of business are within the boundaries of Venice, and who conduct establishments similar to that of the petitioner, pay a license fee of only $12 per annum under the ordi nance. The petitioner contends that the ordinance unjustly discriminates against him in that it requires from him a license fee of $60 per year, while it exacts but $12 per year from others similarly situated, except that his place of business is without, while theirs are within, the city of Venice. He points to section 21 of article 1 of the Constitution of California, providing that no "citizen, or class of citizens" shall "be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens," and to the Fourteenth Amendment to the Constitution of the United States, section 1, to the effect that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Questions similar to the one now propounded to us have been before the courts of this state several times. The respondent claims that the ordinance now in question, so far as the provisions quoted from it are concerned, is constitutional under the decision in Ex parte Haskell, 112 Cal. 412, 44 Pac. 725, 32 L. R. A. 527. The ordinance involved in that case was an ordinance of the city of Chico, and the person imprisoned pursuant to its terms was a traveling salesman for a concern in Oakland. It was insisted that he could be required, constitutionally, to pay a higher license than that exacted from merchants selling from a fixed place of business within the municipality. The Supreme Court upheld this view in the following language: "The very power to license for purposes of regulation and revenue involves the right to make distinctions between different trades and between essentially different methods of conducting the same general character of business or trade. And that is all that is done here. While it may be true, as suggested by petitioner, that Haskell is, in a sense, a merchant equally with those having a fixed place of business, it is nevertheless true that the manner in which he conducts and carries on his business is so distinct from that of the merchant of the latter class as to make it essentially a different business." The petitioner relies upon the Matter of Hines, 33 Cal. App. 45, 164 Pac. 339. In that case one who operated and maintained a laundry wagon was under imprisonment for a failure to take out a license under an ordinance of the city of Venice. He delivered laundry work in Venice from an establishment outside the corporate limits of the city, in the same manner that laundry work was delivered to the people of the city from laundries within its limits. A greater license fee was sought to be required from him for operating and maintaining his wagon than from those conducting laundry businesses within the city, for the conduct of such businesses. In the opinion in the case we said: "We are of the opinion that the provisions of the ordinances under which petitioner has been convicted attempt to create and enforce a discrimination not based upon differences in the nature of the business being transacted or differences in the manner of conducting the same business, or any other difference other than the mere fact of difference in destination of the goods collected and delivered by wagons collecting for laundries located outside of the city and the destination of goods collected for delivery to laundries within the city. The license provisions in question are plainly devised as a protective tariff for the benefit of laundries located in the city of Venice, or laundry wagons doing business with laundries located in the city of Venice, and apparently they have no other purpose." We then declared the assailed provisions of the ordinance to be void. We are convinced that the provisions which are attacked of the ordinance now before us are also "devised as a protective tariff for the benefit" of businesses located in the city of Venice, and that "apparently they have no other purpose." Ordinance provisions having their origin in such a purpose cannot stand. This proceeding is ruled by the Matter of Hines, and not by Ex parte Haskell. The petitioner is discharged from custody. We concur: CONREY, P. J.; JAMES, J. (36 Cal. App. 463) SHELL CO. OF CALIFORNIA v. INDUSTRIAL ACCIDENT COMMISSION et al. (Civ. 2360.) (District Court of Appeal, First District, California. March 6, 1918. Rehearing Denied by Supreme Court May 3, 1918.) 1. MASTER AND SERVANT 405(1) WORKMEN'S COMPENSATION ACT-CAUSE OF INJUBY-SUFFICIENCY OF EVIDENCE. In a workmen's compensation case, evidence held to support finding that employé's second injury, while exercising his leg by walking under direction of his surgeon, arose from a condition produced by his first injury, which broke the neck of his femur. 