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


Civ. 13585.

Decided: January 25, 1949

Robt. G. Partridge, of San Francisco, Noland & Lawson, of Salinas, and Wallace O'Connell, of San Francisco, for appellant. Hoge, Pelton & Gunther and Leo V. Killion, all of San Francisco, for respondents.

This action was originally brought by Jeraldine Gonzales, wife of Ralph Gonzales, and by Kenneth Gonzales, a child of three years, who claims to be the son of Ralph Gonzales, against the Pacific Greyhound Lines and Theodore Hewitt, an employee of the corporation, for damages for the death of Ralph Gonzales alleged to have been caused by the negligence of the defendants. William Gonzales, admittedly the son of Ralph Gonzales by a previous marriage, was permitted to intervene. The action has been twice tried. On the first trial defendants stipulated as to liability. That trial, which was before the court without a jury, resulted in a judgment for the widow for funeral expenses, for $1,800 for William Gonzales, and nothing for Kenneth Gonzales, the court finding that he was not the child of Ralph. Kenneth moved for a new trial. The motion was granted “on the grounds that the evidence is insufficient to justify the findings that said Kenneth David Gonzales is not the child of the deceased, Ralph Daniel Gonzales for the sole reason that Section 193 [195] of the Civil Code provides that the presumption of legitimacy of children born in wedlock can only be disputed by the husband or wife of descendant of one or both of them and the Pacific Greyhound Lines is not in that class.”

The new trial, which was limited solely to the rights of Kenneth, was had before a jury. The trial court refused to permit Kenneth to introduce, for any purpose, the stipulation as to liability of defendants made on the first trial, and, over objection, permitted defendants to introduce evidence on the question of the legitimacy of Kenneth. The jury found for defendants. From the judgment entered on the verdict plaintiff appeals, contending that both major rulings of the trial court were prejudicially erroneous.

Before directly discussing either of the major issues presented on this appeal, a brief reference should be made to the facts. On February 11, 1946, shortly after midnight, Ralph Gonzales was driving his employer's taxicab upgrade on East Garrison Road, a public highway in Monterey County. Defendant Hewitt was driving a Greyhound bus downgrade on this same highway. The grade was steep and the highway wet and slippery. The bus started to skid and went out of control. It turned half way around so that it was at right angles across the highway, completely blocking it about two hundred feet from a sharp turn. Gonzales came around this turn, crashed into the bus, and was killed.

The basic question presented on this appeal is whether the trial court properly admitted evidence, offered by defendants and objected to by plaintiff, tending to show that Kenneth was not the son of Ralph Gonzales. Both sides admit that, under the facts, a presumption arose that Kenneth was the legitimate son of Ralph Gonzales, but differ as to whether that presumption was conclusive or rebuttable.

Jeraldine and Ralph Gonzales were married on December 11, 1942. Kenneth was born on August 2, 1943, 234 days after the marriage. Ralph Gonzales was not impotent. Admittedly, Jeraldine and Ralph lived together from the date of their marriage up to several months after the birth of Kenneth. The birth certificate contains this entry: “Number of months of pregnancy: 9.” Plaintiff contends that upon such proof a conclusive presumption arose that he is the legitimate son of Jeraldine and Ralph. Defendants contend that the entry on the birth certificate establishes a case of prenuptial pregnancy of 46 days, inasmuch as the “average” pregnancy is 280 days, and that for this reason the presumption is a rebuttable one.

The problem as to when the presumption of legitimacy is conclusive, and when rebuttable, is by no means clear in this state. Confusion exists in both our statute and case law.

Section 1962, sub. 5, of the Code of Civil Procedure provides: “The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate”.

Section 1963 lists the rebuttable presumptions. Subdivision 31 reads: “That a child born in lawful wedlock, there being no divorce from bed and board, is legitimate”. Subdivision 28 of the same section provides: “That things have happened according to the ordinary course of nature and the ordinary habits of life”.

Section 193 of the Civil Code provides that: “All children born in wedlock are presumed to be legitimate.” Section 194 makes that presumption continue for ten months after the marriage. Section 195 provides: “The presumption of legitimacy can be disputed only by the husband or wife, or the descendant of one or both of them. Illegitimacy, in such case, may be proved like any other fact.”

