Wayne v. Bureau of Private Investigators and Adjusters,Dept. of Professional and Vocational Standards

• Court: California Court of Appeals
• Writing for the Court: FOURT; WOOD, P. J., and LILLIE
• Citation: 20 Cal.Rptr. 194,201 Cal.App.2d 427
• Parties: Seymour WAYNE, Plaintiff and Appellant, v. BUREAU OF PRIVATE INVESTIGATORS AND ADJUSTERS, DEPARTMENT OF PROFESSIONAL AND VOCATIONAL STANDARDS of the State of California, and Vincent S. Dalsimer, T. E. Billings, Captain Eilison, Michael Flynn, E. O'Shaughnessy and Harvey McAchren, Members of the Bureau of Private Investigators and Adjusters, Defendants and Respondents. Civ. 25022.
• Decision Date: 16 March 1962

Page 194

20 Cal.Rptr. 194 201 Cal.App.2d 427 Seymour WAYNE, Plaintiff and Appellant,
v.
BUREAU OF PRIVATE INVESTIGATORS AND ADJUSTERS, DEPARTMENT OF PROFESSIONAL AND VOCATIONAL STANDARDS of the State of California, and Vincent S. Dalsimer, T. E. Billings, Captain Eilison, Michael Flynn, E. O'Shaughnessy and Harvey McAchren, Members of the Bureau of Private Investigators and Adjusters, Defendants and Respondents. Civ. 25022. District Court of Appeal, Second District, Division 1, California. March 16, 1962.
Hearing Denied May 9, 1962.

Page 195

[201 Cal.App.2d 429] Joseph G. Hurley, North Hollywood, and Henry E. Kappler, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Warren H. Deering and John M. Huntington, Dep. Attys. Gen., for respondents.

FOURT, Justice.

This is an appeal from a judgment which in effect denied appellant's amended petition for a writ of mandate, seeking a review of the order of respondent Bureau of Private Investigators and Adjusters, suspending appellant's license for a period of 90 days.

A resume of some of the facts is as follows:

On or about May 4, 1959, the Bureau of Private Investigators and Adjusters, hereinafter referred to as 'Bureau,' filed an accusation against appellant charging him with conduct in violation of section 7553.2(a) of the Business and Professions

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Code ¹ and alleging that by reason [201 Cal.App.2d 430] of said conduct grounds existed for suspension or revocation of appellant's license as a private investigator and adjuster.

On July 23, 1959, a hearing was held on said accusation, at which hearing appellant appeared and was represented by counsel and offered evidence in his own behalf. At the conclusion of the hearing a request to amend the accusation was made by the Bureau. Over appellant's objection the hearing officer granted leave to amend the accusation and on July 24, 1959, the Bureau served the amended accusation on appellant. This amended accusation deleted references to section 7553.2(a) of the Business and Professions Code and alleged that appellant had violated section 7553.2 of the Business and Professions Code.

The amended accusation further deleted the charge with reference to an alleged false representation made to one Samuel Dashev and amended two counts of the previous accusations by charging that it was a duly authorized representative of appellant, rather than the appellant, who obtained statements from traffic accident victims Marie de la Garrigne and Leonard Goldberg, by making false representations.

Objections to the amended accusation were considered and overruled, and additional time was granted until September 4, 1959, for the filing of written briefs.

On September 17, 1959, the hearing officer issued a proposed decision which found the following facts to be true:

'I

'* * * [T]he complainant, M. F. Flynn, has been and now is a duly authorized and acting Special Investigator for the Bureau of Private Investigators and Adjusters of the State of California, and made the Accusation herein in his official capacity as such Special Investigator and not otherwise.

'II

'* * * Seymour Wayne, heretofore was issued a license to operate as a private investigator and adjuster by the Bureau [201 Cal.App.2d 431] of Private Investigators and Adjusters, Department of Professional and Vocational Standards of the State of California. Said license has not been suspended or revoked and is now in full force and effect.

