I dissent.
The reasoning and the conclusion reached by the majority and concurring opinions are shocking to both my sense of justice and my legal concepts. If I am not mistaken this case will be appropriately classified in the annals of jurisprudence with other “crimes in ink.” It is obvious to my mind and I think it should be to any unbiased person that if this court should apply the law of the case to the undisputed factual background as disclosed by the record the inevitable result would be a reversal of the judgment of the trial court with directions to retry the case in accordance with the law of the case as declared in the first decision of this case by the District Court of Appeal rendered on April 30th, 1953 (see Industrial Indem. Co. v. Golden State Co., 117 Cal.App.2d 519 [256 P.2d 677]). Simply stated, the undisputed factual situation appears to be: Plaintiff Industrial Indemnity Company, through its officers, and by means of their financial interests, controlled both Industrial Indemnity Exchange (hereinafter referred to as Exchange) and the Industrial Underwriters (hereinafter referred to as Attorney-in-Fact). Prior to January 1st, 1949, Exchange was the largest writer of workmen’s compensation insurance in California. It was a reciprocal insurance organization of which defendants Golden State Company, Ltd., G. W. Thomas Draying & Rigging Company, Inc., W. R. Ballinger & Son, Minna M. Ballinger, Johnson Corporation, et al. were subscribers. Exchange was then in competition with plaintiff Industrial Indemnity Company in writing policies of workmen’s compensation insurance.
On December 21st, 1948, Industrial Indemnity Company, Industrial Indemnity Exchange, acting through its Attorney-in-Fact and Advisory Committee, and Industrial Underwriters entered into a Transfer and Assumption Agreement which provided in part:
‘‘That in consideration of the mutual covenants herein contained the parties hereto do hereby agree as follows:
*281“I. REINSURANCE
“A. Effective as of 12:01 A.M., January 1, 1949, Exchange does hereby cede and Company does hereby completely reinsure all policies of insurance issued by the Exchange and in effect as of said time and date.
“B. The Company agrees to carry out and perform all of the obligations of the Exchange under the terms of said policies of insurance or any of them, and to be directly liable thereon to the policyholders of the Exchange. The Company also undertakes to declare and pay policyholders’ dividends in respect to policies of insurance issued by the Exchange according to the terms of such policies on the basis of the Exchange dividend policy theretofore in effect.
“II. TRANSFER OF ASSETS
“A. Effective 12:01 A.M., January 1, 1949, Exchange will sell, assign and transfer and it does hereby sell, assign and transfer to Company all of the assets of the Exchange of whatever nature and kind, whether now knotvn or hereafter discovered, owned by it at said time and date, and whether or not appearing on its books as of said time and date.
“III. AssumptioN of Liabilities and Payments to Be Made
“A. Company agrees to accept and does hereby accept the assignment and transfer of such assets as of the time and date herein provided, and agrees to perform the acts hereinafter set forth, and to pay the amounts computed as hereinafter provided at the times and in the manner hereinafter more particularly set forth.
“B. In addition to the obligations assumed under paragraph I hereof, Company agrees to assume and discharge and does hereby assume any and all other liabilities of the Exchange of whatever nature or kind in any manner incurred prior to 12:01 A.M., January 1, 1949.
“C. Amounts to be paid: As compensation for the assignment and transfer to it of the assets of the Exchange, Company will pay to the persons and in the manner herein set forth an amount equal to the ‘adjusted net worth’ of the Exchange, computed as follows:
“1. Unadjusted Net Worth :
“An audit of the books of Industrial Indemnity Exchange as of the close of business December 31, 1948, will be caused to be made by the Company and the Advisory Committee *282as soon after December 31, 1948, as possible, and, in any event, prior to the end of the month of February, 1949. Such audit shall be conducted on the same basis as audits of the Exchange have been made in recent years, except that the reserve for losses and claims shall be computed upon the case basis rather than the ‘Schedule P’ formula basis. Upon completion of the audit, an audited balance sheet as of December 31, 1948, will be prepared by the Company, and upon approval by the Insurance Commissioner, shall be delivered to each member of the Advisory Committee of the Exchange. For purposes of such financial statement, the assets shall be valued at market value as of December 31, 1948. A copy of such financial statement will thereupon be attached to this agreement, marked ‘ Exhibit A, ’ and except for possible errors in computation and possible omissions all the parties hereto agree to be and are hereby bound by said financial statement.
“The unadjusted net worth of the Exchange as of the close of business on December 31, 1948, shall be the sum of the excess of statutory reserves for losses over case basis reserves for such losses, the reserve for contingencies, special surplus and unassigned surplus as shown on said financial statement. . . .
“IV. Time ANl> Amount op Payments
“The total net payments, equal to the adjusted net worth, to be made by the Company to the subscribers of the Exchange will be made by the Company at the following times:
“A. $1,000,000.00 on or before March 31, 1949;
“B. $500,000.00 on or before March 31, 1950;
“C. Any balance remaining due, on or before March 31, 1952.
“By mutual agreement between the Company and the Advisory Committee, and conditioned upon the prior approval of the Insurance Commissioner, the dates for and amounts of any of the foregoing payments may be postponed or changed, as may be justified by future developments. . . .
“VII. Waiver by Attorney-in-Fact op Rights in Special Surplus:
“In consideration of the covenants and agreements of the other parties hereto as herein contained, the Attorney-in-Fact hereby waives any and all fights which it may have in and to the special surplus of the Exchange, and will not at any time hereafter assert any rights whatever in or to said special surplus. . . .
*283“IX. Return op Subscribers’ Individual Surplus Fun'd Deposits :
“The Company agrees to pay to the individual subscribers entitled thereto the total amount of the subscribers ’ individual surplus fund deposits paid or maintained as of December 31, 1948, by each of said subscribers, such payment to be made to each individual subscriber entitled thereto on or within a reasonable time after the termination of his policy. However, in the event that at such time there shall be due and owing from such subscriber any premium arising under a policy issued by the Exchange on or before December 31, 1948, such subscriber’s individual surplus fund deposit shall, to the extent of any such premium due and unpaid, be credited or applied in payment thereof.” (Emphasis added.)
