Braslow v. Kelly, 151 Cal. App. Supp. 2d 852

Braslow v. Kelly

151 Cal. App. Supp. 2d 852 | Cal. App. Dep’t Super. Ct. | 1957

SWAIN, J.

This case involves the doctrine of res judicata. “ The doctrine of res judicata has a double aspect. A former judgment operates as a bar against a second action upon the same cause, but in a later action upon a different claim or cause of action, it operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.” Todhunter v. Smith (1934), 219 Cal. 690, 695 [28 P.2d 916].

We must decide (1) whether the first action, Braslow v. Cabin Crafts, Inc., and Kelly, Number 311641, in the Municipal Court of Los Angeles Judicial District, was upon the same cause of action as the second one, Braslow v. Kelly, Number 5614, in the Municipal Court of Alhambra Judicial District, the action in which this appeal was taken, and if not,

(2) whether there were issues in the second action which were actually litigated and determined in the first action.

The first action was upon contract. The complaint sought to hold Cabin Crafts, Inc., for the cost of manufacturing a display cabinet claimed to have been ordered by Kelly as agent for Cabin Crafts. It also sought to hold Kelly as a principal. Denials in the answer presented two defenses: (1) That Kelly had no authority to order the cabinet for Cabin Crafts, and (2) that Kelly never ordered the cabinet. Judgment was for both defendants. The second action is against Kelly alone. It is under Civil Code, section 2342, for breach by Kelly of warranty of authority to act as agent for Cabin Crafts. Whatever definition may be used for cause of action, we are convinced that an action on a contract to recover the purchase price of goods is different from a cause of action for damages for breach of warranty of authority of an agent. In the first it is claimed that there is a contract, in the second it is claimed there is not a contract. The fact that they arose out of the same transaction and could have been joined under Code of Civil Procedure, section 427, subsection 8, is not significant because that joinder is permissive not mandatory. Sanderson v. Niemann (1941), 17 Cal.2d 563 at 571 [110 P.2d 1025]; Lynch v. Kemp (1935), 4 Cal.2d 440 at 442 [49 P.2d 817].

We, also, hold that the issues adjudicated in the first action did not estop the adjudication of issues presented in *8this action. It is true that in the first action Kelly denied he ordered the goods as the authorized agent of the corporation, and it is true that the same issue is raised in the second action.

According to the settled statement, he so testified and claimed that plaintiff made the model display cabinet on his own responsibility hoping to sell a large number of them to Cabin Crafts. Difficulty is caused by the fact that there are no findings in the first action. It might have been decided on either of two theories: (1) on the theory that Kelly had no authority to order the cabinet at Cabin Crafts’ expense and that he did not order it for himself as principal, or (2) on the theory that he did not order the cabinet at all. If the first case was decided on the latter theory, plaintiff would be estopped from relitigating that issue in the present action. However, the law applicable to the problem which arises when we cannot determine on which of two defenses the former action was decided is set forth in the following authorities:

Code of Civil Procedure, section 1911: “That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.”

Blumenthal v. Maryland Casualty Co. (1932), 119 Cal.App. 563, 566-567 [6 P.2d 965] : [Stating the rule] “In an action upon a different claim or demand, however, the former judgment is only conclusive as to such issues or matters as were essential to or shown to have been involved in the judgment rendered [citations]. But if upon the face of the record anything is left to conjecture as to what was necessarily involved and decided there is no estoppel [citations]; and in the absence of findings only those issues are deemed to have been adjudicated which were actually included in the judgment or necessary thereto [citations].”

Schumacker v. Industrial Acc. Com. (1941), 46 Cal.App.2d 95, at page 99 [115 P.2d 571] : [Referring to Code Civ. Proc., § 1911, the court said] “A comparison shows that the rule as stated in .our statute does not vary in any material respect from the rule as stated in 94 U.S. 353. That rule was further discussed by the same court in Bussell v. Place, 94 U.S. 606 [24 L.Ed. 214]. On page 608 the court said: ‘It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the *9same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record,—as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered,—the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible. ’ ”

The judgment is affirmed.

