Kennard v. Rosenberg
| Decision Date | 10 September 1954 |
| Citation | 127 Cal.App.2d 340,273 P.2d 839 |
| Court | California Court of Appeals Court of Appeals |
| Parties | KENNARD et al. v. ROSENBERG. Civ. 4863. |
Edgar B. Hervey, James Edgar Hervey, San Diego, and Henry F. Walker, Los Angeles, for appellant.
Higgs, Fletcher & Mack, San Diego, for respondents.
This is an action to recover for work, labor and services in which the jury returned a verdict in favor of plaintiffs Kennard and Drake in the sum of $5,150 and in favor of plaintiff Wolfe in the sum of $1,200. Defendant appeals from the judgments entered on the verdicts and his principal contention is that the plaintiffs were required to be licensed by the provisions of Division 3, Chapter 11 of the Business and Professions Code, and not having complied therewith, were not entitled to recover compensation for their services.
Plaintiffs Kennard and Drake were both registered chemical engineers in the state of California and were in partnership, 'owning the firm of Kennard and Drake Testing Laboratories and Consulting Engineers'. Their business embraced industrial field and plant inspections, 'trouble shooting', industrial operations, chemical and metallurgical testing of all types of material, consultation on problems in industrial plants, problems of combustion and other problems of that nature.
J. F. Drake was an experienced chemist. Plaintiff T. G. Kennard received the degree of P.H.D. from Cornell in 1929. From that year until 1931 he was instructor in chemistry on the faculty of Pomona College. From 1931 to 1942 he was part-time research fellow at Claremont Colleges and Graduate School, and from 1942 to 1944 was chief spectroscopist at the Kaiser Steel Plant at Fontana. He is an expert in air pollution and smog control, a member of several technical and scientific societies and has on several occasions appeared in court as an expert witness. Plaintiff Paul Wolfe was for 24 years with the Los Angeles fire department, first as a fireman, then inspector, driver and captain. During that time he spent approximately 13 years in the arson bureau and was in charge of the investigation of more than 15,000 fires. He was an instructor for eight years in the fire college maintained by the Los Angeles fire department and at the time he was employed by the defendant herein was retired.
It was stipulated at the trial that none of the plaintiffs, Kennard, Drake or Wolfe, had been licensed (as private detectives or investigators) as provided by sections 7520 and 7521 of the Business and Professions Code and also that none of the plaintiffs came within any of the classes to which the statute was made inapplicable by section 7522 of that code.
Defendant Rosenberg was the owner and operator of insured premises known as 'The Navy Club' in San Diego. A fire occurred in the premises causing considerable damage. Defendant's attorney, Mr. Hervey, contacted Alvin Allyn, a licensed investigator, on July 13, 1952, and employed him to make an investigation to determine if in his opinion the fire was of incendiary origin. (Allyn was a party plaintiff herein and on the second day of the trial his action was settled and dismissed.)
On or about August 4, 1952, Hervey called plaintiff Wolfe on the telephone and stated that he wanted to engage his services. Wolfe informed him that he did not have a state license as an investigator and acted only in the capacity of consultant or an expert. Wolfe accepted employment on this basis and after examining the premises, advised Hervey that the fire was not of incendiary origin. At Mr. Hervey's request he attended the preliminary hearings on the arson charge which had been filed against defendant Rosenberg and each day discussed the proceedings with counsel and suggested questions to be asked witnesses for the prosecution. The preliminary hearing was conducted in afternoon court sessions for thirteen days (not consecutive) and Wolfe charged $100 a day for his services. He received a check for one day's services, $25 expenses, and defendant Rosenberg refused to pay the balance.
