CARTER, J.
Defendant has appealed from a verdict and judgment for $35,000 given by a jury in favor of the plaintiff. The action was brought to recover on an alleged implied agreement of defendant to pay plaintiff for a radio program which plaintiff claims to have originated.
[656]*656In Ms complaint, plaintiff alleged that during the year 1941 he originated and caused to be prepared, composed and written an original script for a radio program entitled “Walter Wanger Presents” and a radio program format entitled “Preview Parade” or “Hollywood Preview” and that about September 1st of that year he had this script recorded for the purpose of submitting it to prospective sponsors, advertising agencies and broadcasting companies. He alleged that he, at all times, retained full ownership of the radio program and that he at no time licensed or authorized the use of it in any manner. Plaintiff further alleged that during the years 1942, 1943 and 1944 he submitted to the defendant, Columbia Broadcasting System, Incorporated, the radio program, script, format and records for the purpose of having the defendant determine whether or not it desired to purchase it or license the right to use it under an implied agreement that if the defendant did use the radio program it would pay plaintiff its reasonable value. But that on or about the first of May, 1945, the defendant produced and presented a radio program entitled “Hollywood Preview” which substantially copied and embodied plaintiff’s radio program and, as a result, became indebted to the plaintiff for the use thereof.
On this appeal, defendant contends that the court should have found, as a matter of law, that there was no similarity between the two programs; that the evidence was insufficient to show that defendant had access to plaintiff’s program idea; that there can be no implied agreement to pay for an abstract idea which is not new or novel; that the jury arbitrarily ignored the uncontradicted, unimpeached testimony of defendant’s witness, Hudson; that when an idea is made public there can be no liability for its use; that its motion for a new trial on the grounds that (1) the jury’s verdict for damages was so excessive that it appeared to have been given under the influence of prejudice and passion, (2) newly discovered evidence, and (3) that the evidence was insufficient to support the verdict should have been granted.
As a general observation from the cases, it may be stated that the right of the originator of an idea to recover from one who uses or infringes it seems to depend upon whether or not the idea was novel and reduced to concrete form prior to its appropriation by the defendant, and, where the idea was disclosed by the originator to the appropriator, whether such disclosure took place under circumstances indi[657]*657eating that compensation was expected if the idea was used.
Where these prerequisites exist, recovery may he had upon a theory of contract implied in fact or in law. (Plus Promotions v. R.C.A. Mfg. Co., (N.Y.) 49 F.Supp. 116; Alberts v. Remington Rand, 175 Misc. 486 [23 N.Y.S.2d 892]; Healey v. R. H. Macy & Co., 251 App.Div. 440 [297 N.Y.S. 165], aff’d. 277 N.Y. 681 [14 N.E.2d 388].)
Plaintiff’s complete program is as follows:
“Announcer: ‘Ladies and gentlemen, Walter Wanger Presents Hollywood Preview! Hollywood Preview! Hollywood Preview!
“ ‘And here is Hollywood’s distinguished producer, Walter Wanger. ’
“Wanger: ‘How do you do, ladies and gentlemen. Welcome to our Hollywood Preview Parade, a radio show designed for your pleasure and to give you a voice in what pictures Hollywood shall produce in the months to come. Hollywood is very interested in giving you motion pictures you want to see. Unfortunately producers do not and cannot always know just what you do want. This is the reason for this “Preview Parade.” Each week we plan to present a radio story we think will make a good film. We ask you to send us your opinion and suggest players for the leading roles. Our sponsor will give worthwhile cash prizes for the best letters, but more about that later.
“ ‘Now allow me to introduce Mr. True Boardman.’
“Boardman: ‘This is the sixth program of the new series, “Walter Wanger Presents.” Your host is one of Hollywood’s most progressive film leaders, the President of the Academy of Motion Picture Arts and Sciences, and producer of such outstanding films as Foreign Correspondent, Blockade, Long Voyage Home, Stagecoach, Algiers, and currently Sundown.
“ ‘Each week Mr. Wanger selects a story which he feels should be made into a picture. You are asked to write to Mr. Wanger and give him your opinion. The sponsors pay $500 for the best letter written by one of our listeners and if enough of you vote for it our play will be produced as a motion picture.
“ ‘And now, once again, Walter Wanger.’