Bishop, P. J., and Kauffman, J., concurred.

*11INDEX [References are to pages where headnotes appear. Figures in brackets refer to headnote numbers.] ABORTION Evidence, 714 [1], 715 [13,15] Corroboration, 714 [2-4], 715 [10,11] Pregnancy, 715 [14] ACTIONS Classification—Legal or Equitable, 7G5 [14] Joinder of Causes—Single Cause of Action, 72 [1-3] ADMINISTRATIVE LAW Judicial Review—Appeal, 117 [2] Hearing—Power of Trial Court, 117 [2] Statutes, Interpretation of, 760 [5] AGENCY Dual Agency, 514 [4] Existence—Evidence, 514 [2] ANNUITIES Definitions and Distinctions, 482 [7, 8,10] Nature, 483 [21] APPEAL Affirmance, 261 [3] Decisions Appealable, 800 [1] Final Judgment, 64 [2,3] Nonsuit, 64 [1] Vacation of Judgment, Refusal, 729 [4] Dismissal, 791 [5] Record, Insufficiency of, 589 [3] Effect of Appeal—Trial Court’s Powers—Collateral Matters, 308 [10] Harmless and Reversible Error—Conduct of Counsel, 411 [13] Evidence, 742 [7] Findings, 433 [IS], 469 [5], 545 [2] Special Verdict and Findings, 411 [11] Instructions, 442 [2, 3] Correctness When Construed Together, 261 [2] Equity Cases, 411 [12] Verdict—Special Verdict and Findings, 411 [11] Witnesses, Rulings as to—Impeachment, 6 [4] Objections—Exceptions—Instructions, 389 [11] Necessity—Evidence, 299 [6] Theory of Case, Adherence to, 8 [16], 615 [1] ( 857 )

*12858 Index—151 C.A.2d APPEAL—Continued Presumptions—Findings, Construction of, 469 [4] New Trial, Orders on Motion for, 568 [1] Questions of Law and Fact—Affidavits—Conflicts, 287 [8] Authority of Court, 118 [3], 127 [5], 469 [1] Extent, 674 [2] Conflicting Evidence, 411 [7], 514 [3], 847 [3] Inferences, Evidence Subject to Different, 674 [3] Insufficiency of Evidence, 514 [1] Record—Review, 589 [1] Showing of Error, 589 [2] Reversal—Directing Further Proceedings in Trial Court, 765 [13] Right to Appeal—Consent Judgments, 351 [1] ATTORNEYS Compensation—Evidence, 545 [3] ARREST Malting Arrest, 587 [1] Without Warrant—Reasonable or Probable Cause, 165 [1-4], 244 [1], 364 [1], 594 [1-3], 660 [3], 661 [5, 7], 714 [7], 715 [8, 9] ASSAULT AND BATTERY Civil—Evidence, 299 [3] Criminal—Deadly Weapon—Instructions, 542 [1] AUTOMOBILES Appeal—Harmless Error—Instructions, 791 [3] Emergency Vehicles, 791 [1, 2] Indemnity Insurance—Vehicles Covered, 669 [3] Instructions—Presumptions and Inferences, 822 [7] Presumptions—Care, Exercise of, 821 [1], 822 [6] Offenses—Driving Automobile Without Owner’s Consent— Evidence, 157 [1, 4, 7] Presumptions, 158 [8] Questions of Law and Fact—Contributory Negligence, 791 [4] Memory, Loss of, 821 [2] BROKERS Necessity of License, 168 [2] BURGLARY Appeal, 196 [1] Evidence—Sufficiency—First Degree, 294 [1] Intent, 294 [2] CHARITIES Charitable Trusts—Animals, Trust for Benefit of, 273 [12] Characteristics, 273 [10,11]