At the time this agreement was executed K. K. Bechtel was president of Industrial Indemnity Company. He was also managing partner of Industrial Underwriters, Attorney-in-Fact for Industrial Indemnity Exchange. While Mr. Bechtel did not sign the contract on behalf of Industrial Indemnity Company, he signed it as managing partner of Industrial Underwriters, Attomey-in-Fact for Industrial Indemnity Exchange and as a member of the Advisory Committee of Industrial Indemnity Exchange and as managing partner of Industrial Underwriters. The contract was executed on behalf of Industrial Indemnity Company by Thomas G. McGuire, Executive Vice-President. It was found by the trial court and conceded by all of the parties to this litigation that Mr. Bechtel and his associates in Industrial Indemnity Company, by virtue of their financial interests, controlled all of the parties to said agreement. In this respect the District Court of Appeal in its first decision of this case cited supra stated: ! ‘ Neither is it denied nor could it be denied that the members of the Attorney are persons who have authority in the management of the funds of the Exchange. The interrelation between the Attorney and the Company, which is at the basis of this whole case, leaves no doubt that said partners in the Attorney would be interested in, at least indirectly, any purchase made by the Company. In this respect it will suffice to quote from finding 16 of the court the following passus which is not attacked:
“ ‘The stock ownership of Industrial Indemnity Company has at all times been substantially the same as the ownership of Industrial Underwriters, a partnership, the attorney-in-*284fact of the Exchange.’ ” (117 Cal.App.2d 519, 527, 528 [256 P.2d 677].)
Prior to the execution of said Agreement an attempt had been made by Mr. Bechtel and his associates to procure the consent of all of the subscribers of the Exchange to said Transfer and Assumption Agreement and they succeeded in obtaining the consent of approximately 98 per cent of said subscribers. Industrial Indemnity Company then commenced an action in the superior court of the City and County of San Francisco seeking declaratory relief regarding the rights of subscribers of Industrial Indemnity Exchange, under said Agreement. The nonconsenting subscribers cross-complained in said action, claiming that all the insurance business transacted by Industrial Indemnity Company belonged in equity to Exchange, from whose business it was alleged to have been disloyally diverted by Industrial Underwriters, the Attorney-in-Fact of said Exchange, whose partners substantially owned the stock of Industrial Indemnity Company.
The trial court awarded plaintiff Industrial Indemnity Company the relief demanded by it in said action and denied any relief to the objecting subscribers.
The subscribers appealed and the District Court of Appeal in its decision cited supra, reversed the judgment and decree of the trial court and laid down the following rules which constitute the law of the case and should have controlled the subsequent disposition of the case:
(1) The District Court of Appeal specifically held that the Transfer and Assumption Agreement constituted a sale of all of the assets and business of Exchange to Company. In this respect the court stated at page 530: ‘‘Respondents urge, however, that even if it were an actual sale, as we consider it, the agreement would Come under an exception to section 1101 [of the Insurance Code]. . . .” (Emphasis added.)
(2) The District Court of Appeal specifically held that Exchange was not in liquidation. In response to the contention of Company that the Transfer and Assumption Agreement was actually an agreement to liquidate, the court stated at pages 528 and 529: Company contends that ‘ ‘ the transaction was actually an agreement to liquidate. However that is not the case. . . . Another circumstance which shows that the Company did not act merely as liquidator is of greater importance from a practical point of view. By taking over all assets, assuming all liabilities, including all outstanding policies of the Exchange and becoming directly liable thereon *285to the policyholders, the Company acquired the whole business of the Exchange as a going concern and would therefore benefit by the increase of its clientele.”
(3) In answer to Company’s contention that the Insurance Commissioner could require the sale of Exchange to Company (section 1105) the District Court of Appeal specifically held at page 530: ‘ ‘ The contention is without merit. The Commissioner did not require and had no power to require the sale of the whole business of the Exchange as a going concern. To ‘require’ in this sense means ‘to demand; to claim as by right and authority; to exact.’ (Webster.) The Commissioner did not demand it and had no authority to demand it.”
(4) The District Court of Appeal held that the Transfer and Assumption Agreement was illegal and void because in contravention of section 1101 of the Insurance Code, which provides that an admitted insurer’s officers, directors, trustees or any persons having authority to manage the insurer ⅛ funds shall not “directly or indirectly purchase, or be interested in the purchase of, any of the assets of the insurer. ’ ’ It further held that section 1106 makes any violation of section 1101 a misdemeanor. In this respect the court stated at page 527: “We have concluded that the original action [brought by Company] for declaratory relief should have been denied because the agreement to which it relates is void as violating section 1101 of the Insurance Code, expressly made applicable to reciprocal exchanges by section 1282 of said code.”
(5) With respect to the contentions made by Company that it acted in “good faith” because it did not know the law forbade the transaction and made such a violation of the law a crime, the court stated at page 532: “Even if their said conduct was in good faith and proper, as found by the court below, it would create a precedent wholly adverse to the purpose of section 1101, subdivision (e), if they were permitted to solve the difficulties so caused by absorbing the going business of the Exchange into their privately owned corporation, even if the price they paid for it would be adequate. ’ ’
(6) The District Court of Appeal specifically held that the officers of plaintiff and the other parties to the Agreement were acting in a fiduciary capacity and could not seize for themselves the assets of Exchange as contemplated by the Transfer and Assumption Agreement. At page 533 the court said: “Since the leading case of Guth v. Loft, 23 Del.Ch. 255 [5 A.2d 503], it has been generally accepted that a corporate *286officer or director may not seize for himself to the detriment of his company business opportunities in the company’s line of activities which the company has an interest and prior claim to obtain, and that if he seizes them in violation of his fiduciary duty the corporation may claim for itself all benefits so obtained by him. The doctrine was applied in this state to joint venturers in MacIsaac v. Pozzo, 81 Cal.App.2d 278 [183 P.2d 901], and is equally applicable in all situations in which a person manages or transacts business for another or for others to whom he stands in a fiduciary relation without being trustee of an express trust. The position of the attorney-in-fact of a reciprocal insurance exchange, who manages the business of the exchange under powers of attorney of the subscribers, who provide the means for the reciprocal insurance enterprise, is fiduciary in character to the same extent as that of the management of an incorporated mutual insurance company, although neither is a real trustee. (See Caminetti v. State Mut. Life Ins. Co., 52 Cal.App.2d 321, 323 [126 P.2d 165]) and the doctrine of corporate opportunities is equally applicable."
With respect to the language of the court concerning the evidence as supporting the findings of fact of the trial court that Company had not breached its fiduciary duty toward Exchange, it is obvious that it was referring to the contention of Exchange that it was entitled to the whole business of Company because it said at page 539: “Under these circumstances it is not for us to say that the ultimate findings of the court below are necessarily improper inferences nor can we hold as a matter of law, contrary to said findings, that the Attorney breached its fiduciary duty to subscribers when it engaged in the writing of workmen’s compensation insurance through the medium of Company or that the business of Company was in equity the property of Exchange. We are the more satisfied that this result is not unjust because the gain by Exchange of all profits of the business of Company without participation in them by any of Company’s insureds would have given the subscribers of the Exchange a windfall wholly out of line with the setup of such Exchange.” (Emphasis added.)