“Wanger: ‘Thank you, Mr. Boardman. Tonight our play is entitled “So Gallantly Gleaming.” It has been written by Harvey Thew, Peter Ordway, and Sonya Levien. The radio adaptation is by Hector Chevigny.
[658]*658“ ‘ “So Gallantly Gleaming” tells a thrilling and romantic story of a great explorer, his beautiful wife, and the acquisition of California. Listen closely. Do you think it should be made into a motion picture? Tour votes will decide.
“ ‘Our guests who will later give their opinion are Miss Joan Bennett, Hector Chevigny and Henry Hathaway. Music is by Robert Armbruster. ’ ”
Drama
“Boardman: ‘Thank you, ladies and gentlemen. Did you like “So Gallantly Gleaming” ? Would you like to see it as a motion picture? The story of John Charles Fremont, I think, is one that deserves retelling. In a moment we will hear the opinion of our three Hollywood guests, Joan Bennett, Hector Chevigny, and Henry Hathaway, and then have an opportunity to compare their opinions with yours.
“ ‘Now again a word as to the real idea behind this program. Each week Walter Wanger Presents brings you a story which we think would be a good motion picture. And here is your part in the program. We ask you to write to Mr. Wanger, telling him whether or not you would like to have this play made into a motion picture, and why. Also include your choice of stars to play the leading roles. The best letter received each week will receive an award of $500 from our sponsor. The award is based not on the style of your letter, not on brilliant writing, but entirely on the reasons you set down as your opinion. And believe me, Hollywood is waiting for your vote. Whether or not you win a prize, your vote will help decide whether or not to film “So Gallantly Gleaming. ’ ’ The American picture-going public has long said it wished a voice in the choice of stories presented on the screen. Here is the chance for you to have that voice and make it heard across the nation. Write your letter now tonight. Address Walter Wanger, Hollywood, California.
“ ‘Last week Mr. Wanger presented “Out of the Night,” the sensational novel which has attracted such nationwide comment. A storm of argument was aroused. Sixty-eight thousand letters have been received to date, and we are happy to announce that Warner Brothers Studio have arranged to make this startling story into a film in the near future. So, thanks to your letters, you have helped Warner Brothers to their decision to film “Out of the Night.”
‘‘ ‘Last week’s best letter was from Mrs. William Wentworth [659]*659of Brockton, Massachusetts. Congratulations, Mrs. Wentworth! Your check for $500 goes forward immediately.
“ ‘Now, Mr. Wanger, I think we are all anxious to hear the opinions of your guests about tonight’s show. ’
(Interview with Board of Experts)
“Wanger: ‘Thank you. Thank you very much. Thank you, Joan Bennett, Henry Hathaway, Hector Chevigny. Do you ladies and gentlemen, agree with the opinions of our guests? Do you agree that “So Gallantly Gleaming” should become a motion picture ? And who do you think should play the leading roles? Won’t you write and tell us. Remember that whether your letter is best and wins the prize or not, you are helping Hollywood decide on what to give you on the screen. Next week we will have something totally different for you, a story called “Two Arabian Knights.” Until then, this is Walter Wanger saying, Good night. ’
“Announcer: ‘Walter Wanger Presents is brought to you at this same time each week by our sponsor. Original music for tonight’s show was written and directed, as always, by Robert Armbruster. The cast included Hollywood’s outstanding radio stars—Lurene Tuttle, Lou Crosby, Norman Field, Elliott Lewis, Lou Merrill, Frederick Shields, Paul Whitley, Norene Gamille, Gayne Whitman.
“ ‘This is John Hiestand hanging out the “Goodnight” sign until we meet again next week at this same time. This is the National Broadcasting Company. ’ ’ ’
The following is a portion of the broadcast preceding and following the drama as actually put on the air by defendant:
“Announcer:‘It’s The Flying Red Horse . . . the sign that identifies the Mobilgas and Mobiloil dealers who bring you . . . “Hollywood Preview” . . . with Mr. Otto Kruger!’
“Announcer: ‘Tonight, on behalf of your Mobilgas and Mobiloil dealer . . . Mr. Otto Kruger, eminent star of radio, stage and screen brings you another Hollywood Preview of a motion picture of the future! Tonight’s story . . . “Growing Pains” ... a comedy by Aurania Rouveral now scheduled for production by RKO Pictures.
“ ‘And as our star . . . Miss Marcy Maguire!
