source: Caselaw Access Project

license: Public Domain

text:
    [L. A. No. 16665.
    In Bank.
    July 19, 1938.]
    CHARLES McNEIL et al., Respondents, v. MAURICE BLUMENTHAL et al., Appellants.

      R. D. McLaughlin, Walter I. Lyon, Walter T. Casey and Albert Lee Casey for Appellants.
    Entenza & Gramer and Don L. Gilman for Respondents.
   THE COURT.

This is an action for rescission of a contract to sell oil interests and for an accounting. On August 10, 1937, the trial court sustained defendants’ demurrer to the complaint, allowing plaintiffs twenty days within which to amend. On November 2, 1937, no amended complaint having been filed, defendants moved to dismiss the action. This motion was granted. Thereafter plaintiffs moved to set aside the dismissal on grounds of mistake, inadvertence, and excusable neglect of counsel (sec. 473, Code Civ. Proe.), supporting the motion by affidavit of counsel and proffering a proposed amended pleading. Defendants’ attorneys filed a counteraffidavit, and on November 24, 1937, the matter was heard. The trial court granted the motion, ordering that the judgment of dismissal be set aside and that plaintiffs be permitted to file their amended complaint. Defendants appealed from this order. Plaintiffs now move to dismiss the appeal or affirm the order.

The appeal presents no substantial question. It is a settled principle of law that motions for relief from default under the remedial provisions of section 473, supra, are addressed to the sound discretion of the trial court, and the exercise of that discretion, in the absence of a clear showing of abuse, will not be interfered with by an appellate tribunal. (Lewith v. Rehmke, 217 Cal. 563 [20 Pac. (2d) 687]; Greenamyer v. Board of Lugo, etc., 116 Cal. App. 319 [2 Pac. (2d) 848].) The record in this case contains no showing of abuse of discretion.

The time for filing of the amended complaint was twice «extended by written stipulation. The first stipulation was made at the instance of defendants' counsel, and extended the period to September 13th; the second stipulation was for a further extension to November 1st. Prior to that date, so plaintiffs’ attorney avers, the amended complaint was prepared and ready for filing) but on October 29th plaintiffs engaged associate counsel who asked to examine the pleading before it was filed. Affiant therefore telephoned defendants’ counsel on October 29th and again on Monday, November 1st, for the purpose of requesting a few days additional time, but was unable to reach them. Affiant avers that his secretary was ill and that he was busily engaged in court over this period, and thus the time was inadvertently allowed to lapse without securing an extension. Defendants’ application for a dismissal was made immediately upon expiration of the period fixed by the stipulation, November 2d. Thereafter plaintiffs moved promptly for relief from the judgment.

Upon this showing and that made in the eounteraffidavit it became a matter within the exercise of the sound discretion of the trial court to either grant or deny relief under section 473, supra. The court found that it was a proper case for the granting of relief, and this conclusion will not be disturbed.

The order is affirmed.


author: WASTE, C. J.

text:
    [L. A. No. 16705.
    In Bank.
    July 25, 1938.]
    LOUIS FERNANDEZ, Respondent, v. ROSE FERNANDEZ, Appellant.

      Morris Lavine for Appellant.
    Fred A. Shaeffer for Respondent.
   WASTE, C. J.

Plaintiff brought this action for divorce in the Superior Court of Santa Barbara County. Defendant filed a demurrer to the complaint with a supporting affidavit wherein she alleged that her legal residence was Los Angeles, and she prayed for a transfer of the cause to that county. (See. 395, Code Civ. Proc.) The court, after hearing the matter, overruled the demurrer and also made an order denying motion for change of venue. Defendant appealed from the latter ruling. Plaintiff now moves this court to dismiss the appeal or affirm the order.

The denial of defendant’s request for transfer of the cause was proper. Defendant failed to file a notice of motion for change of venue. Neither did she file an affidavit of merits. Both are required. (See. 396b, Code Civ. Proc.)

The affidavit filed by defendant with her demurrer merely alleged that she was actually a resident of Los Angeles, giving her address, and that she had resided in the city of Los Angeles, county of Los Angeles, for more than one year last past. If this was intended to be an affidavit of merits, it was clearly insufficient in that it failed to allege in substance that defendant had fully and fairly stated the ease and all the facts thereof to her attorney, and that after such statement she was advised by her attorney and verily believed that she had a good and substantial defense on the merits. (Roberts v. Roberts, 81 Cal. App. 499 [253 Pac. 1112]; Henry v. Willett, 60 Cal. App. 244 [212 Pac. 698]; People v. Larue, 66 Cal 235 [5 Pac. 157]; 25 Cal. Jur., p. 901, sec. 34.)

The order is affirmed.

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

Rehearing denied.


text:
    [L. A. No. 16545.
    In Bank.
    July 25, 1938.]
    CLEYON EARL PALMANTEER, Respondent, v. IRENE PALMANTEER, Appellant.
    Frank E. Carleton for Appellant.
    O. E. Farnham and Marshall & Farnham for Respondent.
   WASTE, C. J.

This is an appeal by defendant from an interlocutory decree in favor of plaintiff in an action for divorce on the ground of extreme cruelty. Plaintiff moves this court to dismiss the appeal or affirm the decree.

No substantial question is presented. Appellant challenges the sufficiency of the evidence to support the findings and decree. The evidence was in direct conflict. This eonflict was resolved in favor of plaintiff by the trial court and there is no reason to disturb its conclusion. Plaintiff alleged and testified to the commission against him of four specific acts of cruelty, one of which occurred several years after he and defendant had- separated. The commission of this one act only was corroborated by testimony other than that of the parties. Appellant urges that such corroboration was not sufficient to satisfy the requirements of section 130 of the Civil Code. The contention is without merit. Acts of cruelty committed subsequent to the separation of a husband and wife may afford proper grounds for divorce. (Cardinale v. Cardinale, 8 Cal. (2d) 762, 768 [68 Pac. (2d) 351]; Stitt v. Stitt, 8 Cal. (2d) 450 [65 Pac. (2d) 1297]; MacDonald v. MacDonald, 155 Cal. 665, 672, 673 [102 Pac. 927, 25 L. R A. (N. S.) 45].) The evidence in this case as a whole, including the testimony corroborating commission of one of the four alleged acts of cruelty, contains sufficient support for the findings and decree. (5 Cal. Jur. Supp., secs. 95, 96, p. 271 et seq. and cases cited.)

The decree is affirmed.

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


author: SHENK, J.

text:
    [Crim. No. 4157.
    In Bank.
    July 26, 1938.]
    In the Matter of the Application of EDNA ELLIS for a Writ of Habeas Corpus.

      S. S. Hahn, W. O. Graf and S. Rippey for Petitioner.
    Ray L. Chesebro, City Attorney, Newton J. Kendall, Assistant City Attorney, and John L. Bland and George William Adams, Deputies City Attorney, for Respondent.
   SHENK, J.

The petitioner seeks her release from custody in this proceeding in habeas corpus. She was charged and convicted of keeping bees on her home place in the city of Los Angeles contrary to the provisions of a city ordinance. She attacks the constitutionality of the ordinance.

The facts are stipulated. The petitioner owns five lots contiguous to her home at 4041% Sequoia Street in the city of Los Angeles. The lots have a frontage of fifty feet each on Sequoia Street and a depth of 147.68. They abut upon lots of similar size which are improved with residences. The lots owned by the petitioner as well as other lots on Sequoia Street are improved with residences. The neighborhood is built up with the exception of an occasional vacant lot. In the rear half of one of her lots the petitioner keeps several hives of bees which she alleges are “maintained in a sanitary condition, are neither vicious nor dangerous, and are not the source of offensive smells or odors”. She also alleges that there are fruit trees and flowers growing upon her property.

The petitioner’s property is near the northerly boundary of a general district which is about one-half mile in width and extends southerly for about two miles. Beyond its westerly boundary is the Los Angeles River and beyond that is Griffith Park, the nearest boundary of which is approximately a half mile from the petitioner’s property.

The city ordinance under which the petitioner was convicted provides: “No person shall keep any bees in or upon any premises in this City. Nothing in this section shall be deemed or construed to prohibit the keeping of bees in a hive or box located and kept within a school house for the purpose of study or observation, or to prohibit the keeping of bees within that certain territory annexed to this city on May 22, 1915, and known as the ‘San Fernando District’, and that certain territory annexed to this city on June 14, 1916, and known as the ‘Westgate District’.”

This ordinance is an outgrowth of a prohibition against the keeping of bees enacted by the city council in 1905 pursuant to the power conferred by statutes of 1877-78, page 642, and the first freeholders charter of the city adopted in 1889. The statute referred to expressly included the power to regulate or prohibit the “keeping of bees”, specified as one of the subjects of police regulation which included also gambling houses, bawdy houses, and “any and all obnoxious, offensive, immoral, indecent or disreputable places of business or practice”. As new territory was annexed to the city of Los Angeles, exceptions were effected by ordinance as to the more rural communities, but as these communities became urban in character, they were included within the prohibition. Thus in 1917 an amended ordinance excluded from its provisions the Palms, San Fernando Valley, Bairdstown and Westgate additions to the city. In 1930 the Bairdstown addition was included within the scope of the ordinance, and in 1931 the Palms. So that when the return herein was made there were but two exceptions, San Fernando Valley and Westgate additions, within the corporate limits of the city of Los Angeles, where beekeeping was not prohibited. It is conceded that the petitioner commenced the keeping of bees in the section wherein she is a resident after the adoption of the ordinance prohibiting beekeeping in that locality.

