Supreme Court Ruling in Case Involving Wildman

Republic further argues in support of the validity of Special Endorsement No. 4 that restrictive endorsements excluding coverage have always been recognized, citing numerous authority therefore. It cannot be denied that the right of an insurer to limit its coverage has been repeatedly upheld. Continental Cas. Co. v. Phoenix Constr. Co., sets forth the general rule: ‘An insurance company has the right to limit the coverage of a policy issued by it and when it has done so, the plain language of the limitation must be respected.’

Recognizing this rule the court in the Wildman case, however, excepted therefrom the restrictive endorsement that contravenes the law or public policy, disapproved any endorsement excluding coverage of a permissive user of an insured’s automobile; and rejected, as without merit, the contention that the company had the right in this kind of circumstance to limit its coverage. The court Bonfils v. Pacific Automobile Ins. Co. was faced with the same argument. Conceding that an insurer has the right to limit its coverage, the court therein stated: ‘However, any such limitation must conform to the law; if contrary to public policy it is void.’ It is clear that all restrictive endorsements are subject to the law and public policy and if any coverage restriction contravenes the same, it shall be null and void. In issuing its policy, Republic not only impliedly agreed to conform to the law, but expressly provided that ‘such insurance as is afforded by this policy for bodily injury liability or property damage liability shall comply with the provisions of the motor vehicle financial responsibility law which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use during the policy period of any automobile insured hereunder’.

Republic finally contends that its policy was neither a ‘motor vehicle liability policy’ under the Wildman decision or the Financial Responsibility Law, nor so intended by either the insured or insurer. It claims that Special Endorsement No. 4 relates only to the garage operation of Max Barish, Inc., and as to vehicles owned and used by Barish it was solely a general liability policy intended to cover only the operation of an automobile agency and garage in which the ownership of certain vehicles was covered under specifically designated circumstances, and then only incidental to the general liability. Republic denies that the rule in the Wildman case applies to that portion of the policy pertaining to the use of automobiles in connection with the operation of the garage.

Republic’s policy is entitled ‘Comprehensive Liability Policy (General-Automobile) Pacific Coast,’ was issued to Max Barish, Inc., and provides for compliance with the motor vehicle financial responsibility act. Although it provides other coverage, it is obvious that the policy also covers personal injury and property damage ‘arising out of the ownership, maintenance, or use of any automobile.’ Insuring Agreement 1(A), (C). Reference to motor vehicle liability runs throughout the terms, conditions and provisions of this policy to such an extent that it would be burdensome to here relate them, and although Republic has attempted to limit its coverage by numerous attached endorsements, it is apparent that it constitutes a motor vehicle liability policy. Republic attempts to make a distinction between the permissive use of a vehicle lent to a friend or member of the insured’s family, and the permissive use of a vehicle lent by the garage operation of the insured to a customer thereof, in its claim that the latter was not contemplated under its policy and no premium was paid therefore. Whether the permissive use of the Barish owned automobile is to a family member, a friend, or by way of a loan to a garage customer, is of little import insofar as concerns the protection the public has a right to expect. The Wildman decision did not limit the permissive user to any particular person or class of persons, but applied the rule of protection to all persons driving the insured’s car with permission. Said the court: ‘the policy must be construed as extending coverage to persons suffering bodily injury or property damage caused by the vehicle in question when it was being driven by the named insured, or members of their immediate family, and also by someone else driving the vehicle with the consent and permission of the named insured.’ Republic contends, however, that its policy does not deprive the public of protection because Steinberg was covered by American’s policy and the persons injured were already protected. This argument is met by public policy considerations, the provisions of the automobile Financial Responsibility Law and the basic protection guaranteed thereunder for the benefit of drivers and owners of motor vehicles as well as the public who might suffer injury. The position advanced by Republic, that the rule for the benefit of the public developed in the Wildman case, arose out of a dispute between one injured and the insured and does not apply to a controversy between two insurers, finds no support in the law in this state. Forecasting the rule in the Wildman case, the court in Continental Cas. Co. v. Phoenix Constr. Co., involving a dispute between two insurance companies, discussed at length the financial responsibility statute, and the protection the public has the right to expect.

Republic’s suggestion that it is unfair to extend the coverage because the premium charged Barish did not include any driver other than the insured, we deem to be without merit particularly where the endorsement restricting liability is contrary to the law with which the insurer is bound to comply.

Even though the accident occurred March 27, 1956, before the 1957 amendment to section 415, Republic argues that neither section 415 then in effect, nor the Wildman decision is controlling. It reasons that, although the Supreme Court there held that sections 402 and 415 were ‘intended by the Legislature to be, and are, a part of every policy of motor vehicle liability insurance,’ when section 415 was amended in 1957 the legislature expressed its disapproval of the court’s holding by amending the definition of ‘motor vehicle liability policy’ to include only policies ‘certified as provided in section 414′; and that contrary to the Supreme Court’s ruling in the Wildman decision, the legislature actually never intended section 415 be read into any policy of liability insurance except those ‘certified.’ It is conceded that Republic’s policy was not certified. The Supreme Court was explicit in its pronouncement that sections 402 and 415 be read into ‘every policy’ of motor vehicle liability insurance. We cannot construe therein any limitation to certified or any other particular type of motor vehicle liability policy. Since the 1957 amendment is not retroactive, and the policies in question must be construed under the law as it existed on March 27, 1956, we are not constrained to discuss further the tenuous position advanced.

Smith v. Harnish

Carper v. Village of Helena

Both Legal Issues Addressed by Court Citing Bonfils

The issue is twofold–whether Republic’s policy covered the Barish car, used with its permission by Steinberg and, if so, to what extent.

