Examination of Proximate Cause in Shopkeeper Negligence

Now it is apparent that the defendant had notice of the existence of the syrup on the floor, by reason of the knowledge of its employee of such fact.

It is also apparent that the defendant through its employee took certain measures to remove the syrup, which, obviously, judging by the result, was a menace to the safety of customers. It appears also that the defendant, through its employee, left a portion of the syrup and glass on the floor and went elsewhere, and that some precaution was taken to guard the area. This is giving the defendant, rather than the plaintiff, the most favorable construction of the evidence.

It cannot be claimed, nor is it contended that the presence of the syrup on the floor was not the proximate cause of plaintiff’s injuries. The contrary is true. The evidence is not in conflict upon this question. The plaintiff fell when she slipped on the syrup. There is no evidence indicating she was guilty of contributory negligence. So that the question presented is:–Did the defendant, through its employees, use reasonable care to remove the cause of the injury to plaintiff, after becoming aware of its existence? This involves a consideration of two phases of the situation:–(1) the measures used to remove the syrup (2) the care taken to guard the area. Stating it another way, it was a question whether or not the defendant, through its employees, used the care which a reasonably prudent person would use under the same or similar circumstances to prevent injury to the plaintiff. Certainly, this would be a question for the jury’s determination. The trial court considered that only a question of law was involved, and inferentially held by its decision that the care exercised by the defendant through its employees was adequate. In this, the trial court usurped the function of the jury, who were well qualified to judge what, under the circumstances, was reasonable care. The average person serving on a jury would be well acquainted with the perils incident to walking about a grocery store and fully able to judge what would be reasonable care in avoiding harm to customers.

People v. Torres

Legal Ramifications of Statements by O’Connor

Negligent Deposit of Syrup in Grocery Store

Where a substance, dangerous to the safety of customers is deposited on the floor of a grocery store, and an employee uses certain measures to remove such substance, places some obstruction about the area involved, leaves the place otherwise unguarded without other notice or warning of the presence of the dangerous condition still remaining, a factual issue is presented involving the negligence of the defendant, it being a question for the jury to determine whether the defendant used reasonable care to maintain its premises in a safe condition for its customers, and a trial court commits error, prejudicial to the plaintiff in instructing a verdict in favor of the defendant, at the conclusion of all the evidence in which the facts stated are shown to exist.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton County entered in conformity to a verdict instructed for defendant, at the conclusion of all the evidence.

Certain facts are apparent from the record. The plaintiff was a customer of the defendant which operated a grocery store in which the customers served themselves. In process of acquiring certain articles which she desired to purchase, she proceeded down one of the aisles containing various types of saleable merchandise. She slipped and fell when her foot came in contact with a quantity of syrup spilled out of a broken glass bottle. Pieces of glass still remained in deposit of syrup on the floor. It is in evidence that an employee of the store had made some effort to clean up the syrup and had placed boxes about the area after so doing, and that no one was stationed nearby to warn customers of any danger existing in the area.

Kalin v. Cronig

People v. Loeper

Alvak Enterprises Sought Injunction in Corporate Law Proceeding

The plaintiff Alvak Enterprises, a California corporation, brought this action to enjoin the defendants Philip C. Phillips and Edith Phillips from interfering with the operation of a hotel owned by the corporation. The defendants answered and eventually, as directors, filed a second amended cross-complaint seeking dissolution of the corporation; a Milton Niemetz joined with them as cross-complainants; the corporation and its president, Alfred Spivak, were named as cross-defendants. Thereupon, Mr. Spivak, as owner of 50 per cent of the shares of the corporation, by notice and motion, initiated proceedings under section 4658 of the Corporations Code to avoid dissolution of the corporation by the purchase of the remaining 50 per cent of said shares which he alleged were owned by the cross-complainants. His notice recited that the motion would be based on ‘all the papers, records and files in the action’. Prior to this time motions with respect to a preliminary injunction and for the appointment of a receiver had been heard by the court. Voluminous affidavits had been filed in connection with these hearings. In addition, the original complaint, an answer thereto, the original cross-complaint, an amended cross-complaint and a second amended cross-complaint with an answer thereto, all verified, were on file in the action. There was a great deal of conflicting evidentiary matter thus presented to the court on the motion to stay proceedings and avoid dissolution.

On appeal it will be presumed that the trial court accepted the evidence which will support its order. Reviewing the record pursuant to this rule, the following is a fair statement of the facts: In 1957, Mr. Spivak, who was president of the plaintiff corporation, which then was dormant, engaged in negotiations with Mr. Phillips culminating in an agreement resulting in the purchase of a hotel; the vesting of title thereto in the corporation which had been reactivated; a reorganization of the board of directors by the election of Mr. and Mrs. Phillips as directors; and the election of Mr. Phillips as secretary-treasurer. Pursuant to their agreement, Mr. Spivak and Mr. Phillips made the financial arrangements incident to the purchase of the hotel and, in return, each of them was to receive 50 shares of the capital stock of the corporation for a cash consideration of $400 per share or, in lieu of cash, the cancellation of promissory notes which the corporation had executed in their favor covering money advanced in connection with the purchase of the hotel. The board of directors adopted a resolution authorizing the president to make application to the Corporation Commissioner for a permit to issue such shares of stock to Mr. Spivak and Mr. Phillips upon the terms indicated, and instructing the President and Secretary to issue such shares, for the consideration stated, upon the granting of such a permit. However, no permit had been obtained and no shares of stock had been issued up to November 8, 1957, when the motion to stay dissolution of the corporation and proceed under section 4658 of the Corporations Code was taken under submission. Thereafter, the Corporation Commissioner granted the requested permit and thereupon 50 shares of the corporation’s capital stock were issued to Mr. Spivak, and 50 shares to Mr. Phillips; certificates of stock evidencing these shares were placed in escrow in accord with the terms of the permit.

