The opinion
DORAN, J.
I dissent. I am not satisfied that section 4y2 of article VI is sufficiently comprehensive to redeem the judgment, reached, as it was, under the possible and likely influence of a misunderstanding of the law in several vital particulars.
I am in entire accord with the arguments presented by appellant with regard to most of them and in particular with regard to the error of the trial court pertaining to the burden of proof. Equally vital, in my opinion, was the evident misunderstanding of the trial court as to the nature of the action. Obviously, in that connection, the action was confused with an action in equity where the court has and retains control of the receiver at all stages of the proceeding and where the court’s judgment is paramount. What the outcome would have been in the absence of these two errors alone, to my mind, is impossible of determination.
It is my understanding of the law, that when, from a review of the entire record, it is impossible to determine definitely what the result would have been in the absence of the errors under consideration, then section .4y2 may not be applied to uphold the judgment. It has been so held in criminal cases. (People v. Salaz, 66 Cal.App. 173 [ 225 P. 777 ]; People v. Irby, 67 Cal.App. 520 [ 227 P. 920 ]; People v. Sica, 76 Cal.App. 648 [ 245 P. 461 ].) And there is no apparent reason for distinguishing between criminal and civil actions in such circumstances. Moreover, in civil actions involving juries it has been held repeatedly that instructions calculated to mislead the jury and, thereby affect their judgment and conclusion upon the issues, is prejudicial and reversible error. An erroneous viewpoint or a misunderstanding as to the law by the trial judge, calculated to mislead and thereby affect the judgment, likewise may result in a miscarriage of justice. Section 4% is not a cure-all and in my opinion should not *494 be applied to sustain a judgment in the circumstances presented by the record herein.
A petition for a rehearing was denied July 28, 1943. Doran, J., voted for a rehearing. Appellant’s petition for a hearing by the Supreme Court was denied August 26, 1943.