The findings of the trial court that Company had not breached its fiduciary duties toward Exchange were, therefore, held by the District Court of Appeal to relate to Company’s participating in the workmen’s Compensation insurance field before the illegal take-over of Exchange; and to *287Exchange’s contention that it was entitled to all of Company’s business developed prior to such take-over. It is obvious that this discussion on the part of the District Court of Appeal does not relate to Company’s breach of its fiduciary duty to Exchange in executing the Transfer and Assumption Agreement, which it had theretofore held to be an invalid, illegal and void agreement of purchase and sale.
The conclusions reached in the District Court of Appeal opinion were as follows: 1. “Although we hold that the subscribers of Exchange are not entitled to the business built up by Company in general—and then they are necessarily not entitled either to the business of its wholly owned subsidiary, Industrial Service Company, mentioned separately on appeal—they have a right to the business taken over by Company in consequence of the transfer and assumption agreement, which we have held to be invalid. If they so desire they are entitled to have that matter wound up in these equity proceedings and for that purpose the judgment denying all relief on the cross-complaints [by Exchange] will also have to be reversed.” (Emphasis added.)
2. The trial court was directed to “deny all declaratory relief to plaintiffs [Company] on the ground that the agreement as to which it is prayed for is void as contrary to law. ...”
3. The trial court was directed to grant such relief to Exchange as to permit them to recover in “their representative capacity for subscribers the business and assets obtained by Company in consequence of the agreement herein held to be invalid. ...” (Emphasis added.)
The gist of the decision of the District Court of Appeal cited supra which is now the law of the case, may be summarized as follows: The Transfer and Assumption Agreement dated December 21st, 1948, constituted an attempted sale of all of the business and assets of Exchange to Industrial Indemnity Company. Such a sale was illegal in face of the objection of the nonconsenting subscribers to Exchange. The illegality of such sale and transfer was based both upon common law rules and statutory law of this state. It violated common law rules because the officers of the participating companies were acting in a fiduciary capacity to the subscribers of Exchange. Those officers violated their fiduciary duty under the common law by appropriating to their own use ’the property of the subscribers of Exchange without their consent. The legal effect of this transaction was that the directors and officers of *288Company, wbo, because of their financial interests, controlled Exchange, Industrial Underwriters and Attorney-in-Fact, used their power of control to deprive subscribers of Exchange of their property rights in Exchange in violation of their fiduciary duty to subscribers which no court of justice should sanction. The transaction was in violation of the statutory law of this state because expressly and specifically prohibited by section 1101 of the Insurance Code, the violation of which section was made a misdemeanor by section 1106 of the Insurance Code. Because the entire transaction was illegal for the reasons above stated and the participants therein were guilty of a crime under the law of this state, Industrial Indemnity Company had no standing in a court of justice to enforce the Agreement and its action brought for this purpose was ordered dismissed. The court, however, reserved to the non-consenting subscribers the right to resort to the court for the protection of their rights which should contemplate the restoration by Company to the Exchange of the business and assets illegally appropriated or an award of compensation adequate to cover the value of such business and assets so illegally appropriated together with all accrued increments therefrom.
It is obvious that the trial court on the retrial of the case utterly disregarded the law of the case as declared by the first opinion of the District Court of Appeal cited supra. In direct violation of the law of the case announced in said decision the trial court held and found that Industrial Indemnity Company took over the business and assets of Exchange for the purpose of liquidation and that Exchange was not entitled to the going concern value of its business at the time of the illegal transaction. It charged Exchange with the cost and expenses incurred by Company in winding up the business of Exchange and awarded to Company assets of Exchange worth considerably over a million dollars without awarding subscribers of Exchange any compensation therefor.
The obviously palpable result and legal effect of the decision of the trial court on the retrial of this case was to deprive the subscribers of Exchange of their property which consisted of a valuable beneficial interest in the business of Exchange without due process of law. A clear and concise statement with respect to the protection of the right of private property under the Fourteenth Amendment to the Constitution of the United States was made by Mr. Justice Day of the Supreme Court of the United States in Buchanan v. Warley, 245 U.S. *28960, at page 74 [38 S.Ct. 16, 62 L.Ed. 149], Speaking for a unanimous court he there declared: “The Federal Constitution and laws passed within its authority are by the express terms of that instrument made the supreme law of the land. The Fourteenth Amendment protects life, liberty, and property from invasion by the States without due process of law. Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391 [18 S.Ct. 383, 42 L.Ed. 780]. Property consists of the free use, enjoyment, and disposal of a person’s acquisitions without control or diminution save by the law of the land. 1 Blackstone’s Commentaries (Cooley’s Ed.), 127.” In Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 [50 S.Ct. 451, 74 L.Ed. 1107], the Supreme Court of the United States specifically held that judicial action as state action is within the due process clause of the Fourteenth Amendment. At pages 681 and 682 the court stated: ‘ ‘ But, while it is for the state courts to determine the adjective as well as the substantive law of the State, they must, in so doing, accord the parties due process of law. Whether acting through its judiciary or through its legislature, a State may not deprive a person of all existing remedies for the enforcement of a right, which the State has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it. Compare Postal Telegraph Cable Co. v. Newport, 247 U.S. 464, 475-6 [38 S.Ct. 566, 62 L.Ed. 1215].” (Emphasis added.)
We have here a situation where the beneficial interests— the property rights of Exchange and subscribers in the business and assets of Exchange are taken from them by Company without their consent and in violation of both common law rules and statutory law, and Company and its officers committed a crime under the law of this state when it and they appropriated the property of Exchange and subscribers to the use of Company by means of the illegal and void Transfer and Assumption Agreement. Under every concept of law, equity, justice or fair dealing, Exchange and subscribers are entitled to have their property or its full value restored to them with all accrued increments. But under the majority decision in this case, property, admittedly worth approximately two million dollars at the time it was illegally appropriated by Company, with all its accrued increments of *290many millions of dollars, is retained by Company, and subscribers are awarded the paltry sum of $323,300.07, probably 2 or 3 per cent of the present value of the property and its accrued increments now in the hands of Company. I cannot conceive of such a travesty on justice occurring under any system for the administration of justice entitled to the respect of honest, fair-minded men. I have always believed that the requirement of the due process clauses of both our state and federal Constitutions contemplates a fair and honest application of the settled rules of law to every established factual situation. Only by this process may justice be achieved. The result reached by the majority here today does violence to every concept of due process of law with which I am familiar.
