complishment of a double object: (1) To meet the expense of enforcing the ordinance. (2) The discouragement of the keeping of dogs within the limits of incorporated cities and towns, etc.

Counsel appears to be at a loss to understand what privileges a dog owner receives in return for the license fee. The obvious answer to the suggestion is that a dog upon which the license tax has been paid is, under the special protection of the law suffered to run at large with impunity. The paramount consideration in the adoption of such a regulation, however, is in the protection it affords the citizens of the city or town against the indiscriminate running at large of dangerous and nuisance-producing dogs without responsible sponsors.

(5 Cal. App. 400) CORDINER v. LOS ANGELES TRACTION CO. et al. (Civ. 336.)

(Court of Appeal. Second District, California. April 16, 1907. Rehearing Denied June 13, 1907.)

1. DAMAGES PERSONAL INJURY — FUTURE CONSEQUENCES EVIDENCE.

To justify a recovery for future consequences resulting from a personal injury, the evidence must show with reasonable certainty that such consequences will follow from the injury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Damages, $$ 505, 506.]

2. SAME-ADMISSIBILITY.

Where, in an action for personal injury, the evidence showed that plaintiff sustained a fracture at the base of the brain, the testimony of physicians that in a majority of cases, where the injury consisted of a fracture at the base of the brain, epilepsy, paralysis, or mental deterioration would result in the future, was admissible to prove future suffering on which the jury could award damages for future injury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15. Damages, §§ 479–481.]

3. CAUSES INJURY TO PASSENGER - JOINT LIABILITY - DEFENSES - LAST CLEAR CHANCE.

Where a passenger on a street car injured in a collision between the car and a car operated by another company sued both companies, and showed that the collision was due to the joint or concurrent acts of negligence of the two companies, an instruction confining a recovery against the company having the last clear chance to avoid the collision and neglecting to act on it was properly refused; the rule of last clear chance being only applicable to cases where the defense is contributory negligence.

4. SAME.

One having a right to recover against either of two joint wrongdoers or both cannot, in an action against both, be involved in litigation to determine the question of the respective rights of the wrongdoers as against each other. Appeal from Superior Court, Los Angeles County: Curtis D. Wilbur, Judge.

Action by Margaret Cordiner, a minor, by Melissa Cordiner, her guardian ad litem,

SHAW, J. This is an action to recover damages for personal injuries sustained by plaintiff while lawfully riding on a street car operated by the Los Angeles Traction Company, one of the defendants. The Los Angeles Traction Company owned a street car line on Sixteenth street, in Los Angeles, over which it was running its cars in carrying passengers. The Los Angeles Railway Company owned and operated a street car line on Grand avenue, in said city. On January 31, 1903, a collision occurred at the intersection of West Sixteenth street and South Grand avenue between the car of the Los Angeles Traction Company, on which plaintiff was a west-bound passenger on said Sixteenth street, and a north-bound car of defendant Los Angeles Railway Company on said Grand avenue, which collision, it is charged, was due to the negligence and want

of care of the servants of said defendants, and wherein, as a result of said collision, plaintiff was violently thrown from the car of the Los Angeles Traction Company, on which she was riding as a passenger, by reason whereof she sustained injuries, for which, upon the trial, she had judgment against defendants for damages in the sum of $5,000. Both defendants appeal from orders of the court denying their motions for a new trial. Defendants ask for a reversal, first, upon the ground of error in the admission of testimony of medical experts as to future consequences of the injury; second, in the refusal of the court to give certain instructions requested by defendant Los Angeles Railway Company.

Appellants concede plaintiff's right to recover, but contend that the amount of recovery should be limited to the loss that she was "reasonably certain" to sustain. We are in full accord with counsel's view of the law, which appears to have been embodied in an instruction (No. 4) given to the jury by the trial court, wherein they were instructed: "In case you find for the plaintiff, you can allow plaintiff as damages only fair and reasonable compensation for such harm or damage as flows naturally from the injury complained of, and as a natural result of the injury; and the evidence must show to a reasonable certainty that such harm or damage has or does exist, or will result, before you can allow compensation therefor. No damages can be allowed that are merely conjectural, or flow from sympathy." No attack is made upon this instruction, but counsel contend that the evidence of the physi

cians who testified as experts, over objections made by appellants, was of a character from which no certainty could be deduced, and that the testimony consisted of mere speculation and conjecture as to possible future consequences of the injury, which was calculated to, and did, influence the minds of the jury, and resulted in their rendering a verdict for a sum unsupported by the evidence, except upon the theory that plaintiff would at some future time be subjected to the conditions which might follow as a result of the injury sustained.