The propriety of regulating the use to be made of property in the interest of the public health and welfare, so long as the attempted regulation is not unreasonable or arbitrary, may not be questioned. (Pacific Palisades Assn. v. City of Huntington Beach, 196 Cal. 211 [237 Pac. 538, 40 A. L. R. 782]; Ex parte Hadacheck, 165 Cal. 416 [132 Pac. 584, L. R. A. 1916B, 1248]; Hadacheck v. Sebastian, 239 U. S. 394 [36 Sup. Ct. 143, 60 L. Ed. 348, Ann. Cas. 1917B, 927].) The petitioner questions the reasonableness of the regulation in view of the fact that in the San Fernando Valley and in the Westgate addition there are some sections which are residential and others which are industrial in character, and she contends that to permit beekeeping in such sections and to prohibit it in the area where the petitioner resides is an unreasonable, arbitrary and unlawful discrimination in the exercise of the police power.

It would serve no purpose in this inquiry to dwell at length upon the extent and benefits of the bee industry in this state. The petitioner lays great stress on those advantages generally and stresses particularly the benefits to the residents in her community resulting from the cross-pollination of the fruit blossoms and flowers in addition to the commercial value of the bees. These advantages may be conceded. Nevertheless if there is still a reasonable basis for the exercise of the police power in prohibiting beekeeping within the city limits, and in excepting from that prohibition only the districts named, the ordinance will be upheld as a constitutional exercise of the power.

The stipulation of facts shows that, although in San Fernando Valley there have developed several densely populated districts, the greater part thereof is devoted to farming, gardening, fruit raising and ranching; that the portion of Westgate addition south of Beverly and Wilshire Boulevards to the easterly line of the addition has become densely populated, but that all of that addition west and north of Beverly and Wilshire Boulevards is rugged country, mainly uninhabited. The district in which the petitioner resides does not possess generally the characteristics of a farming or agricultural community. It is devoted solely to residence purposes, with the possible exception of some commercial, business or industrial enterprises. No contention can be made here such as was made and sustained in the eases of Pacific Palisades Assn. v. City of Huntington Beach, supra, Curtis v. City of Los Angeles, 172 Cal. 230 [156 Pac. 462], and In re Smith, 143 Cal. 368 [77 Pac. 180], to the effect that the ordinance was enacted under the guise of regulation and segregation but was in fact to insure a monopoly to a similar enterprise in an unrestricted district, and therefore oppressive and unreasonable. The cases just cited, as well as others, recognize that every intendment is in support of the lawfulness of the exercise of the police power and that “it is not the province of the courts, except in clear eases, to interfere with the exercise of that authority”. (Pacific Palisades Assn. v. City of Huntington Beach, supra, p. 217.) The pleadings and stipulation of facts in the case at bar indicate that the question whether beekeeping may be pursued at all in a strictly residential district or within a city’s confines is a question which is at least debatable and therefore one for the legislative body to determine. There is sufficient recognition in the decided cases that,bees may become a nuisance in residential areas. (Olmstead v. Rich, 53 Hun, 638 [6 N. Y. Supp. 826]; Town of Arkadelphia v. Clark, 52 Ark. 23 [11 S. W. 957, 20 Am. St. Rep. 154].)

The Hadaeheck decisions, above cited, sufficiently demonstrate that the facts appearing herein justify the ordinance prohibiting beekeeping within the city except in the designated areas, and that the ordinance is not unconstitutional for any reason. (See, also, Brown v. City of Los Angeles, 183 Cal. 783 [192 Pac. 716]; Reiman v. Little Rock, 237 U. S. 171, 176 [35 Sup. Ct. 511, 59 L. Ed. 900].)

The writ is discharged and the petitioner remanded.

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


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

text:
    [S. F. No. 15850.
    In Bank.
    July 26, 1938.]
    BELVA BELLMAN, a Minor, etc., Respondent, v. SAN FRANCISCO HIGH SCHOOL DISTRICT, Appellant.

      John J. O’Toole, City Attorney, Walter A. Dold, Chief Deputy City Attorney, and Irving G. Breyer for Appellant.
    Everett W. Mattoon, County Counsel (Los Angeles), J. H. O’Connor, County Counsel (Los Angeles), and J. F. Moroney and S. V. O. Prichard, Deputies County Counsel, as Amici Curiae, on Behalf of Appellant.

      James F. Brennan and Walter McGovern for Respondent.
   THE COURT.

Because of the importance of the question a rehearing was granted in this ease. Upon further consideration of the principles involved we are satisfied with the conclusions reached upon the previous hearing and we hereby adopt the opinion prepared at that time by Mr. Justice Edmonds as our opinion upon rehearing. It follows:

“While a student in the Polytechnic High School at San Francisco, Belva Bellman, a seventeen-year-old girl, sustained personal injuries while endeavoring to do, an exercise taught in the tumbling class which was conducted by the school as one of the courses in physical education. Through a guardian -ad litem she brought suit against the San Francisco High School District and by the verdict of a jury was awarded damages in the sum of $15,000. A judgment was thereafter entered in her favor, and the school district has appealed from the judgment and from the order by which it was denied a new trial.
‘ ‘ The respondent was a student in the high sophomore class of the school for the spring term of 1934 and enrolled in a ‘Beginners’ Tumbling Class’. There were eighteen separate exercises or stunts prescribed for this class. It was necessary to do successfully at least ten of the eighteen in order to obtain a passing grade and the more stunts which were satisfactorily performed, the higher the grade which was given. One of these exercises is known as the ‘roll over two’. To do it the performer takes a short run and dives over two persons who are on the floor on their hands and knees, alights on outstretched arms, and with the head curled under in order to complete a forward roll, comes to a standing position. While trying to accomplish this feat the respondent struck her head. The appellant contends that there is no evidence of any negligence of the school .district, or of its officers or employees, which resulted in the injuries complained of and that they were caused by the contributory negligence of the student. It is also claimed that the damages awarded are excessive and that errors were committed by the trial court entitling the school district to a reversal of the judgment.

“Contrary to the rule of the common law, the legislature of this state has declared that school boards shall be ‘liable as such in the name of the district for any judgment against the district on account of injury to any pupil arising because of the negligence of the district or its officers or employees’. (Sec. 2.801, School Code; Deering’s Gen. Laws, Act 7519.) The School Code also requires high school boards to prescribe suitable courses in physical education (sec. 3.731) and makes it the duty of such boards ‘to enforce the courses of physical education prescribed by the proper authority, and to require that such physical education be given in the schools under their jurisdiction or control’. (Sec. 3.733.) All high school students except those in cadet companies or excused on account of physical disability must ‘attend upon such courses of physical education for at least two hours each week that school is in session’. (Sec. 3.735.)

“Prior to the term in which she was injured, the respondent had been a student in the same school and was enrolled in the gymnasium classes. According to her testimony, in January, 1934, when the new semester commenced, she asked to continue in the gymnasium class but was told by the teacher in charge of registration that the gymnasium classes were full and that she would have to take physical education in the tumbling class. The school officials deny that this occurred. In any event, the respondent entered the tumbling class and attended regularly from January until May, when the accident occurred. In that time she learned to do a number of the exercises, including the ‘roll over two’. The accident happened during a regular class period while the respondent was attempting to do the exercise with the teacher of phj^sical education watching her. This teacher testified that as the respondent ‘took off and jumped over the girls, her hands were not extended as they should be for the proper landing, but were about half bent, and consequently when her hands hit the floor her head was there also instead of the hands taking the weight so that the head could tuck under’.

“The implied finding of the jury that the employees of the school district were negligent is conclusive if there is substantial evidence which, when read with the inferences most favorable to the respondent, support the verdict. The intendments are in favor of the judgment (Hassell v. Bunge, 167 Cal. 365 [139 Pac. 800]; Hind v. Oriental Products Co., 195 Cal. 655 [235 Pac. 438]) and while the evidence shows that the respondent received injury because she did not do the exercise correctly, this does not necessarily convict her of contributory negligence nor absolve the school district from liability. The question is whether the school officials used the same care as persons of ordinary prudence, charged with the duty of carrying on the public school system, would use under the same circumstances. The legislature has made school districts responsible for the injury of any pupil resulting from the failure of their officers or employees to use ordinary care. What is ordinary care depends upon the circumstances of each particular case and is to be determined as a fact with reference to the situation and knowledge of the parties.

“In deciding whether the employees of the appellant used ordinary care it was proper for the jury to consider not only whether the exercise was inherently dangerous but also whether they should have allowed or required the respondent to take instruction in tumbling. It is a matter of common knowledge that some students show much more aptitude for athletics than do others. Some enjoy physical exercise; others find games or stunts of any kind very difficult. Frequently students of the same age have very different capacities for physical training. Also, some forms of exercise are considered entirely proper for boys while too strenuous or otherwise undesirable for girls. In the exercise of ordinary care it was the duty of the teachers employed by the school district to take all of these factors with others into consideration in determining the kind of instruction to be given the respondent.

“In her testimony the teacher of the tumbling class said that in order to do the ‘roll over two’ the student should make an approach to the persons on the floor by a run in good rhythm, neither too fast nor too slow, and take off from the two feet, not from one, making a good spring over the backs of the other students to clear them from 12 to 18 inches. The important thing, she said, is the landing. Describing this she said the performer must land on the hands, with the hands taking the weight of the body almost straight but under control with the head tucked in. The exercise is completed, according to her, by dropping on the shoulders and coming to a standing position with the feet together.

“Of the 18 exercises taught in the tumbling class the ‘roll over two’ is the only one where the body is entirely off the floor for a portion of the time it is being performed. The evidence presented to the jury shows that it requires complete coordination, and the teacher admitted that if for any reason the rhythm required for that type of work is broken, the arms must momentarily stand the full weight of the body going through the air four or five feet; also, that unless there is complete coordination in relaxing the arms and tucking in the head, ‘there is liable to be difficulty’. If the student failed to tuck the head under at the proper moment, the teacher said, ‘then the head would get it’.