The majority glosses over the damning fact that in seizing the business and assets of Exchange in the manner shown by the record here, Company and its officers committed a crime—a misdemeanor (see Ins. Code, §§ 1101, 1106)—and since overt acts were committed in the furtherance of an unlawful agreement, the crime amounted to a felony under the law of this state (Pen. Code, § 182; Calhoun v. Superior Court, 46 Cal.2d 18 [291 P.2d 474]; People v. Malotte, 46 Cal.2d 59 [292 P.2d 517]; Lorenson v. Superior Court, 35 Cal.2d 49 [216 P.2d 859]; People v. Robinson, 43 Cal.2d 132 [271 P.2d 865]; People v. Vanderpool, 20 Cal.2d 746 [128 P.2d 513]).
The illegal and void Transfer and Assumption Agreement itself makes out a clear case of conspiracy to violate sections 1101 and 1106 of the Insurance Code by the participants in this illegal transaction. Of course, no prosecution was instituted against them. This is just another example of the unequal administration of our criminal law. There can be no doubt that the power and influence of the participants in this illegal transaction weighed heavily in the determination of the prosecuting officials not to proceed against them under the above cited authorities. We also find two justices of this court (see concurring opinions of Justices Schauer and Shenk) expressing their approval and commendation of the unlawful conduct of these participants in the consummation of this illegal transaction. This demonstrates the truth of the charge made by some critics of our judicial system that those with sufficient wealth, power and influence can evade the law and that the phrase “equal justice under law” is empty and meaningless in such situations. It is obvious that on the record before us justice has been outraged by the result reached by the majority and those who believe in the ideal *291of “equal justice under law,” as well as the victims of this travesty, will look for an explanation. In my considered opinion it may be found only in the inferences which may be drawn from the time honored epigrammatic expression that “You can’t convict a million dollars.”
The essential facts of the controversy here are really very simple: Company and Attorney (made up of the same membership so really one and the same person legally speaking) contracted with a majority of the membership of Exchange for the purchase of the assets of Exchange some of whose members refused to consent to the purchase and sale. The purchase price was $1,018,539.07. After a series of legal maneuvers (to be discussed hereinafter), instigated by Company, Exchange subscribers, the innocent victims of the swindle, are held legally entitled to only the sum of $323,300.39.
Company brought the original action for declaratory relief regarding the rights of subscribers of Exchange. The original action culminated in an estimated award to Exchange of $1,895,347.07. Exchange appealed. The District Court of Appeal reversed on the ground that the Agreement was illegal, void and of no effect, and directed that an accounting be had to determine the value of the “whole going business” of Exchange which had been, by means of the Agreement, illegally taken over by Company. Company, believing it had lost in the District Court of Appeal, petitioned this court for a hearing. Ye denied a hearing. The opinion of the District Court of Appeal (117 Cal.App.2d 519 [256 P.2d 677]) thereby became the law of the case on a retrial of the action.
On retrial Exchange recovered $323,300.39 as the value of their “whole going business” which had been illegally taken over by Company as compared with the sum of $1,895,347.07 recovered by it at the first trial from which judgment Exchange had appealed and won a reversal. The judgment rendered on the second trial was appealed by Exchange and determined by the same District Court of Appeal which had heard the first appeal. On the second appeal ((Cal.App.) 301 P.2d 112) the judgment was again reversed with the District Court of Appeal holding that the decision theretofore rendered by it had not been followed by the trial court and stating, among other things, that because of the judgment on retrial “the Company will have in fact everything, for which it agreed in the invalid agreement to pay considerably more than one million dollars to the subscribers and will pay for it only $323,300.39.”
*292At the time of the second trial the evidence showed indisputably that Company had collected over 20 million dollars in gross premiums because of the increased business it had obtained through the illegal take-over of Exchange. The net profit was not ascertained. The District Court of Appeal specifically held, on the first appeal, that by means of the illegal agreement Company increased its clientele. It was there held that by its illegal agreement “the Company acquired the whole business of Exchange as a going concern and would therefore benefit by the increase of its clientele. ’ ’ Consents to the illegal agreement were obtained by sending out, in addition to 80 or 90 solicitors of consents, a letter which read, in part: “At normal expiration of your policy, in 1949 you will be offered a participating policy in Industrial Indemnity Company, a stock company. . . . Your policy with Industrial Indemnity Company will be serviced by the same personnel, located at the same offices as in the past.” The District Court of Appeal (117 Cal.App.2d 519 [256 P.2d 677]) commented on Company’s tactics as follows: “That in this manner the Company received an advantage not consistent with the position of a mere liquidator seems obvious.”
By the holding of the majority here, Company profits by its illegal conduct in that it is permitted to:
1. Retain all the net profits directly traceable to former Exchange subscribers although the loss experience was deducted from Exchange ⅛ recovery;
2. Retain the special surplus fund of $592,322.31 and the increment thereof to which it was not entitled since Exchange was not in liquidation but had been illegally put out of business by Company and since the original underwriters’ agreements were no longer in existence;
3. Retain the Attorney-in-Fact fees which amounted, at the time of trial, to $324,751.07 to which it was not entitled since the original underwriters ’ agreements were no longer in existence but were superseded by the illegal agreement.
In the majority opinion the issue as to net profits is discussed and the discussion relative thereto consists of quoting thirteen findings of fact and then making the bald, unadorned statement that “It logically follows that since the trial court’s findings were supported by evidence and covered the issue that the appellate court had ordered to be retried, the judgment in the principal amount should be affirmed.”