The confusion apparent in these sections has not been entirely clarified by the cases. We do know that if a child is born nine months or more after marriage, and the husband and wife have lived together during all their marriage, and the husband is not impotent, the presumption of legitimacy is conclusive, subject only to certain limited exceptions not here involved. This has been the law since 1902 when the Estate of Mills, 137 Cal. 298, 70 P. 91, 92 Am.St.Rep. 175, was decided. In that case evidence was admitted that supported the finding that, although the husband and wife were living in the same house for several years before and after the child was born, Mills and not the husband was in fact the father. The judgment was reversed. The Court pointed out that: “Where the law makes a certain fact a ‘conclusive presumption,’ evidence cannot be received to the contrary. * Illegitimacy may be proved, but it cannot be proved by the evidence of a husband or wife that, while living together, they did not have sexual intercourse.” 137 Cal. at page 303, 70 P. at page 93. The Court concluded its opinion as follows, 137 Cal. at page 304, 70 P. at page 93: “The modern rule was stated by Lord Langsdale in Hargrave v. Hargrave, 9 Beav. 552, as follows: ‘A child born of a married woman is, in the first instance, presumed to be legitimate. The presumption thus established by law is not to be rebutted by circumstances which only create doubt and suspicion, but it may be wholly removed by proper and sufficient evidence showing that the husband was (1) incompetent; (2) entirely absent, so as to have no intercourse or communication of any kind with the mother; (3) entirely absent at the period during which the child must in the course of nature, have been begotten; or (4) only present under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse.’ And the same rule is supported by the authorities in this country. [Citing authorities.] But the above rule does not allow either of the parents to testify to the fact of nonaccess during cohabitation. Nor is the rule inconsistent with the conclusive presumption that a child begotten and born while the husband and wife are living together as such, and the husband not impotent, is legitimate.”

The Estate of Mills has been reaffirmed in every later case discussing the problem. In Estate of Walker, 180 Cal. 478, 181 P. 792, twin sons were born nine months and eight days after the parties received an interlocutory decree of divorce. It was held that the presumption of legitimacy, under such facts, was conclusive, subject only to very limited exceptions. 180 Cal. at page 484, 181 P. at page 794, it is stated: “There is no doubt but that the presumption of legitimacy goes at least to this extent: That if it appear that by the laws of nature it is possible that the husband is the father (that is, if it appears that the husband had intercourse with the mother during the period of possible conception), legitimacy is conclusively presumed, and no guessing or weighing of probabilities as to paternity because of relations between the mother and other men will be permitted. The only exception to this, if it really be an exception, is where it is clear that, although the husband had intercourse with the wife, yet by the laws of nature it is impossible for him to have been the father, as, for instance, where husband and wife are white and the child a mulatto.” The Court reiterated this rule throughout its opinion. 180 Cal. at page 491, 181 P. at page 797, after reviewing many English and American authorities, it restated it as follows:

“* the true rule in America, as well as England, is, we believe, that if it is possible by the laws of nature for the husband to be the father (that is, if there was coition and no impotency), no inquiry will be permitted into the probabilities of the case one way or the other, but the presumption of legitimacy is conclusive; and, on the other hand, it is always permitted to show that it was not possible by the laws of nature for the husband to be the father, as by showing impotency on his part, want of intercourse during the possible period of conception, or that the child is of a race or color such that it could not have been conceived by the husband.

“The fact that it was not possible by the laws of nature for the husband to be the father, where that fact is in issue, is to be inquired into in the same manner as any other fact which is the subject of judicial inquiry, and any competent evidence relevant to the question is admissible as in other cases; it being the rule, however, in California, as in many jurisdictions, that neither the husband nor the wife is competent to testify to lack of intercourse.”

A second rule is equally clear, and that is where the child, by the laws of nature, could not possibly have been conceived during marriage but is born afterwards, the conclusive presumption is not applicable, the presumption is only a rebuttable one, and relevant evidence on the issue is admissible. Thus, in Anderson v. Anderson, 214 Cal. 414, 5 P.2d 881, a fully developed child was born 105 days, or three and one-half months, after the marriage. Of course, such a child could not have been conceived during marriage. In the face of clear, convincing and positive evidence that the husband did not have intercourse with the mother of the child during any possible period of conception, the trial court held that the husband was the father of the child, relying on the various presumptions of legitimacy. This was reversed by the Supreme Court. After quoting § 1962, subd. 5, of the Code of Civil Procedure, the Court stated, 214 Cal. at page 417, 5 P.2d at page 882: “But this [conclusive] presumption prevails only where the period of gestation following intercourse with the husband is usual and normal. * It cannot prevail as against undisputed facts to the contrary and at variance with the laws of nature.”