*13Index—151 C.A.2d 859 CONSPIRACY Civil—Evidence, 6 [1] Criminal—Agreement, 624 [12,15] Appeal, 624 [16] Harmless Error, 31 [23] Evidence, 30 [14,18] Instructions, 29 [11] Common Design, 28 [5] Elements, 28 [4], 624 [13] Evidence, 29 [8], 30 [15,16], 31 [24], 623 [1], 624 [14], 625 [17] Indictment and Information, 624 [11] Instructions, 29 [10] Liability of Conspirators, 29 [7], 625 [18] Particular Conspiracies, 31 [27] Withdrawal From Conspiracy, 29 [6] CONSTITUTIONAL LAW Constitutionality of Statutes—Raising Constitutional Questions— Waiver and Estoppel, 837 [9] Construction of Constitutions, 506 [7] CONTRACTS Certainty, 615 [3] Future Contract—Agreement to Make, 615 [2,4] Interpretation—Surrounding Circumstances, 410 [3] Parties—Interpretation—Favoring One Party, 602 [2] CORPORATIONS Disregard of Corporate Entity, 412 [14] Liabilities—Contractual Powers, 307 [1] Officers—Liability—Evidence, 420 [1] Powers, 524 [4-6] Mode of Exercising, 307 [2] Shareholders’ Actions—Security for Costs, 307 [3-7], 308 [8,9,11,12] Suits on Behalf of Corporation—Rights of Corporation, 420 [2] COSTS Striking Cost Bill, 171 [1] COUNTIES Charters—Amendment, 505 [1-3] Fiscal Matters—Indebtedness—Limitation, 271 [1], 272 [5] Mandamus, 506 [8] COURTS Reporters—Appointment, 736 [1]

*14860 Index—151 C.A.2d CRIMINAL LAW Appeal—Briefs, 758 [I] Harmless and Reversible Error—Argument of Prosecuting Attorney, 51 [8] Arraignment and Plea, 583 [2] Burden of Showing Prejudice, 624 [9] Evidence, 31 [22,25], 196 [4], 587 [2] Hearsay, 196 [2] Indictment and Information, 624 [8] Miscarriage of Justice, 715 [12] Misconduct of Court, 537 [1] Punishment, 810 [1] Trial, 30 [13] Witnesses—Cross-examination, 51 [6] Objections—Evidence, 340 [5] Exclusion of Evidence and Offer, 175 [19] Leading Questions, 699 [12] Misconduct of Counsel, 112 [8] Witnesses—Failure to Call, 811 [6] Presumptions—Jury—Following Instructions and Admonitions, 30 [19] Questions of Law and Fact, 59 [2] Authority of Court, 714 [6] Evidence, Consideration of, 173 [3], 598 [1] Circumstantial Evidence, 173 [4] Functions of Courts, Comparison, 624 [10] Testimony Inherently Improbable, 698 [1, 2] Verdict—Setting Aside, 173 [1], 714 [5] Witnesses—Credibility, 251 [2], 698 [5] Argument of Counsel—Comment on Defendant, 112 [7] Comment on Witnesses, 112 [6] Opinions as to Defendant’s Guilt, 52 [10] Scope, 51 [9] Continuances—Discretion—Review, 112 [2] Witnesses, Securing Attendance, 583 [4] Corpus Delicti—Admissions, 174 [7,8] Confessions, 174 [10] Guilt of Defendant, 174 [11] Counsel—Asking Questions, 239 [2] Opening Statement, 158 [9], 239 [1] Evidence Admissions—Corpus Delicti and Admissions, 174 [7, 8] Prosecuting Officers, to, 340 [4] Confessions, 175 [15,18], 587 [2] Corpus Delicti and Confessions, 174 [10] Weight and Effect, 174 [13], 175 [14,16] Corpus Delicti, 611 [2, 3]