“In addition to this enumeration of the requirements for the exercise, the jury had before it the testimony of the teacher of the tumbling class that proper performance depends not only upon a girl’s agility and muscular strength but also upon her mental attitude. Muscular strength is not all that is required, she said. ‘You might have muscular strength and not be able to do it. ’ The jury was told by the respondent that she took the tumbling class work under protest; that the physical education teacher gave her no instruction directly but that she was shown how to do the exercises by advanced students in the class; that in doing the ‘roll over two ’ she had many times fallen on top of the girls on the floor; that she had a bad knee that ‘went out’ at times; that two weeks before the accident she had fallen in the locker room and that the physical education teacher had dressed her knee with hot compresses; and that she had then told the teacher that her knee was bad and that she did not want to take tumbling; but that the teacher said ‘I would have to in order to get my credits. ’ This and other evidence, if believed by the jury is sufficient to support a verdict for the respondent either upon the theory that the ‘roll over two’ is not an exercise suitable for senior high school girls or that appellant’s employees knew or should have known that because of the respondent’s mental or physical condition she was not a proper subject for such instruction, or that the class teacher did not properly instruct and supervise her. It also justifies the implied finding of the jury that the respondent was not guilty of contributory negligence. "While there was testimony from teachers of physical education that the ‘roll over two’ is not dangerous, the evidence also shows that injury could result if it was not performed in a particular way. That the respondent sustained some injury while attempting the exercise is certain. Under the circumstances shown in this case the issue of negligence was solely one for the determination of the jury. (Mastrangelo v. West Side U. H. School District, 2 Cal. (2d) 540 [42 Pac. (2d) 634].)

“The case of Kerby v. Elk Grove Union H. S. District, 1 Cal. App. (2d) 246 [36 Pac. (2d) 431, 94 A. L. R 1502], relied upon by the appellant, presents a different situation. There the student died after being struck on the forehead by a basketball while engaged in playing the game at school. But the boy was considered a proficient basketball player and no one knew that he had the physical difficulty which the medical testimony showed was aggravated by the blow and caused death. The court properly held that the instructor was not negligent in permitting the student who appeared to be a vigorous, robust boy, to participate in the game in the absence of any knowledge of his malady. The injury in Hack v. Sacramento City Junior College District, 131 Cal. App. 444 [21 Pac. (2d) 477], was caused by the negligent act of students in doing something not particularly directed by the teacher and while he was not present. In Underhill v. Alameda E. School District, 133 Cal. App. 733 [24 Pac. (2d) 849], the court held that the statute imposing liability upon school districts is broad enough to cover injuries received by a pupil while playing in a school yard if such injuries are caused by the negligence of the district or its officers or employees, but found the complaint insufficient in its allegations of negligence. Applicable to the instant case is the rule stated in Goodman v. Pasadena City H. S. District, 4 Cal. App. (2d) 65 [40 Pac. (2d) 854], where it was said that a plaintiff may recover by proving either the existence of a danger known to the authorities who neglected to guard the pupils against it or that there was an unknown peril which by the exercise of ordinary care under the same circumstances a reasonably prudent person would have discovered.

“The appellant contends that the trial judge erroneously refused to give to the jury the following instruction proposed by it: ‘You are instructed that you are not to substitute your judgment with regard to what is correct and sound educational policy in the conduct of physical education for that of the Board of Education, but you are only to determine whether or not in the carrying out of said physical education work there was any negligence by an employee of defendant which proximately caused the injury suffered, if any, by Belva Bellman.’ This ruling was correct. While it does not lie within the province of the jury to determine whether a certain subject should be taught, school authorities may be guilty of negligence in requiring a student to take a particular course of study. The instruction complained of limited the liability of the appellant to negligence ‘in the carrying out of said physical education work’. Of course, a school district would not be guilty of negligence if it prescribed a course of study which no student ever took. But. the statute does not limit liability to negligence which occurs in teaching a subject, and the instruction may reasonably be interpreted as placing this restriction upon the right of the respondent to recover.

“ After the taking of evidence was concluded but before the case was submitted to the jury the appellant asked leave to reopen its case for the purpose of asking Ordell Cohen, the guardian ad litem of the respondent and a witness in the ease, whether she had ever been convicted of a felony and also whether she had been arrested on certain occasions. To support its request made at that time, counsel for the appellant presented to the trial judge in the absence of the jury a record which he said he had just then received from the police department. He also said that he had no information other than was shown by it.

“When the motion was made the judge said, ‘You can ask her if she has been convicted of a felony, of course. ’ This was followed by a discussion between counsel concerning the record after which the motion Avas denied, apparently for the reason that the record or written memorandum giving certain information concerning Ordell Cohen does not show any conviction of a felony but only an arrest and conviction with a sentence of one year in a county jail. Appellant’s counsel made no showing that he believed Mrs. Cohen had suffered conviction of a felony at any time and as the motion was made upon the record which was submitted to the court, it was properly denied. A witness may not be impeached by evidence of particular wrongful acts, but the conviction of a felony may be shown. (Sec. 2051, Code Civ. Proe.)

“Appellant also complains that a witness was not allowed to illustrate her testimony by the use of pictures in text-books. The admission of photographs or diagrams for this purpose rests largely within the discretion of the trial judge. No abuse of that discretion has been shown. [12] Also, there was no error in refusing to admit in evidence a junior high school bulletin on physical education. The appellant insists that evidence showing ‘that the same exercises or stunts were authorized for junior high school girls and performed by them ’ was relevant to the issues before the court. But the fact that the same exercises were prescribed for younger girls had no evidentiary value. It may be even more negligent to require girls of junior high school age to take certain physical exercises than to make the same requirement for older girls. The fact that the exercises were prescribed for one group does not prove that the school authorities used due care.in requiring students of another group to take them.

‘ ‘ Concerning the amount of damages awarded to the respondent by the jury, the appellant contends that it is so out of proportion to the injuries shown by the evidence as to require a new trial. While the sum to be allowed as damages for personal injuries is left to the sound discretion of the jury, it is subject to review by the trial judge in ruling upon a motion for a new trial (see. 657, Code Civ. Proc.), and the power of this court to relieve a defendant from a judgment for damages in an amount so plainly and outrageously excessive as to indicate that it was arrived at as the result of passion or prejudice has often been recognized and exercised. (Livesey v. Stock, 208 Cal. 315 [281 Pac. 70]; Epply v. Los Angeles Creamery Co., 216 Cal. 194 [13 Pac. (2d) 664]; Reneau v. Hirsch, 88 Cal. App. 1 [262 Pac. 1100].) The measure of damages in an action for personal injuries is the amount which will compensate for all the detriment proximate^ caused b)r the negligence of the defendant. (Sec. 3333, Civ. Code.) ‘Damages must in all cases be reasonable . . . ’ (sec. 3359, Civ. Code), but what is a reasonable amount is a question upon which there may legitimately be a wide difference of opinion. Before an appellate court may interpose its judgment as to the sum which will compensate a plaintiff for personal injuries, it must appear that the recovery is so excessive, when compared with a sum reasonably warranted by the evidence showing the nature and extent of the injuries received, as to shock the sense of justice and raise the presumption that the amount was arrived at as the result of passion and prejudice rather than upon a fair and honest consideration of the facts. (Slaughter v. Van Winkle, 213 Cal. 573 [2 Pac. (2d) 789].)

“ The respondent claims that her skull was fractured when she fell and the medical evidence offered by her confirmed the fracture and was to the effect that it might result in serious and permanent consequences. On the other hand, while the history given by the respondent showed that after the accident she developed a severe headache and was nauseated and that she later suffered from headache, dizziness, occasional vomiting and loss of weight, her physicians found few objective symptoms. One of her physicians testified that the physical and eurological examinations were negative except for a nystagmus, which is an involuntary oscillation of the eyeball, and the lack of planar reflex on the left side, indicating a mild interference with the nerves of the spinal column. Another physician testifying in her behalf found the nystagmus, which he said was a disturbance of the coordination of the eye muscles, indicating some organic disturbance within the pathways that control the muscular movements of the eye but ‘was not a pronounced thing’, and some abnormal reflexes. He said that her tendon reflexes were exaggerated, but he added, ‘I would not place very positive significance on that except that it was in keeping with the diagnosis as finally made. ’ He also mentioned that a Babinski test showed some mild disturbance. Concerning this test he said:' ‘By itself it could not be given, in my mind, a very positive significance, but taken in connection with other findings it might. ’ He stated as his opinion of the respondent’s injuries that at the time of the trial she was suffering from the local and general effects of a brain injury which made prognosis difficult, and that the symptoms complained of might persist for a long time with a ‘fair probability’ of more serious manifestations.

“Viewing this evidence most strongly in favor of the respondent and giving her the benefit of all reasonable inferences, a verdict of $15,000 is much in excess of the reasonable amount which the law fixes as the measure of damages which the respondent may recover and impels the conclusion that it was arrived at as a result of passion or prejudice. The appellant charged the respondent and her guardian with exaggerating the extent of the injury which the respondent received. In support of this claim the appellant called one witness who testified that immediately before an examination of the respondent by a physician, the guardian directed her to run in order to increase the rate of her heart beats and make her condition appear more serious than it was. Other unfair and misleading practices were charged to the respondent and the guardian. While both the respondent.. and the guardian denied that the injuries had been exaggerated by them, each admitted that the respondent walked much more than a mile just before one physical examination.

“But assuming that the respondent and her guardian have not exaggerated the injuries, the medical testimony fails to show any certainty of serious permanent injury. The respondent’s own physician testified only to a probability of permanent disability. Under section 3283 of- the Civil Code, ‘ damages may be awarded, in a judicial proceeding, for detriment resulting after the commencement thereof, or certain to result in the future’. By this section, in an action for personal injuries recovery is limited so far as physical suffering, or pain, or mental anguish are concerned, to compensation for the consequences which have occurred up to the time of the trial, or it is reasonably certain under the evidence will follow in the future. (Melone v. Sierra Ry. Co., 151 Cal. 113 [91 Pac. 502].) The jury may not consider consequences which are only likely to occur. ‘To entitle a plaintiff to recover present damages for apprehended future consequences, there must be evidence to show such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. ’ (Bailey v. Yosemite Portland Cement Corp., 136 Cal. App. 111 [28 Pac. (2d) 65]; Silvester v. Scanlon, 136 Cal. App. 107 [28 Pac. (2d) 97].) No such certainty is shown in the evidence in this case.