These two rules are easy to state and relatively easy to apply. But the courts, in spite of the clear language used in the Walker case, supra, have developed a third rule. In the Walker case it was held that the conclusive presumption applies if “by the laws of nature it is possible that the husband is the father.” Nevertheless, in Estate of McNamara, 181 Cal. 82, 183 P. 552, 7 A.L.R. 313, decided two and a half months after the Walker case, and written by the same justice who had written the Walker case, one justice dissenting on the basis of the Walker case, the Supreme Court held that the conclusive presumption only applied where it was “probable,” “usual,” “average” or “normal” that the child had been conceived in wedlock, and did not apply where it was merely “possible” to have been so conceived. In this case the mother of the child left her husband on December 23, 1913, and immediately went to live with McNamara. She lived with him until his death in May of 1916. The child was born October 24, 1914, 304 days after the wife had left her husband. The evidence was, that prolonged pregnancies up to 300 days are normal; that prolonged pregnancies beyond 300 days were possible but unusual. The Court held that the conclusive presumption applies “where only a usual and normal period of gestation is involved” and that the period of 304 days “if not exceeding, at least approaches an exceeding of the usual and normal period of gestation.” 181 Cal. at page 89, 183 P. at page 555. The Court declared that two problems were involved, and then stated, 181 Cal. at page 89, 183 P. at page 555: “The first of these is, Is the period of 304 days greater than the usual or normal—not merely the average—period of gestation, that is, is it contrary to the usual operation of the laws of nature? * The second question is * Does the conclusive presumption of legitimacy apply where the period of gestation necessary in order that the husband be the father is not an impossible one, but is yet exceptional, and not according to the usual operation of the laws of nature?” In answering the first question the Court took judicial knowledge of the operation of natural laws as disclosed in various medical works and then stated, 181 Cal. at page 89, 183 P. at page 555:

“* An examination of recent medical text-books and articles leaves no doubt as to two points: First, that 304 days is a possible period of gestation; and, next, that it is quite an exceptional one.

“* any period in excess of 300 days is quite exceptional, and that with each day over 300 the exceptional character of the case is much intensified * instances of more than 300 days are entirely beyond the usual order of things. * We can but conclude that the period involved in this case, 304 days, is quite exceptional, and not according to the usual and normal operation of the laws of nature.”

The Court then held that “the conclusive presumption of legitimacy must either be extended to apply to every case where the period of gestation necessary in order that the husband be the father is a possible one, no matter how exceptional or extra-ordinary such period may be, or else it must be limited in its application to those cases where the period necessary to make the husband the father is within normal or usual limits. There is no middle ground. * The conclusive presumption cannot be applied to such extreme and exceptional cases.” 181 Cal. at page 94, 183 P. at page 557.

The same rule was applied to cases where the period of gestation necessary to make the husband the father was less than normal in the recent case of Murr v. Murr, 87 Cal.App.2d 511, 197 P.2d 369. In that case the child was born about three years after the parties were married. The husband had enlisted in the Navy and was at sea a great deal of the time. He saw his wife in January, 1943, then did not see her again until July 15, 1943. The child was born January 21, 1944, or 190 days after the date of the last visit of the husband. The birth certificate showed that the child was fully mature when born. This is a closer case than the Anderson case because exceptional cases of 190 day pregnancies have been recorded. But no child could possibly be maturely developed in that period. Nevertheless, the trial court applied the conclusive presumption. This was reversed, the appellate court holding that, under the circumstances, the presumption was a rebuttable one. The rationale of the opinion is disclosed by the following quotation appearing, 197 P.2d at page 372: “A mature child having been born after an alleged gestation period of six months and ten days, which period according to authoritative medical opinion was about one month shorter than the shortest [known] period of gestation for such a birth, and the birth certificate being prima facie evidence that it was a nine-months' pregnancy” the presumption was only rebuttable.