Since the accident occurred in 1956, the policies must be viewed in the light of established rules and statutes then in force and effect. Section 415, Vehicle Code, a part of the Financial Responsibility Law, then required that every policy of motor vehicle liability insurance issued pursuant to the law ‘shall insure the person named therein and any other person using or responsible for the use of said motor vehicle or motor vehicles with the express or implied permission of said assured.’ As to liability, section 402 provided that every owner of a motor vehicle is liable and responsible for the death of or injury to person or property resulting from negligence in its operation by any person using or operating the same with the permission, express or implied, of such owner.

In 1957, before the amendment of section 415, the Supreme Court decided the case of Wildman v. Government Employees’ Ins. Co., controlling here. Confronted with the contention that the policy excluded coverage when a vehicle owned by the insured was driven by someone else, but with his permission, the court, after discussing public policy as reflected in sections 402 and 415, concluded that section 415 must be made a part of every policy of insurance issued by an insurer since the public policy of this state is to make owners of motor vehicles financially responsible to those injured by them in the operation of such vehicles. We are of the opinion that for an insurer to issue a policy of insurance which does not cover an accident which occurs when a person, other than the insured, is driving with the permission and consent of the insured is a violation of the public policy of this state as set forth in sections 402 and 415 of the Vehicle Code.

Republic seeks to avoid the effect of this decision by claiming that it dealt only with an interpretation of the particular insurance policy there under consideration and does not apply to all policies. It is clear from a reading of the opinion that the court extended its ruling to every policy of motor vehicle liability insurance. A similar contention was rejected by the court Bonfils v. Pacific Auto. Ins. Co.: the cited language from the opinion in the Wildman case is directed to every policy of insurance issued by an insurer; this declaration was reiterated therein where the court said inasmuch as sections 402 and 415 of the Vehicle Code set forth the public policy of this state such laws must be considered a part of every policy of liability insurance even though the policy itself does not specifically make such laws a part thereof; and again where it is stated: said sections were intended by the Legislature to be, and are, a part of every policy of motor vehicle liability insurance issued by an insurance carrier authorized to do business in this state. Every motor vehicle liability policy of insurance issued in this state, by virtue of law, covers both the owner of the subject automobile and every person using the same with the owner’s consent; any omission of an express provision in such a policy resulting in a failure to effect this dual coverage is supplied by implication of law; by the same standard, any provision therein which expressly excludes such coverage, being contrary to public policy, is rendered ineffectual by law.

People v. Womack

Warfield v. Richey

Stipulated Judgment Entered against Steinberg and Barish

A stipulated judgment in the sum of $5,000 was entered against John M. Steinberg and Max Barish, Inc., an automobile dealer and garage, hereinafter referred to as Barish, in a personal injury action arising out of an automobile accident on March 27, 1956, in which several persons were injured. It involved a car owned by Barish and driven with its permission by Steinberg. Steinberg was insured by American Automobile Insurance Company, plaintiff herein, and Barish by a policy issued by defendant Republic Indemnity Company of America. Plaintiff filed this action for declaratory relief to have their respective obligations under the two policies of liability insurance determined. The lower court held that Republic’s policy provided primary insurance to the full extent of the stipulated judgment and the policy issued by American provided only excess coverage; and ordered Republic to satisfy the entire obligation. It is from this judgment defendant appeals.

Both policies, in standard form, were issued prior to March 27, 1956. American not only covered Steinberg’s own car, but also his use of a non-owned vehicle as a ‘temporary substitute’ automobile. Republic’s policy, however, contained Special Endorsement No. 4, which provided: ‘with respect to any automobile used with the permission of the named insured by a customer of the named insured, such insurance as is afforded by the policy applies only to the named insured.’

Republic contends that this endorsement excluded coverage of the automobile owned by Barish and driven by Steinberg who, as its customer, was permitted to use the same while Barish repaired Steinberg’s car, thereby relieving it from liability under the policy; and in any event its policy provides only excess or, at most, pro rata coverage with the American policy. American submits that the endorsement is invalid as against public policy; that by operation of law, all permissive drivers were included in Republic’s policy as insureds; that Republic’s insurance on the Barish car constituted primary coverage and appellant is liable to the full extent of the judgment.

Smith v. Harnish

Warfield v. Richey

People v. Womack

The sole question posed by this appeal is whether an admitted act of sexual intercourse between defendant and the 14-year old daughter of his half-sister was incestuous under section 285 of the Penal Code: ‘Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the state prison not less than one year nor more than fifty years.’

Section 59 of the Civil Code provides: ‘Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.’

The essence of defendant’s argument, as stated in his opening brief, is as follows: ‘An ordinary reading of Civil Code, Section 59, leads counsel to the conclusion that ‘half-uncle’ and ‘half-niece’ are not included in the language. The words ‘of the half as well as the whole blood’ clearly apply to the words ‘brothers and sisters’; they clearly do not apply to ‘uncles and nieces’. In such case, where ‘half-bloods’ are mentioned as to one class of persons and not mentioned as to another class, it seems clear that ‘half-bloods’ are not covered as to the latter class.’

Defendant seeks to invoke the rule that where the language of a penal statute is reasonably susceptible of two constructions that construction which is more favorable to the accused will ordinarily be adopted.

Although the question here presented has not been decided in any reported California decision, the great weight of authority is adverse to defendant’s contention. We are in accord with the prevailing view that the statutory prohibition applies to the relationship here involved. By definition, an uncle is a brother of one’s father or mother, and no distinction is made between the whole and the half blood according to common and ordinary usage. In referring to himself as the ‘half-uncle’ of the victim of his act, defendant employs a misnomer; it is a term unknown to common usage.