The evidence tended to show that plaintiff had sustained a fracture at the base of the brain; and, referring to this fact and other conditions shown to exist, Dr. Dukeman, a witness on behalf of plaintiff, was asked: "Would there be any danger of a relapse on the part of the patient after a considerable period of time during which the patient had apparently made a complete recovery?" To which he answered: "There is some dauger." And in reply to, "What is the occasion of the danger?" stated: "After a fracture there is always more or less thickening due to the reparative processes that go on in the recovery of a fracture. That thickening may produce pressure on the brain and produce various symptoms. *** One of the main symptoms may be convulsions; may be paralysis of some form." Referring to his answers in regard to the probability of future trouble, the witness said there would be danger of a recurrence of such symptoms as he had indicated for a period of days, weeks, months, or years. On cross-examination the witness further stated: "I should look for more serious and fatal results from a fracture at the base of the brain than at any other place. I should look for this after apparent recovery, apparent recovery so far as anybody can tell. I would always be looking for something. * * * The doctor is frequently mistaken in the diagnosis of a I think he is more often correct than incorrect. *In the majority of cases I would look for future trouble. I can't tell what will happen in this case. My experience and knowledge as a physician has taught me that in a majority of cases of this kind, where there has been, to even the eye of a doctor, a complete recovery, convulsions or paralysis, or some other symptoms, various symptoms, would happen. I should look for convulsions in the majority of cases of that kind where there had been a complete recovery, to the eye even of a doctor." Dr. H. G. Brainard, another physician called as a witness on behalf of plaintiff, and having reference to the condition of plaintiff after an apparent recovery, was asked: "What results are still likely, or what injury is a patient still likely to experience as a result of the injuries received?" And replied: "The condition would show that the patient had not thoroughly recovered from the effect of the injury, and we might expect from the in

jury the symptoms that rise frequently from a case of suffering from a fracture at the base' of the brain. There is danger of convulsions or epilepsy, danger of mental deterioration, danger of paralysis."

To justify a recovery for future consequences, the evidence must show with reasonable certainty that such consequences will follow. The fact that in the minds of the jurors the disability indicated may follow, or is likely to or will probably follow as a result of the injury, will not warrant a verdict for damages. This, however, does not mean that the testimony of a witness should be excluded unless he is reasonably certain that the indicated results will follow. nor that isolated portions of his testimony should, standing alone, or considered with other evidence, extend to the degree of strength required to establish reasonable certainty as to future resulting consequences. It is the province of the jury to weigh and determine its value as proof. The evidence here tended, in an appreciable degree, to prove the ultimate fact-that is, the reasonable certainty that future evil consequences would result from the injury-and was 'properly admitted for the consideration of the jury; it being its function, upon a consideration of the evidence as a whole, to determine its sufficiency as proof of the ultimate fact. Its competency should not be confounded with its sufficiency; nor should the technical definition of words constitute a controlling factor in determining the question of admissibility. But. as stated in Ballard v. Kausas City. 86 S. W. 479, 110 Mo. App. 391: "The main object is not to draw fine distinctions based upon accurate definitions of words, but to ascertain the real idea expressed." See, also, Block v. St. Ry. Co., 61 N. W. 1101, 89 Wis. 371, 27 L. R. A. 365, 46 Am. St. Rep. 849. It is often impossible to show by positive proof whether or not an impairment of health or faculties will follow as a result of injury. Hence, of necessity, in determining the question, courts and juries must relyupon the testimony of properly qualified physicians for such testimony as will in the minds of the jury establish the fact in issue to a reasonable certainty. Such evidence must be clearly distinguished from conjecture, or that which merely establishes a possibility of future trouble. As a rule, the physician whose opinion is most reliable is loath to give an opinion as to what consequences will or will not follow as a result of an injury in a certain case, but at the same time willing, as here, to state the result of his own professional experience and observations in treating cases where like injuries have occurred, and as a result of that experience say that we might or might not expect like results to follow in this case. Testimony of duly qualified experts which shows that in a majority of cases, where the injury consists of a fracture at the base of the brain, such injury results in future epilepsy, paralysis,

or mental deterioration, tends to prove the reasonable certainty that such consequences will follow in any given case of like injury. In this view considered, the evidence, while it may not have been by the jury considered sufficient proof, nevertheless tended to establish to a reasonable certainty that, notwithstanding the apparent recovery of the plaintiff, she would in the future suffer from the effects of the injury. Dr. Dukeman testified that there was some danger of a relapse, and gave his reasons for so stating. That after apparent recovery he should look for serious results; that in the majority of such cases he would look for future trouble; that in a majority of such cases where there was an apparent complete recovery to the eye of a doctor, convulsions, paralysis, or other conditions of disease followed as a result of the injury; that he should look for convulsions in a majority of such cases. Dr. Brainard testified that epilepsy and mental deterioration might be expected to follow (not that they might follow), and that there was danger of such conditions.