“Considering the medical evidence presented by the respondent, an award of $15,000 is grossly excessive and raises the presumption that it could not have been based upon a fair consideration of the facts relating to the injuries which the respondent suffered. The average citizen looks upon school authorities as protectors of the children in their charge and the circumstances of the injury, as related by the respondent to the jury, would particularly arouse the passions and prejudices of parents. But the respondent was only in bed three weeks and has since admittedly assisted in doing housework and performed the duties of a young woman in a home. Measuring the respondent’s evidence by the rules which have been stated, the sum of $5,000 is the maximum amount which may be permitted to stand. There is no reason to set aside the verdict of the jury that the appellant was guilty of negligence and liable to the respondent for the injuries proximately occasioned thereby. (Pretzer v. California Transit Co., 211 Cal. 202 [294 Pac. 382].) But the appellant is entitled to a new trial upon the sole issue of the amount of damages unless within thirty days from the filing of the remittitur in the court below, the respondent shall remit from the judgment the sum of $10,000.”

It is ordered that if such remission be so made then the judgment shall stand affirmed with neither side to recover costs upon appeal; otherwise it shall stand reversed and the cause be remanded for trial upon the issue stated.

SHENK, J., Dissenting.

I dissent. It seems to me the majority has totally disregarded the rights of boards of education and trustees of school districts to provide courses in physical ■ education in accordance with power vested in them by the law of the state, and has placed within the power of a jury to say whether such courses should be pursued regardless of negligence on the part of the public authorities. Courses in physical education will thus be curtailed or eliminated, depending on the degree of “guess” indulged by the school authorities on what a jury would say about it. My views are expressed in the dissenting opinion of Mr. Justice Nourse sitting pro tempore in this court on the former hearing and in which dissenting opinion I then concurred. That opinion is as follows:

“The complaint charges the district with negligence in general terms. To hold it liable for injuries received in this manner it is necessary to prove that the district was guilty of some act of omission or commission which this court can say as a matter of law is actionable negligence. ‘The law does not make the school districts insurers of the safety of the pupils at play or elsewhere.’ (Goodman v. Pasadena City H. S. Dist., 4 Cal. App. (2d) 65 [40 Pac. (2d) 854].)
“The record is silent in so far as proof of any act of negligence is concerned. If it be argued that it was negligence for the school district to give the course of instruction in the first instance, the answer is that it is one prescribed and accepted in thousands of other schools. If it be argued that this particular stunt is inherently dangerous, the same answer holds. Since the true test of negligence is what a reasonable person would do under similar circumstances, the directors of the school district cannot be held negligent in prescribing these exercises in view of the common acceptance of the course by others. Here is a standard of ‘due care' established by accepted practice throughout our common schools. Our district cannot be held negligent in simply following this general standard.
“There is nothing left but the asserted negligence of the instructor, first, in her method of handling the class, and second, in permitting plaintiff to do this stunt at this particular time. As to this, there is no evidence of incompetency or neglect in her manner of instruction. To the contrary the only evidence on the subject shows that the class was brought on carefully and skillfully until the close of the semester when the girls were all prepared to perform these stunts for their ' grades. The plaintiff frankly testified that she had gone through all this development successfully and had performed this particular stunt more than forty times before and during the day in which she was injured.
“It is intimated that the instructor might have been negligent in permitting plaintiff to do the stunt on this particular day because of a previous knee injury. The alleged injury to the knee occurred two weeks before the. date of the injury sued on. During the period following, plaintiff continued to perform this stunt and others on numerous occasions twice a week without complaint and without notice to her instructor that she had any difficulty or distress. The ‘knee injury’ was plainly an afterthought greatly overemphasized by her counsel. But, assume it to be true, still after this injury the plaintiff continued with the course unhampered, participated in all her other class activities, and, on the day of the accident she voluntarily went to her teacher, told her she had accomplished the stunt, that she was ready for her test, and asked her teacher to observe her for her marking. The injury resulted from her improper use of her hands. She did not at any time attribute it to her knee. Her explanation is: ‘Q. What happened to you? A. As I was running up to go over the girls my hands went over and they went underneath me and I went down on the mat and I hit my head on this side. ’ A number of other girls in the class who witnessed the accident testified that plaintiff ‘took off’ on one foot, whereas, they had all been trained to take off on both feet. This is what caused her fall, and this is not controverted in any respect whatever. The stunt was the last of a series of eighteen given in the course. It was necessary for the pupil to pass but ten of the eighteen to get her grade. It was not necessary for her to do the ‘roll over two’. She chose this voluntarily and never complained to her instructor that it was too hard or too dangerous or that she had any difficulty or pain. Her protest was to the course as a whole. She wanted to take an easier course for the same grade—a very common desire among pupils in all schools.
“This case is of far greater importance than the amount of the verdict. • It charges the school district with negligence when it has done nothing more than follow the rules and regulations in accordance with universal practice; it condemns as careless and negligent a competent and faithful teacher who just did her duty as prescribed for her in the rules and regulations. It opens the door to suits for damages for any injury which a pupil may sustain—not only upon the school premises, but on the street or at home, because it holds that the jury is the final judge of what is negligence and hence, may give damages at its will. In effect it holds that each jury may determine what in its judgment is a proper course of instruction, whereas the state has committed that function to the school authorities.
“The opinion is unfair to the school district and to the entire structure of education throughout the state. No district and no teacher can tell whether physical education is condemned as negligence in all cases, or whether it is the duty of the teacher to examine and know the physical and mental condition of every pupil, and assume liability if any injury occurs to a pupil by reason of such physical and mental condition at any time and at any place.
“Confusion must result from the opinion because of the difficulty in determining its rule. What is the rule of this case ? Is it that if there is any hazard in a course of instruction the district is liable for any injury resulting therefrom? If so the schools are negligent as a matter of law for giving that course, though the state school law may authorize or require it. Is it intended to hold that a teacher is negligent if she permits a pupil to take a course which carries some hazard, or if the pupil is later found to have been physically unfit? If so the teacher must have medical training to determine the physical fitness of each pupil. Is it the rule that negligence results when injury arises in a course which is taken under protest? The opinion states that some girls enjoy the exercises, but that this plaintiff took it under protest. The same is often true as to Latin, algebra and the sciences. Would it follow that the district is liable if a girl gets a headache when she takes algebra under protest ? This girl was a healthy specimen weighing 117 pounds and had never before complained to the teacher of physical weakness or sickness—except as to the so-called knee injury. How can it be said that the district was negligent in permitting her to take the course in the first instance? Is it the rule of the ease that this course is ‘inherently dangerous’ or is this confined to the particular stunt of ‘roll over two’? The opinion states that the stunt might be inherently dangerous—that means injury might result if it is not done properly. Every athletic event, the R O. T. C., the courses in physics, chemistry, the simple game of tennis or hockey—even the old fashioned ‘wand’ exercises—would likewise be ‘inherently dangerous' because injury might result in any of them. The opinion states that the exercise might have been ‘too strenuous or otherwise undesirable for girls’. This goes to the entire course of physical education for girls throughout the entire school system of the state. Does the opinion hold that the district is negligent in prescribing the course in the first instance, because girls are too weak generally, or because they are unable to absorb instruction to perform properly? Or is it intended merely to hold that the courts and not the school authorities should determine what courses of instruction should be given ?
“The opinion fails to pass on any of these elements positively. It does say that all these circumstances taken together would support an inference of negligence. This is sound if any of the ‘circumstances’ is negligence in itself. But this is not sound if no one of the elements is actionable negligence as a matter of law. The sum of nothing plus nothing equals nothing.
“Where the standard of conduct required of persons under given circumstances is so obvious as to be applicable to all persons' under such circumstances a question of law is presented. (Ross v. Pacific Elec. Ry. Co., 39 Cal. App. 658 [179 Pac. 538]; Hamlin v. Pacific Elec. Ry. Co., 150 Cal. 776 [89 Pac. 1109].) It is error to say that negligence is always a question of fact for the jury. The truth of the facts is to be determined by the jury but if these facts do not as a matter of law constitute actionable negligence it is a question of law for the court. Negligence cannot be inferred when the only facts proved are such that reasonable minds—not sympathy—can draw but one conclusion—that there was no negligence. It must be borne in mind that this is not a question of conflict in the evidence. We have given to the respondent every presumption of truth in her evidence and still there is no evidence of any act of commission or of omission by the school district or by its employee which can, as a matter of law, be designated as actionable negligence.”

Langdon, J., and Houser, J., concurred.


author: EDMONDS, J.

text:
    [L. A. No. 16606.
    In Bank.
    July 27, 1938.]
    JOE MONDINE, Respondent, v. JEAN P. SARLIN, Appellant.

      Joseph Scott, J. Edward Keating, Robert F. Shippee and J. Howard Ziemann, for Appellant.
    William M. Rains, E. D. Reiter, Ellis D. Reiter, Walter S. Barrette, Francis M. Reiter and Albert L. Denney for Respondent.
   EDMONDS, J.

By the verdict of a jury the plaintiff was awarded $20,000 in an action for personal injuries resulting from an explosion of gasoline. The defendant Jean Sarlin has appealed from the judgment.

At the time of the accident the appellant owned a plant for the storage and sale of gasoline in wholesale quantities. The respondent, who was in the business of trucking and selling petroleum products, drove his tank-truck to the appellant’s premises for the purpose of buying gasoline. The service tank from which he usually filled his truck was empty, and he volunteered the use of his truck to fill this tank from a storage tank located a short distance away. He placed his tank-truck, which had a capacity of 1,000 gallons, near the storage tank and helped one of appellant’s employees place a portable electric pump in position. The appellant provided a two-inch rubber hose to connect the storage tank and the pump. Another hose was connected to the discharge end of the pump and inserted into the tank on the truck through a dome.