In State v. Reedy, the terms of the applicable statutes were essentially the same as those here involved. The Supreme Court of Kansas declared: ‘The language employed by the legislature is to be interpreted according to its common meaning; and, when the terms ‘uncle’ and ‘niece’ are viewed in that light, they will include the half-brother of the father, and the daughter of a brother of the half-blood.’

In State v. Guiton, the defendant was convicted of incest with a niece, the daughter of his half-brother. The definitive statute provided that ‘marriage is prohibited between brother and sister, whether of the whole or of the half blood, whether legitimate or illegitimate, and also between the uncle and the niece, the aunt and the nephew.’ On appeal the same contention as that urged by defendant here was advanced, namely that since the qualifying words relating to the half blood were used only in reference to brother and sister, the relationship involved was not covered. In rejecting the contention the Louisiana court said: ‘It is true that the compilers of our Code inserted the qualifying words [half-blood]. We incline to the opinion that ‘brother’ and ‘sister’, as used, would include brother and sister of the half blood, without the qualifying words of the articles of the Code; that, as relates to the crime charged, the half blood is meant equally with the whole blood. Even if it should be conceded that too broad a meaning is given to the words ‘brother’ and ‘sister,’ and that, if used alone, they do not mean brothers and sisters of the half blood, here, in terms, brothers and sisters of the half blood are included in the article, followed by the words ‘and also,’ which refer, as we take it, to uncle and niece, and the qualifying words just preceding, ‘of the half blood.’ So that, in our view, it is as if the statute read, ‘Marriage is prohibited between brother and sister, whether of the whole or half blood, and also uncle and niece, whether of the whole or the half blood.”

In State v. Harris, defendant was convicted of incest under a charge that he had carnal intercourse with a female who was the daughter of his half-sister. In defining the crime, the statute referred to intercourse between brother and sister and uncle and niece, but in referring to brother and sister added the qualifying clause ‘of the half or whole blood.’ In affirming the conviction the appellate court said: ‘For obvious reasons, nothing is said of the half or whole blood. The relation of uncle and niece must of necessity be of the half blood, as in all other relations of consanguinity, other than those defined in the preceding section. As here, the daughter of defendant’s sister is of course related to him only by the half blood. The fact that the mother of the girl is only half-sister of defendant cannot affect the case. We think the defendant and his niece, the daughter of the half-sister, clearly within the statute.’

It has been held generally that prohibitions against incestuous relationships apply to designated near relatives, whether by the half blood or the whole blood. The statements of the text-writers are uniformly to the same effect.

The judgment and the order denying motion for a new trial are affirmed.

People v. Womack, 167 Cal.App.2d 130, 334 P.2d 309 (Cal. App. 2 Dist. 1959).

Vida v. Vida

Warfield v. Richey

Smith v. Harnish

This is an action for libel. Plaintiff alleges that defendants falsely and maliciously published of and concerning plaintiff two newspaper articles for the purpose of exposing him to hatred, contempt and ridicule. The trial court sustained defendants’ demurrer to the complaint without leave to amend and entered a judgment of dismissal. Plaintiff appeals.

The first article, insofar as is necessary to understand what is claimed by the plaintiff to be libelous, reads as follows:

‘District Court Upholds

‘Slander Suit Judgment.

‘Ontario–The District Court of Appeal has upheld a lower court’s judgment in The Daily Report’s slander suit against Oregon Smith.

‘The suit grew out of remarks made by Smith in 1953, then an Ontario councilman, that The Daily Report was ‘following a Communist Party line.’

‘When the action came to the Superior Court on March 7, 1955, Smith’s attorney argued that ‘the defamatory remarks were made at a legislative proceeding and were therefore fully privileged.’

‘Judge Raymond Thompson concurred and brought a judgment for nonsuit. This was the ruling which has been upheld by the District Court of Appeal.

‘The Daily Report had appealed in the belief that, if the decision were allowed to stand, ‘the public would have no protection against malicious statements made by unscrupulous members of any minor legislative body.”

The second article, insofar as is necessary to understand what is claimed to be libelous, reads as follows:

‘Unbridled License

‘Does a member of a minor legislative body, such as a city council, have the right to say anything he wishes about anybody in an official proceeding, without regard to the laws of slander?

‘He does indeed!

‘The question was one which The Daily Report pursued through the courts of the State of California. The answer was the same from the Superior Court, the District Court of Appeal, the Supreme Court: A councilman is a ‘legislator’ under the law and as such has complete privilege to make any defamatory remarks.

‘The newspaper sued. Smith pleaded immunity. He said he was a ‘legislator the newspaper appealed the decision. It did so in the belief that a member of a minor legislative body, elected by the people and drawing public funds, should not have a privilege which the people do not have.

‘Smith’s silly statement that The Daily Report was a Communist Party line newspaper was never an issue with the courts. It was conceded to be defamatory–even by the defense!

‘In pleading for dismissal Jack Tenney, Smith’s attorney, said that the ‘complaint as it now appears on the face thereof does not state a cause of action; it shows that the defamatory remarks made by the defendant were made at a legislative proceeding.’

‘Tenney’s characterizing the remarks as ‘defamatory’ is in the court record.’

It appears from the complaint, and an amendment thereto, that for a number of years ‘The Daily Report’ has been sharply critical of plaintiff, using at times somewhat vitriolic terminology. These matters are set up in the complaint for the apparent purpose of showing malice in fact by defendants toward plaintiff, and it is apparent that some of them might possibly have been the subject of actions for libel had plaintiff chosen to proceed thereon.