A slight attempt is made in the majority opinion to show that these findings are supported by the evidence in that *293certain testimony is quoted to the effect that since the policies were renewed annually there was no assurance that Exchange would have had any future subscribers had it not been illegally put out of business. Inasmuch as the record, as the majority admits, shows that Exchange had been the largest company of its kind for a great number of years prior to being illegally put out of business by Company, the theory behind the majority opinion that Exchange would probably not have continued in business in any event is nothing short of ridiculous. Absolutely no attempt is made in the majority opinion to reconcile the findings made by the trial court with the law of the case as set forth by the District Court of Appeal in its first opinion (117 Cal.App.2d 519 [256 P.2d 677]). Isolated bits of testimony extracted from the enormous record before us in support of erroneous findings do not concern us, or should not concern us, when there is a question of law involved. We are not concerned with whether or not the evidence supports these erroneous findings and conclusions since it is obvious that the trial court was not following the law of the case as laid down by the decision of the District Court of Appeal, supra. The very fact that the trial court considered Exchange to be in liquidation shows the error, since liquidation is the antithesis of a going business concern. It is also obvious that the judgment permitting Company to obtain all assets of Exchange for a lesser figure than that provided for in the void Agreement is in contravention of the holding of the District Court of Appeal that Company and Attorney stood in a fiduciary relationship so far as Exchange was concerned and that a fiduciary may not benefit by a breach of its duties to its beneficiary. The District Court of Appeal specifically held in its first opinion (117 Cal.App.2d 519 [256 P.2d 677]) that the doctrine of corporate opportunities was applicable; that if a corporate officer or director seized for himself such opportunities “in violation of his fiduciary duty the corporation may claim for itself all benefits so obtained by him” (emphasis added) 117 Cal.App.2d at p. 533) and that the purchase of Exchange constituted the breach of Company-Attorney’s fiduciary duty to Exchange subscribers. This court held in Estate of Baird, 193 Cal. 225, 258 [223 P. 974], while discussing the law of the case as decided in a former appeal in the same case, that “It was no part of the trial court’s function to determine whether the.former appeal had been correctly decided; its sole duty was to follow without question the principles established by that decision. This *294the trial court failed to do, and the instructions we have condemned are therefore prejudicially erroneous within the meaning of the constitution (see. 4½, art. VI).” We also held (Central Sav. Bank of Oakland v. Lake, 201 Cal. 438, 443 [257 P. 521]) that “It has long been the law of this state that an unqualified reversal remands the cause for a new trial (Falkner v. Hendy, 107 Cal. 49, 54 [40 P. 21]), and places the parties in the trial court in the same position as if the cause had never been tried, with the exception that the opinion of the court on appeal must he followed so far as applicable (Sharp v. Miller, 66 Cal. 98 [4 P. 1065]; Estate of Pusey, 177 Cal. 367 [170 P. 846]).” (Emphasis added.) (See also Wells v. Lloyd, 21 Cal.2d 452, 457 [132 P.2d 471]; Chamberlain Co. v. Allis-Chalmers Mfg. Co., 74 Cal.App.2d 941, 943 [170 P.2d 85]; Steelduct Co. v. Henger-Seltzer Co., 26 Cal.2d 634, 643 [160 P.2d 804]; Wallace v. Sisson, 114 Cal. 42, 43 [45 P. 1000]; Porter v. Muller, 112 Cal. 355, 366 [44 P. 729]; Clark v. Deschamps, 109 Cal.App.2d 765 [241 P.2d 681].)
We are not here concerned with the method by which Exchange ’s recovery should be determined since that is a matter to be determined on a retrial upon evidence given by experts in the insurance actuarial field. We are concerned here with what items should be considered a part of the subscribers’ recovery.
Future Profits
In order to demonstrate conclusively that the findings do not follow the law of the case as set forth by the District Court of Appeal, I will summarize that court’s holdings and compare them with the trial court’s findings:
1. The District Court held that the Transfer and Assumption Agreement constituted a purchase by Company of Exchange and that such Agreement was illegal and void. It was specifically held that Exchange was not in liquidation.
Finding IY recites that Underwriters hold the property and assets of Exchange “for distribution to the subscribers of the Exchange in liquidation of its business and affairs. ...”
Company contended on the first appeal that the Agreement ‘ ‘ was actually an agreement to liquidate. ’ ’ The District Court of Appeal said: ‘ ‘ However, that is not the case. . . . Another circumstance which shows that the Company did not act merely as liquidator is of greater importance from a practical point of view. By taking over all assets, assuming all liabilities, including all outstanding policies of the Exchange and becoming directly liable thereon to the policyholders, the *295Company acquired the whole business of the Exchange as a going concern and would therefore benefit by the increase of its clientele.” (117 Cal.App.2d at 528, 529.)
2. The District Court of Appeal held the Transfer and Assumption Agreement illegal, void and of no effect.
Finding VI is to the effect that under the Agreement “no adjustment was to be made to Exchange with respect to the experience on the portion of the 1948 policies taken over thereunder; that because of the invalidity of the Agreement, the loss thereon must be charged up to Exchange.” That loss experience amounted to $156,600.53.
Finding Y recites that no policies written after December 31, 1948, for or on behalf of any former subscribers of Exchange form any part of the net worth of Exchange.
These findings are in direct conflict with the express holding of the District Court of Appeal that Company illegally and unlawfully took over the “whole going business of Exchange.”
Findings XIII and XIV are to the effect that policies of insurance were placed voluntarily with either Exchange or Company on a year to year basis and that all policies placed with Company after December 31, 1948, on behalf of persons who had formerly been policyholders of Exchange were voluntarily placed with Company as new items of business by insurance agents who were free to place such policies with such insurance carrier as they chose. Finding XIY concluded that no policy was placed with Company “by reason of or as a consequence of activities of Company being performed under, or arising as a consequence of, the Transfer and Assumption Agreement or because Company was regarded in any sense as being the successor of Exchange. ’ ’
The District Court of Appeal held firmly and unequivocally that due to Company’s conduct in sending solicitors out and in mailing a letter to all Exchange subscribers it obtained an increase in its clientele to which it would not otherwise have been entitled.
Finding XVIII recites that Company did not use or receive any information from Exchange as a consequence of the illegal agreement.
Company had the information due to the interlocking relationship between it and Attorney and it was due to that information that it was able to contact all Exchange subscribers and obtain their business on the theory that the business placed with it would be serviced'with the same personnel and from the same offices as it had been when Exchange *296was a going business concern. Furthermore, the solicitation and letters were both accomplished while Exchange was still a going concern.
Finding XXXI recites in effect that it is not true that Exchange was entitled to any future profits.
This of course directly belies the mandate of the District Court of Appeal that Company illegally took over the whole going business of Exchange-, that an accounting should be had to determine the value thereof; that Company increased its clientele through its illegal tactics. The evidence also showed indisputably that Company had collected over 20 million dollars in gross premiums due to the increased business it had obtained because of the illegal take-over of Exchange.
The only effort made in the majority opinion to comply with the law of the case is to set forth the findings on the retrial and state without amplification that they are within the issue ordered to be retried and that they are supported by the evidence.