In Peterson v. Chicago, etc.. Ry. Co., 39 N. W. 485, 38 Minn. 511, and Nichols v. Brabazon, 69 N. W. 342, 94 Wis. 549, the court held that questions which called for the opinion of the witness as to the probability of the patient recovering was not subject to the objection made here; the court in the latter case observing: "Certainly the effect of the whole testimony must be to establish to a reasonable certainty that the effects of the injury will be suffered in the future." In Block v. St. Ry. Co., 61 N. W. 1101, 89 Wis. 371, 27 L. R. A. 365. 46 Am. St. Rep. 849, a question asked as to the reasonable probability of the ultimate recovery was sustained; the court saying: "While it is true that the whole testimony must establish, in the minds of the jury, more than a mere reasonable probability,' and must amount to proof to a 'reasonable certainty,' this ultimate fact is susceptible of proof by items of testimony which do not separately fully establish it." Mitchell v. Tacoma Ry. & M. Co., 43 Pac. 528, 13 Wash. 560; Ballard v. Kansas City, supra; Peterson v. Chicago, etc., Ry. Co., 39 N. W. 485, 38 Minn. 511; Filer v. N. Y. C. R. Co., 49 N. Y. 42; Hallum v. Village of Omro, 99 N. W. 1051, 122 Wis. 337. We have carefully examined the great number of authorities submitted by counsel for appellants. Many of them relate to the form of instructions given for the guidance of the jury where damages for future results of injuries were sought. Others are clearly distinguishable from the case at bar. Lentz v. Dallas, 72 S. W. 59, 96 Tex. 258, an objection was sustained to an abstract question upon the ground that it was not confined to the probable effects of the injury. Yaeger v. Railway Co. (Cal.) 51 Pac. 190. falls within the same rule. The case of Strohm v. Railroad Co., 96 N. Y. 305, has been frequently cited in support of the propo

In

tion that consequences which are contingent, speculative or merely possible are not proper to be considered in ascertaining the amount of damages sustained by reason of personal injuries. In that case the court recognizes the rule that, "to entitle a plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury." In the Strohm Case the questions and answers upon which the court based its ruling were: "You said it [the injury] might develop i worse signs or conditions? What do you refer to?" To which the witness answered: "A patient may develop." etc. Both question and answer related to what conditions might develop, not to conditions that might be expected to develop, as a result.

*

Neither of the defendants questioned the right of plaintiff to recover such damages as she had sustained in the collision, but each contended that the other should be held responsible therefor, and, with the view of having the jury pass upon the question, the Los Angeles Railway Company asked the court to instruct the jury, in effect, that notwithstanding the negligence of its motorman in driving his car upon the crossing, still if the traction motorman could, after he saw that it was beyond the power of the motorman of the Los Angeles Railway car to avoid the accident, have, by proper care, prevented the collision, then the negligence of the defendant Los Angeles Traction Company was the proximate cause of the injury. In other words, while admitting that plaintiff's injury resulted from the collision due to the joint or concurrent acts of negligence of defendants, she must be confined in her recovery for such damages to a judgment rendered against the defendant who had the "last clear chance" to avoid the collision and neglected to act upon it. Appellant seeks to apply the well-established principle that "he who last has a clear opportunity of avoiding the accident, by the exercise of proper care to avoid injuring another, must do so." Esrey v. S. Pacific Co., 103 Cal. 541, 37 Pac. 500. This rule is only applicable to cases where the defense is based upon the contributory negligence of plaintiff, due to his want of care in placing himself in a position of danger, and where he may, notwithstanding his negligence, recover from a defendant, who by the exercise of proper care could have avoided the injury. We are unable to perceive why this rule should apply to plaintiff, who was in no way chargeable, by imputation or otherwise, with negligence, nor are we referred to any authority which supports the proposition. Indeed, all the authorities recognize the right of recovery against either or both of the defendants whose concurring acts of negligence united in producing the injury. 1 Shearman & Red

field on Neg. p. 122; 1 Thompson on Neg. p. | 75; Doeg v. Cook, 126 Cal. 213, 58 Pac. 707, 77 Am. St. Rep. 171; Tompkins v. Clay St. Ry. Co.. 66 Cal. 163, 4 Pac. 1165; Pastene v. Adams, 49 Cal. 87.

