Section 2626: "An insurer is liable for a loss of which a peril insured against was the proximate cause; although a peril not contemplated by the contract may have been a remote cause of the loss; but he is not liable for a loss of which the peril insured against was only a remote cause."

Section 2628: "When a peril is specially excepted in a contract of insurance, a loss, which would not have occurred but for such peril, is thereby excepted; although the immediate cause of the loss was a peril which was not excepted."

It will be noticed that section 2626 makes the insurer liable when the peril insured against was the proximate cause of the loss, although a peril not contemplated may have been the remote cause. In this case the peril insured against was fire. The peril not insured against was earthquake. The defendant is liable although the earthquake was the remote cause of the loss.

What is the meaning of section 2628? As applied to this case the peril specially excepted is fire directly caused by an earthquake. If what has been said heretofore is logical and correct the policy only excepted loss by a fire directly caused by an earthquake. The excepted peril, that is, loss by fire caused directly by an earthquake, did not occur. The question therefore as to whether or not the loss would have occurred but for an excepted peril which never occurred is a false quantity. It is not necessary to hold that the company, by providing that it should not be liable for fire losses directly caused by an earthquake, can read the provisions of section 2628 into the proviso, and thus claim an exemption much broader than that stipulated for in the policy. It certainly would be carrying the exception to a great length to hold that the plaintiff agreed that the defendant should not be liable for fire loss directly caused by earthquake, and that by reason of the section the defendant is not liable for a fire indirectly caused by an earthquake. No rule of construction would justify us in holding that the section broadens the scope of the original exception. The exception was made in the contract of insurance, and must be held to control, as it was the deliberate words of the parties used by them in making the contract.

The rule herein announced is supported by analogous cases in many jurisdictions.

In Winspear v. Insurance Co., 6 Q. B. Div. 42, the terms of the policy provided "that it should cover any personal injury caused by accidental, external and visible means, if the direct effect of such injury should occasion his death;" and it further provided that it should not extend to "any injury caused by or arising from natural disease or weakness or exhaustion consequent upon disease." The insured was seized with an epileptic fit, and fell into a stream, and was there drowned while suffering from the fit. It was held that the death was within the risk covered by the policy, and that the proviso did not apply.

In Lawrence v. Insurance Co., 7 Q. B. Div. 216, the policy provided: "This policy covers injuries accidentally occurring from material and external cause appearing upon the person of the insured, where such accidental injury is the direct and sole cause of the death of the insured, but it does not insure in case of death from fits . . . or any disease whatsoever arising before or at the time

or following such accidental injury, whether consequent upon such accidental injury or not, or whether causing such death directly or jointly with such accidental injury." The insured, while at a railroad station, was seized with a fit, and fell forward off the platform across the railway, when an engine and carriages which were passing went over his body, and killed him. It was held that the death of the insured was caused by an accident within the meaning of the policy, and that the insurers were liable.

In Mfg. Ind. Co. v. Dorgan, 58 Fed. Rep. 945, an action was brought on a policy of insurance. It was contended that while suffering from an attack of heart disease the insured fell into a stream in which he was fishing, and was drowned. The trial court assumed that the fall was due to weakness of the heart, and proceeded on this assumption to construe the policy. The policy provided that the company should not be liable if death was caused by "any bodily injury happening directly or indirectly in consequence of disease, or to death or disability caused wholly or in part by bodily infirmities or disease, or to any cause where the accidental injury was not the proximate and sole cause of disability or death." It was held that death was caused by drowning and not from disease, and Judge Taft, delivering the opinion, said: "We are of the opinion that in the legal sense, and within the meaning of the last clause, if the deceased suffered death by drowning, no matter what was the cause of his falling into the water, whether disease or a slipping, the drowning in such case would be the proximate and sole cause of the disability or death, unless it appeared that death would have been the result, even had there been no water at hand to fall into. The disease would be but the condition; the drowning would be the moving, sole and proximate cause."

It was said by Judge Seawell of the superior court in the case of Baker & Hamilton against this same defendant, in construing the same provision in one of the defendant's policies: "The primary fires may have been due to unskillful or defective wiring, or to improper construction of the buildings in which they were installed, or both. It was known to the parties when they entered into the contract that the defendant was to be liable for a loss of which fire and not earthquake was the proximate cause. It is unreasonable to hold that in accepting the policy plaintiff should have understood that he assumed the consequences of the negligence of other persons, over whom he had no control, at a point far distant from the insured property."

