Volume 36 — California Appellate Reports

<p>APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Second Appellate District to annul an award of the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Statutory Construction—Bule.—Statutes are to be so construed as not to give rise to an absurdity in their attempted application and as not to destroy their efficacy as a whole or in substantial part.</p> <p>Id.—Intent—Nature op Evil—Object to be Accomplished.—Strong indices to the legislative intent will always be found upon an inquiry into the nature of the evil sought to be remedied by a statute or into the object to be accomplished by it.</p> <p>Juvenile Court Act — Probation Oppicers — Superintendent op Detention Home—Holding op Two Positions Prohibited.—Section 18 of the Juvenile Court Act (Stats. 1915, p. 1225), providing, among other things, that all probation officers receiving a salary of seventy-five dollars or more per month shall devote their entire time and attention to the duties of their office's, and no "such probation officer while holding such' office and receiving salary therefor shall be a candidate or seek the nomination for any other public office or employment, disqualifies a probation officer from being superintendent of the detention home and drawing the salary annexed to that position.</p>

<p>Workmen’s Compensation Act—Injury in Employment—Burden of Proof. — Under the Workmen’s Compensation Act, the burden of proof that the injury for which compensation is asked was suffered in the course of the employment is on the claimant.</p> <p>Id.—Theoretical Conclusions.—Where various theoretical conclusions may be drawn from the state of facts established, each being equally plausible, some indicating that the injury may have arisen out of the employment, and others that the misconduct of the person injured was the producing cause, then it may not be said that the evidence is sufficient to sustain the case of him upon whom the burden of proof rests.</p> <p>Id.—Different Conclusions from Evidence—Bight op Commission.— If different conclusions may rationally and fairly be drawn from the evidence, one sustaining the right to compensation and the other being opposed thereto, the Industrial Accident Commission is at liberty to adopt the conclusion favorable to the claim, and its conclusion is beyond the scope of review by the supreme court. Where, however, there is no substantial evidence reasonably warranting an inference favorable to the claim for compensation, and any finding to the contrary is necessarily based on mere surprise, speculation, or conjecture, an award of compensation will be annulled. Id.—evidence — Inference EaVorable to Compensation Unwarranted.—An award of compensation made to the widow of a night watchman, who met his death from inhaling gas, is unwarranted, where the uncontradieted evidence indicates, if choice is to be made between conflicting speculative deductions, that the deceased willfully stepped aside from the performance of his duties which his employment laid upon him and invited by direct action on his part the occurrence of the detrimental cause which produced his death.</p>

<p>Negligence—Collision Between Automobile and Buggy—Contributory Negligence—Question of Fact.—In an action for personal injuries sustained by the plaintiff in the collision of an automobile owned by the defendant with the buggy in which plaintiff was rid- . ing, which collision was caused by the sudden _ swerving of the automobile obliquely from the right to the left-hand side of the road to avoid a collision with another horse-drawn vehicle, the question Whether plaintiff was guilty of contributory negligence in failing to look to see if any vehicle was approaching on that side of the street was one of fact for the jury.</p> <p>Id.—Disposition of Horse—Exclusion of Evidence not Erroneous. The refusal to permit evidence of the nature and disposition of the horse was not error, in the absence of any showing that the horse had become frightened at the approach of the automobile or was in any way unmanageable until after the collision had occurred.</p> <p>Id.—Trial—View of Automobile—Refusal not Erroneous.—The refusal to permit the jury to inspect the automobile for the purpose of ascertaining the extent and character of the damage done by the collision was not error where fifteen months had intervened, during which time the machine had been .in use and made several long trips.</p> <p>Id.—Jury — Special Issues •— Discretion. — Under section 625 of the Code of Civil Procedure, as amended in 1909, the submission of special issues to the jury is discretionary with the trial court, and such discretion will not be interfered with unless an abuse is shown.</p>

<p>Criminal Law—Bobbery—Evidence—Bequest to Join I. W. W.—In a prosecution for robbery, the admission of evidence that defendants locked the complaining witness in a room, requested him to join the organization known as the Industrial Workers of the World, and then ordered him to deliver over his money, was not prejudicial in so far as the testimony as to the organization was concerned, as the same showed a motive for the crime after refusal to join the organization.</p> <p>Id.—Deference to I. W. W.—Instruction—Lack of Prejudice.—In a prosecution for robbery, no prejudice was suffered by defendants from the admission of evidence concerning the connection of the defendants with the organization known as the Industrial Workers of the World, and their attempt to force the complaining witness to join such organization, where the court instructed the jury to disregard all testimony not pertinent, and particularly concerning such organization.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, and J. Chas. Jones, Deputy Attorney-General, for Appellant.</p>

<p>Criminal Law—Unlawful Sale of Alcoholic Liquors—Purchase by Detective — Insufficient Defense. — In a prosecution for unlawfully selling alcoholic liquor in no-lieense territory, it is no defense that the purchase was made by and at the instance of a person employed by the sheriff to ferret out illicit sellers of intoxicating liquors.</p> <p>Id.—Evidence—Deputation of Defendant.—In a criminal prosecution, it is not error to refuse defendant’s offer to prove that his reputation for truth and veracity was good, where there was no evidence introduced tending to show that it was bad.</p>

<p>Negligence—Street Ordinances—Pleading and Evidence.—In an action for personal injuries received from a collision with an automobile on a city street, the existence of a traffic ordinance and the fact of its violation are essentially matters of evidence and not of pleading, and therefore are, generally speaking, admissible in evidence under the general averment of negligence.</p> <p>Id. — Collision Between Street-car Passenger and Automobile — Traffic Ordinance—'Admission Erroneous. — In an action for damages for personal injuries sustained by a passenger on a streetcar while in the act of alighting on the left-hand side of the car, from being struck by a passing automobile running nearer to the left running-board of the car than six feet, it was prejudicial error tfb admit in evidence a traffic ordinance providing that the driver of a vehicle shall keep such vehicle at least six feet on the right-hand side from the running-board of any street-ear which is stopping for the purpose of taking on or discharging passengers.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Certiorari to review proceedings denying a rehearing before the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Appeal—Failure to File Brief or Appear on Hearing—Bemedies of Attorney-general.—Where the appellant in a criminal ease fails to file a brief in support of his appeal, and his attorneys of record do not appear, to argue the appeal when called for hearing, the attorney-general may either move, upon notice, to dismiss the appeal or submit the cause for decision upon the record.</p> <p>Id.—Larceny—Accomplice—Evidence — Sufficient Corroboration.— In a prosecution for the larceny of a quantity of rope, a number of tents, and other articles, sufficient corroboration of the testimony of an accomplice to satisfy the demands of section 1111 of the Penal Code is found in the testimony of the wife of the party to whose premises the stolen articles were hauled, that she saw the defendant at her home that night, heard him ask her husband to go to the place where the articles had been left by the defendant and haul them to their home, and that she saw the articles there the following day.</p>

<p>Action on Injunction Bond—Consideration—Admissions of Pleading.—In an action to recover damages upon a bond given to secure plaintiff against damages resulting from an injunction issued in a prior action against Mm, the failure of the defendant to deny the allegation of the complaint that the bond was such an undertaking was an admission that the bond was given in consideration of a preexisting injunction, and the recital of the consideration in the bond, although it was attached to and made a part of the complaint, did not as a matter of pleading control and prevail over the specific allegations of the complaint as to what was the actual consideration for the bond.</p> <p>Id.—Recitals of Exhibits Attached to Complaint.—In the absehce of a special demurrer for uncertainty, direct and essential allegations in a complaint will not be modified, controlled, or defeated by the recitals of an instrument attached to the complaint.</p> <p>Id.—Damages—Interest on Counsel Pees and Expenses in Injunction Suit.—In view of section 3287 of the Civil Code, in an action on a bond to secure plaintiff against damages resulting from an injunction issued in a prior action against him, interest on the amount allowed for counsel fees and expenses incidental and necessary to plaintiff’s successful endeavor to secure the dissolution of the injunction are recoverable, since such items of expense are not uncertain or incapable of being made certain by calculation.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Obtaining Monet by False Pretenses-—Amendment of Information—Averment of Minor Pretenses—Lack of Prejudice.—In a prosecution for obtaining money by false pretenses, it was not error to permit the district attorney to make an amendment to the information so as to include within its averments certain specific pretenses not set forth therein, in order that evidence thereof might be admitted, where the main inducing cause of the parting with the property is alleged in the information.</p> <p>Ib.—Opening Statement of Prosecuting Attorney—Want of Misconduct.-—-In a prosecution for obtaining money by false pretenses, it was not misconduct for the district attorney to state that he expected to prove a conspiracy between the defendant and a so-called psychologist, and then not to introduce any evidence eon- ' cerning such conspiracy, where the failure to introduce such evidence was due to inability to prove the conspiracy, and there was no showing made that the statement was made in bad faith.</p> <p>Id.—Misconduct—Waiver.—Objection to statement made by prosecuting attorney is waived where it was not assigned as misconduct and no request made to admonish the jury to disregard it'.</p>

<p>Workmen’s Compensation Act — Casual Employment Outside oe Employer’s Business—Machinist Employed to Repair Dredge. Under the Workmen’s Compensation Act, an injury received by a machinist employed to make repairs upon a dredge which his employer had acquired and was about to "lease with an option to purchase was not an injury occurring in the usual course qf business of his employer, it being shown that the employer’s business was that of leasing road-making machinery and that the dredge was in no sense road-making machinery or equipment.</p>