Mills v. Ruppert

Mason v. Ochinero

Novo Applied to Show that Less Favorable Conflicting Fact Must Be Set Aside

When two findings of fact are in irreconcilable conflict the one less favorable to defendant must be set aside. In People v. Novo, defendant was originally charged with burglary and assault with intent to commit rape and was convicted of both second degree burglary and the assault. Since a necessary element of first degree burglary was ‘an assault on any person’ and he was exonerated of first degree burglary by the conviction of second degree burglary, and since the same assault was involved in the second count, the court held the conviction on the latter could not stand. In People v. Bales, supra, the court held a conviction of forcible rape to be inconsistent with an acquittal of kidnapping, in which a verdict of ‘not guilty’ nullified the element of fact (force) necessary to sustain the verdict of guilt.

In determining whether the verdicts are inconsistent, in that the findings upon which they are based are in irreconcilable conflict as in the Bales and Novo cases; and if so, whether apart from the evidence rejected by the jury in acquitting defendant of assault with a deadly weapon, there was sufficient evidence to sustain the conviction of manslaughter, we resort to the entire record before us. Defendant herein was charged with two separate offenses involving two separate victims, there being no reason apparent on the face of the information why he could not be convicted on both counts. Defendant was acquitted of assault with a deadly weapon and convicted of involuntary manslaughter.

The ‘assault’ element of the offense of assault with a deadly weapon as defined by section 245, Penal Code, consists of ‘an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another’; and the weapon in such a felony assault must be a ‘deadly’ one.

Manslaughter is the unlawful killing of a human being without malice and to be involuntary it must have been done ‘in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection’.

People v. Loeper

Married Parties Cite Collins in Property Settlement

Court Holds That Firearm Is Deadly Weapon When Used as Club

Knowing the gun to be loaded, defendant herein intentionally took it out of a place of comparative safety (a paper sack), putting it in his belt where it would be easily available to his use, and carried it into a crowded beer tavern, one of the most likely places in which an altercation could start. The defendant stayed approximately five hours in the tavern, a place which became increasingly crowded, and in which people were drinking. Defendant was familiar with Bob’s Place and the type of people frequenting it and went there purposefully to seek out the type of persons who would be interested in buying a firearm. Defendant, after a preliminary verbal skirmish with Wallis, did later actually become engaged in an altercation with him, at which time the tavern was crowded with people. Defendant had often been to Bob’s Place and knew its location and proximity to occupied premises. Under these circumstances, a man carrying a heavy, loaded revolver, which he knew or should have known was ready to fire, into a crowded beer tavern across from an occupied church, created a high risk of death to persons in and out of the tavern, who were within firing range. His subsequent use of the loaded gun which he had made easily available to himself, even in self-defense and as a bludgeon rather than a firearm, in the crowded room, created even a greater risk of death or injury to innocent persons. Clearly these circumstances justified any finding of the jury that the defendant’s acts were committed ‘without due ‘caution and circumspection’.’

Defendant, having been in the army, was familiar with firearms and had the gun three weeks but at no time inspected it, tested it, or removed the bullets. He did, however, know it was loaded. He denied it was cocked but the jury could well have believed otherwise. To have fired, it must either have been cocked or defective. He had never examined the gun.

If, on the other hand, the jury found there was no self-defense and an assault existed but the use of the gun on Wallis in the manner indicated by the record was not such as to constitute it a ‘deadly weapon’ within the meaning of section 245, Penal Code, the record likewise supports the conviction, on the theory the killing occurred in the commission of an unlawful act, not amounting to a felony.

A deadly weapon is one likely to produce death or great bodily injury. However, the deadly character of the weapon may depend on the manner in which it is used, in which case the determination is one for the jury under proper instructions.

Defendant did not use the gun as a firearm but as a club or bludgeon. Whether it constituted a deadly weapon as to Wallis was for the determination of the jury. If the jury under the instructions given did not believe the revolver, as used in connection with Wallis, constituted a deadly weapon as to him then, if the evidence is sufficient to support a finding of unlawful assault, the killing of Mrs. Glenn constituted involuntary manslaughter.

An assault is ‘an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another’, and constitutes a misdemeanor. A battery, also a misdemeanor, is a willful and unlawful use of force or violence on the person of another.

People v. Torres

Fourth Amended Complaint Asserted that Res Judicata Did Not Apply

Double Jeopardy and Lesser Included Offense Issues

As an outgrowth of the interrogation of appellant and information subsequently obtained, a criminal complaint was filed in the municipal court of Alhambra charging appellant with ‘the misdemeanor offense of: violation section 11721, Health and Safety Code (Addicted to unlawful use of narcotics).’ Appellant was convicted of addiction and sentenced to 180 days in the county jail.