*15Index—151 C.A.2d 861 CRIMINAL LAW—Continued Evidence—Continued Declarations and Conduct—Accusation, Respecting, 537 [1] Expert Testimony—Weight, 175 [17] Guilt, Facts Showing Consciousness, 625 [19] Flight, 339 [1] Hearsay—Exceptions, 679 [11] Identity—Voice, 678 [3] Order of Proof—Corpus Delicti and Admissions, 611 [4], 678 [1] Other Offenses, 157 [5, 6] Weight and Sufficiency, 173 [2], 174 [12] Former Jeopardy Identity of Offenses, 700 [13] Different Grades or Degrees of Offenses, 542 [2, 3] Habitual Offenders—Proceedings Where Prior Conviction in Issue, 205 [1,2] Inferences—Intent, 294 [3] Instructions, 811 [7] Circumstantial Evidence, 1 [1] Evidence—Limiting to Particular Purpose, 121 [4] Included Offenses—Request, Necessity, 700 [14] Judgment—Requisites, 294 [4] New Trial—Jurors—Separation After Retirement, 29 [9] Plea, 842 [1] Preliminary Proceedings—Record of Testimony, 624 [6] Probation—Discretion of Court, 121 [1-3] Eligibility, 407 [1, 2] Nature, 121 [1] Province of Court and Jury—Intent, 157 [2] Punishment—Concurrent and Cumulative Sentences, 584 [8] Rights of Accused Counsel, Aid of, 112 [1,4] Waiver, 112 [3,5] Sexual Psychopaths Law—Constitutionality, 460 [4] Nature of Proceeding, 460 [1-3] Purpose, 460 [5] Trial, 28 [1] Inspection of Papers, 583 [6] Time Delay—Good Cause, 804 [2], 805 [3,4] Remedies—Excusing Delay, Burden of, 804 [1] Witnesses—Calling, Duty of, 811 [5] Writ of Error Coram Nobis—Grounds, 201 [1, 2] 151 C.A.2d—28

*16862 Index—151 C.A.2d DECEDENTS’ ESTATES Appeal—Dismissal, 481 [1] Assets—Trust Property Held by Deceased, 353 [1] Family Allowance—Appeal, 317 [2] Charge Against Estate Property, 317 [1] Final Distribution—Decree, 272 [2, 3] Investments—Annuity, Purchase of, 483 [18] Jurisdiction—Scope, 209 [3] DEEDS Exceptions—Interpretation, 602 [1,3] Property Conveyed—Incidents and Appurtenances, 602 [4] DEPOSITIONS Definition, 688 [1] Estoppel, 688 [5] Bight to Take, 287 [9] Taking, Method, 688 [2] Use in Evidence, 688 [3, 4] DISCOVERY Application and Showing, 287 [7, 8] Discretion of Court, 286 [1], 287 [6] Nature of Bemedy, 287 [4] Prohibition, 286 [2] Wrongful Death Action, 287 [5] DISMISSAL Diligence, Duty to Prosecute Case With, 688 [6] DIVOBOE Alimony, 230 [8] Agreement of Parties, 229 [4-7], 230 [9], 254 [6] Modification of Allowance, 230 [10] Agreement of Parties, 228 [2], 229 [3], 253 [1-3], 254 [5,8-10] Hearing and Determination of Motion, 254 [7] Appeal, 344 [13] Beview, 253 [4] Costs—Modification of Support, Motion for—Separation Agreement, 255 [12] Counsel Fees—Discretion of Court, 674 [4] Custody of Children—Award—Party to Whom Awarded, 674 [1] Decree Final Decree, 344 [8] Vacation, 344 [9] Interlocutory Decree—Modification, 344 [4, 6] Nunc Pro Tunc Entry, 344 [3] Vacation, 344 [7] Findings—Besidence, 344 [5]

