Board of Education v. King

187 P.2d 427, 82 Cal. App. 2d 857, 1947 Cal. App. LEXIS 1283

Opinions

McCOMB, J.

This is an appeal from a judgment in favor of defendant in an action commenced pursuant to the provisions of sections 13521 to 13559 of the Education Code (reasons and procedure for the dismissal of teachers) for the dismissal of defendant as .a teacher of the Long Beach City College district.

The conceded facts are these:

On May 11, 1945, plaintiff notified defendant of its intention to dismiss him as a permanent member of the Long Beach City College district. On May 24, 1945, defendant requested a hearing on the charges contained in the notice which plaintiff had served upon him. Thereupon pursuant to the provisions of section 13529 of the Education Code

* plaintiff filed an action in the superior court, alleging as grounds for removal of defendant, “unprofessional conduct in that said Alfred C. King on or about January 7, 1945, drove a motor vehicle on Cherry Street in the City of Long Beach while under the influence of intoxicating liquor in violation of Section 502 of the Motor Vehicle Code of the State of California. That said Alfred C. King was found guilty of said offense on January 30, 1945, in the Municipal Court of the City of Long Beach and sentenced to and did pay a fine of $100.00 for said offense. ’ ’

Defendant denied in his answer the charge of unprofessional conduct hereinbefore mentioned.

At the trial the only evidence offered by plaintiff as proof of the charge it had made against defendant was the record of conviction of defendant on January 30, 1945, by the municipal court of the city of Long Beach, of the offense of driving a motor vehicle while under the influence of intoxicating liquor in violation of section 502 of the Motor Vehicle Code. An objection to the introduction of such evidence was sustained, and no other evidence having been presented to the court, judgment was entered in favor' of defendant.

This is the sole question presented for our determination:

Did the trial court commit prejudicial error in refusing to receive in evidence the record of conviction of defendant of the act alleged in the complaint as amended as grounds for his dismissalf

This question must be answered in the negative. The general rule is that a judgment of conviction in a criminal prosecution may not be introduced in evidence in a subsequent civil proceeding to establish the truth of the facts upon which the criminal action was predicated. (Marceau v. Travelers’ Ins. Co., 101 Cal. 338, 344 [35 P. 856, 36 P. 813] ; Burke v. Wells, Fargo & Co., 34 Cal. 60, 62; Burbank v. McIntyre, 135 Cal.App. 482, 485 [27 P.2d 400]. See, also, Tapley v. Abbott, 111 Cal.App. 397 [295 P. 911] ; 5 Wigmore on Evidence, 1940, p. 687, § 1671a; also Veh. Code, § 755, making inadmissible as evidence in any civil action the record of a conviction of violating a provision of such code.)

In view of the foregoing rule established in California the trial court properly sustained an objection to the proffered evidence. Since no other evidence was offered to support the charge preferred against defendant, the trial court properly gave judgment in his favor.

The judgment is affirmed.

Moore, P. J., concurred.

Section 13529 of the Education Code reads thus: “Rescission of action or filing complaint on demand for hearing. When any employee who has been served with notice of the governing board’s intention to dismiss him demands a hearing, the governing board shall have the option either (a) to rescind its action, or (b) to file a complaint in the superior court of the county in which the school district or the major part thereof is located, setting forth the charges against the employee and asking that the court inquire into the charges and determine whether or not they constitute sufficient grounds for the dismissal of the employee, under the provisions of this code, and for judgment pursuant to its findings. ’ ’