<p>Vendor and Vendee—Shortage in Acreage — Insufficiency of Evidence.—In this action to secure an abatement of the purchase price of land on the ground of alleged misrepresentations as to acreage, it is held that the evidence sufficiently sustains the findings that the sale was made without regard to acreage and that the grantees did not rely upon any statement in that regard.</p> <p>Appeal—Findings—Review.—Where findings derive support from evidence which is not upon its face unbelievable, the facts found must be accepted by a reviewing court as having been proved.</p> <p>Statute of Frauds—Authority of Agent—Vendee not Concerned.— In such an action, the vendee cannot contend that the sale was void for the reason that the agent’s authority was not in writing, since that matter concerns only the vendor and agent.</p> <p>Deed—Delivery to Unauthorized Agent—Action for Reduction in Price—Ratification.—Where a vendee sues to reduce the price of land on account of shortage in acreage, he thereby ratifies any unauthorized act of another in accepting and recording the deed for him.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Carrying Concealed Weapons Without License— Constitutionality of Act of 1917.'—Section 3 of chapter 145 of the 'Statutes of 1917 (Stats. 1917, p. 221), providing that every person who carries in any municipal corporation any pistol or other firearm concealed upon his person without a license, shall be guilty of a misdemeanor, and of a felony if previously convicted of any felony or of any crime made punishable by the act, is a reasonable police regulation.</p> <p>Id.-—Heavier Penalty por Previous Offenders—Act not Class Legislation.—Such act is not objectionable as class legislation, from the fact that it provides a heavier penalty for one who has been previously convicted of a felony than for one who has suffered no prior conviction, since it operates uniformly upon all persons in the same category and there being a reasonable basis for the classification. Id.—Act not Ex Post Facto.—Such act is not, on account of the provision prescribing a heavier penalty for one previously convicted of a felony, an ex post facto law.</p> <p>Id.—Carrying of Weapons—Subject for State Eegulation.—The subject of carrying weapons is a proper one for state legislation, and is not purely a municipal affair.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County, and from an order denying a new trial. Emmet Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Death op Caretaker op Flume—Defective Walk-way— Duty to Repair.—A ditch company cannot be held liable for the death of the caretaker of its flume in falling therefrom while attempting to walk along the same, where the deceased had charge of the flume and it was a part of his duty to keep it in repair, he having authority to obtain necessary tools and materials.</p> <p>Id.—Attempt to Walk Along Flume—Contributory Negligence.— A caretaker of a flume for a ditch company in attempting to walk along the flume, which was thirty inches wide, seventeen or eighteen inches deep, with cross-pieces or taps across it about three feet apart made out of boards two inches thick by four inches wide, and eleven feet above the ground, and which had no board extending along its length and over the cross-pieces, was guilty of negligence preventing recovery of damages for his death.</p> <p>Id.—Presence of Board on Top of Flume—Evidence—Opinion of Witness.—In an action against a ditch company for the death of the caretaker of its flume, where the theory upon which the ease was tried required of the jury to find as a material fact whether a board was on top of the flume just prior to the accident, to permit a witness to state that it looked to him that it was so situated was equivalent to a ruling that he might declare that it appeared to him that the ditch company was not negligent, and such opinion of the witness was inadmissible.</p> <p>Id.—Condition of Flume at Other Points—Evidence Properly Excluded.—In an action against a ditch company for the death of the caretaker of its flume, testimony as to the condition of the flume at , other points than the one where the deceased fell, was properly excluded as immaterial, it being apparent that the absence of boards at other points did not contribute to the fall and death of deceased.</p> <p>Id.—Trial—View of Premises—Discretion.—In an action for damages for death, the request to have the jury visit the scene of the accident is committed to the discretion of the court.</p> <p>Id.—Comparative Negligence—Effect of Workmen’s Compensation Act.—Under the Workmen’s Compensation Act of 1913, which repealed the Roseberry Act of 1911, and which does not recognize the doctrine of comparative negligence, in order to recover from an employer for- death or injuries it is essential that gross negligence be shown and willful disregard of the life, limb, or bodily safety of the employee, and the action will be defeated where it is shown that the accident was due to the contributory negligence of the deceased.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Orange County, and from an order denying a new trial. Z. B. "West, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Record—Presumption.—On an appeal from an order setting aside an order opening a default, where only a typewritten transcript on appeal has been filed, it will be assumed that the appellants have printed in their brief such portions of the record as they desire to call to the attention of the court, and the court will confine its statement of facts to the matters thus brought to its attention.</p> <p>Id.—Order Vacating Order Opening Default—Record—Presumption. On an appeal from an order setting aside an order opening a default, where the record does not show the facts, the court will assume that they supported the ruling, since they may have been in dispute, or entirely favorable to the plaintiff.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Curtis D. Wilbur, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Imperial County. Franklin J. Cole, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the ^City and County of San Francisco, and from an order denying a new trial. Bernard J. Flood, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Promissory Note—Pleading—Amendment of Answer.—Where, in an action on a promissory note, the answer sufficiently denied the consideration but insufficiently denied the execution of the note, application for leave to file an amended answer made pending motion for judgment on the pleadings should have been permitted.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporations—Charter—Power op Legislature.—Under the constitution, the legislature has no authority to make any alteration or amendment to a city charter, but its sole power is to ratify or reject it.</p> <p>Id.—Date op Taking Effect of Charter—Eight to Provide in Charter.—A city charter may provide that some of its provisions shall take effect on a date other than the date of its approval by the legislature.</p> <p>Id.—Construction of Beservoir—Part of Water System—Municipal Affair.—The construction of a reservoir by a city upon its own land and to be used for the benefit of the inhabitants thereof as a part of its water system is a municipal affair, within the provision of section 8 of article XI of the constitution.</p> <p>Id.—Construction of Beservoir in City of Vallejo—Charter Governing Work.—A contract for the construction of a reservoir in the city of Vallejo upon its own land for the benefit of the city as a part of its water system, which was entered into on the nineteenth day of June, 1911, is governed by the charter of 1899 (Stats. 1899, p. 370), and not by the charter of 1911 (Stats. 1911, p. 1422), since by the express provision of section 128 of the latter instrument, it did not become effective for purposes other than the election of officers until July 1, 1911, notwithstanding it was approved by the legislature on March 11, 1911.</p> <p>Id.—City Contracts Under Vallejo Charter of 1899—Public Work Act of 1897 Inapplicable.—In view of the fact that the charter of 1899 of the city of Vallejo (Stats. 1899, p. 370), provides a complete scheme for the letting of contracts, including the terms and conditions under which such contracts are to be let, including also the giving of a bond by the contractor for the faithful performance of the1'contract, it follows that the act of March 27, 1897, or the amendatory act of May 1, 1911, relating to the giving of a bond to protect materialmen and laborers employed by the contractor on public work, has no application to contracts let under such charter.</p>

<p>Municipal Corporations—Contract por Public Work in City op Vallejo—Inapplicability op Act op March 27, 1897.—A contract entered into by the city of Vallejo on the nineteenth day of June, 1911, for the doing of municipal work is governed by the charter of 1899, and not by the charter of 1911, and in view of the fact that the former charter provides a complete scheme for the letting of such contracts and the giving of bonds, the public work act of March 27, 1897, is inapplicable to such contract.</p>

<p>Criminal Law—Omission to Provide for Minor—Giving of Bond for Support—Order Denting New Trial—Appeal.-—In a prosecution under section 270 of the Penal Code for willfully omitting, without lawful excuse, to furnish a minor with necessaries, the giving of the bond for such support provided by section 270b of such code and the suspension of sentence does not deprive the defendant of the right to appeal from the order denying his motion for a new trial.</p> <p>Id.—Suspension of Judgment—Appeal from Order Denting New Trial.—Under sections 1201, 1202, and 1237 of the Penal Code, an appeal may be taken from an order denying a motion for a new trial, although judgment has been suspended and not entered.</p> <p>Costs—Transcription of Notes—Mandamus—Original Proceeding in Appellate Court After Befusal in Trial Court.—In an original proceeding in mandamus in the appellate court to compel a court reporter to make a transcription of his notes in a criminal case for the use of the defendant on anneal, t-he petitioner, if successful, is entitled to Ms costs, although the judge of the trial court refused to order the transcription on the ground that the defendant was not entitled thereto.</p>

<p>Appeal—Record—Affirmance of Judgment.—A judgment will be affirmed on appeal where there is on file only a typewritten transcript setting forth the judgment-roll in the action, and no points and authorities in support of the appeal are on file.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. George H. Cabaniss, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Insurance Law—Accidental Injuries—Indemnity Against Loss and Expense from Claims for Damages—Liability op Insurance Company—When Attaches.—Under a policy of insurance insuring “against loss and expense arising from claims upon the assured for damages on account of bodily injuries accidentally suffered or alleged to have been suffered during the period of the policy by any person, and caused by the horses or vehicles in his service and use thereof, while in charge of the assured or his employees,” and providing that “no action shall lie against this company for any loss or expense under this policy unless it shall be brought for loss or expense actually sustained and paid in consequence of a final judgment within ninety days from the date of said judgment and after trial of the issue,” the liability of the indemnifying company only attaches after loss or expense has been actually sustained and paid by the indemnitee.</p> <p>Id.—Notice of Accident—Settlement or Defense of Suit by Insurer —Liability not Changed.—A provision in such a policy that upon the occurrence of an accident the assured shall give the company immediate written notice, and the company shall, at its own expense, settle or “defend” the suit, does not change the liability of the insurer, since the word “defend” does not mean to successfully defend, but to contest the suit.</p> <p>Id.—Construction of Code—Liability not Changed.—The liability of an insurance company under such a policy is not intended to be changed by subdivision 2 of section 2778 of the Civil Code, providing upon an indemnity against claims or demands, or damages, or costs, expressly, or in other equivalent terms, the person indemnified is not entitled to recover without payment thereof.</p> <p>Contract—Change of Terms—Power of Legislature.—Where parties have entered into a lawful contract and clearly expressed their intention, the legislature cannot provide a different contract for them.</p>

<p>Contract—Sale and Delivery of Milk—Breach by Vendor—Recovery for Milk Sold.—A contract to sell and deliver milk daily for a period of three months is indivisible, notwithstanding the milk is to be paid for monthly, and where delivery is stopped before the expiration of the period by reason of the sale of the cows, the vendor cannot recover on the contract for milk delivered, since one who himself breaches a contract, without excuse, cannot recover in an action upon the contract for a breach of its terms by the other party.</p>

<p>Appeal—Insufficiency of Evidence—Review—Specifications.—On an appeal from a judgment presented on the judgment-roll and a brief bill of exceptions, the insufficiency of the evidence to sustain the findings cannot be considered, where the bill of exceptions contains no assignment of error, either in general or particular terms.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Broker’s Commissions—Insufficiency of Evidence—Proper Nonsuit. In this action to recover a sum of money alleged to have been earned by the plaintiff in negotiating a sale of certain real property owned by the defendants, it is held that judgment of nonsuit was properly ordered.</p> <p>Id—Commissions, When Earned.—Before a real estate agent may be said to have earned a commission he is required to show that he produced to the vendor a purchaser ready, able, and willing to buy for the price and upon the terms proposed by the vendor in the agency contract.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Imperial County, and from an order denying a new trial. Franklin J. Cole, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Murder — Evidence — Accusation by Deceased — Denial by Dependant.—In a prosecution for murder, testimony of witnesses that the deceased shortly before Ms death accused the defendant of the commission of the crime, which the defendant denied, is inadmissible.</p> <p>Id.—Suspicion op Commission op Crime—Hearsay.—In such a prosecution, testimony of one of the witnesses to the accusation that he had been previously informed that defendant was under suspicion, and who had so informed him, is inadmissible, as hearsay.</p> <p>Id.—Impeachment op Expert—Testimony in Another Action— Proop by Stenographic Eeporter.—In such a prosecution, where the defense sought to impeach the opinion evidence of a witness for the state as to how long the odor of burnt powder could be detected in a discharged weapon, by showing that he testified differently in another action, the court reporter was a proper witness as to such testimony and had the right to use her stenographic notes to refresh her recollection.</p> <p>Id.—Misconduct op Court—Prejudicial Remark.-—The statement of the trial judge, after examination of the stenographic reporter’s transcript, that he found nothing in it to impeach the testimony of the witness, was uncalled for, and prejudicial to the rights of the defendant.</p>