A flexible cable, consisting of four ivires encased in random lengths of rubber garden hose, was connected at one end to a power line in the switch house. The other end of this cable terminated in a four-prong plug, AA'hich was inserted in a socket on the motor. The electricity could be turned on or off either by a switch in the switch house or by pulling the plug from the socket.

After the hose connections were made, the appellant turned on the electricity and gasoline began to flow into the tank-truck and he and one of his employees avIio had assisted in setting up the pump left the scene, leaving the respondent alone. Mondine then stepped on the running board of his truck in a position where he could see the amount of gasoline flowing into it.

According to his testimony, about eight or ten minutes after the pumping commenced he glanced at the electric motor and saw sparks four or five inches long coming from it. He estimated that at that time the tank on his truck was a little less than half full. Jumping to the ground he started for the motor, intending to disconnect it from the power by pulling the cable out of the socket. Before he reached the motor an explosion occurred. The hose pulled out of the tank on the truck, spraying gasoline over a considerable area. Some of this gasoline fell on the respondent, whose clothes caught on fire, causing him to be severely burned.

The evidence shows that the motor and the pump had been used by the appellant almost daily for more than three years. During that time, it appears, there was no indication of any defect in the motor and the respondent himself had used the same equipment on numerous occasions before the accident occurred. In view of these facts the appellant contends that there is no substantial evidence to establish negligence on his part. More specifically, he argues that the defect in the motor was latent and that he, therefore, owed no duty to the respondent to discover it.

An owner owes no duty to a.patron or business invitee to keep his premises in a condition of absolute safety and is not bound to discover defects which reasonable inspection would not disclose. (Shanley v. American Olive Co., 185 Cal. 552 [197 Pac. 793].) But he is required to have a superior knowledge of dangers which would not be obvious to the patron if such dangers are discoverable in the exercise of due care. (Sec. 344, Restatement of Torts; Dobbie v. Pacific Gas & Elec. Co., 95 Cal. App. 781 [273 Pac. 630].) The respondent in the present case was performing a gratuitous service for the appellant’s benefit and he had a right to expect that the apparatus furnished him for that purpose was in reasonably safe condition. One who supplies a chattel for another to use for the supplier’s business purposes is under a duty “to exercise reasonable care to make the chattel safe for the use for which it is supplied” and “to discover its dangerous character or condition”. (Sec. 392, Restatement of Torts.) ■ In comment b. following this section it is said: “A person so supplying goods is required not only to give warning of dangers which he knows are involved in the use of the article, or which from facts within his knowledge, he knows are likely to be so involved, but also to subject the article to such an inspection as the danger of using it in a defective condition makes it reasonable to require of him.” In Harvey v. Machtig, 73 Cal. App. 667 [239 Pac. 78], it was said: “To use and keep in operation a device or apparatus upon which the safety of human life depends, without it being frequently or properly tested as to its continued strength and efficiency to meet the purposes for which used, is not such reasonable care as a prudent man should take to guard the safety of those intrusted to his protection.”

There is no evidence that the appellant made any inspection of the apparatus at any time prior to the accident. Considering the dangerous use to which the motor was constantly subjected, it was clearly for the jury to decide not only whether the appellant had made reasonably frequent inspection of his equipment but also whether inspection would have revealed a defect. It is true that a witness for the appellant testified that an inspection of the motor made after the accident disclosed no defects, but it was, admittedly, examined under different conditions, and the jury was at liberty to accept respondent’s testimony that the motor was sparking at the time of the explosion as the cause of the accident.

There is a further ground upon which the jury’s implied finding of negligence may be sustained. The motor used was an open-vent model, that is, its mechanism was exposed by four ventilating windows in the casing. Considering the fact that this motor was being operated in proximity to a highly inflammable substance, this court cannot say as a matter of law that the appellant acted with reasonable prudence in leaving the respondent alone in the attendance of the apparatus. Had he or his employee remained near the pumping apparatus, the sparks might have been discovered before the respondent saw them or the current disconnected at an earlier time.

Nor do the facts shown compel the deduction that the respondent was eontributorily negligent. The appellant argues that the evidence established that the respondent knowingly and voluntarily approached a known danger and that he may not invoke the doctrine of “imminent peril”. The fallacy apparent in the appellant’s contention is that he assumes the respondent was not in a position of danger at the time he discovered that the motor was sparking. The imminent • peril rule has no application where one voluntarily leaves a place of safety and places himself in danger (Bartuluci v. San Joaquin Light & Power Corp., 21 Cal. App. (2d) 376 [69 Pac. (2d) 440]), but the facts here shown do not present such a case. Respondent was on the truck and within twenty feet of the motor when he discovered the danger. He was within the zone of peril at the time and there was no opportunity for mature deliberation. He was faced with the immediate choice of running away or of turning off the electricity either at the motor or in a switch house near by. The jury could well conclude that his decision to disconnect the electric plug at the motor was not unreasonably imprudent under the circumstances. The fact, as he testified, that the thought of serious danger to the appellant’s uninsured property flashed through his mind does not necessarily indicate that he had time to reflect. The reasonableness of his decision was properly a question for the jury. (Hoff v. Los Angeles Pac. Co., 158 Cal. 596 [112 Pac. 53].)

The appellant finally contends that the amount of damages awarded to the respondent by the jury is greatly out of proportion to the injuries which he received. Although the sum to be allowed as damages for personal injuries is within the discretion of the jury, the power of this court to relieve a defendant from a grossly excessive judgment has often been recognized and exercised. (Livesey v. Stock, 208 Cal. 315 [281 Pac. 70]; Epply v. Los Angeles Creamery Co., 216 Cal. 194 [13 Pac. (2d) 664].) But before an appellate court ma,y interpose its judgment as to the sum which will compensate a plaintiff for personal injuries, it must appear that the recovery is so excessive, when compared with a sum reasonably warranted by the evidence showing the nature and extent of the injuries received, as to shock the sense of justice and raise a presumption that the amount was arrived at as the result of passion and prejudice rather than upon a fair and honest consideration of the facts. (Slaughter v. Van Winkle, 213 Cal. 573 [2 Pac. (2d) 789].)

At the time of the accident the respondent was 49 years of age. His average annual net income for seven years preceding the accident had been between $2,500 and $3,000. He received extensive skin and third degree burns involving the whole right side of his body from the right ear and right side of his face to his right thigh. Undoubtedly these burns caused considerable pain. He was confined to the hospital for about a month and to his bed at home for about six months. More than 200 skin grafts had been performed at the time of the trial, and others were to be made. The cost of hospitalization and medical service amounted to about $1200 at the date of trial. A physician testified that the resulting scars would be permanent and that the function of the right arm and hand would be impaired. According to the witness he will never be able to close his right hand completely. As against the evidence concerning respondent’s disability, the parties have stipulated that in February, 1938, respondent was, and for six months prior thereto, had been engaged in his former business and occupation of truck driver and independent dealer in petroleum products “except that he no longer engages in the tasks of loading and handling the hose connected with such occupation”. This shows that his permanent disability is much less than that expected by his physician and that his earning power has not been greatly impaired.

Considering these facts, it is apparent that practically the only permanent injury which respondent has sustained is the disfigurement of the right side of his body and the partial impairment of the use of his right hand. There is no medical testimony that the burns he received had any permanent deleterious effect upon his health or will produce serious consequences in the future. Under these circumstances, the jury’s award of $20,000 is obviously excessive and raises a presumption that it could not have been based upon a fair consideration of the facts relating to the injuries which respondent suffered.

Measuring the respondent’s evidence by the rules which have been stated, the st£m of $1,0,000 is the maximum amount which may be permitted to stand. However, in view of the conclusion that the verdict was proper in all respects except as to damages, there is no necessity for a retrial on the issues of negligence. (Pretzer v. California Transit Co., 211 Cal. 202 [294 Pac. 382].) The appellant is entitled to a new trial upon the sole issue of damages unless within thirty days from the filing of the remittitur in the court below, the respondent shall remit from the judgment the sum of $10,000. If such remission be made, then the judgment shall stand affirmed with neither side to recover costs of appeal; otherwise, it shall stand reversed and the cause remanded for trial upon the issue of damages.

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

Rehearing denied.


text:
    [S. F. No. 15838.
    In Bank.
    July 27, 1938.]
    FRED N. COATS, Respondent, v. GENERAL MOTORS CORPORATION (a Corporation), Appellant.

      Fitzgerald, Abbott & Beardsley for Appellant.
    Pillsbury, Madison & Sutro, Donahue, Hynes & Hamlin, Alfred Sutro, Eugene M. Prince, Eugene D. Bennett and O. D. Hamlin, Jr., for Respondent.
   SHENK, J.

This is an appeal by the defendant from a judgment on a verdict awarding $148,980.06 to the plaintiff in an action for the value of stock claimed to have been wrongfully withheld. The ease was twice tried. The first trial resulted in a directed verdict. From the judgment entered thereon both parties appealed. That judgment was reversed on the ground that the evidence and the inferences fairly to be drawn therefrom required the factual issues to be decided by the jury. (Coats v. General Motors Corp., 3 Cal. App. (2d) 340 [39 Pac. (2d) 838].) The issues of fact were submitted to the jury on the second trial in compliance with the decision on appeal. The only question to be determined is whether the evidence in the present record is sufficient to support the verdict.

The amount of the verdict is not questioned. It is not contended that the same evidence, which on the former appeal was held to require the submission of the case to the jury, was not presented on the subsequent trial. It is the defendant’s contention on this appeal that the additional evidence, introduced at the second trial, considered with the plaintiff’s evidence, now requires a reversal and a direction that judgment be entered for the defendant.

