(190 P.)

upon as the rental of the apartment. An- such tenants or guests for their accommodaother one of the terms and conditions con- tion, rent, services, meals and such extras as tained in said agreement attached to the are furnished at their request. petition is as follows:

It becomes unnecessary in this instance to decide whether the charge for cleaning the apartment and blankets at the end of the tenancy was a "proper" charge within the meaning of the statute, for the reason that Tucker himself agreed to what should be proper charges against him in his renting agreement. As before stated, in this agreement he undertook to leave the apartment "clean" upon vacating it, or to pay for cleaning the same; and he agreed that the owner should have a lien upon his personal property for all unpaid charges under the agree

ing to its users varies with the standards of such users; and it has a different significance in its relation to different objects. Mr. Tucker contends the apartment was left as "clean" as it was when he received it. Mrs. Bayles contends that her apartments have a reputation for being always "absolutely sani

It is alleged in the petition that the apartment was vacated by Tucker on March 31, 1920, and was not left clean, and that petiment between them. Whether or not the tioner was obliged to clean the same; that apartment was "clean" when it was vacated, petitioner charged Tucker $3 for cleaning was a disputed matter, as shown by the testisaid apartment; also that a blanket and mony. "Clean" is a difficult word to detine comforter used by Tucker in said apartment absolutely; it is a relative term. Its meanwere left soiled, and a charge of $1.50 was made by petitioner for cleaning the same, which charges Tucker refused to pay; that the petitioner on said 31st day of March did take and carry away one sewing machine and one victrola of the value of $225, the property of said Tucker, and refused to permit said Tucker to have the same, and claim-tary and immaculate," and that the aparted to hold said property for a lien of $9.75, which amount included the charge for gas and electricity, breakage of chinaware, etc., cleaning of linens, blankets, etc., and the charge of $3 for cleaning of the apartment. Upon April 2, 1920, Tucker swore to a complaint in the police court of the city and county of San Francisco, charging petitioner with the crime of grand larceny. A warrant was issued upon said complaint, and on April 5th petitioner was arrested. The hearing came on regularly on April 21, 1920, and upon said hearing the judge of the police court made an order holding the defendant to answer to the superior court upon the charge. Petitioner contends that the testimony before the committing magistrate shows no reasonable, probable or lawful cause for holding her to answer to the superior court for the offense of grand larceny. The precise contention of petitioner is that the transcript of the testimony shows no felonious intent upon her part.

ment was not "clean" according to that standard, but that the services of a man were required for three days to clean the kitchen alone. However, this delicate question of fact does not fall to our lot for determination. If Mrs. Bayles was entitled to hold these articles until she was paid the price of cleaning the apartment, provided said apartment was not sufficiently cleaned before being vacated, then a dispute over the condition of the apartment would not so change the petitioner's legal position as to make her guilty of grand larceny in holding possession of the property under a claim of lien which would exist if she proved her contention about the uncleanliness of the apartment. For, even though the standard of cleanliness exacted by the petitioner should be found by the jury to be an unreasonable standard, and not the standard contemplated by the agreement between the parties, yet we think petitioner would not be guilty of grand larceny. The record discloses no evil or felonious intent upon the part of the petitioner; she was merely seeking to enforce her civil rights as she believed them to exist. Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another. Section 484, Pen. Code. Every taking by one person of the personal property of another without his consent is not larceny. Felonious intent is of the essence of the crime of larceny. "Keepers of furnished apartment houses shall People v. Devine, 95 Cal. 227, 30 Pac. 378. have a lien upon the baggage and other prop- If a jury should determine that the aparterty of value belonging to their tenants or ment was clean according to the standard guests, which may be in such furnished apart-contemplated by the parties at the time they ment house, for the proper charges due from made their agreement, at the time petitioner