2. MASTER AND SERVANT 412-WORKMEN'S COMPENSATION ACT-HEARSAY EVIDENCF. Under Workmen's Compensation Act, § 77a (St. 1913, p. 313, as amended by St. 1915, p. 1102, § 28), making hearsay evidence admissible in cases of death, where the hearsay testimony relates directly to the injury in question, on petition for writ of review against Industrial Accident Commission to review award for death of an employé, his declarations that his crutch slipped and that he fell, injuring him the second time, which second injury was the direct outcome of the first, and resulted in his death, were admissible. WORKCAUSE OF 3. MASTER AND SERVANT 417(7) For other cases see same topic and KEY-NUMBER in all Kcy-Numbered Digests and Indexes 4. MASTER AND SERVANT 405(1) MEN'S COMPENSATION ACT PROOF. The Workmen's Compensation Act does not require demonstration as to the cause of death, but only that degree of proof which produces conviction in an unprejudiced mind. Proceedings under Workmen's Compensation Act by Catherine Fleming, individually and as guardian ad litem of John Fleming, opposed by the Shell Company of California, employer, and others. There was an award by the Industrial Accident Commission, and the employer petitions for writ of review. Petition dismissed. WORK-, which had been established was torn loose DEGREE OF at the point of the previous fracture are circumstances which seem to us to be conclusive to the effect that this second injury arose from a condition produced by the first injury. Petitioner, however, contends that this is not so, and it is therefore proper to state that in addition to the circumstances above specified there was other evidence which must be satisfying to any one that the condition did arise from the condition produced by the original accident. This evidence consists of declarations of the deceased to the effect that his crutch slipped and that he fell. He made other statements of the circumstances connected with the accident, but none which, it seems to us, are inconsistent with this statement, and, even if they may be so considered, this court will not say that the Industrial Accident Commission was not correct in adopting this statement that his crutch slipped, and that he thus fell and refractured his bone. Redman & Alexander, of San Francisco, for petitioner. Chris. M. Bradley, of San Francisco, for respondent Industrial Accident Commission. Henry S. Richmond, of Coalinga, for respondent Fleming. BEASLY, Judge pro tem. Petition for writ of review by the Shell Company of California against the Industrial Accident Commission and Catherine Fleming, individually, [2] The petitioner further contends with and as guardian ad litem of John Fleming. respect to this testimony that it was hearsay, The undisputed facts of this matter are and therefore not admissible. It insists that briefly these: On July 8, 1916, the husband the rule in the cases of Englebretson v. Inof the respondent Catherine Fleming, and dustrial Accident Commission, 170 Cal. 793, father of John Fleming, received an injury 151 Pac. 421, and Employers' Assurance Corwhile in the employ of the petitioner, the poration, 170 Cal. 800, 151 Pac. 423, against Shell Company of California, by which the the same defendant, still obtains in this neck of his femur was broken. He made a state; but since those cases were decided slow recovery, and on January 11, 1917, section 77a of the Workmen's Compensation while exercising his leg by walking in his Act has been amended (St. 1915, p. 1102) so as yard, under the special direction of his sur- to make hearsay evidence admissible in cases geon so to do, he slipped and refractured the of death, where the hearsay testimony rebone at the same point. The bones never lates directly to the injury in question. Peunited after this second fracture except by titioner contends that this statute is not broad a fibrous connection, and on April 27, 1917, enough to cover the present case, in that, as the doctor decided that an open operation it claims, the evidence as to the manner of was necessary to readjust the bone. This occurrence of the second accident does not was performed, and while the operation seem- directly relate to the injury which the stated to be a success, it transpired that within ute seeks to compensate. We cannot cona few hours thereafter his stomach filled with cede so narrow a construction to the amendgas and became greatly distended, his heart ment. Its purpose was to permit hearsay collapsed, and he died. The Industrial Acci- evidence to be given in support of a claim in dent Commission awarded a death benefit to case of death, and as this second injury was the respondents, Catherine Fleming and John the direct outcome of the first, we think the Fleming, and the petitioner applies to this statute broad enough to cover it and to percourt to have this award set aside upon the mit hearsay evidence of the manner in which usual grounds. it occurred to be given in this case. The points made against the award are two: The first is that the second accident was independent of the first, and that therefore no award can be made therefor; and the second point is that Mr. Fleming died from causes not in any way connected with the original accident. [1] We are satisfied that both points must be decided upon the facts, and that the award must be sustained, and we will briefly give our reasons for this conclusion. The undisputed facts are as above stated; and, it appearing therefrom that Fleming at the time of his second injury was obeying his doctor's instructions to exercise his leg, that he fell and that the fibrous connection 1 [3, 4] In support of its second point, that death was caused by extraneous circumstances and not by the surgical operation, the petitioner insists that the evidence is so conflicting and