In the instant case, appellant pled the above municipal court conviction and judgment in bar of this prosecution for unlawful possession. This defense, however, was overruled and appellant was found guilty of possession as charged.

In seeking a reversal appellant argues that (1) he had been once in jeopardy, and (2) the sentence herein constituted double punishment for the same act, in violation of Penal Code, section 654. There is no merit in either of these contentions.

Appellant’s first contention is based on the theory that a violation of section 11721 for addiction cannot be committed without necessarily committing a violation of section 11500 (possession). His position, however, is not sound.

The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.

It is not necessary that one must have narcotics in his possession, in the sense that term is used in section 11500, in order to be under their influence or addicted to their use, since another person could administer the narcotics to the user without his ever having possession thereof prior to their injection into his system. Thus a person may at a given moment have narcotics coursing through his veins and have an unconsumed narcotic in his pocket or in his hand. Such possession is independent of the fact that other narcotics have been consumed and have been assimilated into the blood stream of the user and he is then under the influence of narcotics or perhaps addicted to the use thereof.

It is therefore clear that appellant has not been once in jeopardy for the offense which is charged herein, viz., possession of a narcotic. Rather he has been charged and convicted of two separate offenses consisting of entirely different elements: one being possession, dominion and control; the other the addiction to narcotics.

Wilkins v. Oken

Gomes v. Byrne

Mills v. Ruppert

Helen C. Mills, lessee, commenced an action against the above-named defendants, lessors, to recover damages for defendants’ alleged breach of an express covenant to keep in repair the exterior walls and roofs of the motel building. The complaint alleged that as a result of defendants’ breach rain penetrated the walls causing damage consisting of: (a) the expense of making the necessary repairs to the exterior walls ($312.32) and the interior of same ($243.80); (b) damage to wall to wall carpeting and pads from the said water due to the respondents’ failure to make repairs; (c) damages due to diminution of reasonable rental value of the premises from the execution of the lease up to the time the repairs were made at $500.00 per month, and thereafter to date of trial; (d) damages to appellant’s leasehold interest. The total amount of damages prayed for was $35,000.

The case was tried by the court sitting without a jury. The court awarded plaintiff the sum of $312.32 for repair of the exterior walls and $500.00 for decrease in the rental value for the months of December, 1955, and January, 1956, but denied any further damages. Plaintiff has appealed from said judgment.

The record shows that on July 21, 1954, Helen C. Mills entered into a written lease with Raymond Berney, Hazel Berney, George J. Ruppert, Jr. and Barbara A. Ruppert for the lease of a building known as the City Center Motel in Ukiah, California. The lease was for a term of 10 years at a total rental of $120,000 or $1,000 a month. The lease provided that ‘Lessee shall, at her sole cost, keep and maintain said premises and appurtenances and every part thereof (excepting exterior walls and roofs which Lessor agrees to repair), including glazing, sidewalks adjacent to said premises and the interior of the premises, in good and sanitary order, condition and repair.’ The lease also provided: ‘7. Lessee, as a material part of the consideration to be rendered to Lessor, hereby waives all claims against Lessor for damages to goods, wares and merchandise, in, upon or about said premises and for injuries to persons in or about said premises, from any cause arising at any time, and Lessee will hold Lessor exempt and harmless from any damage or injury to any person, or to the goods, wares and merchandise of any person, arising from the use of the premises by Lessee, or from the failure of Lessee to keep the premises in good condition and repair, as herein provided.’

During the winter of 1954-55, the south wall of the building developed leaks. The lessors notified the contractor and he attempted to repair the wall. However, the attempt was unsuccessful. In June, 1955, Mrs. Mills notified the lessors that the wall had not been waterproofed, and the contractor applied a sealing liquid to it. In November, 1955, the wall leaked again, and again Mrs. Mills notified the lessors. She asked that the wall be repaired in a satisfactory way. Mr. Berney came to the premises with the contractor to inspect the wall, and the lessors agreed to repair it. On December 10, 1955, the contractor arrived to do the work. He obtained the keys to the rooms without Mrs. Mills’ knowledge. When she discovered this, she ran up to him and an argument ensued. There is a conflict in the evidence as to whether or not the contractor struck her. In any event, Mrs. Mills ordered him off of the premises. The following Monday Mrs. Mills arranged to have the wall repaired by another person, but due to the torrential rain of the winter, the work was not completed until the end of January. During this period of heavy rainfall, the water came through the wall damaging floor coverings and staining the interior walls of certain rooms. This water damage made certain rooms too damp to rent for a period.

Appellant Helen C. Mills first contends that the trial court erred in not allowing her $243.80 for repairing the interior of the wall. The only question is whether or not the provision in the lease that the lessee should keep and maintain at her sole expense the premises (excepting exterior walls and roof) prevents her from recovering for the damage to the interior walls caused by the disrepair to the exterior wall. No parol evidence as to the meaning of this phrase was introduced so the interpretation becomes a question of law. We believe this provision should be construed to mean that if damage was caused as a result of something occurring in the interior of the building, Mrs. Mills would suffer the loss; but if the damage was the result of a failure to keep the exterior wall in repair, the loss would fall on the lessors. We are fortified in this belief by the fact that the provision waiving all claims for damage to goods, wares and merchandise from any cause arising at any time specifically exempts damage to certain items. We believe a proper construction would be that by limiting the amount of damage in certain particulars, impliedly, the parties meant that in other particulars there would be no limitation. If so, the lessors would be liable for damages to the interior walls caused by failure to repair the exterior wall. The court found that the amount of damage to the interior walls was $243.80. We believe that appellant should have been awarded this amount.

