Volume 191 — California Reports

<p>[1] Negligence—Collision Between Automobile and Pedestrian— Regulation of Traffic—Ordinances—Instructions.—In an action for damages for personal injuries to a pedestrian who was struck by an automobile near the center of the intersection of two streets, where the testimony as to how the accident occurred varied from that of the defendant to the effect that his automobile was standing still at the time of the collision and that the plaintiff heedlessly ran into its side and the testimony on behalf of the plaintiff that defendant’s automobile suddenly swerved to the left from behind a street-car, which had been traveling in a westerly direction and was turning to the right, and, passing beyond the center line of the street, struck plaintiff, and where the testimony also varied as to the speed at which the defendant was operating his machine at the time of the accident, from ■fifteen miles per hour to his own testimony to the. effect that he was at a standstill at the time of the collision, it was prejudicial error for the trial court to instruct the jury upon the theory that certain city ordinances regulating street traffic established the law of the city with relation to such traffic and that if the defendant violated the terms of the ordinances he was guilty of negligence.</p> <p>[2] Id.—Appeal—Verdict—Evidence.—In determining whether or not a verdict is supported by the evidence, it must be assumed on appeal that the jury accepted the view most favorable to the. respondent.</p> <p>[3] Id.—Verdict—Appeal—Instructions.—In such action, in determining on appeal whether given instructions, declaring that certain city ordinances established the law as to regulation of traffic in the city and that it was the duty of the defendant (the appellant) to travel as near the north curb line of the street as possible, are correct, it must be assumed that the jury might have believed the evidence upon which the instruction favorable to the •losing party was predicated, and that if the correct instruction had been given upon that subject the jury might have rendered a verdict in favor of the losing party.</p> <p>1. Effect of conflict between statute and local regulations as to automobiles, notes, 21 A. L. R. 1186; 1 L. R. A. (N. S.) 219; Ii. R. A. 1918D, 132.</p> <p>Reciprocal duty of operator of automobile and pedestrian to use care when near street-car, note, 51 L. R. A. (N. S.) 1003.</p> <p>[4] Id. — Contributory Negligence — Question for Jury. — In such action, the question as to whether or not the plaintiff was guilty of contributory negligence was one for the trial jury.</p> <p>[5] Id.—Instructions.—In such action, where the street-car which the defendant was following did not stop until it turned completely off to the right on the street intersecting the one on which it had been traveling, and the defendant did not pass alongside the street-car, but either proceeded directly forward or swerved to the left to pass around the rear end of the car, an instruction concerning the duty of the defendant in passing a street-car which was stopping for the purpose of taking on or discharging passengers, and the defendant’s duties with reference to passing the car at a distance of at least six feet from the lower step, and stating that a violation thereof was negligence as a matter of law, should not have been given.</p>

<p>APPEAL from an order of the Superior Court of Santa Clara County denying application for letters of guardianship. F. P. Gosbey, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

PROCEEDING in Prohibition to prevent the Superior Court of the City and County of San Francisco from further proceeding in guardianship matter. Writ granted. The facts are stated in the opinion of the court.

<p>[1] Trusts—'Resulting Trust—Payment.—Ordinarily, when a transfer of real property is made to one person and the consideration therefor is paid by another, a trust is presumed to result in favor of the person by or for whom such payment is made.</p> <p>[2] Id.—Action to Impress Trust — Findings — Evidence.—In an action by a mother against the surviving widow and administratrix of the estate of her deceased son to impress a trust on certain property, referred to as the garage property, where the findings show that said garage property was received in the son’s name in exchange for an equity in a contract of purchase held by the mother in her own name, that said equity in said contract was obtained by means of a conveyance by the son to the vendors therein of other property, which belonged to the mother, with the understanding between mother and son that the title to the property, which was the subject of the contract of purchase, should be taken by and vest in the mother, and such findings were supported by the evidence, the trial court was justified in impressing a trust on the garage property in favor of the mother.</p>

<p>[1] Libel—What It Includes.—Libel includes a publication “which exposes any person to hatred, contempt, ridicule or obloquy” (if false and unprivileged), irrespective of whether or not it charges a violation of law.</p> <p>[2] Id.—Action fob Damages—Publication Libelous Per Se—Instruction.—In an action for damages for libel, an instruction that a publication in the form of a letter signed by the defendants, and published in a newspaper, in effect charging the plaintiff with procuring by crooked methods an unjust change in the boundaries of a school district and with being actuated by bad faith in so doing was libelous per se, was correct.</p> <p>[3] lb.—Privilege—Justification—Pleading—Waiver.—The defense of privilege, like that of justification, must be specially pleaded or it cannot be availed of.</p> <p>[4] Id.—Defense of Privilege—Character of.—The defense of privilege is essentially one of confession and avoidance and this is further evidenced by the circumstance that under it the burden of proving the absence of actual malice rests upon the defendant.</p> <p>[5] Id.—Privilege—Pleading—Exception.—The rule that privilege to be available as a defense must be pleaded is subject to the single exception that when it appears upon the face of the complaint it may be availed of by demurrer; but this exception is limited to cases of absolute privilege under subdivisions 1 and 2 of section 47 of the Civil Code, and this is so because of the fact that in cases of qualified privilege .the burden is upon the defendant to prove the absence of malice.</p> <p>[6] Id.—Effect of Article upon Plaintiff’s Wife—Evidence—Instruction—Prejudicial Error.—In such action, the admission over defendant’s objection of testimony by plaintiff as to the effect observed by plaintiff of the article upon his wife, and the giving of an instruction to the effect that the jury could take into consideration as an element of damage the mental suffering on the part of plaintiff, if any, growing out of the fact, if found to be a fact, that he was conscious that members of his family suffered by reason of the statements contained in the publication complained of, were erroneous, and such error was prejudicial where a very substantial portion of the award in favor of plaintiff was based upon a consideration by the jury of the testimony improperly admitted and then unduly emphasized and called to the particular attention of the jury by said instruction.</p> <p>3. Privileged communications, expressions, or statements, note, 194 Am. St. Rep. 119.</p> <p>Ford & Bodkin, G. H. Gould, Harry W. T. Ross and Leon B. Yankwich for Appellants.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George E. Crothers, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Landlord and Tenant ■— Construction oe Instrument—Tenancy in Common in Crops.—Where an owner of land and another entered into a writing, whereby the former, in substance, agreed to lease said land to the other for a specified term with a renewal privilege, to furnish and buy various articles of personal property, including livestock, to pay one-half of the cost necessary to maintain pumps for irrigating purposes, to furnish and develop an amount of water as should be mutually agreed upon, and to build a house, and the other party agreed to supply all labor necessary to work the land and make repairs, to provide feed for horses, to keep certain personal property in good repair, to pay one-half the water rent and to plant such crops as would prove most profitable and to be mutually agreed upon, and to buy a half interest in certain livestock, it being further agreed between the parties that the “ranch shall be run on 50 per cent basis to each party,” that the owner reserved the right to sell said property provided the equity of the other was properly protected, that the latter was to take possession not latfer than a certain time and was to forfeit all his rights in case of his failure to comply with the agreement, if within his power to do so, the relation of landlord and tenant as defined in Sarrelson y. Miller $ Lux, 182 Cal. 408, existed, and by the instrument it was intended to create the relation of tenancy in common in the crop to be raised.</p> <p>[2] Id.—Sale oe Crop by Tenant — Authority.—Under such an agreement, the tenant had no authority to sell the whole of the crop grown on the land, the disposition that the owner should make of Ms share of the crop being a matter for his determination alone.</p> <p>1. When cropping agreement creates tenancy in common, note, 37 Am. Rep. 609.</p> <p>[3] Id.—Sale to Third Parties—Conversion—Estoppel—Evidence. The owner is not estopped from claiming in an action for conversion his share of the crop grown under such an agreement after a sale of the same by the tenant to third parties, where the crop was sold about a year after the lease in question was executed, the lease had been of record for a period of five months before said sale, and had said tMrd parties examined the records they would have at least been put on inquiry as to the ownership of the products of the premises owned by plaintiff, there being no showing that the tenant had ever before the transaction in question made any sales of crops for plaintiff or was ever held out by him as being clothed with any such authority.</p> <p>[4] Sales—Title op Purchaser—Nature op.—As a general rule, a purchaser of personal property acquires only the title or estate of his vendor.</p>

<p>[1] Guardian and Ward — Misappropriation op Funds—• Action to Recover—Interest.—In this action against plaintiff’s former guardian and the latter’s attorney for the recovery of certain moneys received by them during the administration of the guardianship estate, which it is alleged were fraudulently concealed and omitted from the guardian’s accounts and never accounted for, it is held that the trial court should have allowed plaintiff interest on the various sums- which were misappropriated and used by the attorney from the dates of such misappropriation.</p> <p>[2] Id.—Trust Funds—Liability—Interest.—The rule is now well established in this state that where the misappropriation of trust funds is willful, instead of careless, and it is not shown that a larger sum" was realized therefrom, the limit of the liability of the guardian is the return of the principal sum with legal interest thereon compounded annually.</p> <p>[3] Id. — Attorney op Guardian — Willpul Conversion op Trust Funds—Interest.-—Where the attorney for a guardian received funds belonging to the guardianship estate for and from the guardian knowing their character, and a voluntary relation of personal confidence and trust existed between the guardian and her attorney, the latter became a trustee for the ward, under the provisions of section 2219 of the Civil Code, for the purpose of an accounting; and where his conversion of the funds was willful, but it is not shown what, if any, amount he realized by reason of his fraudulent misuse of the minor’s estate, he should be charged with legal interest from the dates on which the money was converted to his own use, compounded with annual rests.</p> <p>[4] Id.—When Simple Interest Charged.—In such cases, without ocher intervening circumstances, the general rule is that where the trustee has not been guilty of some positive misconduct or willful violation of duty, simple interest only will be charged.</p> <p>[5] Id. — Surrender op Control op Trust Funds — Trustee Guarantor.—If a trustee enters into any arrangement in relation to trust funds which surrenders or limits his control over them, he becomes a guarantor of the fund, irrespective of Ms motive, or whether Ms surrender of control was the cause of the loss of the fund. In such case, in the event of loss, the court will not enter upon an inquiry whether the loss is due to such abdication of control.</p> <p>2. Liability of guardian for misappropriation of ward’s funds by attorney, note, 5 L. B. A. (N. S.) 575..</p> <p>Personal liability of trustee for intoest on money lost through investment, note, 44 L. B. A. (N. S.) 975.</p> <p>[6] Id.—Liability of Guardian for Agent.—When a guardian delegates the administration of the solemn trust imposed by the guardianship to another, the guardian must bo hold responsible for the other’s action in the premises. Hence the action of the guardian's chosen agent must be, as a general rule, imputed to the guardian in all matters relating to the administration of the trust.</p> <p>[7] Id.—Trustees—Obligation of Duties.—If a trustee confide the application of a trust fund to the care of another, whether a stranger or his own attorney or solicitor, or even cotrustee, he will be held personally responsible for any loss that may result. Under such circumstances a trustee may employ attorneys or agents, according to the usual course of business, to reduce the estate to possession and protect it, but when once in his hands Ms personal duty to dispose and manage it begins, and this duty is not to be delegated.</p> <p>[8] Id. — Abandonment of Duties by Guardian — Misappropriation of Funds by Attorney — Liability of Guardian. — Where the guardian of a minor negligently, and without due regard for her duties as guardian, turned over and abandoned to her attorney the management and control of the possession of the moneys, securities, and properties of her ward, and failed and neglected to supervise the management of her ward’s property, and also failed to examine and make any inqmry concerning the correctness of the several accounts proposed by the attorney, filed by her as such guardian and presented to the court, the acts of the attorney were imputable to the guardian, and where he fraudulently misappropriated the funds of the estate to Ms own use, the guardian is liable for the amount misappropriated, with legal interest from the date of such misappropriations at the legal rate compounded annually.</p>

<p>[1] Small Claims Court—Jurisdiction—Torts.—Under section 927 of the Code of Civil Procedure, enacted May 16, 1921 (Stats. 1921, p. 117), the jurisdiction of the small claims court includes actions ex delicto as well as ex contractu.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. James M. Troutt, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Libel — Privileged Publications — Malice — Section 47 of the Civil Code.—Absence of malice is an express limitation upon the privilege sanctioned by subdivision 3 of section 47 of the Civil Code, whereas, in this regard, the exemptions specified in the first and second subdivisions of said section are absolute and unqualified.</p> <p>[2] Id.—Director of State Laboratory—Communications With Officials of Other States—When not privileged,—A letter written by the director of the state laboratory of California to Iho Department of Agriculture of another state stating that a certain dealer in food products “was dealing in adulterated, rancid food products, to wit: walnut meats, which were unfit for human consumption,” and that a certain number of cases of walnut meats were being shipped into the latter state which were adulterated, rancid, and unfit for human consumption, which statements were alleged to be false, was not published in the proper discharge of official duty or in an official proceeding authorized by law, and is not a privileged publication.</p> <p>2. Official report by executive or administrative officer as libel and slander, note, 5 L. B. A. (N. S.) 163.</p> <p>[3] Id.—Duties oe Director oe State Laboratory.—The duties of the director of the state laboratory are, first, the examination and analyses of foodstuffs, and, second, the issuance of reports thereon to the state board of health. In other words, his duties are confined to scientific analyses and deductions. The director has no power to compel the procurement and submission of foodstuffs for examination. He examines the samples submitted to him and reports to the board, and here terminates his official activity; he has no part whatever in applying the results of his investigations. The act does not impose any duty upon a director to communicate the facts ascertained by him to anyone other than the state board of health.</p>

<p>[1] Railroad Commission—Readjustment of Rates for Electric Energy — Procedure — Limitation of Investigation — Power of Commission.-—In a proceeding before the Railroad Commission for a modification of rates to be charged by an electric company for electric energy for lighting and power, which proceeding was regarded by the commission in the nature of an emergency investigation having for its purpose immediate relief of the consumers from the higher rates allowed by a previous order of the commission, the commission has the right to limit the scope of the investigation and to exclude from consideration, for the time being, an inquiry into the lawfulness and propriety of its former order relative to the amount of taxes, state and federal, which the corporation had been allowed to charge to the account of operating expenses, and this limitation did not violate any constitutional right of the corporation.</p>

PROCEEDING in Certiorari to annul an order of the Industrial Accident Commission awarding compensation. Award annulled. The facts are stated in the opinion of the court. R. P. Wisecarver and Redman & Alexander for Petitioners.

<p>The facts are stated in the opinion of the court.</p>

<p>[l] Workmen’s Compensation Act — Injury to Employee — Fall prom Porch op Employer’s Rooming-house—Evidence.—An employee who was injured, by falling from the porch of a rooming-house, at which he was living and which was conducted by his employer, when the leg of a chair which the employee had placed as a seat for himself on the edge of the porch went through a crack in the floor, is not entitled to compensation under the Workmen’s Compensation Act, where such injury was sustained at a time when such employee was not at work, and was neither required to work nor to be on the premises, and he had a choice of going to a near-by town, but preferred quarters provided for Ms convenience by Ms employer.</p> <p>1. Injuries arising out and in the course of employment generally, notes, Ann. Cas. 1915C, 921; Ann. Cas. 1918B, 362; L. R. A. 1916A, 40, 232; L. R. A. 1917D, 114; L. R. A. 1918F, 896.</p> <p>[2] Id.—Recovery for Injury — Essentials—Construction of Act. The Workmen’s Compensation Act does not provide an insurance against every accident happening to the workman while he is engaged in the employment. The words “arising out of and in the course of employment” are conjunctive, and relief can be had under the act only when the accident arose both “out of” and “in the course of” employment. The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work; it must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Certiorari to review an order of the Railroad Commission. Application stricken from files.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Certiorari to review an order of the Railroad Commission. Application stricken from files.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Morrison, Dunne & Brobeck, Louis Oneal, Wm. F. James and J. F. Shuman for Appellants.</p>