On August 28, 1952, defendant Rosenberg and Allyn took samples from the burned building and certain exhibits and experiments which had been made by another laboratory to Kennard and Drake and discussed the case with them. They were also furnished with a transcript of the testimony taken at a grand jury hearing in which an indictment had been returned against defendant Rosenberg. Kennard and Drake agreed to take the case and make whatever tests they saw fit which would enable them to refute the claims advanced in the transcript which they thought were incorrect. Kennard and Drake examined the premises, consulted with Mr. Hervey and the defendant, made many tests, took samples from the premises, examined photographs conducted experiments in their laboratories and on the premises, and prepared many exhibits for use in court. They attended the preliminary hearing at the request of defendant and Hervey and each day examined the transcript of the testimony taken on the previous day. During the mornings they were 'entirely at Mr. Hervey's disposal' and consulted with him at his request. They discussed the case with him during the noon hours and in the evenings, worked for Hervey and the defendant from 6:30 A.M. until 10:30 P.M. during the hearings, and guided defendant's counsel from a technical standpoint.
Plaintiff Kennard testified that while they spent 31 days in the investigation and study of the laboratory experiments, in other experiments and in the preparation of reports, they only charged defendant $100 per day for 22 5/8ths days; that the sums charged were reasonable for the work done in view of the particular and special conditions. On September 26, 1952, Kennard and Drake presented an invoice to defendant Rosenberg for $2,500 for 25 days at $100 per day. Defendant Rosenberg agreed to the charges, paid $750 thereon and stated that he would pay the balance as soon as he could. However, he refused to make any further payment on the account.
Appellant first argues that the trial court erred in holding and instructing the jury that as a matter of law the provisions of Division 3, Chapter 11 of the Business and Professions Code were not applicable to plaintiffs in doing what they did. We do not agree with this contention.
Section 7520 of the Business and Professions Code, as amended in 1951, provides:
'No person shall engage in a business regulated by this chapter; act or assume to act as; or represent himself to be a licensee unless he is licensed under this chapter; and no person shall falsely represent that he is employed by a licensee.'
Section 7521, as far as is material here, defines a private investigator as follows:
'A private investigator within the meaning of this chapter is a person other than an insurance adjuster who, for any consideration whatsoever engages in business or accepts employment to furnish, or agrees to make, or makes, any investigation for the purpose of obtaining, information with reference to: * * * the cause or responsibility for fires, libels, losses, accidents, or damage or injury to persons or to property; or securing evidence to be used before any court, board, officer, or investigating committee.'
Section 7522 provides that the chapter does not apply to certain persons, societies and agencies not here involved.
The uncontradicted evidence is that none of the plaintiffs herein were engaged in the private detective business or represented themselves to be so engaged. Plaintiffs Kennard and Drake were licensed engineers and as such were authorized to make investigations in connection with that profession. Section 6701 Bus. & Prof. Code. It seems quite clear that the private detective license law was not intended by the legislature to place a limitation on the right of professional engineers to make chemical tests, conduct experiments and to testify in court as to the results thereof. A physician, geologist, accountant, engineer, surveyor or a handwriting expert, undoubtedly, may lawfully testify in court in connection...
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...than the form, of such a document which determines ukmight be minimized; and to suggest alternatives Code, § 3528; Kennard v. Rosenberg, 127 Cal.App.2d 340, 345, 273 P.2d 839.) Secondly, on the immediate issue before us, we note that the California Environmental Quality Act requires an impa......
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...181, 27 Cal.Rptr. 801; City of El Monte v. City of Industry (1961) 188 Cal.App.2d 774, 782, 10 Cal.Rptr. 802; Kennard v. Rosenberg (1954) 127 Cal.App.2d 340, 345, 273 P.2d 839.) Respondent's construction of Regulation 4141.4 as an absolute requirement of W.A.S.C. accreditation imposed for t......
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...rather than the form, of such a document which determines its nature and validity. (See Civ.Code, § 3528; Kennard v. Rosenberg, 127 Cal.App.2d 340, 345, 273 P.2d 839.) Further, it is noted that the Commission is a public agency whose purpose is the formulation of a report for the protection......
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State v. Tatalovich
...witnesses such as Tatalovich, the validity of whose qualifications and work is tested—and contested—in court. Kennard v. Rosenberg, 127 Cal.App.2d 340, 273 P.2d 839 (1954), is on point. In Kennard, an attorney hired a retired fireman and two chemists—none of whom held a private investigator......