Appellant also contends that she should have been permitted to recover $883.65 which was the cost of cleaning and replacing floor coverings which had been damaged by water and dampness. The trial court denied recovery because of the clause which provided that the lessee waived all claims against the lessors for damage to goods, wares and merchandise. Such clauses have been held to be valid except where the lessor has been guilty of what the courts call willful or active negligence. As stated in Inglis v. Garland: ‘We think it is the law that ‘A lease is a matter of private contract between the lessor and the lessee with which the general public is not concerned. And if the parties see fit to contract that the lessor shall not be liable for damages resulting from his negligence or the negligence of his employees, the law permits them to do so; and the courts must give effect to and enforce such contracts.” And as stated by this court in Werner v. Knoll: ‘Clearly said section 1668 does not declare unlawful all contracts, the object of which is to exempt individuals from the consequence of their own acts, but only those contracts which would exempt one from the consequences of his own fraud, willful injury or violation of law whether willful or negligent. It is noteworthy that the only use of the word negligent in said section is in a restrictive sense and only in connection with violations of law. Therefore it necessarily follows, that by the obvious omission from the provisions of said section 1668 of the Civil Code, contracts seeking to relieve individuals from the results of their own negligence are not invalid as against the policy of the law as therein provided, and hence are neither contrary to public policy nor expressed provision of the law as set forth in said section 1667.’

The court made a finding that the negligence of the lessors was passive negligence. This finding is supported since each time the lessors were notified of the leaks they made an attempt to repair the wall. Appellant also contends that the rugs were not goods, wares and merchandise, and, secondly, the act of the lessors was not negligence but a breach of the covenant to repair. The lease provided that the lessee shall pay the purchase price and cost of installation of all rugs installed upon said premises and in the event the lessee abandoned the premises, or the lease was terminated because of a breach, the rugs should be deemed a part of the realty. For the purpose of this action, the rugs were not a part of the realty. It was only under certain conditions that they would become so, and the conditions never became applicable. Under such circumstances, the waiver provision should be held to be applicable and the lessors not liable for damage to the floor coverings. There is no reason why, in a case such as this, a party can not contract against liability for breach of covenant. As stated in 6 Corbin on Contracts, page 870: ‘a landlord may contract so as to be bound to pay for repairs and yet exempt himself from liability for consequential injuries caused by his failure to perform his contractual duty.’

Appellant contends further that the court erred in allowing only $500 for loss of rentals. Appellant submitted figures that indicated that she lost $1140 in rentals from the period of November 25th to January 30th. These figures were based on regular rental fees and on apparently normal occupancy. There was testimony that a large part of the occupants were commercial travelers who received commercial rates and whose occupancy was usually during the week and not on weekends. There was considerable testimony as to the loss of occupancy, and the records kept by appellant, and other evidence, were before the court. It is clear that conflicting inferences can be drawn from the evidence, and the court was not bound to accept appellant’s conclusion that she lost $1140 in rentals. We believe that the following statement in the memorandum opinion of the trial court is supported by the record: ‘[T]he Court thinks that from what the records disclose the rental value of said premises was decreased at most $250.00 a month, and then only for the two months of December, 1955, and January, 1956. The Court, therefore, thinks that she has been damaged to the extent of $500.00 in this respect, and is entitled to judgment for that sum.’

Appellant’s final contention is that she should have been allowed damages for injury to the leasehold. However, the evidence upon this issue is conflicting, and we believe that the record, fully supports the conclusion of the trial court as stated in its memorandum opinion as follows:

‘The last claim of plaintiff is that she suffered $25,000.00 damages by reason of these leaky walls as a direct and proximate cause thereof, in and that the plaintiff’s interest in the property as her leasehold and good will was worth $25,000.00 before the damage and was worth nothing after the damage. With this contention the Court is unimpressed. When Mrs. Mills took over this motel it was a newly constructed edifice. It was, and still is, a very attractive place; it was and is excellently situated, almost in the heart of the City of Ukiah. Mrs. Mills is undoubtedly an excellent business manager and motel operator. (The day she signed this lease must have been one of her off days.) Situated as this motel is on the main street of the City of Ukiah, to-wit, State Street, with Highway 101, the Redwood Highway, joining it on each end of the City, with a tremendous amount of traffic going through this area at all times; and under the situations above expressed the operation of the motel had to be a success, and it was a success from the very beginning, and has always been, and it still is. The record, particularly the records which she has presented here, clearly show this. The only damage the Court can see that she has sustained in this regard is the slight damage she sustained for the two months hereinabove mentioned and for which she has been given credit.’

The judgment appealed from is modified and the cause is remanded to the trial court with directions to add to the judgment against respondents the sum of $243.80 for repairs to the inside of the exterior wall, making the total amount of the judgment the sum of $1056.12; and as so modified, the judgment is affirmed. The parties to bear their own costs on appeal.

Mills v. Ruppert, 167 Cal.App.2d 58, 333 P.2d 818 (Cal. App. 3 Dist. 1959).