<p>Guaranty—Payment of Eents Under Lease—Contemporaneous Assignment—Eights of Assignee.—An agreement guaranteeing the payment of rents under a lease does not cover rents due and unpaid at the time of the execution of the guaranty, where by express terms the guaranty is to operate prospectively, and the assignee of the lease under an assignment executed contemporaneously with the guaranty cannot recover prior rents from the guarantor, although the assignment expressly included such rents.</p>

<p>Deeds—Construction of Description — Monuments Controlling.— Monuments upon the ground control courses and distances as recited in a deed.</p> <p>Id.—Location of Lost Monument—Proof by Parol.—Where a monument has been obliterated or destroyed, its location may be proved by parol.</p> <p>Boundaries—Lost Stake—Finding—Appeal.—Where in an action arising out of a dispute over a boundary line, the location of a lost stake is determinative of the controversy, and the testimony as to the location of the stake is somewhat contradictory and unsatisfactory, a finding that the calls of the deeds locate such corner will not be disturbed on appeal.</p>

<p>Appeal—Notice—Acknowledgment op Service—Waiver op Defects. A notice of appeal signed by the attorney in fact for the appellant instead of by the attorney of record, is sufficient, where service of notice is acknowledged by respondent’s attorney, such acknowledgment being a waiver of objection that notice of substitution of attorney had not been served.</p> <p>Id.—Amendments to Pleading—Failure to Object in Trial Court.— Objection as to change of parties plaintiff, and that leave of court was not obtained to file amended complaints, cannot be raised for the first time on appeal.</p> <p>Trust—Security for Money Loaned—Termination by Sale Under Execution—Subsequent Action to Adjust Accounts—Judgment in Former Action Conclusive as to Amount Due.—A trust agreement in real property under the terms of which the holder of the legal title agreed to convey the property to the owners when they paid to him all moneys due from them, is terminated upon a sale of the property under an execution issued in an action brought by • him against the owners to recover the amount due, although the trustee bought the land at the sale, and the judgment determining such amount, is, in the absence of fraud, conclusive as to the amount due in a subsequent suit to adjust accounts.</p>

<p>Negligence—Collision Between Vehicle and Stbeet-car—Evidence —Happening of Accident.—In an action for damages for personal injuries received by the driver of a vehicle from being run down by an electric train going in the same direction, the occurrence of the accident furnishes some evidence of negligence on the part of the defendant.</p> <p>Id.—Sufficiency of Evidence.—In such an action the defendant was properly chargeable with negligence, where the evidence showed that with an unobstructed view, in broad daylight, on a public street of a city, the train was approaching plaintiff who was in a position of • danger, without any warning being given of its approach, and traveling at an unusual rate of speed.</p> <p>Id.—Right to Drive on Track.—The driver of a vehicle on a city street on which there is a ear-track has the right to drive his vehicle within ten or twelve inches of the track, or upon the track if necessary or convenient, exercising ordinary care and prudence to avoid collisions, and is not necessarily negligent in failing to look backward to see if any train is approaching.</p>

<p>Contract—Estimate op Value op Timber—Choosing op “Arbitrators”— Nature op Agreement — Appraisement.—A contract between the parties to a pending action with respect to their rights in growing and down timber providing for the choosing of “arbitrators” to estimate the value of the timber, and stipulating that neither party should offer any evidence, but that the arbitrators should go upon the ground and make their estimate from their own examinatión, is not a - contract for arbitration under sections 1284 and 1285 of the Code of Civil Procedure, but merely an agreement for the appointment of appraisers to determine the value of the timber, and therefore the rules governing arbitration proceedings are not required to be followed.</p> <p>Id.—Valuation op Timber-—Result op Joint Labor op Appraisers— Evidence.—Evidence to the effect that although the so-called arbitrators went on the land- together for the purpose of making the appraisement and, while so doing, separately examined and valued particular portions of the timber and then met and compared notes and finally concurred in the valuation of the whole, does not sustain the contention that the valuation of the timber was not the result of the joint labor and judgment of the appraisers.</p> <p>Id.—Report op Arbitrators—Time.-—Objection to an appraisement of timber, made under a contract, that the appraisers did not make their report within the time provided in the agreement, is without merit, where time was not made of the essence of the agreement, and the delay was caused by the refusal to act of the arbitrator selected by one of the parties.</p>

<p>Appeal—Typewritten Transcript—Scope of Review.—Where the only-record on appeal from a judgment consists of a typewritten transcript, the court need not go further than to those portions of the record which have been printed in the briefs, since it is presumed that by their briefs counsel have submitted all portions of the record which they desire to call to the attention of the court.</p> <p>Corporation Law—Sale op ‘Stock—Authority op President.—The president and manager of a corporation is not authorized by virtue of his office to sell shares of stock, or to determine the price for which they should be sold, or to employ an agent to find purchasers.</p> <p>Id.—Sale op Stock at Less Than Par—Authority to Accept Opper. The fact that after the president of the corporation had employed a broker to sell stock, and before the broker had found a purchaser the board of directors of the corporation authorized the president to sell the stock at par, does not tend to establish the president’s authority to accept an offer to buy the stock at less than par.</p> <p>Id.—Recovery op Broker’s Commissions—-Pleading and Evidence.— In an action by a broker against a corporation to recover commissions for selling corporate stock, in accordance with an oral agreement made with the president of the corporation, it is necessary for the plaintiff to show that the defendant had given authority to sell the stock at a price corresponding to the offer made by the purchaser, and where the purchaser’s offer was to purchase at less than par, and the proof failed to show that defendant ever offered to sell for less than par, the defect in plaintiff’s case was not cured by the statement in the answer that defendant entered into negotiations for the sale of stock to the purchaser, but that he failed and refused to purchase.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Marine Insurance Law—Arrival op Freight at Destination—Insufficiency op Evidence.—In this action upon a policy of marine insurance covering the shipment of mining supplies from Seattle, Washington, to Uyak, Alaska, it is held that the evidence is insufficient to show that the vessel ever reached the destination contemplated by the policy.</p> <p>Id.—Stranding op Vessel—Burden op Proof.—In an action on a policy of marine insurance, where it is contended that the vessel stranded, the plaintiff has the burden of proof.</p> <p>Id.—Stranding op Vessel—Meaning op.-—The word “stranded” means that the vessel must remain stationary for a time, and implies a settling of the vessel and an interruption of the voyage under extraordinary circumstances.</p> <p>Id.—Construction op Technical Language—Question por Jury.— Where language somewhat technical in character, or if not technical, at least colored by the manner of expression of seafaring men with which landsmen are more or less unacquainted, is to be construed, it is far safer to leave the meaning thereof, with all the circumstances in mind, to the jury, than for courts to lay down a hard and fast rule as to what the language means.</p> <p>Id.—Refusal to Accept Freight—Burden op Proof.—In an action on a marine insurance policy, where the defendant contends that the insured refused to receive the goods, the burden of proof is upon the defendant to prove the issue.</p> <p>Id.—Abandonment op Wrecked Vessel—Sale — Right op Master. In an action on a marine insurance policy, the right to sell as well as the right to abandon the wrecked vessel must be determined by the master in the light of the facts available at the time, and he may not await the developments of subsequent facts before deciding what to do.</p> <p>Id.—Right to Sell Wrecked Vessel—Subsequent Repair.—The fact that a wrecked vessel was subsequently repaired by the purchaser does not show that a sale was not necessary.</p>

<p>Action for Divorce—New Trial—Amendment to Cross-complaint— Hearing and Judgment—Power of Court.—Where in an action for divorce the defendant’s motion for a new trial is granted, the judgment is in effect set aside, and the court has power thereafter to allow an amendment to the cross-complaint, hear the issues raised thereby, make findings and enter judgment thereon.</p> <p>Id.—Appeal from Judgment—Trial of New Issues Pending Appeal —Jurisdiction.—Where in an action for divorce after entry of judgment in favor of defendant, the plaintiff moved for a new trial and the defendant also moved for a new trial on certain special issues, and the plaintiff’s motion was denied and the motion of the defendant granted, the taking of an appeal thereafter by plaintiff from the judgment did not prevent the court from trying such special issues, and where a judgment was entered on such issues in favor of defendant the plaintiff had the right of appeal therefrom, which furnished a plain, speedy, and adequate remedy precluding a right to have the second judgment reviewed by writ of review.</p>

<p>Damages—Conveyance of Interest in Estate—Security for Money Loaned—Evidence—Affirmance of Judgment.—In this action for damages alleged to have been sustained in conveying an interest in a certain estate as security for the repayment of money loaned, it is "held that the judgment in favor of defendant must be affirmed, there being no claim that plaintiff at the time of the transaction was an infant or incompetent, or that the relations between the parties were confidential, and no evidence of misrepresentations or fraud.</p>

<p>APPLICATION for a Writ of Review originally made to the District Court of Appeal for the First Appellate District to annul an award of the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Intoxicating Liquors—Sale Within No-license Territory—Location of Place—Evidence—Testimony of County Clerk.—In a prosecution for the crime of keeping a place of public resort in no-license territory for the purpose of sale therein of alcoholic liquor, testimony of the county clerk that the town in which the defendant kept such resort was outside of the boundaries of any incorporated city or town, and within a certain supervisorial district which had voted no-lieense, is sufficient to show that such place was within no-license territory.</p> <p>Id.—Application fob Federal Liquor License.—In such a prosecution, the admission in evidence of a purported written application of the defendant for a federal liquor license without proof that the same was signed by him was erroneous, but without prejudice, where the other evidence sufficiently supported the verdict.</p> <p>Id.—Other Sales.—In a prosecution for the crime of keeping a place of public resort in no-license territory for the purpose of sale in such territory of alcoholic liquor, testimony as to a sale of liquor made by defendant fourteen days prior to the commission of the date charged is admissible to show the character of the place and the purpose of the defendant.</p> <p>Id.—Intent to Commit Act—Existence Immaterial.—In a prosecution for the crime of keeping a place of public resort in no-lieense territory for the purpose of sale in such territory of alcoholic liquor, it is not necessary to the consummation of the crime that an intent to commit the act be shown, since the mere commission of such act is sufficient to constitute the crime.</p> <p>Ib.—Possession of Federal Liquor License—Effect of—Instruction.—An instruction that the possession by defendant of a federal liquor license could not legally operate as a shield to any person shown to have committed the crime of keeping a public resort for the sale of alcoholic liquors in no-lieense territory, against the penal consequences thereof, is abstractly correct in the statement of the principle declared therein.</p> <p>Id.—Punishment for Offense—Sentence of Fine and Imprisonment—^Invalidity as to Imprisonment.—Under section 19 of the local option law, limiting imprisonment upon conviction of any of the provisions of the law to seven months, a sentence to imprisonment for one month and to a fine of six hundred dollars, and in default of payment, imprisonment not exceeding one day for each two dollars thereof, is void as to imprisonment for nonpayment of fine.</p> <p>Appeal — Modification of Judgments — Jurisdiction of District Court of Appeal.—The district court of appeal, before its judgments become final or before the causes in which such judgments are rendered are transferred to the supreme court upon petition, has the right or jurisdiction to modify its judgments, or set them aside if for good reasons such a course is required.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Sales—Fraud—Misrepresentations as to Tear of Manufacture of Automobile—Evidence.—In an action by the buyer of an automobile for damages for alleged misrepresentations made by the seller’s agent regarding the year of manufacture, the fact that the plaintiff had an independent examination of the car made before buying does not deprive her of the right to prove reliance upon such representations, where such examination looked only into the general condition of the car and its batteries, and not as to the year of its manufacture.</p> <p>Ib.—Oral Representations—Written Contract—Waiver.—Where a written contract for the sale of an automobile contains a description of the car with its model number, which number is descriptive to show the year of manufacture, and also contains a clause that all promises, verbal understandings, or agreements of any kind pertaining to the purchase not specified are expressly waived, the claim that false representations had been made as to the year of manufacture furnishes no ground for a cause of action for damages.</p>