The District Court of Appeal (117 Cal.App.2d 519 [256 P.2d 677]) did not hold that Exchange was not entitled to the profits accruing by reason of the illegal take-over of its business by Company. It did hold that Exchange subscribers were not entitled to the profits made from both Exchange and Company business. The court had this to say (p. 539): “Under these circumstances it is not for us to say that the ultimate findings of the court below are necessarily improper inferences nor can we hold as a matter of law, contrary to said findings, that the Attorney breached its fiduciary duty to subscribers when it engaged in the writing of workmen’s compensation insurance through the medium of Company or that the business of Company was in equity the property of Exchange. We are the more satisfied that this result is not unjust because the gain by Exchange of all the profits of the business of Company without participation in them by any of Company’s insureds would have given the subscribers of the Exchange a windfall wholly out of line with the setup of such Exchange.” (Emphasis added.) The emphasized portion shows clearly that the District Court was referring to the business of Company as distinguished from the profits made by Company from the business taken away from Exchange subscribers since the statement was in answer to a contention made by Exchange that it was entitled to all of Company’s business in the compensation insurance field before the unlaw*297ful take-over as well as all of its own business and the profits made therefrom after the take-over. This argument was based upon the theory that Company had breached its fiduciary duty by going into competition with Exchange in the compensation insurance field before the unlawful take-over.
As I have shown, the findings do not comply with the law of the case (117 Cal.App.2d 519 [256 P.2d 677]). Although I do not believe that the evidence does support the findings that were made, and certainly very little effort is made in the majority opinion to recite any of the evidence said to be sufficient, it is immaterial in any event since the findings are not in accord with the law of the case. The very fact that the trial court’s findings and conclusions show, indisputably, that it considered that Exchange was in liquidation shows the error since liquidation is the antithesis of a going business concern. It is also obvious that the judgment permitting Company to obtain all assets of Exchange for a lower figure than that provided for in the void Agreement is in contravention of the holding of the District Court of Appeal that Company and Attorney stood in a fiduciary relationship so far as Exchange was concerned and that a fiduciary may not benefit by a breach of its duties to its beneficiary.
So far as business profits are concerned, the law is that where there has been a breach of a fiduciary duty, a constructive trust is imposed upon a person in order to prevent his unjust enrichment. In most cases where a constructive trust is imposed, the result is to restore to the injured person property of which he has been unjustly deprived and to take from the wrongdoer property, the retention of which by him, would result in a corresponding unjust enrichment of the wrongdoer. (Koyer v. Willmon, 150 Cal. 785 [90 P. 135]; Broder v. Conklin, 121 Cal. 282 [53 P. 699]; Johnson v. Clark, 7 Cal.2d 529 [61 P.2d 767]; Forman v. Goldberg, 42 Cal.App.2d 308 [108 P.2d 983]; Rest., Restitution, §§ 160, 190.) It follows logically from the foregoing that before Exchange may be made whole for what has been illegally taken from it by Company, the latter must be forced to return to Exchange that which was taken together with the profits made therefrom.
Exchange introduced evidence showing that it was possible to trace former Exchange business for-the five-year period subsequent to the execution of the illegal Agreement. The majority would have us assume that had the illegal Agreement not been executed all of Exchange subscribers would have ceased being Exchange subscribers and placed their business *298with Company. This assumption is neither logical nor probable ; Exchange had been a prosperous going concern for many years prior to the execution of the Agreement and would, in all probability, have continued as one. The majority holding that Exchange subscribers are entitled to no reimbursement from Company after the expiration of the last yearly policy issued by Exchange is a judicial sanction of something which the law has always abhorred—that a wrongdoer he permitted to profit from his own wrong.
Company-Attorney stood in a fiduciary relation to Exchange (117 Cal.App.2d 519 [256 P.2d 677]) and should therefore be held to the same standards as the law imposes on the trustee of an express trust (117 Cal.App.2d 519 [256 P.2d 677]). (See also Clapp v. Vatcher, 9 Cal.App. 462, 466 [99 P. 549]; Edgar v. Bank of America, 50 Cal.App.2d 827, 833 [123 P.2d 885]; The Fiduciary Principle, 37 C.L.R. 539-555.) It is an elementary principle of the law of trusts that a trustee is forbidden to make use of the trust property for his private or individual purposes or to derive any profit therefrom (Civ. Code, § 2229; Purdy v. Johnson, 174 Cal. 521, 529 [163 P. 893]; Rest., Trusts, § 205(b); Crenshaw v. Roy C. Seeley Co., 129 Cal.App. 627 [19 P.2d 50]; 25 Cal.Jur., § 190, p. 342) and if he does derive profit from such a breach of trust he is liable to the beneficiary therefor (Estate of Piercy, 168 Cal. 755 [145 P. 91]; Burns v. Clark, 133 Cal. 634, 639 [66 P. 12, 85 Am.St.Rep. 233]; Tobin Grocery Co. v. Spry, 204 Cal. 247 [267 P. 694]; 2 Scott on Trusts, § 170.2, p. 1199; Rest., Trusts, § 205(b); Civ. Code, § 2237). The policy of the law has always been, up until this case, to put fiduciaries beyond the reach of temptation by making it unprofitable for them to yield to it. (MacIsaac v. Pozzo, 81 Cal.App.2d 278, 285 [183 P.2d 910]; Miller v. McKinnon, 20 Cal.2d 83 [124 P.2d 34, 140 A.L.R. 570]; Hoyt v. Hampe, 206 Iowa 206 [214 N.W. 718, 724].) The breach of the fiduciary duty in the case at bar has proved very profitable to Company and a majority of this court has placed its stamp of approval thereon.
The rule which should be applied here is that stated in the Restatement of Restitution, section 160, Comment (d) : “There are some situations, however, in which a constructive trust is imposed in favor of a plaintiff who has not suffered a loss or who has not suffered a loss as great as the benefit received by the defendant. In these situations the defendant is compelled to surrender the benefit on the ground that he would be unjustly enriched if he were permitted to retain it, even *299though that enrichment is not at the expense of the plaintiff. Thus, if the defendant has made a profit through the violation of a duty to the plaintiff to whom he is in a fiduciary relation, he can be compelled to surrender the profit to the plaintiff, although the profit was not made at the expense of the plaintiff.” The following cases from California* which are in accord with the Bestatement rule just set forth must, under the majority holding, be deemed overruled. The majority opinion, however, in totally ignoring the facts, the law of the case, and the far-reaching effects its ill-advised decision will have on one of California’s major industries, does not even discuss the law of restitution, and trusts, but holds, simply and without amplification, that the evidence supports the findings ! One would never know from reading the majority opinion that any law was involved; one would never know the enormity of the theft committed as the result of the unlawful conduct of the officers of Company which is here judicially sanctioned.