“ ‘Now . . . ladies and gentlemen . . . Otto Kruger!’
“Kruger: ‘Thank you. Good evening, everyone. Well, it’s another Preview Night here in Hollywood, and Mobilgas invites you to share in the excitement. For just as the first showing of a new motion picture in the film capítol means [660]*660bright lights and eager crowds, so does the same spirit of enthusiasm prevail on our radio version of Hollywood Preview. So, tonight, it’s “Growing Pains” . . . famous as a play . . . and now being prepared for filming at BKO. And as our star . . . well, because “Growing Pains” is a story about irresistible youth, we wanted Hollywood’s' most enthusiastic, effervescent young lady in the leading role of Terry. And we found exactly that in the person of red-headed . . . Marcy Maguire. ’
“Announcer: ‘And now, “Growing Pains” . . .’
“Announcer: ‘So ends tonight’s Hollywood Preview Story. ’ ”
(Interview with star follows.)
“Announcer: ‘Now, as our theatre audience fills out cards giving their comments and indicating their favorites for the picture version of “Growing Pains,” a special word of greeting to some new listeners.’ ” (Advertising for sponsor follows ; announcements as to producer, director and music.)
The problem of similarity between two compositions, whether literary, musical or dramatic, is a question of fact to be determined ultimately by a comparison of the two works upon the basis of the opinion of the average individual possessing a practical understanding of the subject. Although the majority of the decided cases involved a questioned infringement of a copyrighted work, it would seem that the test of whether or not an infringement existed would be the same as the question here involved—the determination of whether or not such similarity exists between plaintiff’s and defendant’s programs as to suggest to the average person the use by defendant of an idea originating with plaintiff upon proof of the other elements necessary to enable the plaintiff to recover. The analogy between the two is drawn by the court in De Acosta v. Brown, 146 Fed.2d 408.
The parties have conceded that the applicable sections of the Civil Code, 9801 and 9832 as they read at the time plain[661]*661tiff’s cause of action arose, are but codifications of the common law. The common law right in literary property and the right existing under the copyright law are contrasted as follows: “The term ‘copyright’ is sometimes used to designate the property in intellectual productions conferred by the common law as well as that conferred by statute, the full phrase ‘common-law copyright’ being sometimes used. The justification for this use of the term at the present day is found only in the fact that the common law confers on the owner of an intellectual production the exclusive right to make first publication of it, that is, the right to copy it in the first instance . . . Whether the common law ever conferred a copyright in the sense of an exclusive right of continued publication and sale has been a matter of doubt and dispute, . . . but however this may be, the range of rights and liabilities existing at common law with respect to intellectual productions is essentially and greatly different from those existing under the copyright statutes. Bobbs-Merrill Co. v. Straus, 210 U.S. 339 [28 S.Ct. 722, 52 L.Ed 1086]. Speaking generally, common-law rights are limited to unpublished works, and all common-law property rights therein are lost on a publication . . . while statutory copyrights relate mainly to published works, . . . Again, common law rights in unpublished works are of a wider and more exclusive nature than the rights conferred by statutory copyright in published works. The common law prohibits any kind of unauthorized interference with, or use of, an unpubished work on the ground of an exclusive property right, and the common-law right is perpetual, existing until lost or terminated by the voluntary act of the owner, . . . while a statutory copyright permits a ‘fair use’ of the copyright publication, without deeming it an infringement. ...” [Emphasis added.] (18 C.J.S., Copyright and Literary Property, § 2, p. 138 et seq.; and cases there cited.)
The test, with respect to infringement, which is laid down by the cases is that impression received by the average reasonable man upon a comparative reading of the two works “not by a dissection of sentences and incidents, suitable for the study of a digest or textbook, but inherently unnatural for any man who has the kind of brains that make him able to adapt a work of fiction.” (Frankel v. Irwin, 34 F.2d 142, 144.) (White-Smith Music Co. v. Apollo Co., 209 U.S. 1, 17 [28 S.Ct, 319, 52 L.Ed. 655]; 13 C.J. 1113, § 276, n. 30; Harold [662]*662Lloyd Corp. v. Witwer, 65 F.2d 1, 18; Hewitt v. Coward, 41 N.Y.S.2d 498; Dymow v. Bolton, 11 F.2d 690; Twentieth Century-Fox Film Corp. v. Dieckhaus, 153 F.2d 893; 15 Cornell L.Q. 633, 639.)