Hutton v. Pagni

Lawyer Disciplined for Solicitation

People v. Torres

Appellant was charged in four counts in an information with violations of section 501 of the California Vehicle Code. He entered a plea of not guilty to all counts, waived trial by jury, and was found guilty on all four counts by the court. He was granted three years probation, conditioned upon his serving ninety days in the county jail and the payment of a fine of $300. His sole contention on his appeal from the judgment is that the evidence was insufficient to support it.

On November 2, 1957, at about 10:00 p. m., appellant was driving a Ford pickup easterly on Main Street in the city of Brawley, when his car struck a Chevrolet automobile being driven south on Eighth Street and through the intersection of Eighth and Main Streets, in said city. Main Street runs east and west and Eighth Street north and south, with stop signs on Eighth Street on both sides of Main. A deputy sheriff, who was driving east on Main Street, testified that the Ford pickup passed him at an estimated speed of from 45 to 50 miles per hour about a block east of Eighth and Main Streets. Appellant was driving a Ford pickup and one Frank Morales was a passenger. After the pickup passed him the deputy observed a Chevrolet automobile headed south on Eighth Street and stopped at its intersection with Main. He heard the pickup truck’s brakes screech before it collided with the Chevrolet in the intersection. After the accident and while at the scene, the deputy smelled a strong odor of alcohol on the appellant’s breath.

Charlie Hudson, the driver of the Chevrolet, testified that there were six passengers riding with him in his car at the time of the accident; that he brought his car to a complete stop at the stop sign on Eighth before he entered the intersection; that he looked both ways on Main Street and, seeing no cars coming in either direction, proceeded south into the intersection; that he did not see the pickup until it was from one to one and one-half car lengths from his car and he estimated the speed of the pickup at 50 miles per hour when the accident happened.

Doris Jones, Barbara Jones, Vada Smith and Joseph Smith, all passengers in the Chevrolet, were injured in the accident.

Appellant was taken to a hospital in an ambulance and before he left the scene of the accident stated that he would consent to a blood alcohol test. James Reynolds, a police officer who arrived at the scene of the accident within a few minutes after it happened, testified that he smelled the odor of alcohol on appellant’s breath and noted that his eyes were watery and bloodshot. A sample of his blood for a blood alcohol test was taken from appellant at the hospital by a technologist. Another technologist took the blood sample to the sheriff’s crime laboratory and upon examining it, found that the alcohol content of the blood sample was .231 per cent. He testified that it was his opinion that anyone with a blood alcohol content above .15 per cent would be under the influence of intoxicating beverages; that a person with a blood alcohol content of .231 per cent would have his reflexes and reasoning power impaired; that he would be semi-anesthetized and that his vision would be impaired.

The evidence is amply sufficient to show that the appellant at the time of the accident was driving a vehicle while under the influence of intoxicating liquor.

People v. Haeussler, the trial court told the jury that ‘it was unnecessary to find that Mrs. Haeussler was ‘drunk’ or ‘intoxicated’; it would be sufficient if it were found that intoxicating liquor had ’so far affected the nervous system, brain or muscles as to impair to an appreciable degree the ability to operate the vehicle in a manner like that of an ordinarily prudent and cautious person in the full possession of his faculties, using reasonable care and under like conditions.” On appeal, the Supreme Court held that the degree to which a person must be influenced by alcohol to warrant a conviction under section 501 of the Vehicle Code was correctly stated in the instruction given.

People v. Markham, it was held that in a prosecution under this statute it is not necessary to prove any specific degree of intoxication, but that in each case where a person is charged with a violation of section 501 of the Vehicle Code, the question whether the accused was ‘under the influence of intoxicating liquor’ is a question of fact to be determined by the court or jury from all the proven circumstances of the case; that ‘We are satisfied that the prevailing rule in this and many other states is, ‘that expert testimony is admissible where the conclusions to be drawn by the jury depend on the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority thereon, and in those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts but the conclusions to which they lead, may be testified to by qualified experts. Of course any such opinion may be accepted or rejected by the jury. No distinction is made by the law in weighing evidence, between expert testimony and evidence of other character.’

There is substantial evidence in the record from which the trial court could and did infer that the appellant was driving his pickup truck at a speed in excess of that permitted by sections 510 and 511 of the Vehicle Code. The record shows that four persons were injured in the accident; that appellant was under the ‘influence of intoxicating liquor’; and that he was driving his truck at an unlawful speed in the business district of the city of Brawley at the time of the accident, which act and neglect proximately caused bodily injuries to the occupants of the Hudson automobile.

Judgment affirmed.

People v. Torres, 333 P.2d 787, 167 Cal.App.2d 36 (Cal.App. 4 Dist., 1959)

Hutton v. Pagni

Kalin v. Cronig

People v. Loeper

Defendant-appellant Loeper, together with one Vincent Quintero, were charged in an amended grand jury indictment that on December 9, 1957, they did feloniously sell a narcotic (marijuana) in violation of Health and Safety Code section 11500. Appellant was charged with two prior convictions of felonies (burglary and escape from state prison). He pleaded not guilty to the charge and later admitted the prior convictions. A motion for a separate trial was denied. The jury returned a verdict of guilty as to Loeper and not guilty as to Quintero. Appellant’s motion for a new trial was denied.