*17Index—151 C.A.2d 863 DIVORCE—Continued New Trial, 343 [1] Property-—-Disposition-—-Agreement of Parties—Decree, Incorporation in, 228 [1] Separation Agreements, 255 [11] Support of Children—Agreement of Parties, Effect of, 237 [1, 2] Modification of Allowance, 237 [3] DOMICILE Act and Intent, Union of, 784 [3] Intent, 784 [2] Residence, 785 [4] ELECTION OP REMEDIES Effect of Election, 764 [1,4] Estoppel—Doctrine of Election as Based on Estoppel, 764 [5] Necessity for, 764 [4] What Amounts to Election, 764 [2,3, 6], 765 [10,11] ELECTIONS General Elections, 505 [4-6] Primary Elections, 505 [4,5] EMBEZZLEMENT Appeal—Harmless Error—Instructions, 810 [4] Evidence, 810 [3] Appropriation, 810 [2] Documentary Evidence, 811 [8, 9] EMINENT DOMAIN Appeal—Questions of Law and Pact, 262 [7] Compensation—Damages—Uses, Availability of Land to, 261 [1] Evidence—Damages—Contiguous Land—Prospective Uses, 262 [6] Municipality, by, 261 [4] Uses—Determination—Ordinance or Resolution, 261 [5] ESTOPPEL Pleading, 741 [4] EVIDENCE Documentary Evidence—Business Records, 134 [7, 8] Hearsay—Exceptions—Declarations—Intention, Motive, 356 [5] Judicial Notice, 497 [5] Opinion Evidence—Examination of Witnesses, 6 [2] Relevancy—Other Acts, 298 [2] Weight and Sufficiency, 323 [8] Negative Testimony, 517 [3] EXCHANGE OP PROPERTY Consideration, 615 [5, 6]

*18864 Index—151 C.A.2d EXEMPTIONS Enforcement of Exemption—Appeal, 843 [4] Property Exempt—Earnings, 847 [1, 2] EXTRADITION Persons Extraditable, 739 [1] FALSE PRETENSES Elements of Offense, 625 [23, 24] Evidence, 625 [22] FIXTURES Severance—Effect, 333 [2] FORGERY Appeal—Harmless Error, 612 [6] Check, Uttering Forged, 583 [7] Evidence—Corpus Delicti, 611 [1] Documentary Evidence, 612 [5] Other Offenses, 583 [1] Uttering Forged Check, 583 [3] FRAUD Burden of Proof, 85 [5] Pleading, 85 [6] Presumptions, 85 [5] GAMING Offenses Bookmaking—Occupation of Place for, 679 [8, 9] Evidence, 244 [2], 678 [2], 679 [10] Corpus Delicti, 678 [6] Expert Testimony, 678 [4, 5] Sufficiency, 244 [3] GARNISHMENT Actions—Appeal, 843 [5] GRAND JURY Report of Testimony, 624 [6] GUARANTY Contract—Consideration, 96 [2] Construction, 96 [1] Letters of Credit, 616 [7] HABEAS CORPUS Grounds—Habitual Criminals, 201 [3] HEALTH Swimming Pools, 759 [2, 3], 760 [4]

*19Index—151 C.A.2d 865 HOMICIDE Corpus Delicti, 174 [5, 6, 9] Evidence, 175 [21] HUSBAND AND WIEE Community Property—Descent—Administration, 210 [8, 9] Property—Determination of Character—Presumption—Bebuttal, 580 [4] Separate Property—Evidence—Purchase With Separate Funds, 356 [1] Bents, Issues, Profits, 356 [4] Transactions Inter Se Fraud and Undue Influence, 356 [2]i Burden of Proof, 356 [3] INDICTMENT AND INFOBMATION Charging Offense, 623 [3-5], 624 [7] INJUNCTIONS Preliminary Injunctions—Availability, 764 [7], 765 [8,9] INSUBANCE Agency for Insurer—Authority, 7 [6] Appeal—Findings, Oonelusiveness, 776 [3] Objections, 6 [3] Beview of Evidence, 6 [3] Contract—Binder or Covering Note, 7 [9-11], 8 [17], 9 [18,19] Interpretation—Forfeiture, Against, 433 [11] Insurer, Against, 776 [4] Persons Covered, 776 [5] Modification, 669 [1] Parol Contracts, 7 [7] Preliminary Contract, 8 [14] Bequisites, 7 [8] Evidence—Contract, 775 [1] Extrinsic Evidence, 775 [2] Findings, 7 [5], 8 [15] Indemnity Insurance—Defense of Suits Covered by Policy, 432 [5] Injured Person’s Bemedies Against Insurer, 432 [7,8] Oonelusiveness of Judgment Against Insured, 431 [1], 432 [2-4] Defenses, 669 [2] Breach of Cooperation Clause, 432 [9], 433 [12-14] Nature, 432 [6] Befusal to Defend—Belease of Insured, 433 [10] INTOXICATING LIQUOBS Civil Liability—Duty to Patrons on Premises, 151 [3] Pleading, 150 [1], 151 [7] Torts, 150 [2] Transfer of License, 190 [1], 191 [3]