In determining whether the similarity which exists between a copyrighted literary, dramatic or musical work and an alleged infringing publication is due to copying, the common knowledge of the average reader, observer, spectator or listener is the standard of judgment which must be used. (Echevarria v. Warner Bros. Pictures, 12 F.Supp. 632; Sieff v. Continental Auto Supply, 39 F.Supp. 683; Barbadillo v. Goldwyn, 42 F.2d 881, 885.)
With respect to the comparison between the two programs and without unnecessarily “dissecting” them, there appears to be sufficient similarity to justify the finding of the jury as the “average, reasonable man.” There are, it is true, certain dissimilarities which appear: The lack of the so-called Board of Experts on defendant’s program; the fact that the studio audience only was requested to respond; and the rather less emphasis which is placed on the reaction of the public to the play it has heard. The element of prizes offered for the best letter was incorporated into defendant’s program after it had made its first few appearances on the air and was continued for a period of six weeks. Each case must be determined on its own facts. (Frankel v. Irwin, supra.) “It is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations. That has never been the law, but, as soon as literal appropriation ceases to be the test, the whole matter is necessarily at large, so that, as was recently well said by a distinguished judge, the decisions cannot help much in a new case. Fendler v. Morosco, 253 N.Y. 281, 292, 171 N.E. 56.” (Nichols v. Universal Pictures Corp., 45 F.2d 119, 121.) “Evidence of these differences is relevant upon the question of infringement, but if such differences are shown to exist, the question remains for the trier of fact to decide the issue.” (Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 361.) (Pellegrini v. Allegrini, D.C., 2 F.2d 610.) “Slight differences and variations will not serve as a defense.” (Universal Pictures Co. v. Harold Lloyd Corp., supra, 361.) (Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 73 F.2d 276, 278; Nutt v. National Institute Inc. for Imp. of Memory, 31 F.2d 236, 238.)
[663]*663We then have a question of fact—that of the similarity between the two programs. This question of fact was decided adversely to defendant by the jury whose duty it was to make the determination. The rule is settled that this determination will not be interfered with upon appeal where there is evidence to sustain it. The evidence, in the form of the two programs alone, shows that there is substantial similarity to support the verdict.
Because of the factual dissimilarity between this case and Golding v. R.K.O. Pictures, Inc., L. A. No. 20699, post, p. 690 [221 P.2d 95], this day decided, the scope of the inquiry upon the issue of similarity is necessarily different. In each case the issue of similarity was properly submitted to the jury. Similarity having been found by the jury, we look to the evidence to ascertain whether such similarity existed as to the portion of the production which plaintiff claims to have originated. In this case it is the entire plan, the grouping together or arrangement of various elements which constitutes the claimed infringement. In the Golding case it is only the plot or basic dramatic core of the play which is claimed to be original and to have been unlawfully copied by the defendant. It follows that the inquiry in the Golding case is a more limited one than that in the present case because of the nature of the claimed infringement.
The next contention made by the defendant is that the defendant had no access to plaintiff’s program idea. There is evidence in the record to show that plaintiff submitted his program to several officials and employees of the broadcasting company at different times during the years 1942, 1943 and 1944. Implicit in this submission was the belief that if the program were used he would be compensated therefor. It was admitted by defendant’s witness Hudson at the trial that it was the custom in the radio industry to pay for such ideas when and if they were used.
It is conceded by the defendant in its brief that plaintiff’s idea had been reduced to the concrete form of a script format and recording. The next question to be discussed is whether or not plaintiff’s idea as such was so new and novel as to be worthy of protection. It may be conceded at the outset that there is nothing new in a play broadcast over the air; it may also be conceded that there is nothing new in the use of the words “Hollywood Preview” in connection with the first showing to the public of a motion picture; it may also be noted [664]*664that audience participation, as such, is not new to radio. But when all of these elements are joined to make one idea for a radio program, it is the combination which is new and novel. An author who takes existing materials from sources common to all writers, arranges and combines them in a new form, giving them an application unknown before, is entitled to a copyright, notwithstanding the fact that he may have borrowed much of his materials and ideas from others, provided they are assembled in a different manner and combined for a different purpose, and his plan and arrangement are a real improvement upon existing modes; for the labor of making these selections, arrangements and combinations has entailed the exercise of skill, discretion and creative effort. (Edwards & Deutsch Lithographing Co. v. Boorman, 15 F.2d 35.) “If the author has accomplished a unique and useful result through the application of intellectual labor and literary or artistic skill, his work is entitled to a copyright which will protect the plan, arrangement and combination of the materials therein, even though all the materials of such work, or some parts of its plan, or the arrangement and modes of illustrating the subject matter thereof, may be found separately or in a different form or setting, or in a different combination in other distinct works. ’ ’ (Ball, The Law of Copyright and Literary Property, p. 247.) (Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556 [90 P.2d 371].) It has been previously pointed out that an author’s right in the fruits of his intellectual labor at common law is even broader than that which he has under the law of copyright.