From these cases we can safely say (1) that where the child is born nine months or more after marriage and the parties lived together nine months prior to the birth of the child, and the husband is not impotent, the presumption is conclusive, subject to certain exceptions here immaterial. (2) On the other hand, where the child is born within a period that, by the laws of nature, it could not possibly have been conceived in wedlock, the presumption is rebuttable. (3) In addition, the presumption is rebuttable where the period of gestation necessary to make the husband the father is a possible, but exceptional, one. It is in applying the last rule that the difficulty arises. In prolonged pregnancies it is simple enough to compute the number of days from when the husband last had access to his wife to the date of birth. We know, from the medical authorities cited in the McNamara case, that if that period is 300 days or more, the period is exceptional and the presumption is rebuttable. We know that if the child is born 190 days or less after marriage, Murr v. Murr, the presumption is rebuttable. The real difficulty is in connection with births occurring less than 280 days after marriage but within a period that is “probable” as distinguished from merely “possible.” It is almost impossible to know the exact date from which the average period of 280 days should be computed. That is so because, according to medical authority, the days are computed not from the date of coition, but from the last day of the last menstruating period of the mother, which could be twenty-five days before the date of coition. Moreover, while the “average” period of gestation is 280 days, the “normal” period is frequently much less. In determining what is a “probable,” as distinguished from a “possible” period of gestation, it is very difficult to lay down a precise time when the period ceases to be “possible” and becomes “probable.” Mathematical formulas, while desirable, are not always available. The answer must rest with the state of medical knowledge available at the time each questionable case arises. The medical authorities on this subject were recently reviewed in the case of Dazey v. Dazey, 50 Cal.App.2d 15, 122 P.2d 308, hearing in Supreme Court denied without a dissenting vote. That case, in our opinion, controls the present case. There the child was born 225 days or seven months and fifteen days, after the mother married her second husband. It was held that such a period was “probable” and not “exceptional,” and that the conclusive presumption applied. The Court reviewed the available medical authorities and stated, 50 Cal.App.2d at page 19, 122 P.2d at page 309: “The average period of gestation which the medical term connotes is from 270 to 290 days from the last menstrual period of the mother.” Therefore, said the court, when the time is being computed from the date of marriage “in considering the possible natural length of gestation of this child, we must take the 225 days alleged in the complaint as elapsing from the date of marriage to the date of birth [234 days in our case] and we must add an additional 25 days at least, making a total possible and natural period of gestation of 250 days. This is so because we must assume that conception of the child took place on the night of the marriage *; we must also assume that this child was conceived just before the end of the mother's recurrent monthly menstrual period of 28 days.” If this method be employed here, and 25 days be added to the 234, we arrive at a figure of 259 days, almost “average” and certainly “normal.” In the Dazey case it is stated, 50 Cal.App.2d at page 21, 122 P.2d at page 311: “All medical writers agree that it is not at all unusual for a mature child to be born at eight [[[[thirty-day] months.” The Court therefore concluded that, in that case, the presumption was conclusive.

The opinion is not necessarily inconsistent with that in the McNamara case. While in the McNamara case the birth occurred 24 days beyond the mean of 280, while in our case it occurred 46 days before the mean, apparently, from the medical authorities, premature births are far more frequent than prolonged periods of gestation. Moreover, in the premature birth situation, for reasons already pointed out, twenty-five days must be added to the period from marriage to birth, which, in the instant case, makes 259 days, or but 21 days less than the mean average.

Defendants try to support the admission of the evidence tending to show illegitimacy on the theory that the birth certificate recites that the pregnancy was of nine months' duration. That merely amounts to a statement by the attending physician that the child was normal and mature at birth. See Dazey v. Dazey, 50 Cal.App.2d at page 21, 122 P.2d at page 308. It did not warrant the admission of evidence to controvert the conclusive presumption.

Defendants next contend that the controverting evidence was itself conclusive that the child was illegitimate. The main evidence relied upon is an interlocutory decree of divorce between Jeraldine and Ralph Gonzales. It appears that in 1944 Ralph Gonzales filed a complaint for divorce, alleging that plaintiff was the issue of that marriage. Jeraldine filed a cross-complaint for divorce, also alleging that Kenneth was the issue of the marriage. At the hearing Jeraldine testified that Ralph was not the father of Kenneth, and, based on this testimony, an interlocutory decree was entered reciting that the child was not the child of Ralph and that the husband should not be required to contribute to its support. No final decree was ever entered, Jeraldine testifying to several reconciliations and stating that, up to Ralph's death, he contributed, intermittently, to the child's support. Jeraldine also testified on the first and second trial of this action that her testimony in the divorce action was false, and was given because she feared that, otherwise, the court might award custody of Kenneth to Ralph.