inconclusive that it will not sustain the award. The facts as to the manner of Mr. Fleming's death, that is, that he was operated upon by the opening of his hip and the readjustment of its bones, and that some hours later he died from inflation of his stomach caused by an accumulation of gas pressing against the diaphragm and causing the heart to collapse, there seems no reasonable ground to dispute, but the doctors differed somewhat in their opinions as to what caused the accumulation of the gas, and whether Fleming died from the failure of a weak heart, or whether the heart collapsed as a result of the action of the gas. Dr. Gibbon, the medical adviser of the Industrial Accident Commission, gave it as his opinion that the condition stated by the attending physicians reasonably showed that death was due to the operation, and added that this opinion was not based upon possibilities, but upon the probabilities of the case. He believed that the death was caused by the condition produced by the anesthetic, or operation, or both. He admitted that other causes might operate to cause the accumulation of gas, but, after examining the entire record, including the testimony of the other doctors, and having all the facts available before him, he stated that no other factor was disclosed by the record which might have produced the condition referred to except the anæsthetic and the surgical operation. It is conceded that other causes may be followed by an accumulation of gas in the stomach, and also that the heart might have collapsed from natural causes, and counsel for petitioner therefore urges that the evidence is not sufficient to sustain the finding upon this point. But Dr. Gibbon may be said, in the language of the Supreme Court in Santa v. Industrial Accident Commission, 165 Pac. 689, to have been "giving what on the facts before him and in the light of medical science, appeared to be the most prob able explanation of the event." We can therefore see no distinction between that case and this, and, besides, the law does not require demonstration, but only that degree of proof which produces conviction in an unprejudiced mind, and surely no unprejudiced mind, reading the statements of these physicians as to the manner of this man's death, could come to any other reasonable conclusion than that Fleming died as the result of this surgical operation. The commission found in accordance with Dr. Gibbon's opinion on this point, and this finding in the state of the evidence we may not disturb. For the reasons given, the petition is dis missed. 2. BANKS AND BANKING 301(1) ACCOUNTS-SURVIVORSHIP. Where deceased deposited money in savings bank to joint account of himself and another, payable to their survivor, further provision in deposit agreement that "the parties agree to beof survivorship, when the contract was concome partners" therein did not affect the right strued as a whole. Appeals from Superior Court, Alameda County; W. H. Thomas, Judge. Two actions by James D. Halsted and others against the Central Savings Bank, substituted for the Union Savings Bank, and Anna M. Collins, and against the First Savings Bank and Anna M. Collins. Judgment in each case adverse to plaintiffs, and they appeal. Both judgments affirmed. O'Neill & O'Neill and Chapman & Trefethen, all of Oakland, for appellants. Harry E. Leach and Abe P. Leach, both of Oakland, for respondents. BEASLY, Judge pro tem. These two cases arose out of the deposit of certain moneys in the defendant banks by James Mandeville Halsted, deceased, in the names of himself and his foster sister and housekeeper, Anna N. Collins. ceased deposited with the Union Savings On the 8th day of March, 1913, the deBank the sum of $12,915.87, and at the time signed with Mrs. Collins an agreement relatvided that all moneys then on deposit or at ing to this deposit which in substance proof them to the credit of this account were any time thereafter to be deposited by either to be received by the bank on condition that the amounts thereof and all dividends thereon should be paid by the bank to the depositors, or either of them, or to the survivor of them, or to the personal representatives or assigns of such survivor, without reference to the original ownership of the moneys. This deposit was made in the names of James M. Halsted and Mrs. Anna Collins. Halsted at the time of making this deposit was in perfect health. He told Mrs. Collins, We concur: ZOOK, Presiding Judge pro as she testified in response to questions by tem.; KERRIGAN, J. (36 Cal. App. 500) appellants' attorney, that this money was for her; that he wanted her to have it just as soon as anything happened to him; that he HALSTED et al. v. CENTRAL SAV. BANK gave it to her, and it further appeared that et al. SAME v. FIRST SAV. BANK et al. (District Court of Appeal, First District, California. March 12, 1918. Rehearing Denied by Supreme Court May 9, 1918.) what he meant by "anything happening to him" was his death. Of another witness, Mr. Furniss, he asked whether, in the event of his making a joint account in the bank, there would be any question about Mrs. Collins getting the money if anything should happen to him, and Mr. Furniss replied that there was no question about it. He told the witness Where deceased deposited money in savings De Pue that he had just been down to the bank to joint account of himself and another, bank and turned over or transferred a book payable to their survivor, his heirs were not carrying a $10,000 deposit to Mrs. Collins, 1. BANKS AND BANKING 301(1)—JOINT AcCOUNTS-SURVIVORSHIP. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and he added, "Now, if anything happens to of the following cases: Estate of Harris, 169 me Anna is provided for." Cal. 725, 147 Pac. 967; McCarthy v. Holland, 30 Cal. App. 495, 158 Pac. 1045; McDougald v. Boyd, 172 Cal. 753, 159 Pac. 168; Waters v. Nevis, 31 Cal. App. 511, 160 Pac. 1081; and numerous other cases which have been decided by the Supreme Court and by this court in which similar instruments have been construed. is held "by its four corners" and read and construed as a whole, does not change its meaning from that given it by the trial court. The intention is plainly the same as in the case of the Union Savings Bank, and we are not disposed to split hairs over definitions of words, but to hold that the intention so plainly indicated by all the acts and words of Mr. Halsted shall be carried out. The deceased suffered a paralytic stroke in the month of March, 1911, and died on the 25th day of October, 1914. There seems to have been no change in the account until the day previous to his death, when Mrs. Collins transferred the account to her own name. The court found that the claim to these funds made by the plaintiffs, as executors of [2] The expression that "the parties agree Mr. Halsted's will, was without foundation to become partners" in the case of the First and invalid; that the estate of the deceased | Savings Bank account, when this agreement had no interest in the money, and that the same was the sole and separate property of Mrs. Collins, to the possession of which she was entitled. It was conceded at the argument that the only difference between the facts of the case against the Union Savings Bank and the companion case against the First Savings Bank is in the language of the agreement signed at the time the deposit was transferred to the account of Mr. Halsted and Mrs. Collins. In the case of the First Savings Bank this agreement authorized and directed the corporation to open an account in the names of James M. Halsted | GAN, J. and Anna Collins, payable to either or the survivor, and by this instrument the two persons named agreed with each other to become and be partners in the ownership of the moneys and of all interest thereon and all other moneys to be deposited to said account; and they agreed with each other that either and each of them and the survivor of them might at any and all times draw and receive from the bank the whole or any part of the money, and empowered each to sign their respective names to any receipt, check, or voucher for the money so drawn. [1] The deceased was a man of few words apparently, and he said little at the time of making these changes in the deposits of his funds; but, as was said in Booth v. Oakland Bank of Savings, 122 Cal. 19, 54 Pac. 370, there can be no doubt of the intention of Mr. Halsted in this matter, and that intention should be carried out if the law will permit it. We do not deem it necessary to discuss the writings made for the purpose of giving a particular character to these deposits, or the facts of these cases at length. The facts showing an intention on the part of Mr. Halsted to create a trust in favor of Mrs. Collins in these funds are far stronger than were the facts in the case of Booth v. land Bank of Savings, supra; and the findings of the court and the evidence supporting them bring the cases clearly within the ruling in that case, and also within the rule The judgment is affirmed in each of the cases above entitled. We concur: LENNON, P. J.; KERRI (36 Cal. App. 816) HALSTED et al. v. OAKLAND BANK OF SAME v. CENTRAL SAV. BANK et al. (District Court of Appeal, First District, California. March 12, 1918. Rehearing Denied by Supreme Court May 9, 1918.) Appeals from Superior Court, Alameda Coun ty; W. H. Thomas, Judge. Actions by James D. Halsted and others against the Oakland Bank of Savings and another, and by James D. Halsted and others against the Central Savings Bank and another. case appeal. Judgment in each case affirmed. From the judgments rendered, plaintiffs in each O'Neill & O'Neill and Chapnan & Trefethen, all of Oakland, for appellants. Harry E. Leach and Abe P. Leach, both of Oakland, for respondents. PER CURIAM. The facts of these two cases are such as to present the same question that we have this day decided in James D. Halsted et al. v. Central Savings Bank, 172 Pac. 613, numbered in this court No. 2302. In all the cases the plaintiffs, as executors of the last will of James M. Halsted, deceased, are seeking to establish an interest in certain savings bank deposits belonging to the deceased in his lifetime, but in which he had created an interest in faOak-vor of Anna N. Collins amounting upon his death to absolute and sole ownership. case of Halsted et al. v. Central Savings Bank, Upon the authority of the above-mentioned No. 2302, the judgment in each of these cases is affirmed. (36 Cal. App. 531) SOUTHERN CALIFORNIA IRON & STEEL CO. v. MAIER. (Civ. 2115.) total