Volume 60 — California Appellate Reports

<p>[1] Verdict—Special Issues—Pleading.—Special issues, or particular questions, of fact, calling for answers as to facts without the proof of which the plaintiff could not support his action, may be submitted to a jury regardless of whether, as in cases of tort, exemplary or punitive damages may or may not properly be allowed or are within the calls of the complaint.</p> <p>[2] Slander—Use of Word “Bitch”—Imputation.—The words “bitch” or “son of a bitch” are not actionable per se; and when the former is applied to a female it does not impute unchastity.</p> <p>[3] Id.—Meaning of Words Used—Intent—Understanding — Pleading—Proof.—To be slanderous and actionable the words spoken must be understood by those who heard them uttered in a slanderous sense; and when a slander or libel is couched in language having a covert meaning not apparent upon its face, or in words or phrases not used otherwise than as slang, or cant terms, it is necessary for a plaintiff not only to allege and prove the slanderous or libelous sense in which the words were used by the defendant, but also that they were understood in the same sense by those to whom they were addressed.</p> <p>[4] Id.—Imputation of Wrong—Intent of Utterer—Understanding of Hearers.—Where the alleged slanderous or libelous words are not on their face or per se slanderous or libelous, the plaintiff must plead and prove that the utterer or publisher of such words intended that they should be understood as imputing wrongdoing or wrong conduct to the plaintiff, and that they were so understood by those who heard or read them.</p> <p>[5] Id.—Imputation of Unchastity—Verdict—Inconsistent Special Findings.—In an action for damages for slander, in which it is alleged that the defendant called the plaintiff wife a “bitch” and an “old hag,” thereby meaning that she was a. person of unchaste character, findings of the jury, in response to special issues or particular questions of fact submitted to them, that a witness who heard those words uttered by defendant understood the defendant to mean by the use of those words that the plaintiff wife was a woman of unchaste character, and that the defendant did not use such language with the evil purpose of slandering said plaintiff and did not intend by the use of that language to imply that said plaintiff was an unchaste woman, are themselves inconsistent, and they are also inconsistent with a general verdict in favor of the plaintiffs.</p> <p>2. Actionable character of epithets that impute immorality to a woman, note, 4 L. R. A. (N. S.) 560.</p>

<p>APPEAL from a judgment of the Superior Court of Sutter County. K. S. Mahon, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Sacramento County. George H. Thompson, Judge Presiding. Motion denied. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of El Dorado County and from an order denying a new trial. George H. Thompson, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Bailment—Contract for Storage of Automobile—Damages— Delivery to Unauthorized Person—Sufficiency of Evidence.— In this action against a corporation operating a public garage for damages to plaintiff’s automobile while it was being driven by a third person, the evidence supports the finding that the delivery of the machine to such person by the defendant was unauthorized and in violation of the contract of storage under which the automobile was kept in the garage.</p> <p>1. Duty and liability of garage-keepers to owners of ears, notes, Ann. Cas. 1913E, 835; Ann. Cas. 1915D, 957; 15 A. L. R. 681; 45 It. R. A. (N. S.) 314; 48 L. R. A. (N. S.) 561.</p>

<p>[1] Attorney at Law—Disbarment—Protective Measure.—The merits of an application for reinstatement of an attorney at law after disbarment are not in any way affected by the belief of the signers of the petition that the applicant has been sufficiently punished, since a disbarment is not punitive in character, but is a measure protective of the profession and of the public which finds it necessary to resort to the services of lawyers.</p> <p>[2] Id. — Reinstatement of Disbarred Attorney — Reformation — Evidence—Production of Pacts.—No disbarred attorney can be reinstated in his old place in the profession except upon a showing of facts aided perhaps by affidavits or even letters of well-known persons, particularly lawyers and judges, expressing a conviction, based on a statement of facts, that the petitioner for reinstatement has reformed, and all demonstrating that he is fit to resume the ermine which he has already polluted.</p> <p>[3] Id.—Degree of Proof.—One who has been disbarred for grossly immoral conduct should not be reinstated in the ranks of the legal profession except upon overwhelming proof of reform.</p> <p>[4] Id.—Vacation of Judgment of Disbarment—Attitude of Courts. A choice between suspension and disbarment being allowed by the statute to the court to which an accusation for disbarment is addressed, and it being possible that an appeal may be take" from the judgment pronounced by such a court, a judgment of disbarment will not be set aside lightly, even in. a proceeding for the reinstatement of the disbarred individual.</p> <p>2. Reinstatement of disbarred attorney, note, Ann. Cas. 1912A, 813.</p> <p>[6] Id.—Proceedings for Beinstatement—Nature of.—Proceedings for reinstatement after disbarment, although generally so styled, are only popularly so called, for they are really but applications for admission to the bar and not applications to vacate orders of disbarment, and should be considered as though they were applications for admission by lawyers coming from sister states.</p> <p>[6] Id.—Befusal of Beinstatement—Insufficiency of Evidence.— An application for reinstatement of an attorney who had been disbarred for misconduct and who had pleaded guilty to a charge of embezzlement of funds of a client must be denied where accompanied only by unverified letters and petitions of employers, lawyers, and others based in the main upon the “belief” of the signers that the applicant had been sufficiently punished without any evidence of facts showing reformation.</p>