In another case of Baker & Hamilton against this same defendant, 157 Fed. Rep. 280, it was said by Judge Whitson, in considering the same clause in a like policy: "Having seen that this exception relates to the origin of the fire, and that there must be a direct connection between the earthquake and the starting of the fire, it seems reasonably clear that it was the intention of the defendant to exempt itself from liability if an earthquake should be the immediate, proximate and direct cause of a fire which destroyed the property. That might occur in a good many ways. Earthquake might cause a fire in the building by short-circuiting of the wires, or by a gas explosion, or by throwing inflammable material into contact with the fire of a furnace, or the like, and this would be an earthquake-caused fire.

But if such a fire should start in a building a mile away, and be thence communicated from building to building until it reached property not directly so affected, a fire originating would be indirectly caused by earthquake, and not directly."

In another case, of Willard against this same insurance company, Judge Van Fleet construed the policy in the same way; and his ruling was affirmed in an opinion delivered by the United States Circuit Court of Appeals, 164 Fed. Rep. 404. It is not necessary to quote from that case or from other authorities. The cases cited fully support the construction we have given to this policy.

The order is affirmed.

We concur:

HALL, J.

KERRIGAN, J.

COOPER, P. J.

Crim. No. 127. Second Appellate District. August 2, 1909. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JAKE ZIMMERMAN, Defendant and Appellant. CRIMINAL LAW-RECEIVING STOLEN PROPERTY-EVIDENCE-PROOF OF SUBSEQUENT COMMISSION OF SIMILAR TRANSACTION ADMISSIBLE.—In a prosecution for receiving stolen property, proof of the commission of a transaction of a similar character subsequent to the date charged (wherein the defendant was entrapped) is admissible to show motive or system in the commission of the particular offense for which he is on trial.

ID.-ID.-ID.-GUILTY KNOWLEDGE-PROOF OF SUBSEQUENT TRANSACTIONS INADMISSIBLE. When guilty knowledge is the only matter being considered, evidence of similar transactions, to be admissible, must contain some element of notice or warning, and if they relate to matters subsequent to the principal offense, are not admissible.

ID.—ID.—ID.-MOTIVE OR SYSTEM-PROOF OF SUBSEQUENT TRANSACTIONS ADMISSIBLE. Where the purpose of such evidence is to show motive or system, the same is admissible if it have a direct tendency, in view of the surrounding circumstances, to prove motive or intent or other material fact, notwithstanding it has a tendency to prove a direct offense also.

ID.-ID.ID.-ADMISSION OF THEFT-REJECTION OF RECORD OF CONVICTION OF THIEF ABSENCE OF ERROR.-Exclusion of the record of conviction of the person who stole the goods, admitting the stealing, is not prejudicial to the defendant.

ID.-ID.-ID.-MUNICIPAL ORDINANCE-INTRODUCTION IN EVIDENCEPRESUMPTION-REPEAL-BURDEN OF PROOF.-Where a municipal ordinance is properly introduced in evidence, the burden is upon the person claiming that it has been repealed, to prove the same.

Appeal from the Superior Court of Los Angeles County-Curtis D. Wilbur, Judge.

For Appellant-F. W. Allender.

For Respondent-U. S. Webb, Attorney-General; George Beebe, Deputy Attorney-General.

Ver

Information charging crime of receiving stolen property. dict of guilty and appeal is from the verdict, judgment, and an order denying defendant's motion for a new trial.

No appeal lies from the verdict in this state (Pen. Code, sec.

1237), but on the appeal from the judgment and order we may consider the matters here urged as error.