However, in the particular articles alleged in the case here at bar the trial court on demurrer concluded that the alleged defamatory language of the first publication was such that even by innuendo it could not be made to apply to plaintiff; that it clearly applied to an indeterminate group of fictitious persons who might at some unstated future time ‘unscrupulously’ defame other persons in a legislative proceeding.

With this decision we are in agreement, and we believe the case cited by the trial court sufficiently covers the point. Appellant has cited a large number of other cases which he believes indicate a different conclusion. We have been at pains to read all of them and while there is some language which, taken out of context, might give some comfort to plaintiff’s position, it is our view that each case when read as a whole is clearly distinguishable from the case at bar.

‘An accusation such as that complained of cannot have the quality of a libel unless there be a certainty as to the individuals accused. There is nothing in the published article that makes a personal application to the plaintiff. He cannot by use of the colloquium make the language which is applicable to so large a group of persons be made specifically to refer to him.’

‘The office of an innuendo is to declare what the words meant to those to whom they were published. When the words themselves, under any circumstances, would convey to those who read or hear them a meaning within the statutory definitions, there is no occasion for the pleading of an innuendo. Conversely, if the words under no circumstances could convey a defamatory meaning, then no innuendo can make them defamatory.’

The trial court likewise held that the article upon which the second count is based is clearly a presentation of a point of view upon an issue that had become one of some public interest; that the particular portions complained of are merely arguments and would be recognized by anyone as such; that under the circumstances here presented they are not such as would sustain a cause of action for libel. With this view we likewise agree.

‘In determining whether or not it is libelous, the article must be read as a whole in order to understand its import and the effects which it was calculated to have upon the minds of those who read it.’

The defense of legislative privilege essentially says: conceding our statement to be defamatory, still we cannot be held liable because we are protected by the cloak of absolute privilege under Civil Code section 47, paragraph 2. In speaking of the defense of privilege, the Supreme Court said: ‘This defense is essentially one of confession and avoidance.’

We agree with plaintiff that it would have been error in this case to refuse to permit plaintiff to amend if the basis of the ruling were on the special demurrer. However, plaintiff has nowhere suggested a desire or possibility of amendment except in respect to special damages and such an amendment would not affect the matters we have discussed.

The judgment of dismissal is affirmed.

Smith v. Harnish, 167 Cal.App.2d 115, 333 P.2d 815 (Cal. App. 4 Dist. 1959).

People v. Lujan

Vida v. Vida

People v. Lujan

Appeal from judgment of conviction of possession of narcotics in violation of § 11500, Health & Safety Code. It is claimed that the evidence is insufficient to support the finding of guilty and that the court committed error in sentencing the defendant.

Viewing the evidence in the light of the rules declared People v. Newland, and a host of later cases declaring the same principles, there remains no doubt of its sufficiency to support a conviction. Having been informed that one Lopez was using his place at 2210 1/2 South San Pedro Street, Los Angeles, for the meeting of narcotic addicts and was there selling narcotics to them, the police at 1:00 a. m. on February 8, 1958, entered those premises and placed all occupants under arrest. One of them was defendant Lujan. His eyes were glassy, pupils beady, an he was sniffling like he had a cold. One of the arresting officers, who was stipulated to be an expert on the subject, testified that defendant then was under the influence of a narcotic. He asked defendant if he was an addict and defendant said he was. Asked to show his arms, defendant did so and the officer observed puncture wounds on the right one. The officer saw defendant drop a key into a waste basket and took it into his possession. It bore the name and address of the Richard Hotel and had on it room No. 55. Questioned about it, defendant said it was the key to his room. The officers took him to that hotel, asked him if they could search his room, and he replied in the affirmative. As officers Breckenridge and Uno entered the latter went to an upholstered chair, turned over the cushion and found in the seat a box containing empty capsules, an eye-dropper, hypodermic needle, spoon and a rubber contraceptive containing a powdery white substance which proved to be 70 grains of heroin. In a medicine cabinet was a can of lactose. In a desk drawer were found measuring spoons and under the mattress a white handkerchief folded in such manner as to be usable as a tourniquet. There was also found in the desk drawer a rent receipt which bore date of February 1, 1958 and acknowledged receipt from Carlos Lujan of nine dollars for rent of room 55 ‘from 2-1 to 2-8.’ The officers found no clothing or personal belongings in the room. No other person had rented it for that period and there is no evidence of its use by anyone other than defendant.

He testified in his own behalf, claiming that he moved out of room 55 the day before the arrest and that he did not own or know anything about the narcotic and the paraphernalia which were found in room 55. He said that he had rented the room and when his rent was up he just walked out and failed to turn in the key; that his clothes were at his home, 3407 Blanchard Street, and he had no personal belongings at the hotel; also, that he did not drop the key in the waste basket and that the officers took it off his person.

The prosecution had the burden of proving possession, actual or constructive, and knowledge of the nature of the contraband on the part of defendant, which knowledge like any other issue may be proved circumstantially; the question of reasonable doubt is for the trial court, not the appellate tribunal.

Counsel for appellant emphasizes the claim that defendant was not shown to have had any connection with the heroin because he had moved out of the hotel room on the previous day. Only defendant’s testimony supports that assertion and the trial judge rejected it, not without reason. Appellant had a home of his own but had rented a room in this hotel at previous times; it does not appear that he had taken any of his clothes or personal belongings to the room on this occasion; his rent receipt gave him a right of occupancy through the eighth of February, or until some prescribed hour of that day; certainly his time had not expired at 1:00 a. m.; no one else was occupying the room at the time of search of for almost a week prior to that event. Defendant did not check out at the hotel. He said he just walked out. The key was in his pocket at the time of arrest but he surreptitiously sought to rid himself of it before a search of his person began. He was a confessed addict and was under the influence of a narcotic at the time of his arrest and the later search of his room. His constructive possession of the drug and the equipment for its injection is the natural conclusion from the evidence, as is an intention on his part to return to the room. His knowledge of the nature of the hidden objects is equally clear from the evidence accepted by the court. The proof is amply sufficient to support the conviction.