'III

'On or about April 14, 1957 respondent [i. e. Wayne] visited the home of one Kenneth G. Bell for the purpose of obtaining a statement from said Bell regarding an automobile accident in which Bell had been involved. Respondent was engaged for this purpose by a party whose interests were adverse to Bell. ² Prior to giving a statement, Bell asked respondent in substance, 'Are you National?', (Bell's insurer). Respondent

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did not affirmatively reply that he was 'National' but represented himself as an investigator, and did not disclose to Bell that he represented an adverse party. Respondent was aware that said Bell probably would not give a statement to him if respondent revealed that he was acting on behalf of an adverse party. Bell believed that respondent represented his insurer, and thereupon gave respondent a statement about the accident.

'IV

'On or about January 10, 1959 the respondent visited the home of Mr. and Mrs. Jack Weinstock for the purpose of obtaining a statement from them regarding an automobile accident in which Mrs. Weinstock had been involved. The respondent was engaged for this purpose by a party whose interests were adverse to the Weinstock's interests. Said Weinstock asked respondent for identification, and respondent identified himself as an investigator, and did not disclose to Weinstock that he was acting on behalf of an adverse party. Respondent was aware that the Weinstocks probably would not give a statement to him if respondent revealed that he was acting on behalf of an adverse party. Said Weinstocks believed that respondent represented their insurer, and gave respondent a statement about the accident.

'V

'On or about July 16, 1958 one Terry Arnold, an employee of respondent, visited the home of Ronald D. Garrahan for [201 Cal.App.2d 432] the purpose of obtaining a statement from him regarding an automobile accident in which Garrahan had been involved. Said Arnold was then acting in the course of his employment by respondent on behalf of a person whose interests were adverse to Garrahan. In accordance with respondent's instructions as to the manner and method of obtaining statements, Arnold identified himself as the investigator 'assigned to check the accident', and did not disclose to Garrahan that he was acting on behalf of an adverse party. Said Garrahan believed that Arnold represented his insurer and gave Arnold a statement about the accident.

'VI

'On or about July 16, 1957, an employee of respondent visited the home of Marie de la Garrigne for the purpose of obtaining a statement from her regarding an automobile accident in which she had been involved. Said employee was then acting in the course of his employment by respondent on behalf of a person whose interests were adverse to said Garrigne. In accordance with respondent's instructions as to the manner and method of obtaining statements, said employee identified himself as an investigator checking out the accident, and did not disclose to Garrigne that he was acting on behalf of an adverse party. Said Garrigne believed that this employee represented her insurer and gave him a statement about the accident.

'VII

'In about August, 1957, respondent telephoned the home of one George Mathias and arranged an appointment with said Mathias for the purpose of obtaining a statement about an automobile accident in which Mathias had been involved. Respondent introduced himself on the telephone as 'the investigator checking out the accident'. He then visited the home of Mathias at the appointed time, where he was aware that he was received as a representative of Travelers Insurance Company, the insurer of Mathias. Respondent was not a representative of said company, but was instead a representative of a party adverse to Mathias, and concealed this from Mathias. Respondent knew that he probably would not obtain a statement from Mathias if he revealed that he was acting on behalf of an adverse party. Said Mathias, believing that respondent represented his insurer, gave respondent a statement about the accident.

201 Cal.App.2d 433

'VIII

'On or about August 21, 1958 one John Kroh, an employee of respondent, visited

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the home of Leonard Goldberg for the purpose of obtaining a statement from him regarding an automobile accident in which Goldberg had been involved. Said Kroh was then acting in the course of his employment by respondent on behalf of a person whose interests were adverse to Goldberg. In accordance with respondent's instructions as to the manner and method of obtaining statements, Kroh identified himself as an 'independent investigator assigned to check your accident', and did not disclose to Goldberg that he was acting on behalf of an adverse party. Said Goldberg believed that Kroh represented his insurer and gave him a statement about the accident.

'IX

'The respondent testified that it is difficult for an investigator to get a statement about an automobile accident from an adverse party if he identifies himself. Respondent is aware that people he interviews are usually expecting an adjustor from their own insurer. His standard procedure, used by himself and his employees acting on his instructions, is to identify himself as 'the investigator checking out your accident'. If asked if he represents their insurer, respondent, and his employees acting on his instructions, usually state that, 'I am an independent investigator...