Special Surplus Fund
In order that the attorneys and the people of this state who are interested in the purchase of insurance may understand just exactly what took place in this case, I will set forth the facts relating to the second major issue involved here.
The undisputed evidence in the record shows that under the old underwriters’ agreements which were the original agreements between Exchange and Attorney, the Special Surplus Fund was a fund set aside from premiums on policies issued by Exchange and was intended to be used for the expenses of liquidation in the event Exchange was ever liquidated by Attorney in accordance with the terms of the original agreements. There is no dispute that such liquidation has never taken place or was even contemplated, as the undisputed evidence shows that Company took over all assets of Exchange as a going business and that the Special Surplus Fund was one of the items which Company set up as an asset of Exchange for which Company agreed to pay the subscribers of Exchange the sum of $1,045,159.71. How the trial court determined that *300Company was entitled to retain this Special Surplus Fund is one of the mysteries which the record does not reveal. It was an asset derived from’ the premiums on policies issued by Exchange and was set aside for a specific purpose for which it was never used, hence it must still be an asset of Exchange. This Special Surplus Fund at the time of the illegal take-over by Company amounted to $592,322.31 and the record shows that it was increased between January 1, 1949, and March 31, 1954, by the accrual of $119,307.37, so that on the last-mentioned date it amounted to the sum of $711,621.68.
The majority holding is, of course, that Company is entitled to this fund. The theory relied on is a marvelous example of utter confusion. First it is said: “. . . the trial court found that the Special Surplus Fund was, under the Underwriters Agreement,† to be reserved for expenses incurred in connection with liquidation and payable to Attorney; that on November 15, 1953, ihis was assigned to Company as compensation for work heretofore performed in connection with the liquidation of Exchange, less such portion as required to reimburse Attorney for future costs of liquidation; and that the subscribers have no right or claim to this surplus since it was not a part of Exchange’s business or assets.” (Emphasis added.) Having quoted the provisions of the superseded underwriters’ agreements, the majority then states: “Under the Underwriters Agreement, Attorney-in-Fact was entitled to this fund ‘if Exchange discontinues business,’ as compensation for winding up the affairs and liquidation. The question then arises whether Exchange has been ‘discontinued.’ The trial court found that it had, and the evidence supports the finding.” It should be carefully borne in mind that this Special Surplus Fund was derived from investment income of Exchange. It should also be remembered that the membership of Company and Attorney was identical. It should also be remembered that the District Court of Appeal specifically and unequivocally held that Exchange was not in liquidation. Under the majority holding, the involuntary discontinuance of business by Exchange because of the machinations of Company must be paid for by Exchange.
Relying on the illegal and void Transfer and Assumption Agreement the majority quote from its provisions that the Attorney waived its right to the Special Surplus Fund. And even though the Special Surplus Fund was one of the assets of Exchange for which Company contracted (Transfer and *301Assumption Agreement) to pay Exchange tbe sum of $1,-045,159.71, the majority state that “The court found, and the evidence amply supports the finding, that future profits, Attorney fees and the Special Surplus Fund were not items obtained by Company as a consequence of the illegal Transfer and Assumption Agreement.” The public is also informed that the subscribers of Exchange “have not suffered either injury or damage” even though they have been cheated out of over a half million dollars. It is held that since the trial court found that Company had not waived its right to this Special Surplus Fund and that since Attorney was originally entitled to it for expenses of liquidation and that Attorney, through the void Transfer and Assumption Agreement had waived its rights thereto, Company was legally entitled to the fund. When the facts are understood it becomes apparent that Attorney’s waiver of its rights to the fund is exactly the same as a man transferring his money from his right to his left trouser pocket. The majority opinion does not make clear just how the terms of an agreement declared by the District Court of Appeal to be void and of no effect can be relied on in support of a holding of the superior court. The majority, in an effort to justify its holding, quotes, out of context, a statement made by the District Court of Appeal in its opinion on the first appeal (117 Cal.App.2d 519, 537 [256 P.2d 677]) that “The Company did not at any time in the operation of its business use any funds, facilities or information belonging to, or secured through, the Exchange.” In reality the District Court was referring to the situation as it was prior to the illegal take-over of Exchange when Company engaged in writing compensation insurance in competition with Exchange.
The majority, in giving everything involved to Company, goes along with Company’s argument that it was entitled to the Special Surplus Fund under the old underwriters’ agreements which, it contends, were reinstated by the holding of the District Court of Appeal that the Transfer and Assumption Agreement was invalid and void. The underwriters’ agreements provided only that Company should use the fund in the event of the voluntary discontinuance of business by Exchange. The result to be reached so far as the Special Surplus Fund is concerned should be, since Exchange was illegally sold to Company and since it is now too late to set aside the illegal sale, that the subscribers of Exchange should be compensated as nearly as possible for that which they have *302lost which includes this fund which constituted their investment earnings. It stands to reason that had the illegal sale not taken place, the Special Surplus Fund would have remained intact. Exchange agrees, although under the circumstances its agreement is a magnanimous one, that Company should be reimbursed for its actual expenses in winding up the affairs of Exchange. But aside from that agreement, Exchange is most definitely entitled to the Special Surplus Fund. (See Schwarting v. Artel, 40 Cal.App.2d 433, 441 [105 P.2d 380]; Woods v. City Nat. Bank & Trust Co., 312 U.S. 262, 269 [61 S.Ct. 493, 85 L.Ed. 820].)
Attorney-in-Fact Fees
This is another major issue involved which the majority opinion glosses over, and again the facts relating thereto will be set forth.