Plaintiff, having a right to recover against either or both defendants, could not, while in pursuit of her rights, be involved in a litigation having for its purpose the determination of questions involving the respective rights of defendants as against each other.

It follows that the orders appealed from must be affirmed; and it is so ordered.

A complaint which alleges an essential fact only inferentially or as a conclusion of law is good, in the absence of a demurrer or an objection to evidence offered under it.

2. SAME-AIDER BY JUDGMENT-COMPLAINTSUFFICIENCY.

A complaint in an action for an accounting of moneys alleged to have been delivered by plaintiff to defendant in trust, which alleges that plaintiff handed to defendant various sums of money aggregating a specified sum. "to be kept deposited and invested by him" for plaintiff. "and to be returned to plaintiff on demand." and that defendant deposited of the sums so received in trust for plaintiff a specified sum in a bank, sufficiently alleges the existence of a trust as against an objection raised for the first time after judgment.

A demand that a suit for an accounting of moneys alleged to have been delivered by plaintiff to defendant in trust, to be held and invested for plaintiff, be tried by a jury, is not sufficient to point out a defect in the complaint arising from its alleging merely inferentially or as a conclusion of law the existence of a trust. 4. LIMITATION OF ACTIONS — ACCRUAL

OF

RIGHT OF ACTION-CONTINUING TRUSTS. Where the pleadings and the evidence established a continuous trust, limitations did not commence to run until demand and a refusal to account for the property delivered pursuant to the trust.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, $$ 506-510.] 5. EVIDENCE-SUFFICIENCY.

Where the evidence sustains a finding for plaintiff as to all the relief demanded by him, it is sufficient to sustain a finding awarding relief only in part.

6. LIMITATION OF ACTIONS - ACCOUNTINGCOUNTERCLAIM.

Where, in a suit for an accounting of moneys alleged to have been delivered by plaintiff to defendant in trust, to be held and invested for plaintiff, the latter testified that, at a time defendant claimed to have advanced money to plaintiff, defendant held large sums of money belonging to plaintiff, for which he was asking defendant to account, the right of defendant to require the court to credit the amount advanced by him to plaintiff could not be defeated by limitations; Code Civ. Proc. § 440, providing that. where cross-demands have existed between persons under such circumstances that, if one had sued the other, a counterclaim could have been set up, the two demands shall be deemed compensated so far as they equal each other.

Appeal from Superior Court, City and County of San Francisco; Frank H. Kerrigan. Judge.

Action by Patrick F. Dillon against l'atrick Dillon continued after his death against his executor, C. W. Cross. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Judgment modified and affirmed, and order denying motion for new trial affirmed. See 87 Pac. 379.

C. W. Cross and Robert Harrison, for appellant. J. F. Riley and Crittenden Thornton, for respondent.

HALL. J. Appeal from judgment and order denying defendant's motion for a new trial. Plaintiff, Patrick F. Dillon, brought this action against Patrick Dillon, the father of plaintiff, for an accounting of moneys claimed to have been delivered to said defendant by plaintiff in trust to be held and invested for plaintiff, and for general relief. The cause was tried, and judgment rendered for plaintiff, during the lifetime of defendant, who subsequently dying, the executor of his last will was substituted as party defendant. By the term "defendant," when used in this opinion, we refer to the original defendant.

The action was tried upon the issues raised by the amended complaint and the answer thereto; no demurrer having been filed to the amended complaint. Before the case came on to be tried defendant made a demand that the cause be tried by a jury; but the court, taking the view that the action was one in equity, refused the demand for a jury, but allowed a jury as advisory to the court only, and made findings in favor of plaintiff, and gave judgment accordingly. Acting upon the same theory as to the nature of the action, the court found that the action was not barred by the statute of limitations. Appellant contends that the court erred in refusing a jury trial, and in finding that the action was not barred. Whether the court erred or not depends upon whether or not the complaint alleges a trust by defendant for plaintiff.

