Volume 190 — California Reports

<p>APPEAL from a judgment of the Superior Court of Sonoma Comity. Percy S. King, Judge Presiding. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Certiorari—Province op—Record.—The province of certiorari is to review the record of an inferior court, board, or tribunal, and to determine from the record whether such court, board, or tribunal has exceeded its jurisdiction. The reviewing court is bound by the record, which must be taken as true. If the contrary is the fact, it must be corrected by motion or suggestion to the court below. If the court had jurisdiction, and the recitals in the judgment or order are sufficient to sustain it, those recitals are conclusive.</p> <p>[2] Courts—Records—Correction.—Courts have inherent power over their records, and may at all times correct mere clerical errors made by the clerk in entering an order in the minutes, so that it may truly state what was the order of the court, by setting forth all its terms; and any correction or amendment of the record is conclusively presumed to have been properly made, when such record is collaterally drawn in question, or is used as evidence, or relied upon in support of any other proceeding.</p> <p>[3] Id.—Appeal—Power to Amend Record.—The right of a lower, court to amend its record to conform to the truth is not suspended or impeded by an appeal, where the amendment does not affect any substantial rights of the appellant, and consists of the correction of a clerical mistake appearing upon the face of the record. The same rule should apply where the lower court has found that the record discloses that the entry on the minutes does not correctly give what was the order of the court.</p> <p>[4] New Trial—Amendment op Order Granting—Certiorari.— Where the superior court made an order purporting to amend, nune pro time, its previous order granting a new trial by adding to it the ground of insufficiency of the evidence to justify the verdict, the contention that the omission does not appear from the record, and that the amendment, in fact, amounted to the correction of a judicial error affecting the substantial rights of the appellant because it changed the effect of the order granting the new trial and was made after appellant had taken an appeal, cannot be maintained in a proceeding in certióra/ri.</p> <p>[5] Id.—Lack op Notice—Jurisdiction.—The contention by the petitioner that as he had no notice, by motion or otherwise, of the ex parte application, and of the action of the trial court in amending the order granting the new trial, such action of the court was in excess of jurisdiction, cannot be maintained in a proceeding in certiorari, but relief should have been applied for in the trial court and if denied an appeal taken.</p> <p>3. Power of trial court to correct its record after an appeal or writ of error, note, 31 L. R. A. (N. S.) 207.</p>

<p>[1] Negligence — Personal Injuries — Proximate Cause — Instructions.—In an action for damages for personal injuries resulting from a collision of two automobiles, where the court instructed the jury in effect that negligence on the part of either the plaintiff or defendant was of no consequence in the case, unless the jury also found that such negligence was a proximate cause of the injury, proximate cause being defined, and the jury being further instructed that in order to find for the plaintiff they must not only find from a preponderance of all the evidence that defendant was negligent, but also that such negligence was the proximate cause of the injury, and that they must further find that the evidence fails to show by a preponderance thereof that plaintiff was guilty of negligence contributing proximately thereto and that if plaintiff’s negligence “contributed in the slightest degree towards such accident,” the verdict must be for the defendants, the instructions were not subject to defendants’ complaint that they told the jury, in effect, that negligence on the part of either party, to be of consequence in the ease, must be the sole cause of the injury.</p> <p>[2] Id.—Contributory Negligence — Proximate Cause — Bulb.—The contention in such a case that the rule is, that negligence, to be of consequence in the ease, must be the sole cause of the injury, and that such rule applies to the negligence of the defendant but not to the contributory negligence of the plaintiff, cannot be maintained, as the law does not require that negligence of the defendant must be the sole cause of the injury complained of in order to entitle plaintiff to damage therefor; all that is required in either respect is that the negligence in question shall be a proximate cause.</p> <p>[3] Id.—Rate op Speed—Instructions.—An instruction to the effect that it is negligence to operate a motor vehicle at any rate of speed prohibited by law is not misleading, although there is no evidence in the case to support a finding upon it, where the jury is further instructed that this does not mean that it is necessarily permissible to operate at the speed limit so fixed by law, as a less rate of speed may under the particular circumstances be negligent, and the circumstances and conditions under which a rate of speed less than the maximum fixed by law might be found to be negligent are described.</p> <p>[4] Id.—Damages—Loss op Wages—Instructions.—There is no error in an action for damages for personal injuries in refusing to give an instruction requested by defendants to the effect that in assessing damages the jurors cannot award anything on account of loss of wages, where nothing is claimed in the complaint for loss of wages and the plaintiff testifies on the trial that he lost no wages, and the court explicitly enumerates to the jury the elements for which they might award compensation, which does not include loss of wages.</p> <p>[5] Id.—New Trial—Misconduct op Jury—Agreement por Average ■ Amounts.—In an action for damages for personal injuries, a charge of misconduct of the jury in arriving at the amount of the verdict is not sustained where a preponderance of the affidavits of the jurors filed on a motion for a new trial show that, instead of agreeing in advance to ascertain the average of the amounts proposed by each juror, and to abide by the result, there was no agreement to accept the average until after it was ascertained how much the average amounted to, and then only after further discussion and deliberation.</p> <p>[6] Id.—Damages—When not Excessive.—In such a ease a verdict for general damages of $8,363 cannot be held on appeal to be excessive where the evidence showed that for three or four weeks immediately following the accident it was absolutely impossible for the plaintiff to lie down; that during all of that period he was compelled to sit on the edge of a chair, night and day, suffering intensely, and never able to sleep for longer than thirty minutes at a time; that at the time of the trial, eleven months after the accident, his right arm was crooked at the elbow, two fingers on the left hand paralyzed both as to sensation and as to motion, the thumb drawn and without sensation; that he could not raise his left hand to the back of his neck, and was unable to dress himself; that for six years he had been in the employ of a piano factory, in whose services it was necessary for him to play the piano to demonstrate the instruments, and that as a result of the accident he is able to play with one hand only, and it was also testified that Ms injuries were to some extent permanent, the extent of permanency not being definitely stated.</p> <p>6. Excessiveness of verdict in ease of personal injuries not resulting in death, notes, Ann. Cas. 1915D, 488; Ann. Cas. 1916C, 916.</p>