number of shares of stock outstanding at the time in question and to substitute an allegation conforming to finding No. 6. It (District Court of Appeal, Second District, Cal- seems to be true, according to a quotation ifornia. March 15, 1918.) PLEADING ITY. from the transcript as made by them, that 380-EVIDENCE-ADMISSIBIL- the court allowed the parties to amend their In action on a corporation debt against a in the matter." But the more complete quopleadings to conform "to the facts and proof stockholder, where upon the allegations of the complaint as they stood admitted there was no tation given by counsel for appellant limits issue as to the number of shares the corpora- the amendment made at the trial to the foltion had outstanding when the debt was incur-lowing: red, plaintiff was not entitled to raise such issue by introducing evidence contradicting the allegations of the complaint as to the number of shares. "That the plaintiff amends and alleges the contract to have been made on August 14th, and that the answer is amended to show that the defendant alleges that he had no stock on that Appeal from Superior Court, Los Angeles date.' County; Wm. D. Dehy, Judge. Action by the Southern California Iron & Steel Company against Edward R. Maier. From judgment for plaintiff, defendant appeals. Reversed. Counsel for respondent do not suggest that any proof was made on the subject before us, except that they introduced in evidence the articles of incorporation of Maier Pier Company, executed eight days before the A. L. Abrahams, of Los Angeles, for ap-making of the corporation's contract with pellant. A. P. Michael Narlian and N. B. the plaintiff, with the statement made by Nelson, both of Los Angeles, for respondent. counsel that, as shown by those articles, 5 CONREY, P. J. The defendant appeals from a judgment entered against him in the sum of $171.40 as a stockholder in Maier Pier Company, a corporation, on account of a contract whereby merchandise was sold to that corporation at the agreed price of $857.04. There is only a typewritten transcript of the record. The quotations from pleadings and from evidence, as printed in the briefs, are less complete than they should have been. But by piecing together a scrap found in one brief with other scraps found here and there in the other briefs, together with positive admissions of fact by counsel, we find enough, although barely enough, material for a decision on the merits. It is a dangerous practice for attorneys in preparing their briefs to neglect the provisions of section 953c, Code of Civil Procedure. We have referred to this matter in many recent decisions. It was alleged in the complaint "that at the time said debts were contracted, the total number of shares of the capital stock of said corporation, Maier Pier Company, issued, subscribed and outstanding, was 77,941 shares." Without denying this allegation, the defendant denied that at the time mentioned he was a shareholder in the corporation, and alleged that at that time he had no stock therein. Nevertheless the court, in finding No. 6, declared: "That at the time said contract was made said defendant Edward R. Maier was the owner of 1 share of stock, and that the total number of shares of stock subscribed for at that time was 5." shares of the stock of the corporation were subscribed, of which the defendant Maier subscribed for 1 share. They admit, however, that these articles "were not copied into the record by the reporter, but this no doubt was through an oversight on his part." There has been no suggestion of diminution of the record, and it does not appear that respondent made any effort to have the record completed so as to have presented before this court this evidence which is vital to his case. However, we are of the opinion that upon the allegations of the complaint, as they stood admitted by the defendant, there was no issue upon the subject of number of shares of the corporation then outstanding. The plaintiff was not entitled to raise such an issue by introducing evidence, to which defendant duly objected, contradicting the allegations contained in its own complaint. The judgment is reversed. We concur: JAMES, J.; WORKS, Judge pro tem. (36 Cal. App. 512) (Cr. 599.) Ex parte CORREA. (District Court of Appeal, Second District, California. March 14, 1918.) OBSCENITY 11-COMPLAINT-SUFFICIENCY. Under Pen. Code, § 311, providing that every person who willfully and lewdly exposes his person or the private parts thereof in any public place, or in any place where there are present other persons to be offended or annoyed, is guilty of a misdemeanor, a complaint charging that defendant at the time and place named did "willfully and unlawfully expose his person," etc., was insufficient, in that it did not allege that the acts were done "lewdly." If appellant is right in his contention that finding No. 6 is unsupported by any evidence, the judgment must be reversed. Counsel for In the matter of the application of Jose respondent contend that the pleadings were | Correa for a writ of habeas corpus. Granted, amended at the trial in such a manner as to and applicant ordered discharged from cuseliminate the above-stated allegation as to tody. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |