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VAUGHN v. JONAS

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District Court of Appeal, First District, Division 1, California.

VAUGHN v. JONAS.

Civ. 13312.

Decided: July 21, 1947

W. H. Morrissey, of Redwood City, and John J. Taheny, of San Francisco, for appellant. F. E. Hoffman, of San Mateo, for respondent.

Plaintiff, John J. Vaughn, brought this civil action against defendant, William Jonas, for injuries from a bullet wound admittedly inflicted by defendant on March 16, 1942. The jury brought in a verdict of $5,500 compensatory damages, and $4,500 exemplary damages. From the judgment entered on this verdict the defendant appeals.

It is an admitted fact that at about 2 a. m. on March 16, 1942, defendant shot plaintiff in the stomach and that as a result plaintiff suffered most serious and permanent injuries. The hospital bill incurred by plaintiff as a result of the injuries amounted to over $1,300, while his doctor bill was about $1,600. On the date in question defendant and his wife owned and operated a bar and restaurant in Brisbane, San Mateo County, California. Some time after 1 a. m. on that night plaintiff and two companions entered this bar and each ordered a bottle of beer. They had had four or five beers at other taverns earlier in the evening, but had had no hard liquor. There is no evidence that they were drunk. Plaintiff started to play a pin ball machine located in the tavern. This machine had one or two small signs on it: ‘For amusement only, no pay-off.’ There is substantial evidence, however, that there was in the establishment at least one slot machine which paid off in cash. The pin ball machine is so constructed that if the player should make a certain score he wins the right to one or more free games. Plaintiff played for 15 or 20 minutes, and at that time the machine registered 74 or 75 free games. Whether this was the result of the machine getting out of order and automatically running up free games, or whether it was the result of plaintiff's skill, is disputed. At any rate, plaintiff demanded to be paid in cash for these ‘free’ games, and defendant told him that the house did not pay off on the pin ball machine, and called attention to the sign. An argument resulted. As to what was said and done by plaintiff and defendant there is a dispute. Plaintiff admitted demanding to be paid off in cash and that he argued with defendant. He denied making any threats or that he called defendant vile names. Defendant testified that, among other things, plaintiff threatened to ‘break up the place * * * called it a cheap joint * * * and told me they would get me too.’ In addition, according to this witness, plaintiff was most profane and abusive.

Some time during the dispute defendant took a pistol out of a drawer behind the bar and placed it in his belt. Whether or not plaintiff asw this is not clear. Defendant and his wife testified that during the argument plaintiff pulled the pin ball machine from the wall and threw it to the floor. This was denied by plaintiff. A police officer who arrested defendant several hours later testified that the pin ball machine was then in its proper position, that the glass cover was not broken, and that the machine was then in good working condition, because he played it. Towards the end of the dispute the wife of defendant started to telephoe the sheriff, but desisted when plaintiff and his companions started to leave. Defendant and his wife testified that all three left together. Plaintiff testified that his two companions left, but that he went to the men's toilet, and then left.

Plaintiff testified that when he left the bar his companions were already in the automobile and had backed out and were proceeding toward the entrance to pick him up; that he reached the automobile when it was about 30 feet from the entrance; that just as he was about to step into the car the defendant called to him from the doorway of the tavern; that he turned around and saw defendant on the top step with a pistol in his hand; that defendant asked him if he ‘wanted to get paid’; that defendant then stated: ‘Here's your pay you son-of-a-bitch’; that defendant then shot him in the stomach. He staggered to the car and was taken by his companions to the hospital.

Defendant's story is much different. He testified that plaintiff and his two companions left the tavern together by the front door, the plaintiff making threats as he left; that defendant waited for several minutes until he heard their car start and then prepared to close the tavern, it then being after 2 a. m.; that as he was attempting to close the front door he looked out and plaintiff was approaching the door carrying a concrete block at shoulder height; that he called out: ‘Stop, put down that rock I have a gun,’ but plaintiff kept advancing; that his wife screamed at him to look out; that he was very excited; that he pulled out his gun and ‘thought I would stop him by firing at his feet’; that he shot, intending to hit the ground in front of plaintiff; that plaintiff stopped, dropped the rock, and ran back to the car in a crouching position; that plaintiff was but three or four feet from the entrance steps when he, the defendant, shot; that he did not then know or think he had hit the plaintiff; that after the automobile had driven away he walked out and picked up the piece of concrete and brought it into the tavern; that he did this to use as evidence if he decided later to swear out a warrant against plaintiff for attacking him. The rock was introduced into evidence. Defendant's wife corroborated most of defendant's story.

Part of this story was contradicted by the police officer who arrested defendant several hours after the shooting. He testified that when he told defendant the plaintiff had been shot the defendant replied: ‘I intended to hit him,’ and that when he shot, the plaintiff was ‘out front by the car.’ He also testified that defendant stated that the three men had left together by the side door, and that he, the witness, thought one of the machines in the tavern was a slot machine, and that he played the pin ball machine that defendant told him plaintiff had played, and that it was then in good working order. Most of plaintiff's story was corroborated by one of his companions on the night in question, the other not being available at the time of trial.

Defendant does not challenge the sufficiency of the evidence to sustain the award of compensatory damages. He contends, however, that the trial court committed three prejudicial errors which require a reversal.

The first of these has to do with the instructions. Inasmuch as defendant admitted the shooting, his defense at the trial was predicated on the theory that he had acted in self-defense. On this issue the court instructed as follows:

‘The burden of proof to establish self-defense is always with the defendant, and he must show that he used no greater force than was necessary to repel the alleged attack of the plaintiff, if you so find that plaintiff did attack the defendant.’

‘You are instructed that the right of the defendant to use force upon the plaintiff at the time and place in question did not depend upon the question whether the plaintiff actually intended or attempted to inflict serious injury upon the defendant or his wife. If the circumstances as they appeared to the defendant were such that a reasonable person in the position of the defendant would be justified in believing that the plaintiff had the present ability to inflict serious injury upon him or his wife and that the plaintiff intended to do so, then you are instructed that the defendant was justified in using such force as was reasonably necessary to defend the person of the defendant, his wife, or his property.’

‘You are instructed that if you find from the evidence that the plaintiff was advancing toward the defendant with a large stone or piece of concrete in his hand and if you further find from the evidence that the defendant was in or upon his own premises and that the circumstances were such as to justify a reasonable man in the position of the defendant in believing that the plaintiff had the present ability and intention to inflict serious injury upon the defendant or his wife, then, the defendant was entitled to remain standing where he was and was entitled to use such force as was reasonably necessary to protect himself and his wife from injury, and under such circumstances, there was no duty on the part of the defendant to retreat.’

The defendant requested the following instruction: ‘The plaintiff seeks to recover from the defendant for an alleged assault by the use of a gun. You are instructed that acts done in self-defense alone are not assaults. A person cannot assault another in self-defense; and any acts done in self-defense cannot be an assault. Therefore, if you find from the evidence that the plaintiff was advancing toward the defendant with a piece of concrete in his hands at the time of the shooting under such circumstances that a reasonable person in the situation of the defendant would have reasonable grounds for believing that the plaintiff intended to attack and injure the defendant with said piece of concrete, and if you further find from the evidence that the defendant at said time was acting in defense of his person at the time he fired the gun and that there was reasonable grounds for believing that the firing of said gun was reasonably necessary for his defense, then, if you so find, your verdict shall be in favor of the defendant and against the plaintiff.’ (Italics added.)

The trial court gave only that portion of the instruction above italicized.

The following requested instruction was refused by the court: ‘You are instructed that the question whether the defendant was justified in shooting the plaintiff does not depend on whether he intended to shoot at the plaintiff or at the ground, but on whether the circumstances, as they appeared to the defendant, were such that a reasonable person in the position of the defendant would have apprehended that he was in imminent danger of sustining serious injury at the hands of the plaintiff. If you find from the evidence that the circumstances, as they appeared to the defendant, were such that a reasonable person in his position would have been justified in concluding that he was in such danger, then you are instructed that in using all the force reasonably necessary to prevent such injury, the defendant incurred on civil liability to the plaintiff; and if you further find from the evidence that a reasonable person in the position of the plaintiff [sic] would have been justified in concluding that it was reasonably necessary for his protection either to fire said gun at the ground or at the plaintiff, then you are instructed that under such circumstances the defendant is not liable in damages to the plaintiff for either aiming and firing said gun at the ground or at the plaintiff.’

The defendant contends that the instructions given were incomplete in that, although the jury was properly told that the defendant would be justified in using force if the circumstances ‘as they appeared to the defendant were such that a reasonable person in the position of the defendant would be justified in believing that the plaintiff had the present ability to inflict serious injury upon him or his wife and that the plaintiff intended to do so’ it was not told that the amount of force that might be used to repel the attack was not such as ‘was reasonably’ necessary to repel the attack, but whatever force ‘appeared’ reasonably necessary to repel the attack. The defendant sought to have this thought conveyed to the jury in the requested instructions above set forth, one of which was refused in toto, and the other modified. In support of his contention that the failure to so instruct the jury constituted prejudicial error defendant relies upon the case of Fraguglia v. Sala, 17 Cal.App.2d 738, 62 P.2d 783. There, too, the action was for an assault, and the defendant's main defense was self-defense. There, as here, the judgment was for plaintiff. There, as here, the contention was made that there was error in the giving and refusing instructions. The court first held that certain instructions given by the court at the request of plaintiff were prejudicially erroneous because the instructions stated facts not in the record and related to issues not involved. On the issue of self-defense the court instructed as follows (17 Cal.App.2d at page 744, 62 P.2d at page 786): ‘[1] Whenever a person is assaulted by another, he has a right to defend himself, and may use sufficient force to repel the assault in order to protect himself from bodily harm. And when necessary to protect himself from bodily harm at the hands of an assailant, the person assaulted may use sufficient force in repelling the assault, even before the assailant actually commits a battery upon him. But the resistance must be no more than is necessary to accomplish this. If it be greater than is required for such purpose, it becomes in law excessive and without excuse or justification, making the party an aggressor; (2) * * * (3) The fact, if you find it to be a fact, that plaintiff was not free from fault, will not prevent you from rendering a verdict in favor of the plaintiff, if you further find that the resulting assault and battery on plaintiff by defendant was accompanied by greater force than was reasonably necessary for the purpose of self defense.’

With regard to the first part of this instruction the appellate court stated (17 Cal.App.2d at page 745, 62 P.2d at page 786): ‘Nearly all of the instruction comprised in division 1 was addressed to the right of the defendant to defend himself. It makes no reference to the facts as they appeared to him. On the contrary it hold the defendant bound by the actual facts without regard to appearances. The defendant's objection to that portion of the instruction is well founded. People v. Thomson, 145 Cal. 717, 79 P. 435.’

This criticism cannot apply in the instant case because, so far as the apprehension of peril is concerned, the ‘appearances' test was clearly applied by the trial court in the instructions given.

As to subdivision three of the instruction given in the Sala case the court stated (17 Cal.App.2d at page 745, 62 P.2d at page 786): ‘The third division of the instruction is addressed to the subject of the use of excessive force. It fails to take into consideration ‘all the circumstances of the case.’ In 4 American Jurisprudence, page 152, the author says: ‘Generally stated, the force that one may use in self-defense is that which reasonably appears necessary, in view of all the circumstances of the case, to prevent the impending injury.’'

The court then discusses what is meant by excessive force. In the instant case the court set up in its instructions the ‘appearances' test with respect to defendant's apprhension of peril from plaintiff, but when it instructed as to what repelling force the defendant could use, it stated that defendant might lawfully use such force as ‘was reasonably necessary’ to defend himself, his wife and his property, and did not instruct that he might use such force which, under the circumstances, ‘appeared’ reasonably necessary.

Technically, the instruction may be subject to criticism in failing to thus more particularly state that defendant was entitled to use the amount of repelling force as ‘appeared’ to him necessary, rather than the amount that ‘was reasonably necessary,’ but this omission cannot be held to have been prejudicial. This is so because in this case, unlike the Sala case, the jury was carefully informed on two separate occasions, that, in determining whether defendant was justified in using force to repel the attack, it was the circumstances as they appeared to defendant that controlled. Then, as part of the same instruction, and in fact as part of the same sentence in each instruction, the jury was told that the amount of force that could be used was that ‘as was reasonably necessary to defend [or protect]’ himself. Obviously, if a jury is told that a defendant may use force if the circumstances as they appeared to him justified it, and then imediately told, as part of the same sentence, that the amount of force he might use is the amount that is reasonably necessary, the jury could not fail to apprehend that the ‘reasonable’ amount of force permitted is the amount that ‘appeared’ reasonable to him. In the Sala case the so-called ‘appearances' test was omitted entirely.