The questions raised on this appeal are (1) whether it was prejudicial error for the trial court to fail to give an instruction on its own motion, that knowledge of the narcotic character of the substance allegedly sold, was an essential ingredient of the offense charged; (2) was it prejudicial error to instruct the jury on the subject of confessions? and (3) was it prejudicial error to admit into evidence offenses pertaining to defendant Quintero other than the offense charged?

A special deputy sheriff, without pay (Hobbs, otherwise regularly employed as a machinist), acted as an undercover investigator. He met appellant’s codefendant Quintero at a parking lot in La Habra on December 8, 1957, about 6 p. m. There, other persons were present, including appellant Loeper. Quintero asked Hobbs if he wanted to buy a ‘pound’ or a ‘tin’. (A tin is equivalent to one tobacco can full of marijuana.) Hobbs agreed to buy a ‘tin’ for $15, but wanted to see ‘Dick’ (a fictitious person) to see if he would want to buy one. Quintero inquired when he would return and Hobbs replied ‘about midnight’. Quintero and Hobbs then returned to the lot, and at Hobbs’ suggestion they went to see ‘Dick’ to show it to him. Both left in separate cars and parked in front of a bar. There they walked over to a black Buick car where appellant Loeper was seated. Quintero tapped on the windshield and appellant rolled down the window. Quintero told appellant ‘This is the guy’, and appellant then asked Hobbs if he would buy a tin and he said he would if Dick liked it but he wanted Dick to see it over in Carbon Canyon, about six miles away. Appellant said he would have to go down by the tracks to get it. Appellant walked down the tracks and returned in about five minutes, got in appellant’s car, and Quintero drove his own car to the spot. En route, appellant stated to Hobbs that he was going to quit ‘pushing weed’ (marijuana), and start ‘pushing hard stuff’ (heroin). They parked in a lot by a cafe and Quintero parked nearby. Hobbs told appellant he would pay for and take one ‘tin’ but he would have to show it to Dick and then return in about 20 minutes. Appellant Loeper held out three brown sacks and told Hobbs to take his pick. He said a ‘lid’ (tin) would cost $12.50. Hobbs took one bag and paid appellant $12.50. Hobbs then walked to his residence, telephoned the sheriff, and related the facts. About 20 minutes later Hobbs returned to the car and appellant and Quintero were seated in it. Hobbs told them that the marijuana was pretty ’stemmy’ and it was a ’short tin’ but they would take it anyway. He said Dick wanted a pound and wanted to know what that amount would cost. Appellant replied he would have to see another fellow about that much. Quintero was to let Hobbs know. Defendants left and their arrest followed. The lot Hobbs bought proved to be marijuana.

Appellant testified he was there at the parking lot on December 8th at the time but did not talk to Hobbs; that Hobbs and Quintero did have a conversation which he did not hear; that when Hobbs left Quintero did come over to him and said Hobbs wanted to buy some narcotics but appellant did not offer to obtain it for him; that he was asleep in his car in front of the bar when Quintero awakened him by tapping on the windshield; that Hobbs was there; that he and Hobbs drove to the canyon to see Dick; that Hobbs then left for a few minutes, returned and talked to Quintero, as though he ‘was mad about something’ and they drove away. He denied ever selling any marijuana to Hobbs and claimed he did not walk down the tracks to obtain marijuana as indicated by Hobbs.

The attorney general concedes that section 11500 of the Health and Safety Code requires a knowledge of the narcotic character of the substance in question. The jury was instructed that ‘To constitute criminal intent it is not necessary that there should exist an intent to violate the law or to do a wrong. Criminal intent exists whenever a person intentionally does that which the law declares to be a crime, even though he may now know that he is committing a crime or that his act is wrong’. It is claimed that this general instruction is proper in alleging crimes where specific intent follows the unlawful act but not in charged narcotic offenses. However, this instruction was followed by another which read in part: ‘An essential element of the crime of which the defendant is accused is intent. The intent to do the forbidden thing constitutes the criminal intent. The law requires that to be guilty of crime, one must intend the conduct that fits the description of the crime and must engage in that conduct knowingly and willfully.’ The offense charged here was that defendant did willfully, unlawfully and feloniously sell narcotic, to wit, marijuana. People v. Odom, it was said: ‘An information which charges that a person ‘willfully and unlawfully’ performed an act is equivalent to alleging that he knowingly did so, and thus supplies the element of knowledge of the unlawful act where that element is necessary to be alleged in the pleading’, and ‘To do a thing willfully is to do it knowingly.’ From the instruction given, it clearly appears that before the jury would be authorized to find defendant guilty of the charge, he must have knowledge that it was a narcotic. The appellant’s defense was not that his innocence was predicated upon lack of knowledge that it was a narcotic, but he claimed he made no sale to Hobbs under any circumstances. No instruction on this subject was proffered by appellant, as was done People v. Winston, relied upon by appellant. Even though such an instruction was not offered, it was argued that it was the duty of the court, on its own motion, to give such an instruction. Appellant relies upon People v. Putnam, involving sex offenses under Penal Code section 288. In such cases it was held that it was the duty of the court to give, on its own motion, certain cautionary instructions, because of the nature of the charge. The instant case involves the sale of a narcotic and is thus differentiated. Had appellant offered such an instruction, which was refused, and there were no other instructions given on the subject, a different question might here arise. When the jury found that a sale was made by appellant, under the circumstances related, the transaction would necessarily imply knowledge by appellant of the narcotic nature of the substance sold. In effect the jury was told that if appellant sold a substance without the knowledge that it was a narcotic he could not be convicted. We are convinced that the jury was not misled by the instructions given and that no prejudicial error resulted.