<p>Pleading—Damages fob Breach of Contract—Theory of Cause of Action—Uncertainty of Complaint.—In an action for damages for breach of contract, where it could not be ascertained from the complaint, with any degree of certainty, whether the plaintiff’s cause of action proceeded upon the theory that the contract in controversy was made by and between the plaintiff and defendant as members of an existing corporation which was about to be dissolved or whether it was made some ten months subsequent to the dissolution of the copartnership between plaintiff and defendant, and at a time when the defendant was retiring as a stockholder of the corporation which was created for the purpose of absorbing and conducting the business of the copartnership, the demurrer was properly sustained for uncertainty.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Second Appellate District, to secure the release of a discharged minor from the Preston School of Industry.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Vendor and Vendee—Damages for Fraud—Duty of Vendee.—Where a vendee pays a part of the purchase price and enters into possession of the property, and gives his note secured by mortgage on the property for the balance, he must pay the balance before he can claim damages for fraud in the purchase.</p> <p>Mortgage—Action for Foreclosure—Defense of Fraudulent Representations—Pleading—Insufficient Cross-complaint—Failure to Show Damage.—In an action for the foreclosure of a mortgage, a cross-complaint based upon alleged fraudulent representations- made by plaintiff as to the ownership of a water ditch to be conveyed to defendant for the purpose of irrigating the mortgaged land fails to state a cause of action, in the absence of an express i allegation as to any appreciable damage done by reason of the failure to convey, there being no averment as to what the ditch cost, or its value, or what expense would be incurred in obtaining a substitute for it, nor how much the market value of the land would be affected by the question as to whether the ditch was appurtenant thereto.</p> <p>to.—Special Damages—Loss of Crop—-Insufficient Cross-complaint —Knowledge of Nonownership of Ditch Before Planting.— In such an action, the defendant cannot by cross-complaint obtain special damages for loss of crop due to alleged failure of plaintiff to furnish defendant with necessary water ditches, where, according to the allegations of the cross-complaint, the defendant, before planting the crop, had complete knowledge that plaintiff did not own the ditch and that plaintiff had failed to make good its representations.</p>

<p>Attorney and Client—Contract for Services in Defending Action —'Time for Bringing Suit.—Under a contract between an attorney and client providing that if the former defeated a pending action against the latter or prevented recovery, the latter would pay the former for his services the entire amount prayed for in such action, or if a lesser amount should be recovered the difference should be paid, the action is not defeated until the judgment has become final, and an action brought for such services pending an appeal taken in the former action by the defendant is prematurely brought.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Edward G. Kuster, Gilbert A. McElroy, Guy E. Maurice, and Clarence E. Fleming, for Appellant.</p>

<p>New Trial—Order Denting Motion—Bight of Appeal—Effect of Code Amendment.—An appeal from an order denying a new trial in and of itself is of no avail, where the order was made subsequent to the date of the taking effect of the amendment of 1915 to section 963 of the Oode of Civil Procedure, regardless of the fact that the motion for new trial was initiated prior to the adoption and operation of the amendment.</p> <p>Id.—Review of Order Denting New Trial—Appeal from Judgment. Under section 956 of the Code of Civil Procedure, as amended in 1915, an order denying a motion for a new trial may be reviewed on appeal from the judgment. ^</p> <p>Id.—Record on Motion for New Trial—Transmission to Appellate Court—Procedure.—While it is true that the law as now written apparently provides no procedure for transmitting to the appellate court the record used as the basis for a motion for a new trial, in a case where an appeal from a judgment has been rightfully taken in advance of the hearing and determination of the motion, nevertheless, in the absence of such provision, it would be permissible, for the purpose of permitting the case to be disposed of on its merits rather than upon a technicality, to adopt any suitable procedure which, conformable to the spirit of the code, would achieve the desired result.</p> <p>Id;—Appeal from Judgment—Record—Review of Errors Occurring During Trial.—Where the bill of exceptions used on the hearing of a motion for a new trial, duly authenticated by the trial judge, is included in the transcript which, by stipulation of counsel, constitutes the record on appeal from the judgment, and the judgment has been rightfully appealed from which involves a review of the merits of the motion for a new trial, the appellate court may upon such record discuss and decide an error of law occurring at the trial urged as prejudicial and sufficient to warrant a reversal.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Assignment—Claim fob Bent—Sufficiency of Evidence.—In an action on an assigned claim for rent due under a lease, the assignment of the claim to the plaintiff by the assignors, who were partners, is sufficiently proven by the testimony of one of the partners that before the commencement of the action he assigned in writing on the back of the lease all of the claims of himself and his partner to all of the rent due from the defendant.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Kailroad Corporation—Killing of Cattle by Trains—Maintenance of Fences—Lack of Negligence.—In an action against a railroad company for damages for the loss of cattle killed by its trains, the evidence is insufficient to show negligence on the part of defendant in the matter of its duty, under section 485 of the Civil 'Code, to maintain fences along its right of way, where the cattle were all killed at a place where the country was composed of sand, which shifted and changed into banks and dunes at different points with the blowing of the winds, and the fences were frequently buried by dunes permitting the passage of cattle upon the tracks.</p> <p>Id.—Exercise of Keasonable Diligence.—A railroad company is bound to use reasonable diligence in keeping its right of way fences in repair, and it need not resort to extraordinary means, such as the maintenance of a special patrol, to insure that its fences will not be broken or that they are promptly repaired, if broken.</p> <p>Id.—Death of Suckling Calf—Liability of Railroad Company.— In an, action against a railroad company for the loss of a cow and her suckling calf, the defendant is liable for the death of the calf where the death of the cow resulted from the negligence of the company and the death of the calf from starvation following the loss of its mother.</p> <p>Id.—Maintenance of Fences—Duty of Bailroad Company.—It is incumbent upon a railroad corporation, by virtue of section 485 of the Civil Code, to maintain good and sufficient fences on both sides of its track and property, and there is no duty imposed upon adjoining land owners where the country is composed of sand, which shifts and changes into banks and dunes with the blowing of the winds, to erect windbreaks or other obstructions to prevent the sand from drifting and covering such fences.</p> <p>Id.—Breaking of Gate and Fence—Killing of Cattle—Liability of Company.—A railroad company is not liable for the loss of cattle killed by one of its trains where the animals entered upon the defendant’s right of way through a break in its fence caused by the throwing down of a gate and a part of the fence, in the absence of evidence that the gate or fence was defective or unfitted to meet ordinary conditions.</p>

<p>Trust—Personal Property—Parol Evidence.—A trust as to personal property may be established by parol.</p> <p>Id.—Money in Bank—Parol Trust—Insufficiency of Evidence.—A trust as to money on deposit in a bank is not created for the benefit of the minor children of the depositor by parol evidence of declarations of the trustor made to his brother to take the money, pay his bills, and hold the balance for the children, in the absence of any evidence of any declarations as to how long the money should be held or as to how it should be applied.</p>

<p>Municipal Corporations—Establishment of Grade of Street—Damage to Property Owner—Liability of City.—The owner of a lot fronting on a city street is entitled to recover damages against the city for injury to the lot in bringing the street to the official grade established after the acquisition of the lot, although when her grantor dedicated the street as a public street, he knew that its natural grade was so steep as to render it impracticable and inaccessible to teams and vehicles, since neither the city nor such grantor could have known at the time of dedication, nor could his successor have known at the time of purchase, what grading would be necessary to make the street reasonably fit for the public use for which it was intended.</p> <p>Id.—Acceptance of Dedicated Streets—Burdens of Municipality.— A city is not compelled to accept dedication of a street by a private owner, and if it does so it takes the advantages yoked with the burdens.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Pleading—Action by Individual Transacting Business Under Fictitious Name—Compliance With Code Sections.—In an action by an individual doing business under a fictitious name, compliance with the provisions of sections 2466 and 2468 of the Civil Code ■requiring the filing of a certificate, etc., need not appear on the face of the complaint, since the point may be presented as a defense by way of plea in abatement.</p> <p>Id.—Demurrer for Uncertainty—Appeal.—A judgment will not be reversed on appeal because the trial court has erroneously overruled a demurrer to the complaint on the ground of uncertainty, where the substantial rights of the defendant have not been prejudiced by the ruling and the cause has been tried on the merits.</p> <p>Findings—Time of Signing—Code Provision Directory.—The provision of section 634 of the Code of Civil Procedure that where the court directs the preparation of findings, the same shall not be signed prior to the expiration of five days from service of a copy thereof on the adverse party, is directory only, and may be disregarded whenever compliance would work injustice to the rights of a litigant.</p>

APPEALS from orders of the Superior Court of Santa Barbara County substituting party defendant and directing collection of warrant and deposit of money in court. Samuel E. Crow, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>A. J. Hill, County Counsel, and Robert B. Murphey, Deputy County Counsel, for Appellant Hunt.</p>

<p>Assignment for Collection—Bight to Sue.—A mere assignment for collection, when sufficient in form to vest the legal title in the assignee, authorizes him to prosecute the action.</p> <p>Id.—Including of Assigned Claim With Other Demands—Bight of Assignee.—Where a claim has been assigned for the purpose of having it included in a suit t'o be brought by the assignee upon other demands and so avoid the trouble and expense of a separate action, the title passes to the transferee and he may maintain the action. Id.—Bight to Beceive Assignment—Plea of Ultra Vires.—In an action on an assigned claim, the plea of ultra vires as to the right of the corporation assignee to receive an assignment of the assignor’s interest in the contract sued upon is not available to the defendant who owes the debt.</p>