The second contention of defendant is that prejudicial error in the admission of evidence was committed when the trial court permitted plaintiff's counsel, on cross-examination, over objection, to elicit an admission that he, the defendant, had pleaded guilty to a misdemeanor charge of assault arising out of the shooting. In this connection the record shows that defendant was first charged with a felony as a result of the shooting; that he then pleaded guilty to a misdemeanor charge of assault; that he was granted probation; that he performed all acts required by the order of probation; and that he then took the proper steps to have the record expunged as permitted by § 1203.4 of the Penal Code. That section provides: ‘Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, shall at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty; or if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. * * * provided, that in any subsequent prosecution of such defendant for any other offense, such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.’ (Italics added.)

Defendant argues that the effect of completed action under the section is, under the language italicized above, and except as limited in the last clause of the section, to release a probationer from ‘all penalties and disabilities' resulting from the offense, and that to admit into evidence his plea in the criminal action as an admission in the civil suit is to subject him to a ‘penalty’ or ‘disability.’ In this connection defendant places strong reliance upon the case of People v. Mackey, 58 Cal.App. 123, 208 P. 135. That case involved a prosecution for larceny. The principal witness for the prosecution had been previously charged with a felony, pleaded guilty, been admitted to probation, served his probationary period, and been discharged under § 1203 of the Penal Code. After this witness had testified for the prosecution the defense offered his plea of guilty for the purpose of impeachment under § 2051 of the Code of Civ. Procedure, which provides that a witness may be impeached by a showing of the record that he has been convicted of a felony. The trial court excluded this impeaching testimony and this was held proper. In so holding the court stated that the provisions of § 1203 of the Penal Code are ‘somewhat akin to the common-law rule under which one who has been pardoned through the exercise of executive clemency for the commission of a criminal offense is made a ‘new man,’ the effect of a pardon being, among other things, * * * ‘to remove from the offender that disability to testify as a witness in a court of justice which, by the rule of the common law, was consequent upon his conviction of a felony.’' 58 Cal.App. at page 129, 208 P. at page 137.

At page 130 of 58 Cal.App., at page 138 of 208 P. the court stated: ‘We cannot avoid the conclusion, however, that the Legislature intended in a legal sense, by directing a dismissal under such circumstances, to wipe out absolutely the entire proceeding in question in a given case, and to place the defendant in the position which he would have occupied in all respects as a citizen if no accusation or information had ever been presented against him.’ And at page 131 of 58 Cal. App., at page 138 of 208 P. ‘* * * we conclude that the Legislature intended by the enactment of section 1203 that no convicted person discharged after probation thenceforth should be regarded as one possessed of the degree of turpitude likely to affect his credibility as a witness.’

It will be noted that this case dealt exclusively with the right, as a matter of law, to impeach a witness because of his ‘conviction’ of a felony after that ‘conviction’ had been expunged. That is not the problem here involved. Here the evidence that he had pleaded guilty was not offered to impeach, but as an admission of a party against interest. The law is clear that a guilty plea, where relevant, is admissible as an admission in a civil case growing out of the same matter, not as a plea of guilty, but as a form of declaration against interest. Fawkes v. Reynolds, 190 Cal. 204, 211 P. 449. If the defendant had admitted that he committed an unprovoked assault on plaintiff to the arresting police officers or to any third person the fact that he had made such an admission would be admissible not as proof of guilt but as a declaration against interest. While the fact of conviction has been expunged from the records under § 1203.4, the fact that he admitted that he committed an unprovoked assault on plaintiff still exists, and should, as a matter of logic and of law, still exist, as an admission. It is that fact that was admitted here. To admit that fact is not to impose a ‘penalty’ or ‘disability’ upon defendant ‘resulting from the offense.’ There is nothing conclusive about the admission. The defendant should be permitted to explain, if any reason exists, other than an outright admission of guilt, why he pleaded guilty. It should be pointed out that in the instant case all that plaintiff elicited was the admission, and defendant was properly permitted on cross-examination to explain fully his plea. In fact, it was the counsel for defendant that brought out the fact that defendant had originally pleaded not guilty to a felony, and he then elicited the information from his client that the client had pleaded guilty to the misdemeanor on advice of counsel.

