*1 systems public that communication controlled utilities supervised using facili- persons such a manner that all in- ties their communications cannot be be assured knowl- tercepted by made means of connections without edge company. and direction of the order is reversed. Edmonds, J., Spence, J., con- J.,
Gibson, J., Shenk, C. curred. Aug. 26, rehearing denied
Respondent’s petition for rehearing. J., Garter, J., Schauer, voted Aug. 1, F. No. 17120. In Bank. [S. 1946.] VERA al, Appellants, ROBINSON et GEORGE DURHAM Administratrix, etc., Respondent. PULS, as connect, allowed to Company shall be employees of duly authorized instru- or all such any manner, change, alter in disconnect, move, or equipment. mentalities Com- or authorized appliance provided apparatus “No telephone equipment connection or used pany shall be attached Company. provided and facilities damage of or loss responsible will be held subscriber “The Company, such loss unless equipment apparatus furnished ’ ’ beyond damage his control. is due to causes *2 Appellants. for Berger Setzer and Abraham William Perry and Lester & Robinson Breed, Burpee Agee, R. James Respondent. for declaratory brought
GIBSON, C. J. action was for This notes, promissory and for an relief, cancellation of two alternative, accounting exist, or, if a trust were found money judgment. cross-complaint, Defendant filed a a seeking money judgment on two book accounts. Plaintiffs’ a by the jury refused, a and after trial trial
demand against jury plaintiffs a was entered court without cross-complaint. complaint and for defendant on her their on appeal on contend the court erred Plaintiffs jury denying them a trial. by complaint equi
The issues raised were both legal and in nature those table raised cross-com plaint solely legal in character. It is settled this state legal joined in the same equitable that where issues are 666 jury
action the are entitled a on legal (Connell Bowes, 456]; issues. v. 870 P.2d Cal.2d [122 Boice, Cal.App.2d 358]; Crouser v. P.2d Hutcha [124 Marks, Cal.App.2d 573].) son v. [128 argued, however, plaintiffs’ for a demand jury legal in that specify was defective failed to jury. Defendant on issues to be tried relies Meek Latour, 300], Auth, Whittier Cal.App. De P. 491], which hold it is not error to Cal.App. general jury try consisting for a demand a cause refuse legal equitable These decisions are based issues. jurisdictions and are in conflict with cases from other our statutory provisions relative to waiver of constitutional jury They disapproved. are therefore trial. People Metropolitan Surety Co., held,
This court 1914B 1181], Ann.Cas. page Cal. " I, of the state Constitution that under article section declaring power what given legislature is . . . the sole by jury . . and has exer of trial . a waiver constitute shall 631 of the enactment Code of power cised its only be waived ... Procedure* . . . Civil [and] No this section.” prescribed . . . modes in one of the *3 jury by is waived provided that a in is where * may by jury by parties "Trial be waived the several issue of to an following: manner fact in By failing appear trial; “1. to at the By justice; written consent filed with the clerk or “2. By consent, open docket; court, “3. oral entered in the minutes or jury. By failing jury “4. to demand to Failure announce that a upon required, the time the cause is first set trial if it is the calendar stipulation, days upon notice or or within five after of in to be set notice stipulation; provided, or setting if it be set without notice 'that by may party be made failure of justices’ courts such waiver either days jury upon pro- a two after service him of the notice within demand code; any provided further, 594 of this that in su- vided for Section by jury party in if a is demanded either the memoran- perior court action by party or for such thereafter announcement to cause trial and dum set any by jury, a trial then in said by operation of law waives event days’ by given the parties or be written notice party shall all adverse clerk notwithstanding whereupon, rule waiver, of of the court such not party contrary, adverse shall have the such of the court to immediately following receipt of such notice days the exceeding five jury by a trial to file and serve a demand waiver, which within deposit day’s such trial whenever jury for the first deposit advance fees impossible for the clerk of the court, if it is by required is date, or if for by trial days’ reason of the notice give such to court be con- action shall given, trial said said notice is cause giving enable the length of time to for a sufficient the court tinued party. to such adverse of the court the clerk notice of such contrary, foregoing to anything contained “Regardless of by jury, to tried demand the issues specify failure to therefore, deny plain- not, properly and the trial court could so the demand did not jury a the reason that tiffs trial for equitable issues were legal specify. fact both The the rule. involved does not alter jury a waived plaintiffs also Defendant contends days prior jury fees deposit failure reason of their to 5 of sec trial, required subdivision day to the set for as jury for a denying plaintiffs’ demand tion 631. The order for trial. days to the date set prior made more than re having jury were not thereafter Plaintiffs been refused a deposit jury trial had been denied quired fees a which to of an idle require performance them. The law does (Civ. Code, act. jury denying a plaintiffs court therefore erred legal entitled a reversal to upon trial issues disposes as it judgment, at least insofar issues jury. impracticable on submitted to should have been a equitable issues, legal from the appeal separate to the refusal propriety as and there is some doubt to ques- offer evidence on the permit plaintiffs of the court to authenticity receipt was material on of a tion of the equitable The entire should the trial of the issues. permit proper a full and therefore be reversed in order to (see single trial of all the issues Connell consideration a outlining Bowes, 456], proper Cal.2d cases). procedure in such admissibility during trial to the question