<p>Pleading—Quieting Title—Mandamus—Joinder of Causes of Action. Under section 427, subdivision 8, of the Code of Civil Procedure, providing for the joinder of causes of action arising out of the same transaction, the purchaser at a commissioner’s sale under a judgment foreclosing mechanics’ liens may unite a proceeding in mandamus to compel the commissioner to execute a deed to a part of the sold property which was not included in the original deed, with an action to quiet title to all the property.</p> <p>Id.—Pasties—Commissioner not a Necessary Party.—In an action and proceeding thus joined, the commissioner is not a necessary party defendant to the action quieting title, and the naming of him in his individual capacity instead of his official party does not make the complaint demurrable for misjoinder of parties.</p> <p>Id.—Eight to Maintain Action.—The purchaser at a commissioner’s sale has the right to maintain a proceeding in mandamus to compel the commissioner to execute a deed conveying all the property purchased and an action quieting title thereto, and objections to the sufficiency of the complaint as against the commissioner cannot be raised by the former owners.</p>

<p>Personal Eights—Hotel Accommodations—Lodgers for Indefinite Periods—Construction of 'Code.—Section 51 of the Civil Code, providing that all citizens are entitled to the full and equal accommodations of “inns, restaurants, hotels . . . and all other places of public accommodation or amusement,” etc., and section 52, imposing liability in damages for violation of such personal rights, contemplates by the use of the word “hotel” a. public resort not only fur temporary refreshment, but also for protracted accommodation, and applies to lodgers for indefinite periods as well as transient guest's.</p> <p>Id.—Removal prom Hotel—Action for Damages—Pleading—Sufficiency op Complaint.—In an action brought under sections 51 and 52 of the Civil Code for the violation of the personal rights of the plaintiff in inciting a hot'el-kceper to eject plaintiff from the hotel, the complaint shows a causal connection between the act of defendant and the removal, where it is alleged that .the defendant “incited” the proprietor to discriminate against the plaintiff, the term carrying with it the idea of encouragement, persuasion, and inducement.</p> <p>Id.—Malice of Defendant — Evidence ■— Treatment of Plaintiff in Other Matters.—In an action brought under sections 51 and 52 of the Civil Code for damages for causing plaintiff’s removal from a hotel, evidence of defendant’s treatment of plaintiff in other matters not alleged in the complaint was admissible to show the general course of conduct of defendant toward plaintiff in support of the allegation of malice contained in the complaint and indicative of oppression.</p> <p>Id.—Letter Written by Dependant to Hotel-keeper—Vacating of Booms by Plaintiff—Increase in Board.—In an action brought under sections 51 and 52 of the Civil Code for damages for causing plaintiff’s removal from a hotel, a letter written by defendant to the hotel-keeper requesting him to inform plaintiff that he would have to have the rooms plaintiff was occupying, and that board at the restaurant would he doubled, was admissible for the purpose of showing hostility and malice.</p> <p>Id.—Instruction—Admissions of Pleading and Evidence—Duty of Jury.—An instruction directing the jury to render a verdict for the plaintiff if they found certain facts from the admissions of the pleadings and evidence did not impose upon the jury the responsibility of construing the pleadings, where the court had already informed the jury as to what facts were admitted therein.</p> <p>Id.—Treatment of Lodger and Guest—Hotel Public Place of Accommodation.—An instruction declaring that under sections 51 and 52 of the Civil Code there is no difference as to the treatment demanded between a lodger and a guest in a public place of amusement or accommodation, and that a hotel is a public place of accommodation, is proper.</p> <p>Id.—Amount of Punitive Damages.—An instruction that the jury might award punitive damages for malice or oppression in the excess of the fifty dollars fixed by the statute, is not objectionable.</p> <p>Id.—Duty of Hotel-keeper.—An instruction that the law does not impose upon the keeper of an inn or hotel the duty to furnish the public or any person a place of residence or a place of business in such inn or hotel, but only imposes upon the keeper of such hotel or inn the duty to give accommodations alike to all who compose the traveling public, making no distinction on account of race or color, or for any other reason not applicable alike to all persons, is objectionable in its first part, as being too sweeping, and the latter portion is covered by an instruction that if plaintiff was permitted the ordinary and usual accommodations and was not, on account of his race or color, or for any other cause or reason other than such as was applicable to all, denied such privileges and accommodation, the verdict must be for defendant.</p>

<p>Corporations—Sale of Stock—Recovery of Price—Accrual of Cause of Action—Demand and Refusal to Deliver Stock.—A cause of action for the recovery of money paid for corporation stock accrues only upon a demand for the return of the money after demand and refusal to deliver t'he stock.</p> <p>Id.—-Delay in Making Demand—Statute of, Limitations.—A purchaser of corporation stock who is entitled to delivery of the stock or to the return of his money cannot defeat the purpose of the statute of limitations by an unreasonable delay in the making of the demand for the return of the money.</p> <p>Id.—Reasonable Time for Demand.—A reasonable time for the making of a demand for the return of money paid for corporation stock after refusal to make delivery thereof, in the absence of peculiar circumstances affecting the question, is the period fixed by the statute of limitations in similar cases.</p> <p>Id.—Return' of Purchase Money—Time.—A breach of an express contract of a corporation to deliver stock to a purchaser does not occur until after the corporation has been allowed a reasonable time after demand to make delivery, and until such breach occurs, there is no implied agreement to return the money.</p> <p>Id.—Delay in Demanding Return of Money—Peculiar Circumstances.—Where an agent of a corporation to whom money was paid for corporation stock appropriated the money to his own use, and the officers of the corporation, who were friends of the purchaser, assured him that he would receive his stock in due course either out of the agent’s own holdings or the treasury of the corporation, and did not definitely refuse t'o deliver the stock until two years and two months after the payment of the purchase money, there were such “peculiar circumstances” existing as justified the delay in making the demand for the return of the money, and an action to recover the same commenced immediately upon the refusal to return the money was not barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure.</p>

<p>Appeal—Judgment—Record—Printing in Bribes.—Where on an appeal from a judgment the only record consists of a typewritten transcript, and no part of the record is printed in the briefs, except the findings of fact and conclusions of law in the brief of respondents, and the facts found are sufficient t'o support the judgment, the judgment must be affirmed, since it will be presumed that counsel have presented in their briefs, all portions of the record which they desired to call to t'he attention of the appellate court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Death op Passenger in Automobile—'Collision at Railroad Crossing—Care Exercised by Deceased—Lack op Evidence •—Presumption.—In an action for damages for the death of a person while riding in an automobile driven by another in a collision with a detached engine at a railroad crossing, it must be presumed, in the absence of evidence to the contrary, that the former either attempted to warn the driver or to leave the car, in view of section 1963 of the Code of Civil Procedure making it a rule of evidence that a person is presumed to take ordinary care of his own concerns.</p> <p>Id.—Contributory Negligence—Evidence.—Where in such an 'action plaintiff shows that the death was the proximate result of the negligence of defendant, he is not required to negative the claim of contributory negligence.</p> <p>Id.—Verdict for Plaintiff—Special Finding as to Ability to See Approaching Train-—Want of Inconsistency.—In an action for damages for death of a passenger in an automobile struck by a train at a railroad crossing, a special finding that if deceased had looked he could have seen the approaching locomotive is not inconsistent with a general verdict against the defendant, since it does not compel the conclusion that the deceased was negligent.</p> <p>General Verdict—Special Findings—Construction.—A general verdict and special findings should be reconciled, if possible, and no specific finding should operate to overthrow the general conclusion of the jury unless they are entirely inconsistent and irreconcilable.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Workmen’s Compensation Act—Second Injury—-Delation to Original Accident—Sufficiency of Evidence.—In this proceeding to review an award of compensation made toy the Industrial Accident Commission for the death of an employee following the performance of a surgical operation made necessary toy a second injury received while obeying the doctor’s instructions to exercise his leg, which had been fractured in the original accident, it is held that the evidence supports the finding that the second injury arose from a condition produced by the first injury.</p> <p>Id.—Manner of Second Injury—Evidence—Declarations of Deceased.—Under the amendment of 1915 to section 77 (a) of the Workmen’s Compensation Act, making hearsay evidence admissible in cases of death, where the hearsay testimony relates directly to the injury in question, declarations of the deceased to the effect that his crutch slipped and that he fell, refracturing his bone, are admissible where death resulted from an operation made necessary by such injury.</p> <p>Ib.—Evidence—Degree of PRoof.—The Workmen’s Compensation Act does not require demonstration ag to the cause of death, but only that degree of proof which produces conviction in an unprejudiced mind.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporations—Payment of Bonds—Construction of Act of 1901..—The act relating to the incurring of indebtedness .by municipal corporations (Stats. 1901, p. 28) does not require payments to be made at annual consecutive periods in equal amounts, but only that payments shall not be less than one-fortieth part of the whole amount of the indebtedness.</p>

<p>Negligence—Driver oe Vehicle—Injury to Passenger—Imputed Negligence.—A person riding as a passenger or guest in a vehicle driven by another may not be charged with the negligence of the latter which has caused injury to the former, unless the passenger or guest has the right to exercise' control over the driver of the vehicle, or, in the eyes of t'he law, may be said to- possess such power or control, or unless it is made to appear that the passenger or guest himself actively participated in the negligence of the driver.</p> <p>Id.—Duty of Passenger.—While a guest or a passenger riding in a vehicle with another is not chargeable with t'he latter’s negligence which has directly resulted in injury to the passenger or guest, the law nevertheless casts upon such passenger or guest in such ease the duty of exercising ordinary care for Ms own safety.</p> <p>Id.—Action for Death—Collision at Railroad Crossing—Contributory Negligence—Evidence—Burden of Proof.—In an action for damages for death of a person riding as a guest in a horse-drawn vehicle which collided with an interurban electric railroad train at a crossing, the burden is upon defendant railroad company to show that deceased failed to exercise such care for his own safety as was required of him to charge the defendant' with legal responsibility for Ms death.</p> <p>Id.—Omissions of Passenger—Insufficient Proof of Contributory Negligence.—In such action, the failure of the deceased to say or do -anything or to look in both directions before the horse was started by its driver over the crossing did not constitute negligence per se, or such acts of omission as to justify the conclusion or declaration, as a matter of law, that deceased failed to use due care for his own safety.</p> <p>Id.—Contributory Negligence—Question for Jury.—In such action,t'he question whether deceased was guilty of negligence which directly caused Ms death was one exclusively for the jury’s determination.</p> <p>Id.—Last Clear Chance Doctrine—Proper Instruction.—An instruction that one having knowledge of the dangerous situation of another and having a clear opportunity, by the exercise of proper care, to avoid injuring another, must do so, notwithstanding that the latter has placed himself in such situation of danger by Ms own negligence, and that if the jury found that the motorman saw the deceased on the wagon on the track, and could have stopped the train without injury to the same or its passengers, and by so stopping the train within the shortest time and space possible under the circumstances could have avoided the collision, and neglected to do so, in consequence of which neglect to stop the train the deceased was killed, the plaintiff: is entitled to a verdict, is a correct statement of the last clear chance rule.</p> <p>Id.—Crossing of Railroad Track—When Negligence.—The mere act of passing over a railroad crossing over a public street is not negligence per se, but only when the attempt is made to pass without using reasonable care in ascertaining in, the proper way whether there is a train approaching or about to approach.</p>