It was admitted by Hudson, defendant’s principal witness, that prior to the time the program in question was placed on the air there was no program in which the listening audience in the studio or the listening audience on the radio were asked to give their opinions as to the suitability of the material broadcast by radio for motion picture products. He further admitted that it was a new idea for the listening audience, whether studio, or the entire listening public, to comment on the prospective stars to appear in the proposed productions. The defendant, however, maintains that its studio audience participation was merely atmosphere and was not intended to give the public any real participation in the choice of future pictures. If this was the true intention of defendant, the following excerpt from the testimony of Hudson shows that the studio audience was not so advised nor led to believe:
[665]*665“Q. When you first put the program on the air starting on May first your studio audience was asked to submit comment first as to whether they thought the material suitable for pictures, and second, the persons they would like to see in the leading roles, isn’t that right? A. That is right.”
Thus the evidence shows that defendant’s principal witness, a man who had been in the radio business for some years, believed that a plan such as plaintiff’s was new in the sense that the particular combination of ideas had not before been used in radio. It is also evident that it was the custom in the radio industry to pay for such ideas. Furthermore, the question of originality of plaintiff’s program is not one of law to be determined by the court but is one of fact for the jury’s determination. (Yadkoe v. Fields, 66 Cal.App.2d 150, 159 [151 P.2d 906]; Dezendorf v. Twentieth Century-Fox Film Corp., (C.C.A. 9) 99 F.2d 850, 851; New York Belting Co. v. New Jersey Rubber Co., 137 U.S. 445, 450 [11 S.Ct. 193, 34 L.Ed. 741].)
The next contention made by defendant is that the jury arbitrarily ignored the uncontradicted, unimpeached testimony of defendant’s witness, Hudson. The record shows that this witness’ testimony was contradicted and impeached at different times throughout the trial. His testimony with respect to the so-called program evolved by him in 1940 (before defendant had access to plaintiff’s work) which it is contended is the one broadcast by the defendant company, is worthy of mention. He testified that the idea back of his program was to promote the sale of stories by authors who could not get a hearing from important motion picture executives. He admitted that he had not considered having any audience participation feature, and, of course, no prize offered for the best letters, nor had he considered the title “Hollywood Preview.” It would seem that the audience participation feature, whether the studio audience or the entire listening public, was one of the more salient parts of plaintiff’s program. The members of the listening, movie-going public, may well have been sufficiently intrigued with the thought that. they were having a voice in the selection of “moving pictures of the future” so as to increase the popularity rating of the program. There was a great deal of testimony at the trial concerning the “Hooper” system of ratings. This is a system used to ascertain the number of listeners tuned in to a particular program. It was also shown at the trial that the percentage of listeners [666]*666increased with respect to this particular program after the “prize for the best letter” feature was added. Using the same test here as to the similarity between the program actually broadcast and Hudson’s program, it would seem that defendant’s contention is without merit. It would not be apparent to the “reasonable man” upon a comparison of the two that there was such similarity to raise the inference that defendant’s program was that originated by Hudson in 1940.