The divorce decree, even had it been a final decree, was not conclusive on the issue of the legitimacy of Kenneth. (See annotation and collection of cases in 87 A.L.R. 203, 205.) This evidence, on the issue of legitimacy, ought not to have been admitted. It is incongruous to say that evidence may be admitted to controvert a “conclusive” presumption. If conclusive, no evidence was admissible to controvert it. Jeraldine could not properly have testified on the present trial that Ralph was not the father. It is obvious that her testimony on a prior trial and a decree based on that testimony should not have been admitted on this trial on the issue of legitimacy. While the decree might have been admissible on the issue of damages alone, it was not here so limited. Moreover, even if the decree was admissible on that issue, the testimony as to paternity on the prior divorce trial and the other evidence was not admissible, and its admission clearly constituted prejudicial error.

The instructions of the court served to accentuate the error. The appellant requested an instruction embodying the provisions of § 1962, sub. 5, of the Code of Civil Procedure, and another elaborating on the meaning of this section. Both were refused. The court did, however, give this instruction:

“I instruct you that the Court takes judicial notice of the following fact which is now in evidence before you:

“A period of 232 [sic 234] days, such as the period elapsing between the marriage of the mother of the plaintiff and Ralph Gonzales and the birth of plaintiff, is not an unusual or abnormal period of gestation, such as to make inapplicable the conclusive presumption that plaintiff is the legitimate child of the decedent, Ralph Gonzales.” What the court meant by this instruction cannot be ascertained. If it was taking judicial notice that 234 days was a normal period of gestation, which it should have done, then appellant was entitled to an instruction to the effect that Kenneth was conclusively presumed to be legitimate. Not only was such an instruction refused, but several instructions were given quoting §§ 193 and 195 of the Civil Code, and § 1963, sub. 31, of the Code of Civil Procedure. A reading of the instructions as a whole demonstrates that the issue of legitimacy was placed before the jury. This was error of a most prejudicial nature.

In view of the fact that the judgment appealed from must be reversed, and a new trial had, some reference must be made to the refusal of the trial court to admit into evidence the stipulation of defendants at the first trial admitting liability.

On the first trial the following occurred:

“Mr. Noland [counsel for appellant]: I have been advised—I think I am correct that you stipulate to liability?

“Mr. Hoge [counsel for respondents]: Yes, as to the facts surrounding the happening of the accident.”

This record of the first trial shows that the stipulation was made without limitation. On the second trial no request to be relieved from the stipulation was made, and no showing of cause for such relief was made. Counsel for respondents simply stated that he had changed his mind, and the court refused to admit the stipulation for any purpose.

The authorities are by no means clear as to the legal effect of a stipulation made in one trial when it is offered in a later trial. We think that the better rule is that, when an unlimited stipulation is made on a prior trial, such stipulation, in the absence of a request, based upon a showing why such relief should be granted, to be relieved from the stipulation, is admissible on the second trial as proof of the fact so admitted. This is the view adopted by Professor Wigmore in his work on Evidence. Vol. IX, 3rd ed., § 2593, p. 593. He states:

“Whether a judicial admission continues to have effect for a subsequent part of the same proceedings, including a new trial, has been the subject of some opposition of rulings, although the orthodox English practice plainly answered in the affirmative.

“It is true that the pleadings of the parties continue to be binding (subject only to the usual rules for amendment); but the very distinction between pleadings and judicial admissions is that the latter are not subject to the fixed requirements of the former (ante, section 2589). On the other hand, a regard for fairness of practice indicates the opposite result; for after the case of the party benefiting by the admission has been exposed at the first trial, the party making the admission may discover that the proof of the fact would have been difficult or onerous, and by withdrawing the admission he may thus obtain a factitious advantage which the law hardly contemplates as the consequence of a new trial. Moreover, the ignorance which may have led to an ill-advised admission is no more a cause for revoking it at the second trial than at the first; and in any event the judge's discretion may grant relief (ante, section 2590) in the one instance as well as the other. It would seem, having regard to the voluntary and contractual nature of the act, that the duration of its effect, no less than its scope, depends, after all on the intent of the parties; that this implied intent may vary with the circumstances; and that where no special circumstances indicate the contrary, the intention should be implied to extend the effect of the admission to all subsequent parts of substantially the same litigation between the same parties, including a new trial.”