At the time of hearing of application for probation and sentencing of defendant the trial judge made some remarks which indicate a momentary confusion as to the identity of the defendant and appellant claims prejudice ensuing therefrom. Appellant was charged with a prior felony, violation of § 503, Vehicle Code, and that was found to be true. Probation was denied and defendant was sentenced to the state prison for the term prescribed by law.

Before imposing sentence the judge said: ‘Well, this was an establishment which was under the control of the defendant, if I remember rightly,’ and the attorney then representing appellant replied: ‘That is correct.’ Thus appellant was precluded from complaining if the court perchance proceeded further upon that faulty assumption. But the court, in sentencing this defendant, adhered to the record, recited the facts correctly and properly sentenced him to state prison for the term prescribed by law. The court also remarked: ‘In addition to these more formal matters, the record shows that the defendant has a considerable police record here, in addition to the matter just referred to.’ Section 11712 prescribes as punishment for a first conviction of possession of narcotics imprisonment in the county jail for not more than a year or in the state prison for not more than ten years. The sentence imposed here was undoubtedly a lawful one and any remarks made by the judge tending to reveal incorrect reasoning on his part in reaching a correct result are to be ignored; it is the correctness of the judgment that must control, not the reasoning lying back of it. Appellant was clearly guilty of the charge upon which he was convicted. There was no miscarriage of justice in sentencing him to the penitentiary.

Judgment affirmed.

People v. Lujan, 333 P.2d 774, 167 Cal.App.2d 104 (Cal. App. 2 Dist. 1959).

Vida v. Vida

Carper v. Village of Helena

Warfield v. Richey

On November 21, 1955, plaintiffs Phillip R. Warfield and his wife Nancy Jeanette Warfield (hereinafter called plaintiffs) and Jack C. Richey (hereinafter called defendant) entered into a lease agreement whereby defendant leased to plaintiffs a hotel and motel at Needles, California, for a term of five years from December 1, 1955, at a rental of 25% of the gross income. The lease contained a deposit requirement of $5,000 as lease security and $3,000 in escrow to be spent in improvements (in the case of neither deposit does the lease say where the deposit shall be made nor does it prescribe conditions of control). Lessor agrees to give lessees access to lessor’s books for the preceding year to verify income and operating expenses. Lessor further agrees to make repairs to the marquee and outside of the building, to keep the roof and other parts of the building in good repair, and to cause inspection and put into good operating condition the air conditioning and heating units.

On July 5, 1956, plaintiffs brought an action (85923) alleging violation by defendant of the agreement and on information and belief that the alleged statement by defendant that there had been $25,000 gross income during the year preceding date of lease was false, and asked for cancellation and damages. After filing an answer and some intermediate proceedings defendant, on September 12, 1956, filed notice of motion for permission to file an amended answer and cross-complaint, and on September 14th plaintiffs filed notice of motion for permission to file an amended complaint. On September 24th, the trial court denied permission to file the amended complaint on the ground that it attempted to state a new cause of action, and granted defendant’s motion to file an amended answer and cross-complaint. On the same day, plaintiffs caused said action 85923 to be dismissed, and on October 2, 1958, filed this action (86834) alleging false representations as an inducement to the making of the lease, refusal to permit inspection of books, refusal to make agreed repairs, the expenditure of $1,600 on improvements, notice of rescission, offer by plaintiffs to restore everything of value received, with a prayer for cancellation of the lease, return of $5,000 deposit, return of $1,600 expended on improvements, and $5,000 for services rendered in operating the hotel and motel.

On August 16, 1956, the defendant filed an action (86409) in unlawful detainer against these plaintiffs, alleging breach by nonpayment of rent and asking restoration of premises, etc.

After issue joined in both actions, causes were consolidated for trial, tried, and the court found generally in favor of plaintiffs on the allegations of false representation and of promises made without intent to perform; that defendant failed and refused to give plaintiffs access to defendant’s books for verification of income during the year preceding the agreement; that defendant failed to repair the marquee and other damaged portions on the outside of the hotel or its roof, and other parts of the hotel; that defendant failed to keep the property in good repair; that defendant failed to have the air conditioning and heating units put in good operating order; that the deposits of $5,000 and $3,000 required to be made by plaintiffs were made; that $1,600 was expended by plaintiffs on improvements; that notice of rescission was duly given; that the reasonable value of the use and occupation of the premises during the period occupied by plaintiffs under the circumstances of the occupation was $3,884.56; that the equitable time proportionate refund value of the $1,600 expended by plaintiffs for improvements is $1,217.88; that the $5,000 deposit plus the refund of $1,217.88 totals $6,217.88, and decreed this to be owed from defendant to plaintiffs; that the amount owed from plaintiffs to defendant is the reasonable value of the use and occupation of the premises or $3,884.56, making a balance of $2,333.32 adjudged to be paid by defendant to plaintiffs; that the lease be cancelled and rescinded: and that defendant’s action in unlawful detainer was unjustified.

This court has reviewed the entire testimony and the exhibits presented in the cause. There is considerable conflict in the testimony, but on appeal this court is required to resolve all such conflicts in favor of the judgment and to view the evidence in the light most favorable thereto.

