objectionable statement that with the jury ‘finally rests the duty of determining the guilt or innocence of those accused of crime, and unless you do your duty laws may as well be stricken from the statute books. ’ This language has been criticised by the appellate courts as misleading, objectionable and in the nature of a warning to the jury. (People v. Harshaw, 128 Cal. App. 212 [16 Pac. (2d) 1025] ; People v. Stevens, 78 Cal. App. 395, 409 [248 Pac. 696].) In the present case, however, we think the objectionable language was harmless since it was immediately followed by the statement that ‘You should also keep in mind the importance to the accused of the result of your deliberations, and be just to him as well as to the People of the State of California ’. While the foregoing challenged language should have been omitted from the instruction, we are of the opinion it does not constitute reversible error.” (Emphasis added.)

No prejudicial error appearing in the record herein, it is ordered that the judgment, and the order by which defendant’s motion for a new trial was denied, be, and they are, affirmed.

Rehearing denied.