Prior to the execution of the Agreement and under the old underwriters’ agreements Attorney was .entitled to retain 25 per cent of the premium deposits and 5 per cent of dividends as its fee. In consideration of this fee, Attorney was required to pay for all offices, equipment and personnel used for the business of Exchange. Subsequent to January 1, 1949, when the illegal Agreement became effective, Company admits that it handled this business for its own account. The evidence shows that Company had, at the time of retrial, collected $78,419.13 as fees on dividends and the sum of $246,331.94 as fees on premiums on the business directly traceable to former Exchange subscribers. Just how, or why, Exchange should be charged with the fees provided for by the old underwriters’ agreements after the effective date of the illegal Agreement remains a mystery. After the effective date of the illegal Agreement by Company’s own admission it was acting on its own account and there was no Attorney in existence. Exchange’s recovery should be lessened only by the amount of the actual costs incurred by Company in conducting the business directly traceable to former Exchange subscribers. To hold otherwise permits Company to profit by its own wrongdoing. There can be no question but that the old underwriters’ agreements were superseded by the illegal Agreement; there can also be no question but that the old underwriters’ agreements were not revitalized by the District Court of Appeal’s holding that the Transfer and Assumption Agreement was illegal, void and of no effect. Company by its conduct after the assumption of Exchange business demonstrated that it was not acting under the old underwriters’ agreements. (See *303Pennsylvania Water etc. Co. v. Consolidated Gas etc. Co. [C.A. 4, 1951], 186 F.2d 934, and Virginia Dare Transp. Co. v. Norfolk Southern Bus Corp. [C.A. 4, 1949], 176 F.2d 354, for cases bolding that a judicial declaration of the invalidity of a later contract does not revitalize an original valid contract. )
The findings of the trial court with respect to the fees paid the Attorney-in-Fact are commented on as follows by the majority: “The evidence supporting the foregoing findings is: (a) the Underwriters Agreement; (b) the Transfer and Assumption Agreement; and (c) the agreement whereby Company assumed the obligations of Attorney and Attorney assigned its rights to the management fees. ’ ’ This statement is particularly interesting when it is remembered (1) that the Underwriters’ Agreement was superseded by the Transfer and Assumption Agreement which was held to be illegal, void and of no effect, and (3) that the “agreement” between Attorney and Company was an agreement made by one legal entity with itself. I cannot conceive of a majority of this court sanctioning the use of a void and illegal contract as evidence in a case which arose out of that particular void contract. But by its holding here a majority of this court not only judicially sanctions an obvious wrong, but, in effect, allows the wrongdoer to retain both the fruits of his wrong, a bonus for his wrongdoing, and his expenses incident thereto!
Conclusions
We have this case before us because of the holding of the District Court of Appeal (117 Cal.App.2d 519) that the Agreement was illegal, void and of no effect because it was in violation of section 1101 of the Insurance Code. Section 1106 of the same code makes any violation of section 1101 a misdemeanor. The District Court of Appeal held that the Agreement, since it was made contrary to the terms of a law designed for the protection of the public and which prescribed a penalty for its violation, was illegal, void and of no effect.
There can be no question but that the same rule of law should be applied here as this court, speaking through Mr. Justice Shenk, applied in the case of Contractor’s etc. Assn. v. California Comp. Ins. Co., 48 Cal.2d 71, 76 [307 P.2d 626], and which was a unanimous decision. It w.as there held: “Acceptance or receipt of an unlawful rebate is a misdemeanor. (Ins. Code, § 752.) Violation of the minimum rating law is also a misdemeanor. (Ins. Code, § 11742.) This court said in *304Severance v. Knight-Counihan Co., 29 Cal.2d 561 (supra), at page 568: ‘It is settled that a contract must have a lawful object (Civ. Code, §§ 1596, 1598, 1599) and that a contract for an object prohibited by a penal law is void. . . . “The general rule controlling in cases of this character is that where a statute prohibits or attaches a penalty to the doing of an act, the act is void, and this, notwithstanding that the statute does not expressly pronounce it so, and it is immaterial whether the thing forbidden is malum in se or merely malum prohibitum. . . . The imposition by statute of a penalty implies a prohibition of the act to which the penalty is attached, and a contract founded upon such act is void.” ’ ” Applying the foregoing rule to the facts of the case at bar, we have a situation where Company by means of a contract “having an object prohibited by a penal law” acquired the property and assets of Exchange. That contract was illegal and void because the act of entering into it constituted a crime. Such being the case the subscribers of Exchange should have the right to recover everything of value which Company acquired under such illegal and void contract together with the increment thereof.
The judgment in this case should, in the interest of justice, be reversed with directions to the trial court which cannot be misunderstood. Such directions should encompass all the issues raised and should be for an accounting to determine:
1. The net profits made by Company from business directly traceable to former Exchange business. The trial court should retain jurisdiction so that the net profits accruing from year to year which are diréctly traceable to Exchange business may be judicially ascertained and awarded to Exchange subscribers ;
2. The Special Surplus Fund comprising the investment earnings of Exchange prior to its illegal take-over by Company and amounting at the time of trial to the sum of $711,769.68 should be awarded to Exchange subscribers together with the increment thereof.
3. The Attorney-in-Fact fees, amounting to the sum of $324,751.07, at the time of retrial, should be awarded to Exchange subscribers. The direction to the trial court to ascertain the net profits attributable to Exchange business would allow Company its actual expenses in conducting the business directly traceable to former Exchange subscribers.
I agree that the awarding of, or refusal to award, interest on unliquidated amounts is a matter generally held to be *305discretionary with the trial court (Title Ins. & Trust Co. v. Ingersoll, 158 Cal. 474 [111 P. 360]; Wheeler v. Bolton, 92 Cal. 159 [28 P. 558]; Leonard v. Huston, 122 Cal.App.2d 541 [265 P.2d 566]; Stockton Theatres, Inc. v. Palermo, 121 Cal.App.2d 616 [264 P.2d 74]).
I agree that appellant Johnson is a mere intervener in the stockholders’ derivative action and that it may not participate in the presentation of the main case except as counsel for the main stockholders may consent or the court may permit. It appears here that appellant Johnson’s rights were fully protected by counsel for the main stockholders (Mann v. Superior Court, 53 Cal.App.2d 272, 280 [127 P.2d 970]).
For the reasons heretofore set forth it should be clear to every thinking person that the judgment should be reversed with clear directions to the trial court for its guidance on the retrial.
The petition of defendants and appellants for a rehearing was denied November 26, 1957. Gibson, C. J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.
Burns v. Clark, 133 Cal. 634 [66 P. 12, 85 Am.St.Rep. 233]; Tobin Grocery Co. v. Spry, 204 Cal. 247 [267 P. 694]; Weiner v. Mullaney, 59 Cal.App.2d 620 [140 P.2d 704]; Edgar v. Bank of America, 102 Cal.App.2d 700 [228 P.2d 21]; Lantz v. Stribling, 130 Cal.App.2d 476 [279 P.2d 112]; and see also Crites, Inc. v. Prudential Co., 322 U.S. 408, 417 [64 S.Ct. 1075, 88 L.Ed. 1356]; Magruder v. Drury, 235 U.S. 106, 120 [35 S.Ct. 77, 59 L.Ed. 151]; Jackson v. Smith, 254 U.S. 586, 588-589 [41 S.Ct. 200, 65 L.Ed. 418].
More of this later.