<p>The facts are stated in the opinion of the court,</p>

<p>Pleading—Answer—Denials upon Lack of Information.—Denials in an answer predicated upon a lack of information only, and not upon a lack of information and belief, are insufficient under section 437 of the Code of Civil Procedure.</p> <p>Id.—Action for Recovery of Broker’s Commissions—Answer—Affirmative Allegations—Insufficient Denials.—In an action for the recovery of a broker’s commission for making an exchange of real property, affirmative allegations in the answer that the exchange was not consummated, that the failure was not due to any fault of defendant, but that he was ready and anxious at all times to carry out the arrangement, and that the deal fell through because of misrepresentations made by the broker, do not amount to a traverse of anything averred in the complaint.</p> <p>Id.—“Consummation” of Exchange of Real Property—Commissions When Earned.—Under an agreement to pay a broker a commission upon the “consummation” of an exchange of real property within a fixed time, the broker is entitled to his commission where, within the time, he presents the other party to his principal and they enter into an agreement for the exchange, notwithstanding the deal was never completed and deeds did not pass between the parties.</p>

<p>APPEAL from a judgment of the Superior Court of San Bernardino County, and from an order denying a motion to tax costs. J. W. Curtis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Second Appellate District to secure discharge from custody under a commitment upon alleged insufficient evidence.</p> <p>The facts are stated in the opinion of the court.</p>

<p>plaint.—Under section 311 of the Penal Code, which provides that every person who willfully and lewdly exposes his person or the private parts thereof in any public place, or in any place where there are other persons to be offended or annoyed, is guilty of a misdemeanor, a complaint' charging that the defendant at the time and place named did "willfully and unlawfully expose his person,” etc., fails to charge the offense, since it fails to allege that the acts were done “lewdly.”</p>

<p>Judgment—'Scope op Pleadings.—A party is not only entitled to any and all relief which is appropriately within the scope of his pleading, hut may he awarded such relief upon any substantial legal or equitable ground coming within the fair and reasonable import of the averments of his pleading.</p> <p>Id.—Rescission op Contract—Exchange op Real Properties—Failure op Consideration—Judgment Within Pleadings.—In an action to rescind a contract for the exchange of a tract of land for the interest of the other exchanging party in certain other lands and for corporation bonds, where the complaint alleged that defendant had no title to the lands and that the bonds were worthless, a judgment based upon failure of consideration could properly be rendered within the pleadings, if supported toy the evidence, notwithstanding allegations of fraudulent representations and weakened mental capacity of the plaintiff.</p> <p>Id.—Inadequacy op Consideration—Cancellation op Contract.— Where parties to a contract for an exchange of real properties have full and equal opportunity for au independent and thorough investigation of the facts, and each exercises and relies upon his own independent judgment in negotiating and consummating the transaction, mere inadequacy of consideration, where it is not so gross as to shock the conscience, is not of itself sufficient ground for cancellation of the contract.</p>

<p>APPLICATION originally made to the District Court of Appeal for the Third Appellate District for a stay of the issuance and transmission of the remittitur in order to permit application to Supreme Court of United States for a writ of certiorari.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Stockholder’s Liability — Number of Shares Outstanding — Admissions of Pleadings—Evidence.—In an action against a stockholder on a corporation debt, where upon the allegations of the complaint, as they stood admitted, there was no issue upon the subject of the number of shares of the corporation outstanding when the debt was contracted, the plaintiff was not entitled to raise such issue by introducing evidence contradicting the allegations of the complaint.</p>

<p>Contract — Assignment of Bents — Payment of Indebtedness— Breach—Insufficiency of Evidence.—In this action for breach of an agreement made between a landlord and one of his creditors, by the terms of which the latter was to collect certain rents and apply a stated sum on his indebtedness, it is held that the findings that the defendant interfered with the collection of the rents and that he collected moneys which it was his duty to pay to the plaintiff are unsupported by the evidence.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Rape—Cautionary Instruction.—In a prosecution for rape, the refusal to give a cautionary instruction requested by defendant is not a sufficient ground for reversal of the judgment where the jury was instructed to consider the matter calmly, dispassion- . ately, and deliberately as they would any other accusation, that they were to be very careful, and should carefully and gradually weigh, analyze, and consider the testimony against the defendant.</p> <p>Id.—Evidence—Character of Defendant—Previous Sentence for Rape—Improper Cross-examination.—In such a prosecution, the asking of one of defendant’s character witnesses on cross-examination whether the witness knew that defendant had been sentenced to the penitentiary for rape was improper and unfair, where the judgment had been reversed.</p> <p>Id.—Previous Accusations of Rape—Proper Cross-examination.—In such a prosecution, the asking of character witnesses of the defendant on cross-examination if they had ever heard that the defendant had been previously accused of rape was proper.</p> <p>Id.-—Misconduct of District Attorney—Argument to Jury—Reference to Stricken Out Testimony.—In such a prosecution, it was misconduct for the district attorney in his argument to refer to a previous conviction for rape, after the court had stricken out all reference thereto, and to state what he would have done had the prosecutrix been his own daughter, but such misconduct was not a sufficient ground for reversal where the record of guilt was clear and convincing.</p>

<p>Action for Damages—Settling of Building—Evidence—Plans and Specifications.—In an action for damages for the settling of a building constructed by defendant for plaintiff due to an alleged defective drain, where defendant by his answer admitted that by the terms of his contract and according to the plans and specifications he was required to place a galvanized iron drain from the light-well of the building, and the only difference between such admission and the allegation of the complaint was that the complaint stated that according to the plans and specifications the drain should have been of vitrified iron, it was not necessary for plaintiff to introduce in evidence the specifications as a foundation for proof that the work did not conform thereto.</p> <p>Id.—Defective Drain — Faulty Foundation—Sufficiency of Evidence.—In this action for damages to a building due to the settling thereof by reason of the defective character of drain-pipe and foundation, it is held the evidence is sufficient to support the findings in favor of plaintiff.</p>

<p>Workmen’s Compensation Act—Injury to Laundryman—Removal op Safety Guard from Wringing-machine—Willful Misconduct.— Under subdivision 3 of section 12 of the Workmen’s Compensation, Insurance and Safety Act (Stats. 1913, p. 279), which excludes from its provisions every case where the injury is proximately caused by willful misconduct of the injured employee, where an experienced laundryman, while operating a wringing-machine intentionally, deliberately, and willfully removed a safety guard which had been placed on the machine for his protection and to prevent accidents, he was guilty of such misconduct as to prevent the award of compensation for injuries resulting from such removal..</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Eminent Domain — Private Dse — Condemnation Prohibited.—The power of eminent domain cannot be used by a private person to promote private enterprises no matter how necessary or advantageous it may be to their success or however beneficial to the public.</p> <p>Id.—Irrigation Act of 1911—Condemnation for Private Dse not Authorized.—-The act regarding irrigation and declaring the same to be a public use, approved May 1, 1911 (Stats. 1911, p. 1407), does not authorize condemnation for irrigation purposes by an individual for his own private use, but for the use of the public only, since the statute means just what would be meant had section 1238 of the Code of Civil Procedure been amended by adding “irrigation” to the many “public uses” therein enumerated, in behalf of which the right of eminent domain may be exercised.</p> <p>Id.—Public Dse.-—Public use means use by the public, and to make a use public, a duty must devolve on the person or corporation holding property appropriated by right of eminent domain to furnish the public with the use intended, and the public must be entitled, as of right, to use or enjoy the property taken.</p>

<p>Contempt—Service op Order Essential.—An order adjudging a party in contempt for failure t'o comply with the terms of an interlocutory decree of divorce is erroneous where a copy of the decree was not served upon such party.</p>

<p>Workmen’s Compensation Act—Injury to Driver op Street-elushing Motor Vehicle—Right to Compensation.—Under the Workmen’s Compensation Act, the driver of a street-flushing motor vehicle, whose duty was t'o operate and guide the machine and, incidentally, to manipulate the lever iby which water was discharged upon the street, is entitled to compensation for an injury received in falling from the vehicle while attempting to pick up a wrench from the footboard to prevent it from falling into the street, notwithstanding that in violation of orders he had permitted another person to take the steering gear while he moved to the left-hand side of the seat, where he was engaged in manipulating the lever.</p>

<p>Appeal—Alternative Method—Printing óf Record in Appellant’s Brief—Insufficient Ground for Dismissal.—An appeal from a judgment will not be dismissed on the ground that the appellant has not complied with that portion of section 953e of the Code of Civil Procedure to the effect that, in filing briefs on an appeal the parties must .print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the appellate court, since the omission may be provided •by stipulation of parties or in other briefs.</p>

<p>Criminal Law — Perjury — False Testimony—Sufficiency of Information.—An information charging a witness in a criminal action with perjury in testifying falsely therein sufficiently set's forth the controversy or matter in respect to which the offense was committed to comply with the provisions of section 966 of the Penal Code, where it is alleged that at a certain time in the superior court there was on trial a criminal action, and that it was then and there material to know where the defendant in such action was on a eertain night, and whether on such night he was with the defendant in the present action.</p> <p>Id.—Indeterminate Sentence Law—Inapplicability to Previous Offenses.—The indeterminate sentence law is ex post facto as to crimes committed before it took effect.</p> <p>Id.—Erroneous Sentence—Procedure.—A judgment of conviction will not be reversed for giving an indeterminate sentence for an offense committed before the law became effective, but the case will be remanded to the superior court with instructions to pronounce the proper sentence.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Frank H. Dunne, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Review originally made to the District Court of Appeal for the First Appellate District to annul an award of the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Building Contract—Abandonment by Subcontractor — Giving op Three Days’ Notice—When Unnecessary.—Under a provision in a contract between an original contractor and a subcontractor providing that in the event that the latter should delay the work, the former might prosecute it if the work was not done by the latter after three days’ notice, no notice is required to authorize the contractor to proceed, where the subcontractor entirely abandons the contract, and the surety on the subcontractor’s bond is not released from liability for damages from such nonperformance of the contract.</p> <p>Id.—Completion of Work by Owner—Damage op Contractor.—Where upon abandonment of work by a subcontractor the owner completes the same, and deducts the amount thereof from the amount payable to the contractor, the latter is damaged in such amount, notwithstanding the contractor does not complete the work.</p>