The court gave an instruction to the effect that ‘Evidence has been received in this case tending to show that on an occasion other than this trial the defendant Quintero himself made a statement tending to prove his guilt of the alleged crime for which he is on trial,’ and that ‘A statement thus made may be either a confession or an admission.’ The court then followed this statement with a definition of confession and of an admission. It was followed by an instruction that the mere fact that the court had admitted into evidence the alleged confession did not bind the jury to accept the court’s conclusion, but the jury, before it considered it, must conclude that it was a voluntary confession, but that this rule did not apply to an admission.

The contention is that the court instructed the jury there was in fact a confession in the case to be considered by the jury when in fact no confession of either defendant existed. Apparently there was a tape recording made of certain statements attributed to defendant Quintero, out of the presence of appellant. During the trial there was an unsuccessful attempt by the prosecution to admit this tape recording in evidence as to Quintero. The trial judge believed that certain statements made therein by Quintero involved this appellant and in fairness to him felt that an instruction to the jury not to consider those statements as to this appellant would not be entirely effective, and if admitted, might prejudice the rights of appellant. In the presence of the jury the prosecution referred to the recording as a confession. Quintero, on cross-examination, was questioned as to whether or not he made certain statements therein. (Apparently for the purpose of impeaching his present testimony.) It appears that appellant’s counsel first referred to the recording as a ’supposed admission or confession by Mr. Quintero.’ No objections were made at the time, to the district attorney’s reference to it as a confession. Later, when counsel for Quintero objected to the use of the word ‘confession’, the district attorney withdrew the remark and apologized for his ’slip’. The court especially instructed the jury to disregard the reference and told the jurors they would be the judge as to the nature of its contents. The tape recording was not in evidence and is not before us. There is no indication that the jury inferred that either Quintero or appellant therein confessed to this charge.

On rebuttal the prosecution placed the officer on the witness stand and apparently, after refreshing his memory from the tape recording, he testified that Quintero did make certain statements which Quintero denied he made during his cross-examination by the prosecutor. Complaint is now made of this procedure, claiming that the prosecution was trying to get before the jury the alleged statements which the court had previously rejected as inadmissible. The officer’s recollection as to the statements made by Quintero were admissible against him, at least for the purpose of impeachment, and the trial court limited their application to this purpose. The trial judge was more than fair to appellant in rejecting the admission of the tape recording into evidence as to Quintero so that it would not operate to the detriment of appellant. No prejudicial error appears in this respect.

Lastly, appellant complains of evidence of two separate sales of marijuana by Quintero to Hobbs on December 7th (five marijuana cigarettes in evidence), and on December 10th (four such cigarettes in evidence). The charged sale in the instant case was on December 9th. Appellant did not object to evidence of the sale to Quintero on December 7th. The defendants objected to the introduction of the sale on December 10th, and the court sustained the objection by this appellant and the jury was instructed that evidence of the sales of December 7 and December 10 was not admitted as to appellant but could only be considered as against Quintero. Evidence of other sales has been held admissible against that defendant who sold it, to prove a material fact, or when the question of that defendant’s knowledge or familiarity with the substance sold becomes involved, or for the purpose of showing motive, scheme, plan, or system. The admission of such offenses generally depends upon the factual situation of the particular case. Since the court instructed the jury that this evidence was not admissible against appellant and did not involve him, no prejudicial error resulted from its admission.

Judgment and order denying a new trial affirmed.

People v. Loeper, 167 Cal.App.2d 29, 334 P.2d 93 (Cal.App. 4 Dist., 1959)

Legal Ramifications of Statements by O’Connor

Hutton v. Pagni

Hutton v. Pagni

This is an appeal from an order of the trial court granting plaintiff’s motion for a new trial after a defense verdict. There is also presented a cross-appeal taken by plaintiff from the judgment entered upon the defense verdict.

The stated ground upon which the new trial was granted was insufficiency of the evidence to support the verdict of the jury. As stated in Re Estate of Green:

“The rules of law applicable to an appeal from such an order are well settled. A trial court in considering a motion for new trial is not bound by the rule of conflicting evidence. When the motion is granted, as here, for insufficiency of the evidence, it is only in rare cases showing abuse of discretion that an appellate court will interfere because the trial judge must weigh all the evidence and determine the just conclusion to be drawn therefrom. It cannot be held that a trial court has abused its discretion where there is a conflict in the evidence or where there is any evidence which would support a judgment in favor of the moving party.’