The testimony of the person from whom the goods were received shows that he was a shipping clerk for the corporation whose goods were stolen, but without authority to sell. During the year 1908 he carried away from his employer's place of business a large number of articles (approximately 500) which he sold to defendant in some eight or ten transactions, some of which were had at his own house and some at the house of defendant. These articles were all new and he sold them to defendant for about twenty per cent of their market value. The last of these transactions, prior to the date of the arrest of defendant, took place on December 14, 1908. On the evening of December 15, 1908, when leaving his employer's place of business, the witness again took some articles of similar character to those sold to defendant on December 14, 1908 (towit: brass pipe fittings, gate valves, stop cocks, etc.), for the purpose of selling them to defendant, but was intercepted by some police officers who were watching his movements, and required to return to the place from whence he took the goods. The articles were then marked for identification in the presence of the secretary and manager of the corporation owner and the witness was accompanied to the house of defendant by the officers, who concealed themselves while defendant purchased the articles from the witness and then came forward and took the defendant into custody. Upon examining the premises of defendant other articles were found, among which were four two-inch valves, shown by the evidence to be some of the articles that defendant purchased from the witness on December 14, 1908.

The information alleges the crime to have been committed on December 15, 1908, but at the request of defendant the prosecution was required to elect the date as to which a conviction would be asked, and the district attorney named December 14, 1908. Evidence as to all the transactions was introduced, including that of December 15, 1908, the latter being objected to by the defendant.

It is contended by appellant that it was prejudicial error for the court to admit evidence of the transaction of December 15, 1908, because the transaction was subsequent to the date on which the district attorney elected to prove the offense charged. In support of this contention People v. Willard, 92 Cal. 487, is cited. Accepting that case as correctly declaring the law in respect to the matters then before the Supreme Court, it may easily be distin guished from the case before us. The circumstances of the transaction of December 15, 1908, which were given in evidence, were merely those attending the arrest of the defendant. They did not constitute an offense, as the goods were taken to the defendant's house with the consent and at the request of the owner, and the jury were specially instructed by the trial court that proof of these acts did not constitute proof of the offense charged.

In some of the cases in which the introduction of evidence as to transactions of similar character is considered solely with reference to the question whether or not the evidence of the other offense is intended to show guilty knowledge on the part of the defendant at the time of the transaction, it has been said that the facts to be

admitted must contain some element of notice or warning and therefore if they relate to matters subsequent to the principal offense are not admissible. Conceding this to be a proper deduction when guilty knowledge is the only matter being considered, when motive and intent are under consideration, it is said, a broader field is opened. (People v. Harben, 5 Cal. App. Dec. 29,. p. 33.) Where the purpose is to show motive or system, the evidence is admissible if it have a direct tendency, in view of the surrounding circumstances, to prove motive or intent or other material fact, notwithstanding it has a tendency to prove a distinct offense also. There is a clear connection between the transaction of December 14th and that of December 15th from which the jury might have logically inferred that if the defendant was guilty of one he was guilty of the other. (People v. Cook, 148 Cal. 334, p. 341.)

There was no error prejudicial to defendant in denying his request to introduce the record of conviction of the witness King. He (King) admitted his guilt and this was the stealing which constituted the basis of the offense of receiving stolen property for which defendant was being tried. The record evidence, if introduced, would only have confirmed what the witness himself had already testified to without objection. We are unable to see how defendant was prejudiced by the exclusion of the evidence. The character of King's sentence had nothing to do with his credibility or defendant's guilt.

An ordinance of the city of Los Angeles requiring junk dealers to make reports to the chief of police of certain kinds of articles when purchased by them was introduced in evidence and testimony given on behalf of the people to show that defendant was a junk dealer and that he had not complied with the requirements of the ordinance in this respect. Defendant objected to the introduction of the ordinance and urges that its admission was error because the affidavit of publication thereof is dated June 23, 1899, and there is no evidence to show that it continued to be a law of the city of Los Angeles on the 14th and 15th days of December, 1908. The ordinance was proved as required by subdivision 5 of section 1918, Code of Civil Procedure, and the prima facie showing made entitled it to be received in evidence. If the objection urged were good, the prosecution would be required to prove a negative, and, as the matter is one of record, this could only be established by the introduction of all the ordinances passed by the city since the date of the passage of the original ordinance, in order that the court might determine that the original ordinance had not been repealed. We are of opinion that the burden is upon the defendant to overcome the presumtion raised by the introduction of an ordinance regularly passed. (Merced Co. v. Fleming, 111 Cal. 46, 49; People v. Baldwin, 117 Cal. 244, 250.) No other objection to the introduction of the ordinance is urged.

No prejudicial error appearing in the record, the judgment and order appealed from are affirmed. TAGGART, J.

We concur:

ALLEN, P. J.

SHAW, J.