There is an annotation on the precise subject in 100 A.L.R. 775, where cases from many jurisdictions, including California, are collected and cited in support of the rule that such stipulations are admissible on the second trial as proof of the facts admitted. At page 776 the following appears: “The general rule is that where a stipulation is distinctly and formally made for the express purpose of relieving the opposing party from proving some fact or facts, or where a formal admission of facts is made by counsel and becomes a part of the record, such a stipulation or admission, provided it is not by its terms limited to a particular occasion, or a temporary object, can be introduced in evidence and is available as proof of the facts admitted upon a subsequent trial of the same action, unless the court permits its withdrawal upon proper application therefor.”

In Crenshaw v. Smith, 74 Cal.App.2d 255, 267, 168 P.2d 752, 759, appears the following: “A further contention is made by appellants that the court erred in denying their motion to withdraw a stipulation made at the former hearing. It is the general rule that where a stipulation is formally made, as in this case, for the express purpose of relieving the parties from proving a particular fact, to wit, the date of the execution, such stipulation, in the absence of any limitation as to a particular purpose, can be introduced in evidence as proof of the facts admitted at any subsequent trial. * That was the situation here.” See, also, Nathan v. Dierssen, 146 Cal. 63, 79 P. 739; Andrew v. Bankers & Shippers Ins. Co., 125 Cal.App. 24, 13 P.2d 515.

The entire subject has been recently discussed in the United States Supreme Court decision, Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80, a case on appeal from the Supreme Court of California. 329 U.S. at page 73, 67 S.Ct. at page 159, in footnote 1, appears the following: “In California a valid stipulation is binding upon the parties. McGuire v. Baird, 9 Cal.2d 353, 70 P.2d 915; Webster v. Webster, 216 Cal. 485, 14 P.2d 522; see 23 Cal.Juris. 826. It is available at a second trial unless in terms otherwise limited, Nathan v. Dierssen, 146 Cal. 63, 79 P. 739; Crenshaw v. Smith, 74 Cal.App.2d 255, 168 P.2d 752; see Le Barron v. City of Harvard, 129 Neb. 460, 262 N.W. 26, 100 A.L.R. [767], 775, and will be controlling at the second trial unless the trial court relieves a party from the stipulation. First National Bank of San Pedro v. Stansbury, 118 Cal.App. 80, 5 P.2d 13. Relief from a stipulation may be granted in the sound discretion of the trial court in cases where the facts stipulated have changed, there is fraud, mistake of fact, or other special circumstance rendering it unjust to enforce the stipulation. Sacre v. Chalupnik, 188 Cal. 386, 205 P. 449; Back v. Farnsworth, 25 Cal.App.2d 212, 77 P.2d 295; Sinnock v. Young, 61 Cal.App.2d 130, 142 P.2d 85; see 161 A.L.R. 1163. In the present case there is no intimation in the record or briefs of fraud, excusable neglect, or other ground for relief.”

Of course, as pointed out in the last quotation, relief from such a stipulation may be granted in a proper case (see annotation on this subject 161 A.L.R. 1161), but no such request was here made, and no cause for relief shown.

The least that can be said about such a stipulation is that it constitutes an admission against interest, and may be used as any such admission may be used. In the instant case, had the respondent Greyhound, through a duly authorized agent, made an extrajudicial admission of liability, no one would doubt that such admission would be admissible. Here the admission was made by the highest type of agent, an attorney at law, within the scope of his authority, and made during a trial. Such a stipulation is clearly an admission, and therefore admissible as such. Bell v. Staacke, 159 Cal. 193, 115 P. 221; Scholes v. Silvius, 57 Cal.App. 395, 207 P. 291.

For the foregoing reasons the judgment appealed from is reversed.

PETERS, Presiding Justice.

WARD and BRAY, JJ., concur.