A arose and, inasmuch of account as the evidence of certain books may just, allow a discretion, upon terms as court in its such had, although' of such trial. by jury there has been waiver to be clerk, deposit. make deposit By failing “5. Failure day’s jury payable fees equal amount of one justice, a sum deposit justices’ must courts such law, provided herein. under the days prior to the date to prior to the date set be made two for a demand postponed because the trial has been which trial; days prior deposit must be made in other courts for trial. date set justice, promptly after By failing deposit clerk or with the ”6. *4 transportation mileage equal jury, impanelment sum time; law) up (if accrued to that any be allowed By failing beginning at the clerk or deposit with the “7. justice, equal day’s to one succeeding a sum session and each of the second day’s transportation, if there be. mileage or jury, and the of the fees despite upon “Jury may, waiver. The court its discretion has although there by jury to had just, a trial allow terms as waiver of such trial.” been a 668 undoubtedly court will be confronted with question the same retrial, we will consider the contentions of
respect thereto. The in question kept by were Puls and were offered in evidence the administratrix in support of her cross-complaint for a money judgment. Certain of (Exhibits A, these books B, D) kept by C and were Puls gasoline connection with a service operated station by him, and reflected transactions customers, including with his plain- George tiff, Robinson. A second set of kept by Puls (Exhibits M N) covered financial transactions between Puls and respect Robinson with fruit growing dry- ing business in engaged. which the latter was All of these books were admitted in evidence over plaintiffs’ objection showing there was no that the entries were made within proximity reasonable to the time of respective transac- required by tions as the Uniform Business Records as Evi- (Code Proc., dence Act 1953e-1953h). Civ. §§ Both sets books were identified kept by as those Puls during years question; they were in handwriting his they were kept orderly shown have been in an manner. The dates of the entries in appear the books to correspond reasonably original with the dates of the events. person
Where the
who made the entry is dead, evi
dence that the books of account were in
handwriting,
his
kept correctly,
is sufficient foundation for
(O’Neill O’Neill,
their admission.
v.
The further contention is made that the books N) M containing hibits deposits records of and loans made in growing connection with the fruit business constitute private and, therefore, memoranda are not admissible. These kept agreement pursuant Puls to an with Rob- inson, expert and an accountant testified that entries appearing therein, with minor transac- exceptions, covered by original tions reflected objec- vouchers and drafts. The tion that private these books are was not in memoranda m'ade the trial court. appears original that the documents evi- dencing most of the transactions are available and it necessary prove to use books to the account. The de- fendant, however, is now of plaintiffs’ informed contention and if she desires to offer the second she will opportunity have an to establish their in laying character a foundation for their admission in evidence. is reversed.
Shenk, J., Edmonds, J., Carter, J., Schauer, J., and J., Spence, concurred. I TRAYNOR, J. judgment. concur in the I agree, cannot
however,
part
majority
with that
of the
opinion holding that
the store books
reflecting
and the two other books
the financial
transactions
plaintiff
between Puls and the
are admissible in
evidence
proof
absence of
that the entries on which defen
rely
dants
were made at or near the time of the transactions
question.
Section 1953f of
Procedure,
of Civil
Code
enacted in
this state
part
of the Uniform Business
Records
provides:
as Evidence Act
“A
act,
record of an
con
dition
shall,
relevant,
or event
in so far
competent
evi
if
qualified
dence
custodian
other
witness testifies to
identity
its
and the mode
preparation,
of its
and if it was
regular
business,
made in the
course of
at or near the time act,
event,
if,
opinion
court,
condition or
information,
preparation
time
the sources of
method
added.)
(Italics
justify
its
This
were such as
admission.”
only requires preliminary proof in all cases that
statute
time”
the record was made “at
near the
transac-
tion,
authority
determine,
court
also vests
evidence,
before such records
admitted in
whether
enough
transactions
preparation
time
its
was near
uni-
of the record. The
proved
justify
to be
the admission
(see Wig-
years
formulated
of discussion
form act was
after
*6
more,
(3d ed.) 362)
its draftsmen undoubt-
Evidence
and
against
edly weighed
disadvantage
estates
the
of the rule to
admitting
was
dangers of
records
trustworthiness
the
whose
relax
established,
it advisable to
they did
deem
when
the
of
requirements
proof
the case
preliminary
the
of
(See
the
Entries
Barrow, Business
of a decedent.
Before
(3d ed.) 363.)
334; Wigmore,
32 Ill.L.Rev.
Evidence
Court,
the
-abandoning
proof
record
requirement
of
the
transaction,
person
if the
made at
near the time of the
opens the door for
dead,
majority opinion
the
who made it is
might
at a time so
be made
the admission of records that
to
trustworthiness.
remote from their occurrence as
lack
justification
admitting
is
records as evidence
regarded
prepared
trustworthy
they have been
can
when
time
ordinary
or near the
course of business and at
the
(Palmer
Hoffman,
U.S.
transaction.
the
719];
A.L.R.
same case
87 L.Ed.
Valentine,
The cases opinion shop- cited relate book common law rather than the uniform act. Under the common present law the two books case (Exhibits M N), were not books but store reflecting the financial between Puls plain transactions tiff, alleged would not have been admissible to show the by Puls, loans for account books were inadmissible show lending money. concerning paying transactions (Collin Card, 421; Yick Underhill, Cal.App. Wo v. Cal. 967]; Hewitt, see Le Franc Cal. 84 A.L.R. 147, 148; Wigmore, (3d ed.) 396.) Evidence
Respondent’s petition rehearing Aug. 29, was denied *7 Aug. No. Bank.
[Crim. 1946.] THE PEOPLE, Respondent, v. WILLIAM PHYLE, JOHN .
Appellant.