Viewing the evidence in this light, the record contains testimony of the bad condition of various and sundry parts of the buildings at the time the lease was entered into, which explains the reason for the special provision for repairs to be made by the lessor. There is also evidence of repeated requests from the lessee for performance in this respect for several months after the commencement of the lease down to March, 1956, and perhaps later into the warm months, and also there is evidence of defendant’s failure to make such repairs and of his refusal to allow plaintiffs to inspect the books covering the year preceding the commencement of the lease for verification of income and expenses.

The evidence also shows that the $5,000-deposit for lease rental security was made with defendant, and that the $3,000-deposit for use in making improvements was made at a bank in Needles. This ‘improvement’ deposit was apparently in the name of plaintiffs and segregated from other deposits. A review of the whole record indicates that said $3,000-deposit was used from time to time for the making of improvements; that defendant was consulted each time the improvements were made, was aware of the circumstances of the deposits, and made no objection whatever either to the method of deposit or to the course and manner of expenditure. In view of the fact that the lease makes no provision as to where the deposit shall be made and does not purport to set up any system of controls or manner of expenditure, it is apparent that the deposit and its expenditure was in accordance with defendant’s understanding of the meaning of the contract and was in substantial compliance therewith.

The evidence shows further that the plaintiffs faithfully managed and cared for the premises, and faithfully paid the rent until it became evident that defendant was not performing his obligations and that there was a serious question as to whether he ever would or even intended to so perform. Under such circumstances the plaintiffs were entitled to hold up the payments of rent for a reasonable time, to find out just what defendant would do about his unfulfilled promises.

‘But the defrauded vendee has another and alternative remedy. He may elect to rescind the contract for fraud, restore possession to the vendor, and recover the purchase money paid less the fair rental value for the use of the property during his occupancy. This right of rescission is available to a vendee in default.’

During the month following the making of the contract the plaintiffs hopefully made frequent requests for defendant to show his books and for the making of repairs, etc. We think that they did not unduly delay their action. Equity is reluctant to impose the rule of laches against an offended party where the offended party is in good faith trying to settle the troubles of the parties without resorting to court assistance.

‘A delay in rescinding a contract on the ground of alleged false representations which is the result of indulgence shown to the party perpetrating the fraud is not available as a defense in an action for rescission.’

The courts have frequently declared that there is no artificial rule as to the lapse of time which will justify the application of the doctrine of laches. Each case must be determined upon the basis of its facts, and in the absence of a palpable abuse of discretion the trial court’s finding upon the issue will not be disturbed upon appeal.

It must be further noted that before an offended party in a fraud case may be effectively charged with waiver or estoppel, there must be full knowledge on the part of the offended party of all the facts relating to the fraud. It is apparent in the case at bar that the facts in their total effect were coming to the plaintiffs piecemeal, and the full disclosure of defendant’s false representation respecting the prior year’s income did not actually arrive until the trial of this cause.

‘It is the general rule, within which the case here obviously falls, that there can be no estoppel in pais where the party against whom the attempt is made to invoke such estoppel does not know the full truth of the facts to which his conduct, declarations, or representations constituting the basis of the alleged estoppel relate.’

The defendant claims that plaintiffs made an election of remedies and that they cannot now, by this action, proceed in rescission. Action 85923 was commenced July 5th, 1956, and was based on some of the same allegations of fraud and breach contained in the case at bar. It is entirely possible that plaintiffs were confused as to their remedy, the pleading was not satisfactory to the court nor to the plaintiffs, and after some legal maneuvering plaintiffs apparently believed they were forced to abandon that case and file over. They refiled just a few days after the dismissal. There was thus no decision on the merits, and we are unable to discern that defendant was in any way prejudiced or harmed thereby except, of course, that his case finally did get to the court on its real merits.

“When a case is dismissed without evidence having been offered, it is error to render judgment on the merits. There is nothing before the court on which to base any findings determinative of the issues. The absence of proof on either side could not involve a judicial determination of the merits of the controversy. ‘If the record of a judgment of dismissal fails to show that the judgment was given upon a consideration of the merits of the controversy, it is not available as an estoppel.’ Under well-settled principles of the doctrine of estoppel, the disadvantages caused the other party by a change of remedy must be a real injury, such as would, in the contemplation of law, amount to an estoppel, and when it is of this character the doctrine of election of remedies will be applied by the courts. ‘The doctrine of election of remedies is but a specific application of the equitable doctrine of estoppel, and it has been frequently held that a change in remedies does not bring about an election of remedies unless the change involves a prejudice to the opposing party.’

The defendant complains of the method used in calculating judgment. It would appear that the trial court used the ‘out-of-pocket’ rule as approved in many cases in California. Many states have used the ‘benefit-of-the-bargain’ rule, and this latter rule was sometimes used in California, but since 1935 the ‘out-of-pocket’ rule appears to have been followed with fair consistency.

‘In the rescission action a plaintiff is entitled to recover the consideration he gave on restoration or offer of restoration of that which he received. He is also entitled to recover compensation for whatever consequential damages he may have suffered by reason of having entered into the contract. In the latter case, a plaintiff is entitled to recover the difference between the actual value of that with which the defrauded person parted and the actual value of that which he received together with additional damage arising from the particular transaction.’

‘As long as there is available a satisfactory method for obtaining a reasonably proximate estimation of the damages, the defendant whose wrongful act gave rise to the injury will not be heard to complain that the amount thereof cannot be determined with mathematical precision.’

From an examination of the entire cause it appears that the court properly took into account all those factors that could benefit defendant in endeavoring to accomplish justice between the parties, stayed satisfactorily within the rules of equity, and that the judgment is fair and just.