Defendant’s contention that there can be no liability to pay for an idea which has been made public is without merit when the facts of this case are considered. When plaintiff made his audition recording before an audience in the National Broadcasting Company’s studio he was not making his idea “public property” within the meaning of the law. Prior to publication an author may make copies of his production and enjoy the benefit of limited or restricted publication without forfeiture of the right of a general publication. The communication of the contents of a work under restriction, known as a “restricted or limited” publication, is illustrated by performances of a dramatic or musical composition before a select audience, private circulation of the manuscript, etc. (Ball, Literary Property and Copyright, 473; Werckmeister v. American Lithographic Co., 134 F. 321, 324 [69 C.C.A. 553, 68 L.R.A. 591]; Palmer v. De Witt, 47 N.Y. 532, 543 [7 Am.Rep. 480]; American Tobacco Co. v. Werckmeister, 207 U.S. 284 [28 S.Ct. 72, 52 L.Ed. 208]; Nutt v. National Institute Inc. for Imp. of Memory, supra; Ferris v. Frohman, 223 U.S. 424 [32 S.Ct. 263, 56 L.Ed. 492]; Uproar Co. v. National Broadcasting Co., 8 F.Supp. 358, aff’d, 81 F.2d 373.)
With respect to defendant’s motion for a new trial which was denied by the trial court, various contentions are made by defendant as to why it should have been granted. First, it is said that the jury’s verdict was so excessive that it must have been given under the influence of passion or prejudice. There is evidence in the record to show that plaintiff spent several years in the preparation of his idea for a radio program; that he had a recording made of it when the audition was held which entailed the employment of various screen and radio actors, technicians and the like. There is evidence to show that plaintiff’s idea was of no value whatsoever to him after its use by the defendant. As was said in Yadkoe v. Fields, 66 Cal.App.2d 150, 161 [151 P.2d 906]: “Moreover, the implied finding that the nature of the material here in[667]*667volved is such that no value attaches thereto aside from the use thereof, and that once such material is used the value therein is gone, is fully justified by the evidence. . . . Under the circumstances here presented, appellant’s contention as to lack of evidence of the value of the use of the material is without merit. ’ ’ The above quoted case involved the affirmation by the District Court of Appeal of a jury verdict of $8,000 damages given for the use of isolated “gags.” In the present case, both plaintiff and his expert witness testified as to the estimated worth of the program idea, and as to the custom in the industry to pay the author a certain percentage of the production costs based on the number of weeks a show was on the air. 11 The fact that personal property which is injured or destroyed by the wrongful or negligent act of another, has no market value, does not restrict the recovery to nominal damages only; its value or the plaintiff’s damages must be ascertained in some other rational way and from such elements as are attainable. In such case the proper measure of damages is generally its actual value or its value to the owner. The value of an article may be shown by proof of such elements or facts as may exist&emdash;such as its cost, the cost of reproducing or replacing it, its utility and use. ...” (Universal Pictures Co., v. Harold Lloyd Corp., 162 F.2d 354, 370, quoting from 15 Am.Jur. 554, 555.) It would appear that the evidence is sufficient to support the finding of the jury as to the amount of damages, and that the verdict was not given under the influence of passion and prejudice.
The newly discovered evidence claimed by defendant is shown by the affidavit of one James Allen who states that in 1935 he conceived the idea of a radio program on which would appear stories presented in dramatic form to the public as a “showcase” of possible literary material for the legitimate stage. This idea was registered with “Billboard,” a theatrical publication in New York City in 1935. In 1939, this idea was registered with the Screen Writers’ Guild under the possible title, “Play Preview.” It contained no element of audience participation or offer of prizes. The idea back of his program was to present the stories to “the attention of stage and screen producers” and not to the public generally. Allen’s 1939 prospectus did not set forth any of the details of his idea. Plaintiff was working for Allen as musical director at that time, and he states that he made several suggestions with respect to the program. This is denied by Allen in his [668]*668affidavit. There are affidavits in the record to the effect that plaintiff had discussed his program idea in 1938 with the affiants. These affidavits present the same conflict as the adduced at the trial. They were before the court upon the motion for a new trial. A motion for a new trial on this ground is to a large extent addressed to the discretion of the trial judge, and an appellate court will not disturb his ruling unless it is manifest that a gross or unmistakable abuse of discretion appears. (Kirschbaum v. McCarthy, 5 Cal.2d 191 [54 P.2d 8]; Cooper v. Kellogg, 2 Cal.2d 504 [42 P.2d 59] ; Buckhantz v. R. G. Hamilton Co., 71 Cal.App.2d 777 [163 P.2d 756] ; Montaldo v. Hires Bottling Co., 59 Cal.App.2d 642 [139 P.2d 666]). It cannot be said that there was such an abuse of discretion in the present case.
The judgment is affirmed.
Gibson, C. J., Shenk, J., and Edmonds, J., concurred.