*20866 Index—151 C.A.2d JOINT ADVENTUBEBS Creation, 410 [2] Definition, 410 [1] Evidence, 410 [6] Particular Contracts Considered, 168 [1], 410 [4] Questions of Law and Fact, 410 [5] JUDGMENTS Correction—Clerical Errors, 728 [2], 729 [3] Declaratory Judgments—Pleading, 96 [4] Notwithstanding Verdict, 689 [13] Number in Case, 64 [4] Bendition and Entry—Death of Party—Effect, 729 [3] Bes Judicata—Bar, 316 [1], 852 [1, 2] Different Claim, Action on, 333 [3] Estoppel—Different Claim or Cause, Actions on, 852 [1, 3] Identity of Parties, 333 [1] JUEY Bight to Jury Trial—Equity Cases, 411 [8, 9] Waiver of Jury Trial, 842 [1] Consent in Open Court, 842 [3] Mode, 842 [2] KIDNAPING Evidence, 428 [1] LABOB Wages, 837 [8] Begulations—Violation—Proceedings, 818 [1, 2] LANDLOBD AND TENANT Leases—Cancellation, 741 [1] Interpretation, 476 [1] Evidence to Aid, 477 [2] Subleases—Bights and Liabilities of Sublessee, 477 [3] Termination, 97 [5] Use of Premises—Improvements, 96 [3] LABCENY Evidence—Sufficiency, 250 [1] Indictment and Information, 623 [2] Theft, Effect of Statute Defining, 625 [20, 21] LEWDNESS Appeal—Beview of Evidence, 698 [3, 4] Evidence, 699 [6, 7] Corroboration, 699 [8] Intent, 699 [11] LICENSES Bevocation—Judicial Beview, 117 [1]

*21Index—151 C.A.2d 867 MARRIAGE Burden of Proof, 344 [11] Evidence, 344 [10] Presumptions, 344 [12] MUNICIPAL CORPORATIONS Employees—Civil Service—Mandamus—Appeal, 785 [5] Consolidated City and County Employees, 784 [1], 785 [6-9] Torts—Public Liability Act, Rule Under, 830 [2] MUNICIPAL COURTS Reporters, 736 [1] NEGLIGENCE Appeal Harmless Error—Evidence, 135 [11] Exclusion of Evidence, 134 [9] Instructions, 135 [12] Review, 133 [2] Care, Exercise of Knowledge of Danger, 518 [7] Particular Persons, Care by—Infants, 518 [8] Evidence, 689 [11] Habit or Custom, 388 [8], 389 [10] Inferences, 388 [2] Infants, Care Toward Attractive Nuisance Doctrine, 500 [3-5] Application of Doctrine, 500 [2] Playground Apparatus, 500 [1] Instructions, 134 [6], 135 [13] Res Ipsa Loquitur, 387 [1], 388 [7] New Trial, 135 [14] Presumptions, 689 [8,10] Questions of Law and Pact, 689 [9] Res Ipsa Loquitur, 388 [4-6] Application of Doctrine, 388 [3] Verdict—Directed Verdict, 689 [12,14] NEGOTIABLE INSTRUMENTS Delivery—Conditional Delivery, 369 [1] NEWSPAPERS General Circulation—News Disseminated, Nature of, 496 [1,2] Proceedings to Determine Character—Evidence, 496 [3] Subscription List, 496 [4] NEW TRIAL Affidavits—Diligence, Showing of, 343 [2] Appeal—Burden of Proof, 570 [4] Damages—Inadequacy, 568 [3]