<p>APPEAL from a judgment of the Superior Court of Mendocino County. J. Q. White, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Corporations — Purchase of Stock of Business Competitor — Secret Profits—Recovery of Manager.—Where a person while acting as the manager of a corporation receives secret profits in the purchase by the corporation of the stock of a business competitor and conceals from the corporation and its stockholders the fact that he has received such moneys, the corporation is entitled to recover the same from him.</p>

<p>[1] Corporate Securities Act—Revocation op Broker’s Certificate— Notice and Hearing—Right of Broker.—In view of the rule that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to he heard, even in the absence of any provision therefor in the Corporate Securities Act (Stats. 1917, p. 673), a broker is entitled to a notice and hearing before the commissioner can revoke his certificate.</p> <p>[2] Id.—Insufficient Order to Show Cause—Lack of Jurisdiction to Revoke Certificate.—The commissioner of corporations is without jurisdiction to either suspend or revoke the certificate of a broker under the Corporate Securities Act of 1917, where the notice mailed to the broker was merely an order to show cause why his certificate should not he revoked and contained no charges of any nature and nothing from which he could ascertain what he would be required to defend, since the constitutional guarantee of due process of law requires that he he allowed to appear and defend, and the established rules of procedure demand that the accused shall he given such notice of the charge against him as will enable him to formulate a defense.</p> <p>[3] Id.—Suspension of Certificate—Fraud—Insufficiency of Evidence.—In this proceeding to review the action of the com- . missioner of corporations in suspending the certificate of a broker, the evidence fails to support the finding that the broker had engaged or was about to engage in a fraudulent transaction.</p> <p>[4] Id. — Presumption Against Fraud — Applicability of Rule to Revocation of Certificate.—The presumption against fraud is available to a broker charged therewith in a proceeding to revoke his certificate, and can be overcome only by clear and satisfactory proof.</p> <p>[5] Id.—Suspension of Certificate—Power of Commissioner.—If it may be assumed that the power of the commissioner of corporations under the Corporate Securities Act to suspend a broker’s certificate is to be implied from the grant of the power of revocation, it nevertheless may be exercised only when the commissioner has obtained jurisdiction to proceed with a hearing and determination of that question.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Fred H. Taft, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. J. E. Woolley, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Contract—Sale or Oil—Action ros Additional Compensation —Evidence — Irrelevancy or Contract or Exchange.—In an action by a producer of oil for the recovery of additional compensation claimed to be due for oil delivered under a contract ■which provided that if during the period of the contract the buyer offered to other producers in the same field a higher price for oils of like gravity and quality, such producer should be entitled to such higher prices, evidence that under a contract between the buyer and a railroad company for the exchange of oil, the buyer received oil at a value which made the price received for the oil it sold greater than the contract price it paid the seller, was irrelevant, since the value of the oil to the defendant was the price at which it could purchase the same and not the price at which it was offering the same for sale.</p>