<p>[1] Fraud—Rescission op Contract—Representations—Findings— Evidence.—In this action by a vendee for the rescission of a contract of purchase of farming land on the ground of fraud, the evidence was sufficient to support the findings of the trial court to the effect that defendant falsely represented the character and productivity of the soil and the price she had received for a crop of pears the year before the making of the contract, and that plaintiff was ignorant, unacquainted, and unfamiliar with farming, agricultural pursuits, fruit-raising, and lands and soils and the qualities or fitness thereof.</p> <p>[2] Id.—Expression op Opinion—Statement op Fact—Question por Trial Court.—-What amounts to an expression of opinion as compared with a positive statement of fact depends upon all the circumstances of the ease, and is a question for the trial court to determine.</p> <p>[3] Id. — Representation — Finding — Appeal. — In such an action, where the trial court, upon sufficient evidence, found that defendant stated, as a fact, that the land in question was the finest sediment soil, such finding is binding on appeal.</p> <p>2. Statement of opinion as being generally not fraudulent, note, 35 L, R. A. 417.</p> <p>[4] Id.—Statement Based on Alleged Facts—-Character of.—A statement of what might otherwise be an opinion, if based on alleged, facts, is a statement of fact and not a statement merely of an opinion.</p> <p>[5] Id. — Reliance on Representations — Duty to Investigate Excused.—Plaintiff having relied upon the representations made by defendant to him concerning the character and productivity of the soil, he (plaintiff) was not under any obligations to investigate and to verify their truth.</p> <p>[6] Id.—Visit to Premises—Effect upon Right to Rely upon Representations Without Investigation—Evidence.—The right of plaintiff to rely upon the representations of fact made by defendant concerning the character and productivity of the soil without making an investigation and verifying the truth of such representations is not destroyed by the fact that he visited the premises in question before entering into the contract of purchase, where he was not competent to judge the quality of the land.</p> <p>[7] Id.—Rescission—Diligence—Question of Fact.—Whether or not the defrauded party has rescinded “promptly” depends upon all the circumstances of the particular ease, and is a question primarily for the trial court.</p> <p>[8] Id.—Discovery of One Instance of Fraud—Notice—Fact.—The rule that a person who has discovered that he has been cheated in one particular is put on inquiry as to other possible frauds must be applied with reference to all the circumstances of the case, and is a question for the trial court to determine.</p> <p>[9] Id.—Rescission—Laches—Finding—Evidence.—In such an action, the trial court was justified in holding that plaintiff offered to rescind within a reasonable time after he discovered the facts which entitled him to rescind.</p> <p>[10] Id.—Waiver of Fraud—Sufficiency of Finding.—In such an action, a finding “that plaintiff did not, after the discovery of the said fraud and falsity of the representations which the court finds were made by defendant waive said fraud or affirm the said contract or sale as alleged in defendant’s amendment to her answer filed herein or by any other act or conduct on the part of plaintiff,” was a sufficient finding that the plaintiff did not waive the fraud.</p> <p>[11] Id.—Waiver of Fraud—Question for Trial Court—Appeal.— In such an action, the question of waiver or nonwaiver of the fraud was one of fact for the trial court to pass upon, and the acts or conduct which defendant claims constituted said waiver were the evidence to be considered in determining the ultimate fact of waiver or nonwaiver; and it cannot be said on appeal, as a matter of law, that plaintiff intended to and did waive the fraud complained of.</p> <p>5. Right of vendee to rely upon representations by vendor as to quality and condition of soil, notes, Ann. Cas. 1912A, 405; It. R. A. 1917C, 273.</p> <p>Right to rely on positive statements of facts, note, 37 L. R. A. 609,</p> <p>[12] to. — Ratification or Affirmance of Contract — Intention — Evidence.—Whether or not a person has ratified a voidable contract, or 'elected to affirm it rather than to rescind it, depends primarily upon his intention, and this is shown by his declarations, his acts, or his conduct, which are matters of fact for determination by the jury.</p> <p>[13] Id.—Pleading—Evidence.—In such an action, where the complaint charged that defendant falsely stated that the property had in a given year produced pears of the reasonable value of sixteen hundred dollars, for which sum they were sold, when in fact they were sold for a sum not exceeding one thousand dollars, and an issue was raised by the denial of such allegations, evidence that the defendant received one thousand dollars for the pears “on the trees” in said year was properly admissible.</p> <p>[14] Id.—Findings.-—In such an action, it was not necessary that the trial court should make a finding as to each ground of fraud alleged in the complaint, since if the findings in plaintiff’s favor as made support the judgment, as they do, a finding against him upon the remaining charges of fraud would not affect his right to the relief given.</p> <p>[15] Id.—Offset—Findings—Judgment.—In such an action, it must be presumed on appeal that the trial court took into consideration the fact that plaintiff received a stated sum of money on the sale of a pear crop shortly before rescission when it found “that there is due from plaintiff to defendant the sum of three hundred dollars, being the difference between the value of the said personal property sold by plaintiff, together with the value of the use by plaintiff of all the property conveyed to plaintiff by defendant, and the interest due to plaintiff on the purchase price paid by him to defendant”; but in any event, since the plaintiff, in the calculation by which the amount of the offset due to the defendant was found, was charged with the value of the use and occupation of the premises for the time he was in possession, he could not also be charged with the proceeds of said pear crop.</p>

PROCEEDING in Certiorari to annul an order of the District Court of Appeal, Second Appellate District, Division Two, adjudging petitioners guilty of contempt. Writ granted. Tfye facts are stated in the opinion of the court. U. S. Webb, Attorney-General, John W. Maltman, Deputy Attorney-General, C. C. Carlton and Lorrin Andrews for Petitioners.

<p>J. H. Morris, Cushing & Cushing and Delger Trowbridge for Appellants.</p> <p>Thomas C. Denny, Preston & Duncan and Robbins, Elkins & Van Fleet for Respondents.</p>