*22868 Index—151 C.A.2d NEW TBIAL—Continued Insufficiency of Evidence—Contract Actions, 571 [5] Discretion—Beview, 570 [3] Powers of Trial Court, 570 [1,2] Newly Discovered Evidence—Cumulative Evidence, 357 [6] Diligence—Cumulative Evidence, 299 [7] Discretion of Trial Court, 380 [1, 2] Order—Piling and Entry, 568 [2] OIL Conveyances—Sale or Grant, 272 [8] Leases—Construction, 732 [3] Bent, 732 [1, 2] Termination, 732 [1, 2] PABTIES New Parties, Bringing in—Order of Court, 353 [2] Bepresentation—Suing on Behalf of All, 72 [4, 5], 73 [6, 7] PABTITION Dismissal, 728 [1] PABTNEBSHTP Accounting—Beview, 545 [1] PENALTIES Proceeding—Nature, 837 [5] PLEADING Admissions—Operation and Conclusiveness, 579 [1] Amendment, 151 [5] New Cause of Action, 151 [6], 545 [4] Demurrer—Grounds, 73 [9] Uncertainty, 73 [8] POISONS Offenses—Appeal—Harmless Error—Evidence, 31 [26] Evidence, 30 [17], 31 [20] Knowledge of Narcotic Nature of Drug, 51 [5] Possession of Narcotics, 50 [1], 598 [4], 661 [9,11], 662 [12] Possession of Narcotics—Constructive Possession, 661 [10] Knowledge, 598 [2, 3], 661 [8] Trial, 29 [12] PBISONS AND PBISONEBS Parole, 660 [1] PBOCESS Besident Accepting Certificate of Begistration or Operator’s License, 800 [2] PBOHIBITION Other Bemedies, Adequacy of—Appeal, 191 [2]

*23Index—151 C.A.2d 869 PUBLIC WORKS Contracts—Acceptance, 836 [2] Penalties and Forfeitures—Action to Recover—Time, 836 [1, 3] Proceedings to Impose, 837 [4] Statutes—Validity, 837 [6, 7] RAILROADS Injuries From Operation—Appeal—Harmless Error, 442 [1,4] Instructions, 442 [1, 4], 443 [7-9] RECEIVERS Appointment—Void Order, 191 [4] RECORDS Inspection of Public Writings and Records, 102 [2] Public Records- Defined, 102 [1] ROBBERY Evidence—Identification of Defendant, 340 [3] Weapons, 339 [2] SCHOOLS Actions—Prerequisites—Claim, Verification and Filing, 709 [1] Liability Injuries to Pupils—Appeal, 517 [2], 518 [5, 6, 9], 519 [10] Evidence, 5'18 [4] Instructions, 518 [9], 519 [10] Questions of Fact, 517 [2], 518 [5, 6] Supervision of Pupils, 517 [1] SEARCHES AND SEIZURES Arrest, as Incident to Lawful, 59 [1] Justification for, 661 [6] Reasonableness, 364 [2, 3], 660 [2] SODOMY Appeal—-Harmless Error—Evidence, 240 [3] SPECIFIC PERFORMANCE Certainty—Description of Property, 580 [3] Relief—-Title of Defendant, 579 [2] STATE OF CALIFORNIA Officers and Employees—Retirement Benefits—Death of Member After Retirement, 562 [1] STATUTES Construction—Necessity, 562 [2] Reenacted Statutes, 147 [2]

*24870 Index—151 C.A.2d STREETS Injuries From Defects—Appeal—Harmless Error—Evidence, 134 [10] Contributory Negligence, 134 [5] Instructions, 133 [1] Liability of Municipality, 830 [4, 5] Traffic Control Devices, 830 [1, 3] TAXATION Assessment Conclusiveness, 221 [9] Fraud and Mistake, 220 [6] Equalization Proceedings of Local Board, 220 [8] Exemptions—Religious and Charitable Purposes, Property Used for, 523 [2, 3], 524 [7,8] Statutory Provisions, Construction, 523 [1] Insurance Companies, 559 [1] Uniformity and Equality, 219 [2], 220 [3] Assessment—Inequality, 219 [1], 220 [4, 5, 7] TRIAL Findings—Amendments, 742 [6] Construction, 469 [6] Equity Cases, 765 [12] Form and Sufficiency, 742 [5] Issues, Disposition of, by Findings Made, 469 [2] Special Verdicts and Findings—Equity Cases, 411 [10] Instructions—Applicability to Evidence, 134 [3,4] Argumentative Instructions, 443 [5], 766 [16,17] Formula Instructions, 443 [6] Objections and Exceptions, 812 [5] Request—Necessity, 821 [4] Theory of Case, 821 [3] Jury—Separation, 299 [4, 5] Object, 151 [4] Verdict—Directed Verdict, 689 [12] Evidence, Condition of, Authorizing, 689 [7] Impeachment, 299 [8, 9] Polling Jury, 298 [1] Special Verdicts and Findings—Equity Cases, 411 [10] TROVER Conversion, What Constitutes, 741 [2, 3] TRUSTS Express Trusts—Termination, 402 [1,2] Trustee—Appointment by Court, 273 [13]