The judgment is affirmed.

Warfield v. Richey, 167 Cal.App.2d 93, 334 P.2d 101 (Cal.App. 4 Dist. 1959).

Carper v. Village of Helena

Vida v. Vida

Carper v. Village of Helena

By the failure of a justice of the peace to enter his judgment ‘on or by the fourth day’ after the close of the trial, as required by Section 10378, General Code, he loses jurisdiction of the cause and a judgment entered thereafter is void.

This is an action to enjoin the enforcement of a judgment of a justice of the peace on the ground it was void. From a judgment for the defendant, this appeal on questions of law was taken. The vital assignment of error is that the judgment is contrary to law.

In the justice court the defendant herein, Village of Helena, obtained a judgment against the plaintiffs, who now contend that the justice lost jurisdiction of the cause for the reason that his judgment was not entered ‘on or by the fourth day’ after the close of the trial.

From the justice’s transcript it appears that the trial was had and the ‘case taken under advisement’ December 20, 1947. On December 26, brief of defendant was filed; December 31, brief of plaintiff filed, and January 2, 1948, ‘decision made in favor of plaintiff.’

At the hearing in this cause, the justice testified that at the close of the trial counsel for defendant asked permission to file a brief. General Code, requires that such judgment ‘shall be entered either at the close of the trial, or if the justice then desires further time to consider, on or by the fourth day thereafter, both days inclusive.’

In the recent decision of Monahan v. Beams, in a case on all fours with this, it was decided that the justice of the peace lost jurisdiction after four days passed before entering judgment. There the justice’s record disclosed that counsel for defendant requested permission to submit a brief.

In Tussing v. Evans, the court said that jurisdiction cannot be conferred by consent of the parties upon a justice of the peace to reserve a decision to a later date than that authorized by statute.

That such is the force of Section 10378, General Code, has been the unbroken line of decisions by the courts since Dunlap v. Robinson.

This being the rule, on the undisputed facts in this case the judgment of the justice of the peace was void. The trial court erred in dismissing the plaintiff’s petition, and that judgment will be reversed and, on the undisputed facts, final judgment will be entered for plaintiffs.

Judgment reversed and final judgment for plaintiffs.

Carper v. Village of Helena, 93 N.E.2d 567, 86 Ohio App. 541 (Ohio App. 6 Dist. 1949).

Vida v. Vida

Vida v. Vida

At the January, 1939, term of the Common Pleas Court, A was granted, after personal service, a decree of divorce from B, custody of their minor child, and an order for B to pay $4 weekly for the support of the minor child. In October, 1948 (the child of the parties being still a minor), A filed in the original action a motion to modify the award, and a motion, affidavit and notice in contempt of court, alleging B to be in arrears on the order of support previously made. B, now a resident of Michigan, was given notice of the motions by registered mail sent through the sheriff of Lorain County, after a praecipe for such service was filed with the clerk of courts. B appeared before the Common Pleas Court only for the purpose of objecting to the service of notice by registered mail, alleging that such service was contrary to law and void upon its face. Held:

The attempt to invest the court with jurisdiction by such method was ineffectual. Service of notice by registered mail, upon a nonresident defendant, of motions filed in a case, where the court has continuing jurisdiction of the subject matter, is governed by General Code, and may be made only when the action is one in which service by publication is permitted.

At the January, 1939, term of the Common Pleas Court of Lorain County, Margaret Vida, appellee herein, secured a decree of divorce and custody of minor child from Louis Vida, appellant herein. The summons in the divorce action was personally served on the defendant. The decree provided that Louis Vida pay to Margaret Vida the sum of $4 a week for the minor child’s support until the further order of the court.

On October 7, 1948, Margaret Vida, now Margaret Miller, filed a motion to modify the award of support by increasing the allowance, and a motion, affidavit and notice in contempt, alleging Louis Vida to be in arrears on the order of support in the sum of $536. On the same date, a praecipe for service of the motions and notice by registered mail was filed with the clerk, directed to the sheriff of Lorain county, and returnable according to law. On October 15, 1948, the sheriff of Lorain County made return of the motion and notice as follows:

‘Received this writ on the 7th day of October, 1948, and pursuant to its command, on the 7th day of October, 1948, I deposited in the United States mail, registered and with return receipt requested, a true and certified copy of the motion and notice, with all the endorsements thereon, addressed to the within named, Louis Vida, 8610 Saratoga W., Ferndale 20, Michigan.

‘I now return this writ, together with a return receipt signed by Louis Vida.’

On October 22, 1948, Louis Vida, appearing only for the purpose of his previously filed motions and for no other purpose, asked the court to set aside the sheriff’s return of service of notice of hearing, for the reason that this defendant (appellant), Louis Vida, was a nonresident of the state of Ohio and that service of notice as made by registered mail at Ferndale, Michigan, was contrary to law and void upon its face.

The trial court, after hearing, overruled Louis Vida’s motions as to the service of notice, and granted the motions filed by Margaret Vida Miller, by increasing the allowance of support to $10 a week, found the amount of arrearage for support at the sum of $524, and found Louis Vida guilty of contempt.

It is from the judgment on these motions that this appeal on questions of law is taken by Louis Vida, who says the trial court erred in overruling the motions to set aside the sheriff’s return of notice of service, the trial court erred in granting the motions as filed by Margaret Vida Miller, and there are other errors manifest upon the face of the record.

Section 11987, General Code, authorizes a court in a divorce action to make such order for the disposition, care and maintenance of the children, if any, as is just.