The opinion on the first appeal is referred to for a more extended recital of the facts.

In 1918 the plaintiff was employed by Willys Overland as branch manager at an annual salary of $15,350. He severed that connection to accept employment with Chevrolet Company at $7,500 a year and participation in the General Motors Corporation bonus plan. That plan contemplated distribution of corporation stock “as a reward to certain of its employees, including employees of its subsidiary companies” (of which Chevrolet Company was one), “who have contributed to its success in a special degree by their invention, ability, industry, loyalty, or exceptional service and whom it is deemed desirable to have interested as stockholders and partners in the corporation’s prosperity.” In addition to such “special service” bonuses, “conspicuous service” bonuses were awarded to “those who have contributed most in a general way to the corporation’s success. ’ ’ A bonus fund was established by setting aside a percentage of the corporation ’s net earnings which was invested in common stock of the corporation. In December of each year, after considering the recommendations made by division heads, the president of the defendant corporation submitted to the finance committee his list of employees who were in line for bonus awards. In January, awards were made by the finance committee of common stock for services rendered the preceding year. When the awards were made certificates for the number of shares allotted were issued in the names of the employees so rewarded. Certificates representing one-fourth of the award were delivered immediately. The balance was delivered to the bonus custodian who held it for delivery one-fourth at the end of one year, one-fourth at the end of two years, and the last fourth at the end of three years. The beneficiary of the award was required to execute an irrevocable power of attorney which would enable the bonus custodian to retransfer the stock to the corporation should the employee leave the service. A system of accounting was used by which credits were established and accumulated monthly at the rate of one-forty eighth of the total amount of undelivered stock. The plan expressly provided that “if a beneficiary leaves the service of the corporation of his own volition# or is dismissed because of unsatisfactory service, (of which the executive committee shall be the sole judge), that portion of his bonus represented at the time by the debit balance of his account shall revert to the bonus fund, and a certificate for the portion of his bonus represented by the total credits in his account shall be delivered to the beneficiary free from all restrictions, provided, however, that no fractional share shall be issued. Any fractional share to which the beneficiary is so entitled shall be purchased at the then market value thereof out of the money in the bonus fund. All amounts forfeited by such beneficiary shall revert to the bonus fund. Should a beneficiary be dismissed from the service of the corporation for no fault of his own with an entirely satisfactory record (of which the executive committee shall be the sole judge), he may continue a beneficiary under the bonus plan to such an extent as the executive committee may determine. Subject to the rights of the bonus custodian to retain possession of the stock certificates or to transfer the stock as herein provided, an award shall vest the beneficiary with all the rights of a stockholder in the stock awarded, including the right to vote and to receive dividends thereon, but excepting, however, the right to sell, "assign, or pledge his interest in the stock.”

A few months after his employment by Chevrolet the plaintiff was promoted and sent to St. Louis in charge of sales. In 1922 he was made zone sales manager for the Pacific Coast and transferred to California. In 1923 he was elected vice-president of Chevrolet Motor Company of California, and in 1925 he was made regional sales manager over territory comprising seven states. Increases in his annual salary brought it to $21,000. In each year of his service he was awarded a conspicuous service bonus. In August, 1926, the corporation declared a 50 per cent dividend on the common stock which it issued in the form of stock. Under the plan the plaintiff thus became entitled to dividend stock to the amount of dividends declared on the bonus stock previously awarded to him, including that portion thereof not yet delivered. The dividend stock on undelivered bonus stock, however, was treated by the parties and by the court as subject to the same plan for distribution as the undelivered bonus stock.

In December, 1926, on recommendation of E. H. Grant, an officer, and William S. Knudsen, president of the Chevrolet company, the defendant’s president, Alfred P. Sloan, Jr., recommended the plaintiff for a 1,926 bonus award, which was accordingly made. On the following January 2d, however, upon the plaintiff’s arrival in Detroit, he was informed by Mr. Grant of his dismissal. The present action was to recover the value of undelivered dividend and bonus stock, comprising one-fourth of the 1924 bonus award, half the 1925 award, and three-fourths of the 1926 award, with the exception of a fractional share represented by the sum of $41.88 for which the plaintiff receipted on March 30, 1927.

On the second trial as on the former trial there was evidence that the dismissal of the plaintiff by Mr. Grant was made on the latter’s own decision, and that the announcement thereof to the plaintiff was accompanied by an admission on the part of Grant that the cause thereof was not dissatisfaction with his services. There is further and independent evidence in the record that the plaintiff’s services were considered satisfactory. The defendant contends that the resolution of the executive committee, in the light of the additional evidence produced by it, supplants any inferences which might be drawn from the contradictory evidence. That resolution states: “Resolved that in view of the fact that the services of Mr. P. N. Coats were terminated January 1st, 1927, because his work had not been satisfactory to the corporation all bonuses due him be cancelled as of that date.” We may assume that the jury found that the resolution had in fact been adopted, which under the evidence was also a question for its determination. The resolution was also a part of the record on the former appeal. It was not then considered sufficient to overcome the favorable case presented by the plaintiff. The additional evidence relied upon by the defendant on this appeal consists in part of the views expressed by the individual members of the committee or other executives of the defendant on the matter of their dissatisfaction with the plaintiff’s services. Such evidence, and additional evidence on other disputed facts, merely served to continue the conflict in the evidence. It did not overcome as matter of law the effect of the evidence tending to prove that the reason for the dismissal of the plaintiff was not because of unsatisfactory services. It once having been determined as the law of the case that the latter evidence was support for a verdict in the plaintiff’s fhvor, any additional evidence which was merely cumulative or contradictory gave rise only to questions of weight and credibility which were exclusively for the jury. (Hoffman v. Southern Pac. Co., 215 Cal. 454, 457 [11 Pac. (2d) 387]; Andrew v. Bankers & Shippers Ins. Co., 125 Cal. App. 24 [13 Pac. (2d) 515]; Gates v. Pendleton, 71 Cal. App. 752 [236 Pac. 365]; Burns v. Jackson, 53 Cal. App. 345 [200 Pac. 80].) We cannot accede to the defendant’s contention that the executive committee’s finding that the plaintiff’s dismissal was for unsatisfactory services and the additional evidence relied upon by it makes an end of the case. Obviously the crux of the entire controversy is whether the plaintiff was in fact dismissed for unsatisfactory services; in which event alone under the plan was it contemplated that he should be wholly deprived of stock which previously had been awarded to him as compensation for conspicuous services. No contention is made herein that the executive committee passed upon the question of whether the plaintiff’s services were satisfactory. Its function was to determine whether or not the cause of the dismissal was for unsatisfactory services, and to terminate or continue the plaintiff’s bonus rights accordingly. On the evidence in the present record the jury could conclude that the purported finding of the executive committee was contrary to the fact and that the plaintiff had not in truth been dismissed for unsatisfactory services. This is not a ease which calls for the application adversely to the plaintiff of the rule stated in 6 Cal. Jur., pp. 417, 418 and eases cited and relied on by the defendant, that the decision of the party who must be satisfied by the character of the performance is conclusive upon the employee; nor of the rule next stated in the same text that the decision of a third party or an umpire in whom that power resides is likewise conclusive. In this ease the circumstance that the bonus plan purported to constitute the committee the sole judge of the cause of dismissal is unavailing where its finding is contrary to the fact. (Long v. Chronicle Pub. Co., 68 Cal. App. 171 [228 Pac. 873]; Fidelity & Casualty Co. of New York v. Eickhoff, 63 Minn. 170 [65 N. W. 351, 56 Am. St. Rep. 464, 30 L. R. A. 586]; see, also, Trevellick v. Western V. M. Assn., 237 Ill. App. 493, 498, 499.)

The defendant urges that nevertheless a reversal should follow from the application of the provisions of the bonus plan which empower the executive committee to say to what extent the employee shall continue as a beneficiary of the plan should he be dismissed from service for no fault of his own with an entirely satisfactory record. An answer to this contention is that those provisions contemplate that there shall be a continuation of the benefits to some extent, which was not the action of the committee in this ease. Also in this respect it cannot be said that the plaintiff has not produced proof that he was dismissed “with an entirely satisfactory record” and “for no fault of his own”. The jury was instructed that it must find that these requirements as well had been fulfilled. It must be assumed that on that issue the jury found for the plaintiff. Furthermore, the legal sufficiency of the plaintiff’s evidence in that regard is concluded by the former decision. The law of the ease extends to all matters without which the first decision could not have been rendered. (Davis v. Edmonds, 218 Cal. 355 [23 Pac. (2d) 289].)

The defendant finally contends that the effect of the plaintiff’s execution of the receipt of March 30, 1927, was to release the defendant from any and all demands for further delivery of bonus or dividend stock. This question was determined adversely to the defendant’s contention on the former appeal. The receipt was there held to be sufficiently ambiguous in character to support a finding that the plaintiff was receipting merely for the amount due for a fractional share, as in prior similar transactions, and that the receipt did not purport to cover stock awarded and earned but not yet deliverable under the terms of the bonus plan. The question of what was released was open to explanation or elucidation by parol evidence. (Carpenter v. Markham, 172 Cal. 112 [155 Pac. 644]; Coats v. General Motors Corp., supra.)

No greater merit may be accorded the contention reiterated on this appeal that the plaintiff’s delay in bringing the action precludes him from any recovery under the facts presented. That question also was concluded by the decision on the former appeal.

No error appears in the rulings on the admission of evidence or in the instructions to the jury. They were in accord with the views expressed by the court in its decision on the former appeal. We conclude that the additional evidence introduced on the second trial had no greater effect than to perpetuate the conflict and that there is evidence in the present record which is sufficient support for the jury’s verdict.

No other points require discussion.

The judgment is affirmed.

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

Rehearing denied.


author: LANGDON, J.

text:
    [S. F. No. 15992.
    In Bank.
    July 28, 1938.]
    CITY OF LONG BEACH (a Municipal Corporation) et al., Petitioners, v. D. A. MARSHALL, as Port Manager, etc., Respondent; THE PEOPLE, Intervener.