*25Index—151 C.A.2d 871 VENDOR AND PURCHASER Fraud—Evidence—Parol Evidence, 127 [6] Misrepresentation and Concealment, 126 [1,2] Nondisclosure and Concealment, 126 [3,4] Remedies, 766 [15] Performance of Contract-—Payment of Purchase Money, 580 [5] Vendee’s Remedies, 579 [2] WATERS Appropriation—Waters Appropriable, 84 [2] Appurtenances—Waters as Appurtenant to Land, 375 [1] Condemnation—Evidence, 84 [1, 3, 4] Findings, 84 [3,4] Underground Waters—Appeal, 469 [7] Evidence, 469 [3] Injunctive Relief, 469 [8] Riparian Rights, 470 [9] WILLS Agreements as to Wills, 209 [1] Conditional Gifts—Forfeiture for Breach, 273 [9] Construction—Appeal, 481 [2] Desire or Wish, Words of, 481 [5], 482 [6] Intention of Testator, 481 [4] Intestacy, Avoidance of—Disposition of Entire Estates— Presumption of Intention, 272 [7] Contest—Nonsuit, 322 [7], 323 [12] Devisees, Rights of—Vesting of Devises—Time, 272 [4] Estate or Interest Passing Under Will Annuities, 482 [9,11,14], 483 [15-17] Gifts of Income, 481 [3], 482 [12,13] Property Included, 210 [10-12], 272 [6] Execution—Burden of Proof, 322 [1] General and Specific Legacies and Devises, 210 [7], 483 [19] Naturalness of Provisions, 323 [10,11] Revocation—Spo.use, Provision for Surviving, 209 [2,4] Satisfaction of Gifts Priorities and Abatement, 483 [19, 20], 484 [23] Demonstrative Legacies, 483 [22] Specific Legacies and Devises, 209 [5], 210 [6] Residuary Gifts, 210 [13] Testamentary Capacity—Evidence, 322 [2, 3] Mental Condition—Relation to Execution of Will, 322 [4] Presumptions, 322 [5] Undue Influence—Indicia, 323 [9] Interest and Opportunity, 322 [6]

*26872 Index—151 C.A.2d WITNESSES Competency—Determination, 699 [9] Infants, 699 [10] Cross-examination—Restriction, 245 [4] Scope—Credibility, Matters Bearing on, 389 [9] Duty to Testify—Failure of Accused to Testify—Effect, 175 [20], 679 [7] Impeachment—Contradiction by Cross-examination, 51 [7] Conviction of Crime, 51 [2], 583 [5] Cross-examination of Accused, 51 [3] Felony, 51 [4] Own Witness, Impeachment of, 31 [21] Privileged Communications—Attorney and Client, 102 [3], 103 [4, 6] Public Officers, 103 [5] Self-incrimination, 59 [3] Effect of Failure to Testify, 157 [3] WORDS AND PHRASES “Encourage,” 28 [3] “Induce,” 28 [2] “Probable,” 660 [4] “Public,” 759 [1] WORKMEN’S COMPENSATION Death Benefits, 148 [4] Dependents, Payments to, 147 [1] Insurance—Subsequent Injuries Fund—Statutes—Construction, 147 [3], 148 [4] Jurisdiction—Continuing Over Awards, 606 [1-3] Statutes—Construction, 607 [4]