The testimony in the police court shows that Tucker offered to pay the charges for gas and electricity, breakage, etc., and refused to pay only the charges for cleaning the apartment. The first question presented, therefore, is whether or not petitioner had a lien upon the property for this charge. Section 1861a, Civil Code, as added by St. 1917, p. 1662, provides:

took possession of the goods, and that there- | LANGDON, P. J. This is an appeal by the fore no money was due petitioner for clean- defendant from a judgment against it in the ing the same, Mr. Tucker could be amply sum of $1,500, recovered by plaintiff as damcompensated in damages for the wrongful ages for personal injuries. The plaintiff detention of his property. Section 667, Code was riding as a passenger in an automobile Civ. Proc., and section 3336, Civ. Code. But this question must be tried out in a civil action, and not in a criminal proceeding. Section 3379, Civ. Code; section 3380, Civ. Code; sections 870, 509, 510, 511, and 512, Code Civ. Proc.

The petitioner is discharged.

bus owned and operated by the defendant between Ontario and Riverside, Cal., when the automobile overturned.

[1, 2] The first point raised by the defezdant is that the damages are excessive. The testimony shows that the plaintiff received a cut about an inch deep in the hip, which required a closure of the wound with stitches;

We concur: NOURSE, J.; BRITTAIN, J. that his back was wrenched and strained;

(47 Cal. App. 568)

WILLIAMS v. A. R. G. BUS CO. (Civ. 3439.) (District Court of Appeal, First District, Division 2, California. May 19, 1920.)

1. Damages 131(4)-$1,500 not excessive for shock and injuries from automobile accident.

$1,500 held not excessive damages for one injured by automobile bus overturning, where his back was wrenched and his nervous system shocked and he was unable to resume his work for six weeks.

that his leg and arm were bruised, and that his body was rendered stiff and sore, and his nervous system shocked by reason of his experience; that at the time of the trial he which made him constantly apprehensive in was still suffering from this nervous shock the performance of his work of driving an automobile. He spent nine days in a hospital, and was confined to his bed at his home

for two weeks additional. He was unable

to resume his work for six weeks, and his clothing, including an overcoat and suit, were ruined. He also incurred hospital and doctors' bills. Under such circumstances, we think the verdict of $1,500 is not so grossly excessive as to call for the interference of an appeliate tribunal. It has been repeatedly 2. Appeal and error 1004 (1)-Grounds for held in this state that the power of an apsetting award aside as excessive stated.

pellate court over excessive damages exists only when the facts are such that the excess appears as a matter of law, or is such as to suggest at first blush, passion, prej

The power of an appellate court over excessive damages exists only when the facts are such that the excess appears as a matter of law or is such as to suggest at first blush passion, prejudice, or corruption on the part of udice, or corruption on the part of the jury.

the jury.

Bond v. United Railroads, 159 Cal. 270, 113 Pac. 366, 48 L. R. A. (N. S.) 687, Ann. Cas. 1912C, 50; Hale v. San Bernardino, etc., Co., 156 Cal. 716, 106 Pac. 83; Wheaton v. North Beach, etc., Co., 36 Cal. 591; Varcoe v. Lee, (Sup.) 181 Pac. 223.

In the case of Bond v. United Railroads, supra, it is said:

"The trial court should be vigilant to set aside verdicts where there is reason to believe this has been done, or that passion, prejudice, or sympathy has influenced the jury to give more than the facts reasonably warrant.

We

have cause to fear that the trial courts sometimes act on the theory that they can shift the responsibility in this matter to the appellate court, and that an excessive verdict can be corrected on appeal. This is a mistake. Our power over excessive damages exists only when the facts are such that the excess appears as a matter of law, or is such as to suggest at first blush, passion, prejudice, or corruption on the part of the jury. [Citing cases.] Practically, the trial court must bear the whole responsibility in every case."

[3] Furthermore, it appears that the appellant made no motion for a new trial. If it considered the verdict the result of passion or prejudice, or a disregard of the instruc

(190 P.)