      George W. Trammell, Jr., City Attorney, Harlan V. Boyer, Assistant City Attorney, Henry D. Lawrence and John F. McCarthy, Deputies City Attorney, Swaffield & Swaffield and Roland G. Swaffield for Petitioners.
    Markell C. Baer, Port Attorney (Oakland), W. Reginald Jones, Assistant Port Attorney, Ray L. Chesebro, City Attorney (Los Angeles), Clyde M. Leach, Assistant City Attorney, Loren A. Butts, Chandler, Wright & Ward, C. C. Stratton, Howard W. Wright, O ’Melveny, Tuller & Myers, Louis W. Myers, A. L. Weil, Martin J. Weil, Cassel Jacobs and George R. Wickham, as Amici Curiae, on Behalf of Petitioners.
    Frank M. Linnell for Respondent.
    U. S. Webb, Attorney-General, and L. G. Campbell, Deputy Attorney-General, for Intervener.
    Williamson, Hoge, Sargent & Judson, Harold Judson and Emil Steck, Jr., as Amici Curiae, on Behalf of Intervener.
   LANGDON, J.

This is a petition by the City of Long Beach and its Board of Harbor Commissioners for a writ of mandate to compel respondent to take bids for the furnishing of a derrick and oil well. The proceeding presents the question whether the mineral rights, particularly those in oil and gas, in tidelands granted to the municipality by the state, are owned by the municipality.

The facts are not in dispute. At various times the state has by legislative act granted tidelands to municipalities, for the purpose of developing harbors and promoting commerce and navigation. The principal grant to petitioner, City of Long Beach, was made in 1911, and subsequent statutes relating to said grant were enacted in 1925 and 1935. In 1937 a rich oil deposit was discovered under these tidelands and adjoining private property. Private owners immediately commenced drilling on the contiguous private land, and are extracting enormous quantities of oil from the pool underlying the entire area. Shortly after the discovery, an amendment was adopted to the Long Beach freeholders’ charter, expressly authorizing its Board of Harbor Commissioners to drill for and extract oil or other hydrocarbon substances from any of its land, including tidelands, provided that the board first found that the particular lands are not required and with reasonable certainty will not be required for a period of twenty-five years for the promotion of commerce, navigation or fishing. The section also provides that money derived from such oil development shall be used exclusively for improvement and maintenance of the harbor and servicing and redemption of outstanding harbor improvement bonds. This charter amendment was approved by the legislature on May 14, 1937. The Board of Harbor Commissioners, by resolution on January 31, 1938, found that the tidelands in question were not required for harbor purposes, as required by the said amendment. Thereafter the city commenced to drill wells, but its operations were stopped by a temporary restraining order in a taxpayer’s suit on January 20, 1938. This suit was brought on the theory that the rights in oil and other minerals belonged to the state and not to the city. In order to secure a prompt determination of the issue and avoid some of the huge loss of oil through adjacent private drilling, this proceeding in mandate was commenced against respondent port manager, and an alternative writ was issued by this court. The state, through the attorney-general, has intervened in the proceeding, asserting its claim to the mineral rights involved. Numerous amici curiae have appeared on both sides, and the matter has been exhaustively briefed.

The starting point of our discussion is the Act of .1911 (Stats. 191,1, p. 1304) reading in part: “There is hereby granted to the City of Long Beach . . . and to its successors all of the right, title and interest of the State of California, held by said state by virtue of its sovereignty, in and to all of the tide lands and submerged lands, whether filled or unfilled, within the present boundaries of said City ... to be forever held by said city, and by its successors, in trust for the uses and purposes, and upon the express conditions following ...” It is then stated that “said lands shall be used by said city and by its successors, solely for the establishment, improvement and conduct of a harbor” and the construction of anything necessary or convenient for the promotion of commerce and navigation. It is further provided that “said city, or its successors, shall not, at any time, grant, convey, give or alien said lands, or any part thereof, to any individual, firm or corporation for any purpose whatsoever”, provided that it may grant franchises for public uses, and leases for limited periods, for purposes consistent with the trusts upon which the lands are held. The final provision reads: “Reserving, however, in the people of the State of California the absolute right to fish in the waters of said harbor, with the right of convenient access to said waters over said lands for said purpose. ’ ’

Giving this language its ordinary and reasonable meaning, it would seem clear that the state intended to and did convey whatever title or interest it had in these lands to the city, in fee simple, subject to certain conditions and upon certain trusts. A fee simple is presumed to pass by a “grant” of real property. (Cal. Civ. Code, sec. 1105.) The conditions, limiting the use of the lands to harbor purposes, and forbidding alienation of title to private persons, are entirely con- ■ sistent with a conveyance of the fee simple title; the grantee of an estate on condition subsequent takes the fee, subject only to forfeiture for breach of the condition. (Parry v. Berkeley Hall School Foundation, 10 Cal. (2d) 422 [74 Pac. (2d) 738, 114 A. L. R. 562].) In short, there is nothing on the face of the statute which suggests that the city did not take the title to the lands, and the assumption that it did has been made in numerous cases hereinafter mentioned, involving tidelands granted by the state to municipalities, before the present controversy over oil rights arose.

The attorney-general and amici curiae supporting, his position contend, however, that there was no conveyance of the fee, and that the city received only the governmental power of administration of the lands, together with an easement or right to use them for specified purposes. This argument is largely based upon an interpretation of the statutory phrase “'held by said state by virtue of its sovereignty”. The state propounds the theory that there is- a “dual title” or “split fee” in tidelands, consisting of the jus privatum, or proprietary right, and the jus publicum, or governmental right. The proprietary' right, i. e., the ownership or title in the state’s proprietary capacity, is subject to the governmental right, embracing the trusts for navigation, commerce and fishing upon which the state itself holds the lands for the benefit of its inhabitants. It is contended that the jus privatum or proprietary right was not intended to pass to the city; that only the jus publicum or governmental right passed; and that the city acquired no more than the authority and political power to establish, operate, govern and maintain a harbor, as a subordinate governmental agency.

We are unable to see any substance in the theory that the state’s ownership of tidelands is so radically different from its ownership of other lands that a transfer by the state is not governed by the ordinary rules of interpretation of grants. There is neither logic in, nor practical necessity for the “double fee” doctrine. It is established law that the state became the owner of tidelands in fee simple upon its admission to the union, holding them subject to the public trusts for navigation, commerce and fishing (Shively v. Bowlby, 152 U. S. 1 [14 Sup. Ct. 548, 38 L. Ed. 331]; Borax Consolidated v. Los Angeles, 296 U. S. 10 [56 Sup. Ct. 23, 80 L. Ed. 9]); that it likewise became owner of the minerals therein (Boone v. Kingsbury, 206 Cal. 148, 170 [273 Pac. 797]); and it should reasonably follow that it has the power to grant these lands to municipalities, subject to those same trusts. (See Atwood v. Hammond, 4 Cal. (2d) 31, 37 [48 Pac. (2d) 20]; Los Angeles v. Pacific Coast S. S. Co., 45 Cal. App. 15, 17 [187 Pac. 739]; Lloyd v. Redondo Beach, 124 Cal. App. 541, 545 [12 Pac. (2d) 1087] ; and infra.) There is nothing startling in the idea of a legislative grant of the fee to a city, subject to limitations and reservations, and there is no reason why the state, as proprietary owner of these tidelands, may not grant the fee in them, just as it may grant the fee in other lands held in its proprietary capacity.

An examination of the statute itself confirms this view. The title of the act is “An act granting to the City of Long Beach the tide lands and submerged lands of the State of California within the boundaries of said City.” The language employed in the body of the act is in entire conformity with a grant of a proprietary interest in real property, and such terms as “grant”, “right, title and interest”, and “successors” are utterly improper as a means of delegating governmental dominion or control. It is difficult to conceive of the legislature choosing such inept language in dozens of these statutory grants throughout a period of many years, particularly when contemporaneous decisions were, as will be hereinafter seen, interpreting the statutes as vesting title in the municipalities. The phrase “by virtue of its sovereignty” is merely descriptive of the origin of the state’s title to these lands; the conveyance is thus of tidelands which came to the state upon admission to the union, by virtue of its sovereignty, and not by grant from the federal government, as in the case of many other lands. (See People v. Morrill, 26 Cal. 336, 353; Newcomb v. Newport Beach, 7 Cal. (2d) 393, 400 [60 Pac. (2d) 825].) Such language cannot be distorted to mean that the grant to the city is only of rights of sovereignty in the sense of political or governmental power. The argument of the state’s " double fee ’ ’ is met by the very statutory language which grants the land, for it conveys “all” the “right, title and interest” of the state. Whatever the state had by way of title or interest, however divided it may have been, it all passed under the plain words of the grant.

The second argument advanced by the state and amici curiae is that if any interest in real property was conveyed, it was at most an easement, and not the fee title. Numerous cases are cited by both sides dealing with the interpretation of grants for specified purposes, with respect to the question whether the fee was conveyed subject to conditions limiting its use, or whether an easement was granted for the specified use. (See, e. g., Cooper v. Selig, 48 Cal. App. 228 [191 Pac. 983]; Parks v. Gates, 186 Cal. 151 [199 Pac. 40].) They need not be discussed in detail, for the principles they lay down are not in conflict with our conclusion that the fee title to these tidelands passed to the city. The language granting “all right, title and interest” clearly indicates an intent to transfer the state’s fee title. Whether this language is characteristic of a quitclaim deed or a grant deed is immaterial; in either case it would transfer whatever the state had, saving nothing to the state except the right of access expressly reserved. (See Schlageter v. Cutting, 116 Cal. App. 489, 498 [2 Pac. (2d) 875].) A conveyance of the “right, title and interest” of a grantor has been held to carry with it the mineral rights in the land. (See McFarland v. Walker, 40 Cal. App. 508, 511 [181 Pac. 248].) The restraints imposed upon alienation of the lands to private persons are likewise strong evidences of a transfer of the fee. A holder of an easement might purport to transfer his easement or right to use, but could never convey the lands; and the restriction on such alienation is a recognition of the fact that they might otherwise be alienable by the city ás owner thereof. Finally, the express reservation of the right of access would hardly have been made if the state deemed itself still the owner in fee; it is indicative, therefore, of a conveyance of the title.