The Supreme Court of this state has consistently held that, where a decree of divorce provides for the support of a minor child of the divorced parents, the jurisdiction of the court in the matter of such support continues.

This court in an opinion by Stevens, J., in the case of Collins v. Collins, said:

‘The rule is that an order for support, payable in installments, over which the court reserves a continuing jurisdiction, must first be modified by proper proceedings, so as to reduce the installment order to a lump sum award, before a judgment may be entered thereon.

‘The ‘proper proceedings’ to procure a modification may be by motion filed in the same court which entered the order and in the same case in which the original order was made, or by petition filed in a separate action in the same court.

‘In either event, whether by motion or petition, notice to the adverse party is essential to invest the court with jurisdiction to determine the question presented.’

The only question, then, that confronts us, is: Has proper notice to the adverse party–in this case, Louis Vida–been given so as to invest the court with jurisdiction of the person of Louis Vida?

General Code governs the giving of notice of motions and says in part:

‘The service of a notice shall be made as required for the service of a summons.’

The methods of service are personal service, constructive service, also called service by publication, and service by mail.

Mail service may be provided for by rule of court. It is agreed herein that the judges of the Common Pleas Court of Lorain County by rule provided for the service of writs and summonses by mail.

In the case of Struble v. Meredith, the court held: ‘Service of summons by registered mail upon a nonresident defendant may be made under the General Code, when the action is one in which service by publication is permitted.’

Thus, if the action instituted by the filing of these motions by Margaret Vida Miller would support service by publication upon Louis Vida, then the additional method of service provided in General Code–to wit, mail service–could properly be employed to subject him to the jurisdiction of the Common Pleas Court of Lorain County.

The provision for service by publication says, in part:

‘Service may be made by publication in any of the following cases:

’11. In an action or proceeding for a new trial or other relief after judgment.’

Does the appellee, mother of the minor child, seek ‘other relief after judgment?’ If she does, then service by publication is permissible, and therefore service by mail is likewise permissible under the facts of this case.

The phrase ‘other relief after judgment’ is the title given to Chapter 6, Division IV, Title IV, Part Third, of the General Code, which Division IV relates to ‘Judgment.’ The sections of the General Code contained in such Chapter 6 relate to the power of a court to change its orders during or after term, and the procedure to correct mistakes, omissions or irregularity in obtaining judgments. An examination of these statutes does not disclose any power in a court to exercise jurisdiction over the person of a litigant when a judgment is sought to be modified.

The phrase ‘other relief after judgment’ refers to the type of relief called for by Chapter 6, of the said Division IV relating to judgments, and does not relate to the modification of judgments where the court has continuing jurisdiction of the subject matter and not of the person.

In order, therefore, for the court to obtain jurisdiction of the person of Louis Vida, a proper service of the notice of the pending motions is essential; and since it was not obtained in this case, the judgment must be reversed and the cause remanded for further proceedings.

Judgment reversed.

Vida v. Vida, 86 Ohio App. 139, 90 N.E.2d 441 (Ohio App. 9 Dist. 1949).

Hess v. Pawloski

People v. Perrigo

The defendant was convicted by a jury before the Honorable Howard H. Splete, Police Justice of the Village of Carthage, New York, on September 4, 1959, of leaving the scene of accident without reporting. From the judgment of conviction entered on the aforesaid date, he appeals.

An essential element of the charge against this defendant, which the People must prove beyond a reasonable doubt, is that he left the scene of an accident, knowing that damage was caused, without reporting it.

Two ladies who were seated in a parked car on State Street in the Village of Carthage, at about 10:30 o’clock in the evening of June 30, 1959, were the principal witnesses for the People. They testified that an automobile proceeding westerly on the said street struck a car that was parked.

One of said ladies, a Mrs. Walters, stated that the defendant was the operator. She also offered the only testimony in the case on the question of the extent of damage to the parked vehicle, stating ‘the back fender and what they call the apron next to the hood was what seemed to be dented in.’

This testimony related to what she claimed she observed after the accident. There was no testimony whatever regarding the condition of the vehicle allegedly damaged, prior to the accident, and the owner of the allegedly damaged vehicle neither made any complaint nor testified. He was the manager of a store in Carthage and was available as a witness.

The defendant denied any knowledge of the accident when arrested by a police officer later the same evening, and denied that there was any damage occasioned to his vehicle, or damage caused by him to any other vehicle, that evening. It is conceded that the defendant reported no accident. There was no proof offered that there was any damage to any part of the defendant’s car that might indicate that it had been involved in an accident.

Without the testimony of the owner of the parked automobile allegedly damaged, there is no way to ascertain whether the fender and apron that ‘seemed to be dented in’ was caused by an accident on the evening of June 30 or some days or weeks prior thereto.

The defendant alleges that the People did not prove beyond a reasonable doubt that any damage had been caused by the defendant, if, in fact, the defendant did have knowledge that any accident involving his car occurred. Defendant also moved for direction of a verdict in his favor at the close of the People’s case on the grounds that the People had failed to sustain the burden of the proof required.

Under the facts in this case that motion should have been granted.

In and of itself, failure of proof as to damage to the parked vehicle, even assuming that the defendant had knowledge that an accident had occurred, would necessitate a reversal of the judgment of conviction.

The People failed to prove beyond a reasonable doubt that any damage had been knowingly caused by the defendant’s automobile.

Upon the facts and the law, the judgment of conviction is reversed, the information dismissed, defendant discharged and the fine remitted.

An order may be entered accordingly.

People v. Perrigo, 195 N.Y.S.2d 323, 20 Misc.2d 852 (N.Y. Co. Ct. 1960).