A case that goes much further than the instant case in using the fact of conviction adversely to the party invovled is In re Phillips, 17 Cal.2d 55, 109 P.2d 344, 132 A.L.R. 644, a case decided by a divided court. There, an attorney had been convicted of a crime involving moral turpitude, and, based on such conviction, was disbarred. The disbarred attorney was placed on probation and subsequently took advantage of the provisions of § 1203.4. He thereafter contended that his disbarment could no longer be continued, based as it was on the fact of his conviction. In disposing of this contention the majority of the Supreme Court stated (17 Cal.2d at page 61, 109 P.2d at page 348, 132 A.L.R. 644): ‘But it cannot be assumed that the legislature intended that such action by the trial court under section 1203.4 should be considered as obliterating the fact that the defendant had been finally adjudged guilty of a crime. * * * In brief, action in mitigation of the defendant's punishment should not affect the fact that his guilt has been finally determined according to law. * * * That final judgment of conviction is a fact; and its effect cannot be nullified for the purpose here involved, either by the order of probation or by the later order dismissing the action after judgment.’

We need not go so far in the present case. Here the fact that defendant admitted that he committed an unprovoked assault on plaintiff is not conclusive, but was admitted as a declaration against interest. In our opinion the fact that such an admission was made was relevant, competent and admissible.

The last contention of defendant is that malice was not pleaded, and, therefore, that it was error to submit to the jury the issue of punitive damages. In this connection it is further urged that the court erred in the instructions given on this issue in that it failed to define the word ‘malice.’

The only pertinent portion of the complaint is paragraph I in which it is alleged: ‘That on the 16th day of March, 1942, in the Town of Brisbane, County of San Mateo, State of California, in the front of the premises known as ‘Dick's Tavern’ the defendant wrongfully, unlawfully and violently assaulted the plaintiff by firing at plaintiff a loaded revolver, the bullets from which passed through plaintiff's abdomen and other parts of his body, causing serious and severe wounds to plaintiff.'

The court, at the request of the plaintiff, gave the following instructions:

‘I instruct you that Section 3294 of the Civil Code of the State of California provides as follows: ‘In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, express or implied, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.’'

‘Under the provisions of this code section it is the rule that a jury may allow punitive damages if they believe from the evidence that a malicious intent exists. Evidence of the language used, if any, at the time of the assault, may be considered by the jury in determining the issue as to whether or not the defendant acted maliciously.’

‘In the event that you find that the defendant shot the plaintiff maliciously then the amount of exemplary damages you may award plaintiff is in your discretion.’

The argument that prejudicial error was committed in failing to define the term ‘malice’ is without merit. The record shows that defendant failed to request any instruction as to the meaning of the word in question. There is nothing technical about that term, it being a word of general usage that is generally understood, and its employment and the concept conveyed by it cannot be said to be restricted to the legal profession. While it is, of course, proper for a trial court to define the meaning of legal or technical terms in its instructions, a failure to do so does not constitute error where the complaining party has not requested such an instruction, at least where the term is one of general use and of common understanding. See cases collected 24 Cal.Jur. p. 824, § 90; 24 Cal.Jur. p. 796, § 74.

The only debatable question presented on the issue of exemplary damages is whether or not there was included in the complaint sufficient allegations to raise that issue so as to justify instructions on the issue. The pleading is certainly not a model in this respect. It failed to expressly request an award of punitive damages. But this failure is not necessarily fatal. If the issue can be spelled out of the facts alleged in the complaint, and if such an award is supported by the evidence, the issue of punitive damages may properly be submitted to the jury. Turner v. Whittel, 2 Cal.App.2d 585, 38 P.2d 835; Waite v. San Fernando Pub. Co., 178 Cal. 303, 173 P. 591. In the present case it is quite clear that, if the evidence be viewed in the light most favorable to plaintiff—as must necessarily be done—the implied finding of the jury that defendant was actuated by malice is amply supported by the record. The evidence on behalf of plaintiff supports the implied finding that plaintiff did not threaten to assault defendant with a piece of cement, but that defendant deliberately followed plaintiff out of the door and wantonly shot him as he was about to enter his automobile. That evidence supports the implied finding of malice.