There are no other assignments of error and that defendant has failed, refused, and which require discussion.

neglected to deliver the same to the plaintiff; "that plaintiff is damaged by the unlawful holding of said property in the sum

We concur: BRITTAIN, J.; NOURSE, J. of $25 for each and every day the same has

Appeal from Superior Court, Los Angeles ciency of the complaint, this court must now County; Wm. D. Dehy, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ment, that the fact of defendant's possession of the truck at the commencement of the action was at the trial treated as a fact within the issues and properly to be determined by the court. On this ground we think that the judgment should be sustained. In Slaughter v. Goldberg, Bowen & Co., 26 Cal. App. 318, 324, et seq., 147 Pac. 90, this subject is fully discussed. There it was conceded that the complaint failed to show a certain fact without which the action would not lie; nevertheless it appeared that the case had been tried and determined upon the theory that the issue was presented in the case. The court held that a defendant should not be permitted to stand by and, without objection, allow an issue to be tried as though properly presented by the pleadings, and on appeal escape the consequences by claiming that the complaint failed to present such issue. The difference between that case and this is that there the facts as to the conduct of the trial and the manner in which the evidence was received were before the Court of Appeal, whereas in the present case we have only the judgment roll. But in Gervaise v. Brookins, 156 Cal. 110, 103 Pac. 332, the Supreme Court, upon a consideration of the pleadings and findings alone, determined that it appeared with reasonable certainty that the case was tried upon the theory that the answer put in issue the value of certain property, although technically that issue had not been properly presented by the pleadings. That being so, the court denied to the appellant the right to have the point considered that there was no such issue. The case of Illinois T. & S. Bank v. Pacific Ry. Co., 115 Cal. 297, 47 Pac. 60, was cited wherein "the presence in the record of a finding of the fact which it was claimed was not in issue was considered a sufficient showing that the cause was tried upon the theory that the fact was in issue." The judgment is affirmed.

We concur: SHAW, J.; JAMES, J.

(47 Cal. App. 496)

In re CRUICKSHANK. (Cr. 711.) (District Court of Appeal, Second District, Division 1, California. May 17, 1920.)

1. Attorney and client 57 Appellate court in disbarment proceedings concluded by finding on conflicting evidence.

"moral turpitude," which is anything done contrary to justice or honesty and with the purpose of defrauding another regardless of whether such acts rise to dignity of a crime.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Moral Turpitude.]

2. Attorney and client 53(2)—Code provision as to proof of false pretenses not applicable in disbarment proceedings.

Pen. Code, § 1110, specifying the character of proof required in order to convict one ment proceeding against attorney who obtained of false pretenses, is not applicable to disbarmoney by fraudulent pretenses as to use to which it would be put.

The gist of the accusation is that appellant obtained from Henry Goetz the sum of $10,In disbarment proceedings, regardless of 000 upon the representation that the same the rule that guilt must be shown beyond a rea- would not be used otherwise than in the consonable doubt, appellate court cannot disturb finding of trial court based on conflicting evi- struction and equipment of a certain plant dence that attorney should be disbarred for and patented process for ext.acting ore from fraudulent use of money obtained to be used the black sands of certain lands located near for specified purpose as an offense involving Watsonville, Cal., wherein he and one J. R.

(190 P.)

"Henry, we don't really need your money. I have money in the safe, $10,000, but I will not use that money (represented by the Goetz check) for any other purpose than what it is

Ghiselin owned a controlling interest; that, proposed plant, tending to convince him that instead of using the money for such purpose, the plant could be erected for the money obhe divided the same between himself and tained from Mrs. Thorkildsen, and on SepGhiselin, both of whom appropriated the tember 21, 1917, when Goetz gave the check, money to their own uses. That such was the appellant, in his office, said to him: theory adopted by the trial court conclusively appears from this statement made in the course of the trial, wherein the judge said: "The only issue is what this money was going to be used for. All they claim is that they said the money was not used for what Mr. Cruickshank said it was going to be used. That is all I am going to try. question is whether he (Cruickshank) represented that it would be used for a certain purpose and did not use it for that purpose. That is all there is, and that is all the complaint states."