It remains only to point out briefly that the history of tideland grants in this state, and the actions of the various legislatures and the courts in connection therewith, show a general agreement that the tidelands were conveyed to municipalities in fee, subject only to the public trusts and the limitations and reservations specified in the acts; and that until the discovery of these valuable oil rights in the Southern California tidelands no serious doubt was ever expressed as to the title of the municipalities.

In 1.911, the time of the grant involved herein, three other statutes were enacted, making tideland grants to Los Angeles, San Diego and Oaldand, all of which are harbor cities. The San Diego statute is entitled “An act conveying certain tidelands . . . ”; the other three are acts “granting ... the tide lands ...” Bach of these four granting statutes deals with the “lands”; each grant is to the city “to be forever held by said city, and by its successors”; each is subject to the same condition against alienation to private persons, and each contains the express reservation of the right of áccess. It has been suggested by amici curiae on behalf of the city that if the legislature had only intended to delegate governmental powers, it would have been simpler and just as effective .to do so in a single statute applying to all of the cities concerned, and that these separate statutes were necessary because the intention was to convey title to specific parcels of real property, and to specific grantees thereof, rather than to establish political control by municipalities over certain tideland areas. Similar persuasive evidence of this sort is found in the series of tideland grants to the city of Oakland, eleven in number, commencing in 1852, and each granting a specifically described parcel.

In 1913 another statute (Stats. 1913, p. 437) was enacted to provide that any municipality “to which tide lands and submerged lands have been granted by the State of California, is hereby authorized and empowered to grant portions of such lands to the United States, for public purposes of the United States ...” Here we have express statutory recognition of a prior grant of the lands themselves, subject, of course, to the restraint upon alienation already set forth. This later statute is designed to permit one type of alienation. It would be strange indeed, if the state, owning the fee title to the lands, could nevertheless permit the cities to convey them; and it can hardly be conceived that the city, as grantor, could “grant portions of such lands” if it did not own them. A similar recognition is found in section 5395 of the Harbors and Navigation Code (Stats. 1937, chap. 368), authorizing grants by a municipality to a municipal port district, of “tidelands”, where “the state has granted all its right, title and interest” therein to the municipality. Again, the 1913 grant to the city of Alameda (Stats. 1913, p. 707), mainly in the usual form, contained a special provision giving certain private persons then in possession the right to obtain 25-year leases from a city, together with the right of renewal upon such terms as the city might specify, and thereupon such persons “shall quitclaim to said city any right they or any of them may claim or have to the said lands hereby granted”. Clearly this quitclaim was intended to eliminate any possible cloud on the city’s title, and is inconsistent with the theory that the title was in the state. The above-quoted section of the Harbors and Navigation Code contains a further significant provision that if a district to which grants are made by the municipality is dissolved, the land “reverts to and is revested in the municipal corporation so granting the same to the district”.

The subsequent statutes dealing with the Long Beach lands likewise exhibit a legislative recognition of a grant of the fee. The 1925 act (Stats. 1925, p. 235) designed to remove some of the restrictions on the use of the lands and to permit it to be devoted to such uses as “public park, parkway, highway, playground”, etc., is in the form of a new grant to the city. The same language is used, granting to the city “and to its successors”, all of the right, title and interest of the state, “to be forever held by said city”, subject to the restrictions and reservations. The 1935 act (Stats. 1935, p. 793) amends the 1925 act so as further to enlarge these purposes, and exactly the same terminology of grant is again employed. The 1937 charter amendment (sec. 229x) approved by the legislature on May 14, 1937 (Stats. 1937, p. 2939) expressly confers a right to drill for oil on tidelands, a meaningless authorization if the city wholly lacked title to the lands or ownership of the minerals.

It may be added that at the time of the 1935 act, the possibility of oil underlying tidelands in this general area was known to the legislature, through litigation and discussion of such cases as Boone v. Kingsbury, supra, but no attempt was made to assert title to the minerals or oil rights in the lands theretofore granted. On the other hand, in contemporaneous grants to other cities such as Santa Barbara (Stats. 1931, p. 1742), Ventura (Stats. 1935, p. 869), and Santa Cruz (Stats. 1935, p. 1876), the legislature expressly reserved to the state the mineral rights in the lands. In other respects, the terms of the legislative grants in these instances were similar to the earlier ones, particularly in the clause granting “all of the right, title and interest of the State of California, held by said state by virtue of its sovereignty”.

The decisions of this court have been equally uniform in their declaration that the cities by these various grants took title to the tidelands. We had occasion to review them in the recent case of Atwood v. Hammond, supra, dealing with the San Diego lands, and we there said:

“Defendants city and county of San Diego contend that the act of 1911, was not a conveyance of land to the city as sole owner, but only a grant to it of a right to make improvements in the harbor, with the right to lease wharves, piers and other harbor facilities, and to collect rents therefor. The language of the act refutes this contention. The title of the act describes it as ‘an act conveying certain tidelands . . . The preamble of the act refers to the power of the state ‘to convey to municipalities limited and defined areas of such lands’ in the interests of commerce, navigation and fishing. By its terms the act grants and conveys lands lying between the line of mean high tide and the pierhead line in the bay. Provisions prohibiting alienation of the lands described, and providing for reversion to the state of ‘the lands by this act conveyed’, upon a violation of any of the provisions of the act, arc inconsistent with defendants’ position that no lands were granted to the city . . . ’’
“Grants of waterfront lands similar in form and expression to the Act of 1911 have been interpreted repeatedly as conveyance to municipalities of tidelands subject to the public trust for navigation and commerce (cases cited). . . . That there may be a delegation of the right to make harbor improvements, without a conveyance of the legal title in the land is recognized in People v. Banning Co., 166 Cal. 630 [138 Pac. 100], But the grant made to the city of San Diego by the Act of 1911 is not of such nature.’’

To the same effect are Los Angeles v. Pacific Coast 8. 8. Co., 45 Cal. App. 15 [187 Pac. 739]; Lloyd v. Redondo Beach, supra; Newcomb v. Newport Beach, 7 Cal. (2d) 393, 402 [60 Pac. (2d) 825], and many other decisions cited in Atwood v. Hammond, supra. See, also, Long Beach v. Lisenby, 175 Cal. 575 [166 Pac. 333], dealing with the tidelands involved herein.

The attorney-general seeks to avoid the force of these decisions by pointing out that nearly all of them were proceedings to which the state was not a party. This would be a proper objection were the decisions deemed to foreclose the state’s claim of title in and of themselves. However, they are cited herein not as a conclusive determination against the state, but as sound authority for the construction of the statutory grants, and we have herein approved the reasoning upon which they are based.

It should he noted also, in this connection, that while this long series of decisions declaring that title vested in the municipalities under these legislative grants were being rendered, the legislature continued to make further grants in the same language. The conclusion is very strong that the legislature considered that these decisions correctly stated the purport and effect of the acts, and therefore declared the true legislative intent. And the rule of law is well established that where the legislature uses terms already judicially construed, “the presumption is almost irresistible that it used them in the precise and technical sense which had been placed upon them by the courts”. (Long Beach v. Payne, 3 Cal. (2d) 184, 191 [44 Pac. (2d) 305]; see, also, Anderson v. Jameson Corp., 7 Cal. (2d) 60, 67 [59 Pac. (2d) 962].)

The final question is whether the city has the right to drill for and extract the oil from these lands which it owns. Nothing in the grant purports to reserve to the state or to deny to the municipality the minerals or the right to extract them. Moreover, the charter amendment, section 229x, approved by the legislature in 1937, expressly and unequivocally empowers the city to drill, develop, take and dispose of oil on tidelands owned by it. Hence, the ownership of the lands being once established in the city, its authority to do the acts contemplated is placed beyond question by this express charter provision. It is, of course, true that the operations must not be conducted in such manner as to impede the use of the harbor, but there is nothing before us to suggest that drilling will have any such effect. (See Boone v. Kingsbury, 206 Cal. 148, 183 [273 Pac. 797].)

The state places considerable reliance on the ease of Stone v. Los Angeles, 11.4 Cal. App. 192 [299 Pac. 838], where the defendant city’s playground department sought to execute an oil lease on tidelands acquired by legislative grant. It was held that the city lacked power to make the lease, the theory of the decision being that the oil in place was part of the realty, and that by its removal the city had effected a prohibited transfer of a part of the freehold, in violation of the restraints on alienation imposed by the statute. It is apparent- that the Stone case is distinguishable from the present proceeding, for the court was dealing only with the city’s power to lease, and the opinion is explicit in thus limiting the issue, pointing out that the city itself is not attempting to drill. (114 Cal. App. 198.) Another basic distinction is that the city in that case was acting without any statutory authorization; here a charter provision, approved by the legislature, expressly authorizes the drilling for and extraction of oil. And it should be noted, finally, that the conclusion reached in the Stone case to the effect that an oil lease is an unlawful transfer of tidelands is contrary to the holding by this court in the later case of Boone v. Kingsbury, supra, at page 184.

The complaint that these valuable properties should not be taken from the people of the state and given to one community is one that can have no weight in this proceeding. We are concerned not with the policy of the statute but with its effect; and if the legislature, without knowledge of the hidden treasures in these lands, made improvident grants thereof, it is not within the power of the courts to nullify them.

It follows that petitioners are entitled to the relief demanded. Let a peremptory writ of mandate issue as prayed for.

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

Rehearing denied.