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

<p>[1] Appeal—Dismissal—Failure to File Transcript.—An appeal must be dismissed where no transcript or bill of exceptions has been settled, signed, and filed as provided by law and the rules of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. J. P. Wood, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Evidence—Sustaining op Objection to Testimony—Absence op Motion to Strike Out—Subsequent Introduction Without Objection—Lack op Prejudice.—Where an objection to testimony is sustained, but no motion to strike out is made, and the matter to which objection is made comes in immediately afterward without objection, no prejudice results from the fact that the objection was sustained in the first instance.</p> <p>[2] Id.—Bepusal to Permit Finishing op Answer^—Becord—Lack op Prejudice.—Prejudicial error cannot be predicated upon the refusal to permit a witness to complete an answer to a question, where no motion to strike out is made and the record fails to show what the witness would have testified to had she been permitted to finish.</p> <p>[3] Deeds—Action to Set Aside—Undue Influence—Evidence— Mental Appearance op Grantor—Testimony op Bank Clerk.— In an action to set aside certain deeds made by the mother of plaintiff to defendants on the ground of undue influence, a question asked of the hank clerk with whom the mother generally transacted her banking business as to whether in all her transactions she appeared to be keen mentally and a business woman, while somewhat leading, was within the discretion of the court to permit to be answered, since it called for appearances and not for a state of facts.</p> <p>3. Permitting leading questions as matter within discretion of trial court, note, 17 Ann. Cas. 840.</p> <p>[4] Id.—Evidence—Preparation of Deeds—Statement of Attorney •—Presence of Third Person—Communication not Privileged. In such action, the statement of the attorney of the grantor that the latter called the witness to her residence and asked him to prepare the deeds was admissible, where it appeared that one of the defendants was present during the conversation, since communications made by a client to an attorney in the presence of third persons are not privileged within the meaning of subdivision 2 of section 1881 of the Code of ’Civil Proocedure.</p> <p>[5] Id. — Evidence — Relationship and Position of Grantee in Grantor’s Household.—Testimony in such action as to what work one of the grantee daughters did during the early years of her life while she was living at home with her mother was admissible.</p> <p>[6] Id. — Evidence — Value of Property—Conversation Between Mother and Daughter.—The admission in such action of a conversation between the mother and daughter concerning some furniture and a statement by the latter regarding the value of the amount of her share of the income property in question was not in violation of section 1880' of the Code of Civil Procedure.</p> <p>[7] B>.—Evidence—Deposit in Joint Banking Account of Grantor and Grantee.—Testimony in such action given by a grantee daughter that her husband gave her some cheeks which were later deposited in the joint banking account of the grantor and such daughter was admissible as having a direct tendency to show the business dealings and- relationship existing between the mother and daughter.</p> <p>[8] Evidence—Impeaching Question—Foundation.—Where no proper foundation for an impeaching question has been laid an objection thereto is properly sustained.</p> <p>[9] Deed—Parent to Child—Presumption.—The mere fact that a conveyance is made by a parent to a child does not render the deed presumptively invalid.</p> <p>[10] Id.—Age and Enfeebled Condition of Grantor—Burden of Proof.—Where great age and enfeebled condition in the parent, together with such a division of the parent’s property among the children as would in itself suggest great partiality, are shown, the burden is upon the attacked donee to show that the gift was made freely and voluntarily and with full knowledge of the facts and a perfect understanding of the effect of the transfer.</p> <p>4. Privileged communications between attorney and client, notes, Ann. Cas. 1913A, 3; Ann. Cas. 1916E, 335.</p> <p>[11] Id.—Execution of Deed—Undue Influence.—Undue influence in the execution of a deed must arise from a confidence reposed ■by the grantor in the grantee, with the added feeling on the part of the grantor that the grantee has some power or authority over him, and it must appear that such power or authority was used by the grantee on the will of the grantor for the purpose of obtaining an unfair advantage of his weakness of mind or body, or of his necessities or Ms distress, and that such feeling of power and authority on the part of the grantor was actually present and operating upon his mind with such pressure as to overpower the mind and overcome the volition of the grantor at the very time the deed was executed.</p> <p>[12] Id.—Action to Set Aside Deeds—Absence of Undue Influence—Sufficiency of Evidence.—In tMs action to set aside certain deeds made by the mother of the plaintiff to the defendants, on the ground of undue influence, the findings on all issues against the plaintiff are supported by the evidence.</p>

<p>[1] Criminal Law—Appeal—Diminution of Eecord—Transcription of Proceedings at Trial.—On an appeal from an order revoking probation and from a final judgment of conviction, a motion for an order for the transcription of the portion of the record containing the charge to the jury and the entire proceedings at the trial must be denied under sections 1247 and 1247c of the Penal 'Code, where the statement of the grounds of appeal relate solely to the proceedings on the motion to revoke probation and the application for a transcript of the record specifies only proceedings in relation to that matter.</p> <p>[2] in.—Grounds of Appeal—Failure to Specify—Effect of.—An appeal from a final judgment of conviction which fails to specify the grounds of such appeal is ineffectual.</p>