<p>Lien—Repair Work on Dredger—Retention op Possession.—Under sections 3049 and 3051 of the Civil Code, a machine company doing repair work on a dredger and making certain new parts therefor is entitled, where part of the work under its contract has been performed, to retain possession of the undelivered part of the work until the purchase price of all the work has been paid.</p> <p>Id.—Delivery of Possession—Guaranty of Payment—Sufficiency of Consideration.—"Where, under such a contract, the machine company-refused to install the balance of the work until the full price was paid, and the dredging company being unable to make payment, prevailed upon the former to complete the work upon the execution by a bonding company of a guaranty of payment, the delivery of the articles without receiving payment was a good consideration, for t'he guaranty.</p> <p>Frivolous Appeal—Penalty.-—Where an appeal is not taken in- good faith, but for the purposes of delay, the court should exercise its power of imposing a penalty upon the appellant for an abuse of the right of appeal.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Second Appellate District.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the (Superior Court of Santa Barbara County, and from an order denying a new trial. S. E. Crow, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal — Alternative Method—Printing op Eecord in Briefs.— Where an appeal is taken under the alternative method, the parties must print in their briefs such portions of the record as they desire t'o call to the attention of the appellate court, and references to the transcript are not sufficient.</p>

<p>APPLICATION for a Writ of Mandamus originally made to the District Court of Appeal for the Second Appellate District to compel the Superior Court to proceed with the trial of an action.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Peace Officers—Execution of Warrant.—When a warrant, valid in form and issued by a court of competent jurisdiction, is placed in the hands of an officer for execution, it is his duty without delay to carry out its commands, and for the proper execution of such process the officer incurs no liability, however disastrous may be the effect of its execution upon the person against whom it is issued.</p> <p>Id.—Liability of Arresting Officer.—The authority derived from the warrant justifies the officer in arresting no one but the person named therein against whom it is issued; and any interference with the liberty of the person other than the one named in the writ renders the officer liable in trespass, unless such interference is caused by the act of the person himself.</p> <p>False Imprisonment—Action for Damages—Warrant of Arrest as Defense.—In an action against an officer for damages for false imprisonment, the warrant of arrest was a complete defense where it appeared that the process, which was regular in form and legally issued, described the plaintiff by his name, which was the usual way, and that he was in fact the person for whom it was intended.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Public Lands—Temporary Withdrawal prom Disposal—Advisability op Including Within Forest Reservation—Right" op State to Lieu Lands.—Public lands temporarily withdrawn from disposition by the Secretary of the Interior which would otherwise belong to the state, pending determination as to the advisability of including them within a forest reservation, are within a reservation within the meaning of section 2275 of t'he Revised Statutes, appropriating and granting to and authorizing the state to select other lands where school lands are within any reservation.</p> <p>Id.—Restoration op Lands to Settlement—Question por Courts.— The question whether lands temporarily withdrawn- from disposition pending determination as to whether they should be included in a forest reservation, and thereafter restored to settlement, were eliminated from the forest reservation is one of law, and the courts are not bound by departmental rulings.</p> <p>Id.—Reselection op Originally Selected Lands—Right op State— Construction op -Statutes.—Forest reservations first authorized in-1891 are identical with national forests, as they are called in the act of Congress of 1907 and in the act of the legislature of May 26, 1917 (Stats. 1917, p. 1218), authorizing reselection when lands once selected as lieu lands are closed on account- of the release of base lands from national forests, and neither act requires that the lands shall have been permanently included in a national forest as a prerequisite to such reselection.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Second Appellate District.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County, and from an order denying a new trial. Peter J. Shields, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Will—-Written Agreement—-Statute op Frauds.—An agreement to make any provision for any person by will is invalid, unless the same or some note or memorandum thereof is in writing subscribed by the party to be charged or by his agent.</p> <p>Id.—Action por Services—Nonreliance Upon Promise—Finding -Supported by Evidence.—In this action to recover upon a rejected claim against the estate of a deceased person for services alleged to have been rendered1 to the deceased by plaintiff, it is held the finding that the plaintiff did not render any services in reliance upon any promise of deceased to make plaintiff a beneficiary under her will, and that no contract was ever made to compensate plaintiff for any services rendered, is sustained by the evidence.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County. J. R. Welch, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Santa Clara County suspending an attorney at law from practice. Curtis D. Wilbur, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL’S from portions of the judgment of the Superior Court of the City and County of San Francisco. J. M. Sea-well, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Injury to Passenger Leaving Bailroad Train—Pleading and Evidence—Lack op Variance.—In an action for personal injuries received by a passenger while leaving a railroad train at a station, a variance is not created by the allegation of the complaint that plaintiff was thrown from the train and the evidence which showed that she fell from the train in consequence of its starting before she had time t'o alight.</p> <p>Common Carriers—Duty to Passengers.—Carriers of passengers must use the utmost care and diligence for their safety and are liable for injury caused by their slight negligence.</p> <p>Id.—Opportunity to Alight—Duty op Carrier.—The relation between carrier and passenger continues until the latter has alighted, and the former must exercise as high a degree of care in affording passengers a reasonable opportunity to alight in safety as in carrying them safely.</p> <p>Id.—Alighting prom Moving Train — Contributory Negligence — Question op Fact.—While particular circumstances may in some cases justify the court in declaring as a matter of law that a passenger is negligent in alighting from a moving train, the general rule is, the question is one of fact for the jury to determine from all of' the circumstances of the particular ease.</p> <p>Id.—Damages not Excessive.—In an action for personal injuries received by a passenger while attempting to alight from a railroad train caused by the starting of .the train before she had time to alight, a verdict for the sum of five thousand dollars was not excessive where as a result of her fall the plaintiff, who prior to the accident was an able-bodied woman performing the housework for a family, was rendered helpless, requiring the constant assistance of others, and it was shown at the trial, which occurred two and one-half years after the injury, plaintiff was unable to walk except with crutches, and to all appearances her injuries were permanent.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Contra Costa County, and from an order denying a new trial. R H. Latimer and A. B. McKenzie, Judges.</p> <p>The facts are stated in the opinion of the court.</p> <p>Chickering & Gregory, Evan Williams, Frank H. Gould, B. V. Sargent, and J. E. Rodgers, for Appellant.</p> <p>Stetson & Koford, A. T. Shine, Elmer E. Nichols, and T. D. Johnston, for Respondents.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Bernard J. Flood, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Certiorari originally made to the District Court of Appeal for the Second Appellate District to review the action of a city clerk in certifying to the sufficiency of an initiative petition.</p> <p>The facts are stated in the opinion of the court.</p>

. APPLICATION for a Writ of Prohibition originally made to the District Court of Appeal for the Second Appellate District to restrain the Superior Court from proceeding further with the trial of an action and from entering any injunction therein. The facts are stated in the opinion of the court.

<p>Contract — Deposit of Check With Abstract Company — Delivery upon Vesting of Title to Beal Property in Payee—Duty of Company.—Where a cheek is'deposited with a company engaged in the business of abstracting and certifying titles to real property with instructions to pay it to the payee for his note and mortgage on certain real property when title thereto is vested in such payee, the company is required to hold the check until title is vested absolutely in the payee, and not merely until it is vested of record.</p> <p>Id.—Action for Wrongful Delivery of Check—Pleading—Insufficient Denial of Vesting of Title.—In an action against an abstract company for the wrongful delivery of a check deposited with it, with instructions to deliver to the payee when title to certain real property was vested in him, allegations in the answer that defendant did not deliver the cheek until title was vested of record in such payee is not a sufficient denial of the allegation of the complaint that title never vested in the plaintiff.</p> <p>Id.-—Becording of Forged Deeds—Delivery of Check—Liability of Abstract Company.—An abstract company with whom a check was deposited with instructions to deliver to the payee when title to certain real property was vested in the payee is liable to the maker of the check for the amount thereof, where delivery was made after the filing for "record by the company of two forged deeds which made the payee the apparent record owner, without first making any attempt to ascertain if they were authentic instruments.</p>

<p>APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Second Appellate District to annul an order adjudging petitioner guilty of contempt of court.</p> <p>The facts are stated in the opinion of the court.</p> <p>Albert Lee Stephens, City Attorney, W. B. Mathews, Wm B. Himrod, and Lewis E. Whitehead, for Petitioner.</p>

<p>Statute op Limitations—Sale op Business—Assumption and Payment of Indebtedness of Vendor—Gist of Action.—Where on the sale of a business the purchasers agree to assume and pay all indebtedness of the vendor contracted in or about the business, such agreement, rather than the original indebtedness of the vendor, constitutes the gist of the action by a creditor, in so far as the statute of limitations is concerned.</p> <p>Contract — Benefit op Third Person —: Knowledge op Indebtedness Unnecessary.—Under section 1559 of the Civil Code, providing a contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it, it is not necessary that the parties for whose benefit the contract was made be named in the contract, or that' the contracting party should know of the indebtedness.</p> <p>Id.—Action on Contract—Evidence—Proof op Open Book Account Unnecessary.—In an action on a contract made in the purchase of a business to pay all indebtedness of the vendor contracted in and about the business, it is not necessary for the plaintiff to prove that the indebtedness is on an open book account, although so alleged, since the same is but an evidentiary fact.</p>