APPEALS from orders of the Superior Court of Los Angeles County denying motions to vacate an order for the appointment of a receiver and authorizing him to institute suits. Charles S. Burnell, Judge. Appeals dismissed. The facts are stated in the opinion of the court.

<p>APPLICATION for Writ of Mandamus to compel the Superior Court to hear a petition for distribution of money paid into the State Treasury. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Russ Avery, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles. Charles S. Burnell, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus to release one convicted of violation of the Wright Act. Writ denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Monroe, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

R. Y. Williams, Judge. Reversed. This is an action by a stockholder of a corporation, organized to furnish water to its stockholders for irrigation, to recover damages for loss of crops alleged to have occurred by reason of defendant’s negligence in failing to supply plaintiff with water. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Orange County. Rex B. Goodcell, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

PROCEEDING in mandamus to compel Commissioner of Corporations to pass upon petitioner’s application for approval of a plan for issuing profit-sharing securities. Writ denied.

<p>[1] Workmen’s Compensation Act — Dual Employment — Application op Law.—Employment may be dual in character. In so far as the employee acts in one capacity, he may be within the provisions of the Compensation Act; and in so far as he works in another capacity, has employment will be exempt from its provisions.</p> <p>[2] Id.— Excluded Employment — Finding op Commission — Jurisdiction.—Whether or not, at the time of his injury, an employee was engaged in an excluded employment is a question of fact to be determined by the Industrial Accident Commission; and its finding, if supported by any rational view of the evidence, is beyond review by the courts.</p> <p>[3] Id.—Review op Award—Suppicienoy op Evidence.—In this proceeding to review an award of the Industrial Accident Commission for injury to an eye of an employee, it is held that in the light of the testimony it cannot he said that the conclusion of fact was an unreasonable or improper one; that at the time of the injury the employee was performing services growing out of and incidental to his employment, and was acting within the course of his employment, as found by the commission, and that the injury was proximately caused thereby, on which basis the employee was entitled to compensation.</p> <p>2. Occupations or employments within purview of Workmen’s Compensation Act, notes, Ann. Cas. 1917D, 4, 33, 38, 39, 42.</p> <p>3. Injuries arising “out of and in the course of” employment within meaning of Workmen’s Compensation Acts, notes, Ann. Cas. 1917E, 321, 332; Ann. Cas. 1918B, 362; Ann. Cas. 1918D, 683; Ann. Cas. 1918E, 813, 1168; L. R. A. 1918F, 896.</p> <p>Wliat constitutes loss of eyesight within meaning of act, note, Ann. Cas. 1918A, 533.</p>

<p>[1] Workmen’s Compensation Act—Injury in Employment—Compensation.—According to the provisions of the Workmen’s Compensation Act, an employee, in order to be entitled to compensation, must have been injured by an accident arising out of and in the course of his employment.</p> <p>[2] Id.—Injury—Traveling to and prom Place op Business— Liability.—As a general rule, injuries sustained while an employee is traveling to and from his place of employment are held not to come within the provisions of the Workmen’s Compensation Act, although iu a broad sense they may be said to be incidental to Ms employment.</p> <p>[3] Id.—Exceptions to Bule.—Exceptions to such general rule are eases where an employee, either in his employer’s or his own time, is going to or from his place of employment on some substantial mission for his employer growing out of his employment; in such eases it is held that the employee is within the protection of the act, but the mission must be the major factor in the journey or movement, and not merely incidental thereto.</p> <p>[4] Id.—Injury While Away prom Place op Business—Non-liability.—An employee cannot recover for injuries, under the Workmen’s Compensation Act, where the facts are that he, having some important figuring to do for his employer, and desiring a quieter place than the office of his employer in which to do it, with the employer’s approval, took the work to his home, where he arrived about 11 o’clock in the forenoon and finished his ealdilations about 12:30 o'clock, then had his lunch, and as he was approaching the outer door of Ms home to leave for the office slipped on the hardwood floor and sustained a fracture of the hip, the accident occurring a little before 1 o’clock.</p> <p>2. Injuries received while going to and from work within meaning of Workmen’s Compensation Acts, notes, Ann. Cas. 1913C, 4; Ann. Cas. 1914B, 408; L. R. A. 1916A, 331; L. R. A. 1917D, 114; L. R. A. 1918F, 907.</p>

<p>PROCEEDING in Mandamus to compel the respondents to receive and act upon a petition for the organization of a water storage district. Granted.</p>