<p>[1] Water Districts—Establishment oe Boundaries—Mandamus.— A Writ of mandate will not issue to require a board of supervisors to establish the boundaries of a proposed county water district sought to be organized under the County Water District Act (Stats. 1913, p. 1049), where the board is not furnished with sufficient information as to the purposes and objects of the proposed organization to enable it to intelligently exercise the discretion vested in it in the matter of establishing such boundaries and excluding and including lands.</p>

<p>[1] Mechanics’ Liens—Test Bore for Water Well—Structure— Construction of Code.—A test bore for a water well drilled under the terms of a contract which provided that if within the depth of a thousand feet sufficient apparent water-bearing strata was encountered which by mutual agreement would justify finishing the well, the bore was to be.reamed out and a well sunk, constituted a “structure,” under the provisions of section 1183 of the Code of Civil Procedure, entitling the contractor to a lien for the work done and labor, materials, and supplies furnished in drilling . the bore.</p> <p>[2] Id.—Occupation of Land—Test Bore for Well—Information of Owner—Notice of Nonresponsibilitt.—Where a test boro for a water well on land owned by a corporation was made under a contract between the occupant of the land and the driller, and the former informed an officer of the corporation that such a test was being made, the information was sufficient to put the corporation upon inquiry as to the nature and extent of the work, and in order to avoid responsibility it was incumbent upon the corporation to give the notice provided by section 1192 of the Code of Civil Procedure.</p> <p>[3] Id.—Drilling of Well—Area of Land Subject to Lien.—In determining what area is subject to a lien for the drilling of a water well the question is not so much as to the amount of land required for the area to be occupied by the well and its appliances, but rather as to the. amount of land to be improved or benefited by the creation and use of the well.</p> <p>1. Mechanic’s lien for sinking well, notes, 6 L. B. A. (N. S.) 550; 43 L. B. A. (N. S.) 559.</p> <p>3. Extent of land to which mechanic’s lien will attach, note, 26 L. B. A. (N. S.) 831.</p>

<p>APPEAL from a judgment of the Superior Court of Orange County. Z. B. West, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Negligence — When Question of Law. — It is only when there is no dispute as to the facts and reasonable men can reach hut one conclusion—that of plaintiff’s lack of ordinary care in the circumstances which contributed directly or proximately to the accident of which he complains—that the judge is warranted in deciding that fact in place of the jury and declaring therefrom ■as a matter of law that plaintiff shall not he permitted to recover damages.</p> <p>[2] Id.—Collision Between Motorcycle and Automobile—Evidence— Question fob Jury.—In this action to recover damages for personal injuries sustained in a collision between a motorcycle upon which plaintiff was riding and an automobile operated by defendant, the evidence presented a question of fact as to plaintiff’s negligence which was at least fairly debatable, and therefore no error was committed in denying the motion for a nonsuit.</p> <p>[3] Instructions—Appeal—When not Beviewablb.—An appellant is in no position to complain of an instruction in Ms favor.</p> <p>[4] Id.—Error of Appellant—Effect of.—WMIe the general rule is that instructions should be based on the evidence and not on facts of which there is no evidence, where it appears that such an error was partly, if not entirely, caused by the party complaining, he can he afforded no relief.</p> <p>[5] Id.—Consideration of Instructions as a Whole.—Instructions must be considered as a whole, and where matter omitted from a particular instruction is covered in other instructions, no error is committed.</p> <p>[6] Negligence—Collision of Motor Vehicles — Use of Wrong Side of Street at Intersection—Custom—Effect of.—In an action for damages for personal injuries sustained in a collision between a motorcycle upon which plaintiff was riding and an automobile operated by defendant, a custom or practice of automobile drivers to use the wrong side of the street at the intersection where the collision occurred is not binding on the plaintiff so as to excuse defendant from violating the statute in that regard, provided such act was the proximate cause of the accident.</p> <p>[7] Id.—Position of Peril—Course of Action.—The law does not demand that one placed in great peril by the negligence of another shall make the best possible choice.</p>

<p>Place of Tbial—Action Against Corporation—Fraud.—Order affirmed on the authority of Nalcata v. Guarantee Mortgage Co., ante, p. 260.</p>