<p>Contract—Agreement to Will Property—Specific Performance.— While equity will in a proper case enforce a contract to leave property by will, it will only do so when the contract is fair, its terms definite and certain, the consideration substantial, and the plaintiff without an adequate remedy at law.</p> <p>Id.—Services as Traveling Companion—Inadequacy of Consideration.—A promise to leave by will all of the jewelry, personal effects, and a large part of the personal property of the promisor to a girl in return for her services as a traveling companion on a six months’ European trip, will not be specifically enforced, as a contract to leave the whole estate, which was of a value of about one hundred thousand dollars, because of the inadequacy of the value of the services.</p> <p>Id.—'Contract to Leave Jewelry and Personal Effects—'Essentials to Specific Enforcement.—A contract to will jewelry and personal effects will not be specifically enforced where it is not made to appear that they were of such a rare nature that they could not be duplicated, or were possessed of a peculiar sentimental value.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County. Malcolm C. Glenn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Nonsuit—.Evidence—Inferences.—In deciding a motion for a nonsuit every favorable inference fairly dedueible from the evidence produced must be considered as a fact proved in favor of the plaintiff.</p> <p>Negligence—Collision of Automobile With Pedestrian on Congested City Street—Evidence—Proper Nonsuit.—In an action for damages fon personal injuries received by a pedestrian on a city street from a collision with an automobile, a nonsuit was properly granted on the ground of contributory negligence where the accident happened at one of the busiest crossings at an hour when traffic was heavy, and it was shown that the plaintiff walked out upon the crossing looking straight ahead without glancing to either side, and was absolutely oblivious to the proximity of the car until the moment of the collision, at which time he had traversed about three-quarters of the distance across the street.</p> <p>Id.—Last Clear Chance Doctrine Inapplicable.—In such an action, where it is clear from t'he evidence that the chauffeur did not discover that the plaintiff was or would be in a perilous position in time to avoid the accident, and the negligence of the driver, if any, was not subsequent to and independent of the continuing negligence of the plaintiff, but was contemporaneous with it, the doctrine of “last clear chance” has no application.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County. Malcolm C. Glenn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Receiver—Action to Recover Apartment House—Leased Furniture —Right op Owner—Prohibition.—In an action to recover, on the ground of fraud, an apartment house sold by plaintiff to defendant, the appointment of a receiver in such action to take possession of the real property and to collect the rents thereof does not' prevent the owner of certain furniture contained in the house and under lease to the vendor, under a contract of sale, from recovering the furniture upon default in the payment of the monthly rental therefor, and prohibition will not lie at the instance of such owner restraining enforcement of the order appointing such receiver.</p>

<p>Mortgage—Sale of Property Under Foreclosure—Effect of Stipulation.—In an action for the foreclosure of a mortgage, where the defendants, after judgment of foreclosure had been entered, wrote to the attorney for the plaintiff advising him of their intention to take an appeal from'the judgment and of filing a stay bond, and in the meantime to bring on a hearing t'o fix the amount of such bond, and the attorney replied thereto that it would be useless for him to advertise the sale while the necessary steps to perfect the appeal were pending, and that he would not do so, all that such attorney ' agreed to do at the most was to refrain'from proceeding with a sale pending such .proceeding, and where twenty-eight days after the amount of the stay bond had been fixed no such bond had been filed, plaintiff was entirely within his rights in proceeding with the sale of the property.</p> <p>Id.—Adequacy of Sale Price—Finding—Appeal.—Where, on an application to set aside a sale of mortgaged premises, the trial court, upon ample evidence, reached the conclusion that the price for which the property was sold was fair and adequate, its conclusion will not be disturbed on appeal.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporations — Improvement op Street — Drain por Surpace Waters—Damage to Private Property—Liability op City. A municipal corporation may b.e enjoined by a property owner from maintaining a paved street' in a condition which will make the same . a watercourse for surface waters in time of storm and rainfall, instead of a street for traffic, whereby the owner’s land will be gullied and have deposited thereon large quantities of silt, sand, and various kinds of debris, even though the paving of the street was completed before the action for the injunction was commenced.</p> <p>Injunction—Continuing Trespass.—An injunction against a continu- . ing trespass will not be denied merely because acts of trespass actually have been accomplished.</p>

<p>Prohibition—Action to Enjoin Election—Moot Question.;—A proceeding to prohibit the superior court from proceeding further with the trial of an action in which the plaintiff sought an injunction to prevent a municipal corporation and its officers from submitting to the electors a question relating to the prohibition of the sale of alcoholic liquors has become moot and the proceeding will be dismissed where the alternative writ was ordered to be modified so as to permit the defendants to make findings of fact in said action and to make an amended return showing the findings of fact, and no amended return was made and the day of election had passed.</p>

<p>Broker’s Commission—"When Earned.—Generally speaking, a broker authorized to sell real property has earned his commission when he has brought an acceptable purchaser to the vendor—one who is ready, able, and willing to buy the property upon the terms on which the agent is authorized to sell; or when a written contract acceptable to the seller has been entered into with a purchaser brought to the vendor by the agent.</p> <p>Id.—Commission Payable upon 'Consummation of Sale—Construction of Contract.—Where a broker authorized to sell real property for a fixed price found a purchaser for a less price, and an agreement was entered into between them for the sale of the property at that price, which agreement was approved by the owner, but with the proviso that the broker’s commission should be a flat one thousand dollars, payable “when the sale is consummated,” the quoted words had reference to some future event, and not to the time of the signing of the contract, and where the deed never passed, the broker could not recover the commission.</p> <p>Id.—Specific Performance of Contract by Owner — Detention of Control by Broker—Effect of.—Under a contract of sale providing that the broker should have the right to demand the delivery of a deed from the seller, thus retaining in his own control the power to secure the deed and demand performance of the purchaser, the broker cannot argue that it was the duty of the owner to enforce specific performance of the contract, and having failed to do so, he is liable for the commission.</p> <p>Id.—Financial Ability of Purchaser—Burden of Proof.—In an action by a broker to recover a commission under a contract providing for payment on consummation of sale, the burden of proving the financial ability of the proposed purchaser is upon the plaintiff.</p>

<p>APPEAL from a judgment of the Superior Court of San Joaquin County. D. M. Young, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Injury to Employee—Malpractice op Physician—Liability op Employer.—The liability of an employer, at common law and under the employers’ liability law of 1911 (Roseberry Act), for the negligence of a physician engaged by the employer to treat an injured employee, is secondary to, and dependent upon, a showing of negligence on the part of the physician.</p> <p>Id.—Treatment for Injured Employee — Time Limit — Employers’ Liability Law.—Under the employers’ liability law, there is no duty imposed upon the employer to furnish treatment to an injured employee for more than ninety days after the injury.</p> <p>Physician and Patient — Action for Negligence — Pleading^Complaint.—In an action for malpractice, a complaint alleging a course . of treatment entirely consistent with the physician’s exercise of all necessary care and skill, hut alleging nonsuccess, is insufficient to charge negligence, since the doctrine of res ipsa loquitur is not applicable.</p> <p>Id.—Implied Contract of Physician—Reasonable Skill.—The implied contract of a physician in taking a ease is that he possesses a reasonable degree of learning and skill in his profession, and that he will apply the same to the treatment of the ease, and if he possess and use such skill therein, he is not liable for the result, for a physician of necessity is not a warrantor of cures.</p> <p>Id.—Pleading—Allegation of Negligence Essential.—Negligence on the part of a physician consists in his doing something which he should not have done, or omitting to do something which he should have done, and in order to charge him with liability, some such negligent act or omission must be alleged in the pleading, in the absence of which it will be presumed that he used the necessary care and skill.</p>

<p>Negligence—Death in Burning op Asphalt-shed—Discharge op Gas-seal into Ditch—Contact op Liquid With Furnace Fires.—In an action against an oil company engaged in the distillation of asphalt for the death of an employee through fire in an asphalt-shed communicated thereto by burning, oil, actionable negligence is shown by evidence of the discharge of the liquid contents of a gas-seal into a dit'ch running near certain furnaces, whereby the oil was ignited.</p> <p>Id.—Hypothetical Questions Supported by Evidence.—In this action, hypothetical questions as to whether inflammable oil would be condensed and formed on the water in the gas-seal, and as to the results if such burning oil entered the trap, held, supported by the evidence. •</p> <p>Id.—Form op Hypothetical Questions — Discretion — Appeal.—A large discretion relating to the form of hypothetical questions must necessarily rest with the trial judge, and the appellate court is justified 'in placing much reliance upon his decision in passing upon the sufficiency of the facts narrated in the questions.</p> <p>Id.—Hypothetical Question—Basis op.—A hypothetical question on which the opinion of an expert is to be based must include only such fact's as are supported by evidence, but it may include any state of facts which the evidence tends to prove and which the jury might reasonably find to be proven.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. James M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

APPLICATION originally made to the District Court of Appeal for the Third Appellate District for an order revoking an order admitting an attorney to practice law. The facts are stated in the opinion of the court. Clyde Bishop, R. Y. Williams, J. C. Burke, L. A. West, and S. M. Reinhaus, for Petitioners.

<p>The facts are stated in the opinion of the court.</p>

<p>Parent and Child—Torts of Minor—Liability of Parent.—The mere fact of parentage alone does not render a parent liable for the torts of his minor child, unauthorized and unratified by the parent, and the liability, if any, must rest upon a showing of agency and the doctrine of respondeat superior.</p> <p>Negligence—Duty of Owner of Automobile to Traveling Public.— The owner of an automobile owes the duty to the traveling public to see to it that his car, when driven on t'he streets with his permission and for the purposes for which the car was purchased, should be driven carefully and .with due consideration to their rights; and the owner should not in good conscience be allowed to disclaim his responsibility on the ground that the use, thus contemplated and authorized by him, is permissive only.</p> <p>Id.—Driving of Automobile by Minor With Parents’ Permission— Liability of Parents.—Where a minor with his parents’ permission takes out their automobile and drives it so recklessly as to cause it to run off the highway and to strike a person standing on the sidewalk, the parents are liable for the injuries caused thereby.</p> <p>Id.—Action for Personal Injuries—Pleading—Sufficiency of Complaint.—In an action for damages for personal injuries received from being struck by an automobile driven by the minor son of defendant's, the complaint states a cause of action where it is alleged that the defendants are the owners of the machine, that the same was purchased for their pleasure, comfort, and enjoyment and not for business purposes, that the son was at all times authorized and permitted by defendants to drive the car, and that at and immediately prior to the accident the son was driving the automobile with the consent, knowledge, and permission of defendants, and was acting in furtherance of, and not apart from, the service and control of defendants, and within the purposes for which t'he car was purchased.</p>

<p>The facts are stated in the opinion of the court.</p>

Franklin A. Griffin, Judge. The facts are identical with those stated in the opinion in the case of MacPhee v. Board of Police Commissioners of the City and County of San Frmcisco et al., ante, p. 308.

<p>Trust—Bank Deposits.—Judgment in each case affirmed on the authority of Halsted et al. v. Central Savings JBanlc, ante, p. 600.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the First Appellate District.</p> <p>The facts are similar to those stated in the opinion in Ex parte Lee, 177 Cal. 690, [171 Pac. 958].</p>

<p>APPEAL from a judgment of the Superior Court of Madera County. Wm. M. Conley, Judge.</p> <p>The facts are similar to those stated in Gravelly Ford Canal Co. v. Pope & Talbot Land Co., ante, p. 717.</p>

<p>Corporation Law—Guaranty op Account op Customer—Authority op General Manager.—Judgment reversed on the authority of Armour ¡J- Co. v. E. Rosenberg Sr Sons Co., ante, p.' 773.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Daniel C. Deasy, Judge.</p> <p>The facts are similar to those stated in the opinion of the court in Crittenden v. Mwrphy, ante, p. 803.</p>