Defendant urges that: ‘It is well-settled that punitive damages may not be awarded to one who by his own conduct has brought on the assault’ (App.Op.Br. p. 42), and cites in support of that proposition Livesey v. Stock, 208 Cal. 315, 281 P. 70. In that case the court stated (208 Cal. at page 318, 281 P. at page 71): ‘It may also be conceded that there is little, if any, reason for awarding exemplary damages in favor of a trespasser upon the property of another, who by reason of his own wrong is in part responsible for the force used. [Citing a case.] But these principles of law are applicable solely upon the assumption that the plaintiff was a trespasser upon the property of the defendant. In this case the necessary finding of the jury was to the effect that plaintiff was not a trespasser upon the property of defendant at the time and place of the assault.’

In the present case the plaintiff was not a trespasser, and the jury has found that the assault committed was unprovoked and malicious. That being so, the limitation implied in the first part of the above quotation is not applicable. If defendant desired more explicit instructions on the issue he should have offered them. This he did not do.

Defendant likewise cites the case of Lorenz v. Hunt, 89 Cal.App. 6, 264 P. 336, a case in which the court disallowed an award of exemplary damages. In that case the complaint was entirely silent as to oppression, fraud or malice. In the instant case the complaint alleged that defendant ‘wrongfully, unlawfully and violently assaulted the plaintiff by firing at plaintiff a loaded revolver.’ No demurrer was directed against these allegations. In Avakian v. Noble, 121 Cal. 216, 53 P. 559, the complaint alleged that defendants ‘unlawfully, oppressively, and with force and arms' took plaintiff's property. It was held that in the absence of a demurrer such allegations warranted instructions on the issue of punitive damages. It is our opinion that the complaint here involved alleged sufficient facts to plead malice, and thus raise the issue of punitive damages. Malice sufficient to allow the recovery of exemplary damages may be express or implied. (§ 3294, Civ.Code.) A malicious intent will be implied from the intentional commission of a wrongful act. (See many cases collected 34 Am.Jur. p. 685, § 6.) The general rule, supported by many authorities, is stated as follows in 34 Am.Jur. p. 683, § 3: ‘Express malice does not mean, necessarily, malice expressed in words; it is said to exist where a wrongful act is done with a sedate and deliberate mind and formed design * * * Implied malice is defined as that which the law infers from or imputes to certain acts * * * This form of malice is also sometimes referred to as malice in law, or legal malice. The presumption or implication of malice, from a wrongful and injuries act wilfully done * * * is the result of a mode of legal reasoning which is of general application, and has been said to be a natural inference drawn by a fair course of reasoning, * * *’

In the present case, by alleging that the defendant committed an ‘unlawful,’ ‘wrongful’ and ‘violent’ attack upon plaintiff by shooting him, the plaintiff pleaded sufficient facfs, in the absence of a demurrer directed at such allegations, to raise the issue of malice implied in law.

The case of Morgan v. French, 70 Cal.App.2d 785, 161 P.2d 800, although differing on its facts, and involving some issues not here involved, contains language helpful in the present case. After quoting § 3294 of the Civil Code the Court stated (70 Cal.App.2d at page 789, 161 P.2d at page 802): ‘Malice is not only ‘implied’ but it is conclusively presumed ‘from the deliberate commission of an unlawful act, for the purpose of injuring another.’ Section 1962, Code Civ.Proc. This conclusive presumption precedes all rebuttable presumptions, implications and inferences which may be drawn from facts proved. Where a complaint pleads the deliberate commission of an unlawful act for the purpose of injuring another, it pleads the only facts necessary to put in play the conclusive presumption of a malicious and guilty intent.' At page 790 of 70 Cal.App., at page 803 of 161 P.2d the court stated: ‘Hence legal malice means no more than the wrongful intention to do harm which the law always presumes as accompanying a wrongful act, without any proof of malice in fact.’

It is quite clear that the allegations here involved sufficiently pleaded, in the absence of a demurrer directed at them, the elements of ‘legal malice’ and ‘malice implied in law.’ This being so, the issue was properly submitted to the jury.

The judgment appealed from is affirmed.

PETERS, Presiding Justice.

BRAY, and WARD, JJ., concur.

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