*

* The

While the evidence is to some extent conflicting, that of Goetz, which the court accept

intended for."

Whereupon Ghiselin got up and pulled out the drawer in the safe and showed him the money. In delivering the check, Goetz said to appellant that he did not want Ghiselin to have anything to do with it, and stated:

"Now, Vernon, here is my check, hoping and trusting that everything you told me is nothing but the truth."

He had full confidence in the appellant and ed as true, tends to show the following facts: advanced the money to him, believing that That he and appellant had for many years it would be kept in the bank at Watsonville been intimately acquainted and the latter and only used in case the money, obtained had from time to time acted as his attorney from Mrs. Thorkildsen was insufficient to in certain matters. In September, 1917, he, erect the plant, in which case the money so at the request of appellant, called at the advanced would be used towards such purlatter's office, when appellant told him he had pose; otherwise returned to him. Goetz oba proposition that was going to make lots of tained the money by borrowing it from his money; that he, with Ghiselin, was interest- bank, appellant agreeing to reimburse him ed to the extent of 70 per cent. in a patented for such rate of interest as he was compelled process to separate iron ore from black sand to pay therefor, and voluntarily, it seems, upon which they had an option, and needed proposed giving him a contract for a 5 per $10,000 towards putting up the plant. Goetz cent. interest in that of appellant and Ghiselsaid he did not want to gamble, but could let in, similar to one which appellant said they him have the money, provided his banker ap- were giving to Mrs. Thorkildsen. This reproved, to which Mr. Ghiselin, who was pres-ceipt recited that Goetz had loaned them $10,ent, replied: "We are not going to give our 000, in consideration of which they conveyed secrets away." Whereupon Goetz said, "That to him a 5 per cent. interest in the option lets me out," to which a Mrs. Thorkildsen, therein described and in certain alleged patwho was present, replied, "Well, all right, I ent rights in the machine to separate iron will put up the money." Thereupon Goetz and steel from the black sands therein menleft the office, followed by appellant, who ex- tioned. No part of the money so advanced pressed his friendship for the former and the went into the construction of any plant or fact that there were tremendous profits in process, but upon receiving it appellant gave the proposition, and that, notwithstanding one-half thereof to Ghiselin, and the former Mrs. Thorkildsen was going to put up $10,000, used a part of his share in a trip to New which he thought sufficient for the purpose, York, made for the purpose, as claimed by nevertheless they should have the additional him, of financing the black-sand proposition. money on hand for use as an emergency fund, There is much other evidence touching the since other money might be needed to com- question, but that referred to tends to show plete the plant, and its equipment; and hence that appellant and Ghiselin engaged in a disit was desired that they be prepared with honest scheme to obtain the $10,000 from money for such purpose, and that, if the money so advanced by Mrs. Thorkildsen was insufficient for the purpose, then and only in such case would his money be used therefor. Meanwhile he was assured the money was to be deposited and kept in bank. Goetz visited the property in company with appellant and Ghiselin, at which time he was cautioned by Appellant insists that a proceeding for disappellant and Ghiselin not to talk about the barment is criminal in character, and therebusiness in the presence of others, and by fore the proof, as in the trial of a criminal their acts and representations he was favor- case, must show the defendant to be guilty as ably impressed with the merits of the prop-charged beyond a reasonable doubt, and inosition. Upon returning to Los Angeles, sists that, notwithstanding the testimony of Goetz was shown certain photographs of the Goetz, it does not, when considered with tes

Goetz and did not intend to use it towards the completion of the proposed plant, but did at the time intend to appropriate it to their own use, and thus by deceiving Goetz he was fraudulently induced to advance the money, no part of which, other than $1,600, did he collect.