Respondent, Ralph Hutton, suffered a loss of vision in his left eye as the result of an accident when a fragment of metal penetrated his eye while he was assisting appellant Borland in aligning punching dies on a 100-ton hydraulic press owned by Borland’s employer, Pagni. Borland, at the time, was in charge of the punching operations and of the press and was acting in the scope of his employment by Pagni. Hutton was a welder employed by Fontaine & Bean, a sheet metal firm in Sacramento. Although an experienced welder, he had never operated a hydraulic punch or brake press and had had no experience in setting or aligning punching dies in such presses. Hutton’s employers fabricated and supplied sinks made of 14-gauge stainless steel. To shear, to brake and to punch the holes in the steel sheets they sent the sheets to Pagni who had a press that would do that work. Hutton was sent to Pagni to transport 12 or 14 sheets of steel to Pagni’s works, there to be sheared, braked and punched. Although he had no specific instructions to assist in the work, he also had no orders not to do so. When he arrived at the Pagni plant with the sheets he found that by assisting in the work to be done he would be able to return to his employers with sufficient sheets that had been sheared, braked and punched to enable him to continue his work of completing sinks which were needed by his employer. Borland was assigned by his foreman to do the press work. He and Hutton marked the sheets for shearing and punching, using a pattern supplied for that purpose. They then sheared them, which readied them for punching. Hutton and Borland then went over to the press to set it up for punching. Borland selected the punching dies to be used. The dies consisted of two parts, the punch, commonly referred to as the male die which is set in the head or ram of the press, and the bottom or female die or matrix, which is fastened in place on the bed of the press. When the dies are set the sheet to be punched is inserted between and the punch is then pressed through the metal into a hole in the matrix. The punch fits very closely into the hole in the matrix, the tolerance being about one to two thousandths of an inch. There was expert testimony that there are two customary and approved methods of setting the dies and so adjusting them that the punch will descend smoothly into the matrix without its edge striking the matrix. By one method both dies are in an engaged position on the bed of the press when the press head is lowered to the punch, which is then secured by set screws to the press head. The head is then raised without disengaging the dies and after properly aligning the female die on the press bed it is secured in that position, thus assuring that when the press is operated the punch will descend smoothly into the matrix. Another customary and approved method is to secure the punch to the press head, then hold the female die up to the punch, engage the two and then lower the entire assembly to the press bed when the female die can be secured to the bed. Borland did not employ either method. With Hutton assisting him they first secured the punch in position against the press head by lifting it into place and attaching it by the set screws. The punch assembly weighed about 25 pounds. They then placed the female die, which weighed about 40 pounds, on the bed of the press and moved it into approximately correct position to receive the punch. They then lowered the press head, with the punch in position, to within about an inch of the top of the matrix and approximately over the hole into which it was to go in operation. Hutton observed that the female die was not lined up laterally so as to admit the punch and he reached over and made a manual adjustment, moving it about an eighth or a quarter of an inch to the right. He then stepped back to get a better look, at which time Borland released the punch which came down and, being improperly adjusted, struck the female die instead of entering into the hole. There was a crunching sound as the punch struck the female die and a chip of metal flew off, piercing Hutton’s eye. The method used by Borland was one which, according to the testimony, could be followed, but the testimony also showed that if that method was being followed then when the punch closely approximated the matrix the further lowering ought to be completed by the use of an inching device which would permit lowering the punch as little as one thousandth of an inch at a time, thus affording ample opportunity to accurately adjust the female die to the descending punch so as to properly accommodate it. This device was on the press but Borland did not use it.

It seems obvious to us that the foregoing evidence would support a jury verdict that Borland had been guilty of negligence in adjusting the dies and that that negligence proximately caused Hutton’s injury. The jury could infer that of three safe methods Borland ignored all and depended on visual measurement for adjusting the dies; that in view of the great power of the press a failure to so adjust the dies that the punch would descend smoothly into the matrix would probably cause compression fracturing of the metal of the die and the matrix; and that this was just what happened. Several persons at varying distances from the press heard the crunch of metal against metal. We think it unnecessary to elaborate further. We hold that the evidence was sufficient to support a verdict for Hutton had the jury rendered one and that therefore the trial court’s order granting a new trial cannot be disturbed on appeal.

There is another reason why in this case and on this record the sufficiency of the evidence to support a verdict for Hutton cannot be challenged. From the evidence the jury could find that the accident resulting in injury to Hutton was of a kind which ordinarily does not occur in the absence of someone’s negligence; that it was caused by an instrumentality in the control of Borland; and that it was not due to any voluntary action or contribution on the part of Hutton. The doctrine of res ipsa loquitur could be applied by the jury. Surely, one engaged in setting dies for punching holes in sheet metal by use of a 100-ton press would be careful not to permit the punch to descend against the matrix to the damage of the metal composing both. There was customarily-used methods by which this could be easily avoided and the particular press here involved was equipped with an inching device to avoid that result if the method actually used by Borland was being followed. The impact of the punch upon the matrix, resulting in the discharge of the steel particle that injured Hutton, could have been found by the jury to have been something that does not ordinarily occur in the absence of negligence in setting the dies.

The jury could likewise have found that the instrumentality causing the injury was under the control of Borland acting in the scope of his employment by Pagni. And, finally, the jury could have found that the accident was not due to any voluntary action or contribution on the part of Hutton.

The fact that no instruction on res ipsa was requested by Hutton or given by the trial court is not material. The doctrine concerns a type of circumstantial evidence upon which a plaintiff may rely to discharge his burden of proving a defendant’s negligence. Such evidence was given to the jury in this case. There appears to have been no reason why the jury might not have drawn the inference of negligence without a specific instruction authorizing them to do so.

For the reasons given, the order granting a new trial is affirmed. Since the affirmance of the order granting a new trial will automatically vacate the judgment from which respondent has appealed, that appeal is dismissed.

Hutton v. Pagni, 167 Cal.App.2d 14, 333 P.2d 826 (Cal. App. 3 Dist. 1959).

Lawyer Disciplined for Solicitation

Byrne v. Boadle