Al

It is insisted that no trust is alleged. though it is alleged that plaintiff handed to defendant various sums of money, aggregating $2.542. "to be kept, deposited, and invested by him, the said Patrick Dillon, for this plaintiff, and to be returned to plaintiff on demand." and "that the said defendant, Patrick Dillon, did deposit of the said sums of money so received by him in trust for this plaintiff in the Hibernia Savings & Loan Society in the City and County of San Francisco the sum of about $1,100," it is contended that it does not appear from the complaint that defendant accepted the money, or agreed to keep, deposit, or invest it for plaintiff. It certainly is not alleged in direct terms that defendant accepted the money, or agreed to keep. deposit, or invest

*

if for plaintiff, and, if the complaint had been attacked by demurrer, it must have been held bad. In the face of an attack by demurrer, especially by a special demurrer, it is not sufficient that essential facts be alleged inferentially or as a conclusion of law; but such facts must be directly stated. On the other hand, it has been uniformly held that, in the absence of a demurrer or an objection to offered evidence, a complaint that alleges an essential fact only inferentially or as a conclusion of law is good. Russell v. Mixer, 42 Cal. 475; Hill v. Haskin, 51 Cal. 175; City of Santa Barbara v. Eldred, 108 Cal. 294, 41 Pac. 410; Kimball v. Richardson-Kimball Co., 111 Cal. 386, 43 Pac. 1111; Estate of Behrens, 130 Cal. 416, 62 Pac. 603; Cushing v. Pires, 124 Cal. 663, 57 Pac. 572; Penrose v. Winter, 135 Cal. 289, 67 Pac. 772. In City of Santa Barbara v. Eldred, supra, the complaint was attacked by a general demurrer, which was overruled. The court said: "He now specifies a great many alleged defects in the complaint. Many of them are, in effect, that the complaint is ambiguous or uncertain. Such objections cannot be reached by general demurrer. Nor can the other objections, which merely amount to criticisms upon the sufficiency of the statement, as that the essential facts appear only inferentially, or as conclusions of law, or by way of recitals, prevail on such demurrer. There must be a total absence of some material fact to justify us in sustaining a demurrer of this character."

In the complaint before us, after alleging that plaintiff handed to defendant moneys to be kept, deposited, and invested by him, the said Patrick Dillon, for plaintiff, it is alleged that defendant did deposit in a bank $1.100 "of the said sums of money so received by him in trust for this plaintiff." It is thus inferentially alleged that defendant received the money in trust for plaintiff. In paragraph 5 of the complaint the money is repeatedly referred to as money held in trust for plaintiff by defendant. It thus appears that plaintiff was attempting to charge defendant as a trustee; and while the complaint is uncertain for not alleging directly what is alleged inferentially, it is not a case of a total absence of allegations of essential facts going to charge a trust. It should have been attacked by demurrer, when it doubtless would have been amended. The mere demand that the case be tried by a jury was not sufficient to point out the defect now complained of, and the court was justified in treating the action as one in equity, and defendant was not entitled to a jury trial. The case made by the pleadings and the evidence was a continuous trust, and the statute of limitations did not commence to run until demand and a refusal to account for the money, which occurred shortly before the action was begun. Baker v. Joseph, 16 Cal. 173.

Appellant concedes that the evidence sup

ports the findings save in one respect. The court found that as to money delivered by plaintiff to defendant prior to the 2d day of December, 1892 (during the minority of plaintiff), defendant never relinquished the right he had thereto by reason of the minority of plaintiff, but also found, as to the money delivered by plaintiff to defendant subsequent to said date, that the same was. delivered to defendant in trust, to be kept, invested, and deposited for plaintiff. Appellant urges that the only evidence of any agreement whereby defendant promised or agreed to keep, or deposit, or invest any money for plaintiff was of an agreement entered into in 1888. He argues that the finding of the court in favor of defendant as to the money delivered prior to plaintiff's majority necessarily determines that the evidence of such agreement was false, and that as a result no evidence is left to support the finding in favor of plaintiff as to the money delivered to defendant after plaintiff's majority. In other words, the appellant admits that, if the court had found in favor of plaintiff as to all the money delivered to defendant, such finding would have been supported by the evidence; but, because the court in part found in favor of defendant, the finding in favor of plaintiff cannot stand. We cannot agree with this contention. It requires too nice an examination into the mental processes by which the trial court arrived at its conclusions. If the evidence was sufficient to sustain a finding in favor of plaintiff as to all the money in question, it was sufficient to sustain such finding as to a part thereof.

This disposes of the principal points in the case, and leaves but one other question to be considered. Defendant pleaded in his answer, "by way of counterclaim and otherwise," that during the years 1900 and 1901 "defendant loaned, gave, and intrusted to the said plaintiff various sums of money, aggregating, to wit, $390, none of which sums have been returned or repaid to said defendant." Upon the objection of plaintiff, however, the court struck out the evidence of defendant tending to support this allegation, upon the theory, apparently, that it was a counterclaim, and as such was barred by the statute of limitations. In this we think the court erred. The plaintiff claimed, and had testified, that, at the time defendant claimed to have advanced money to plaintiff defendant held large sums of money belonging to plaintiff, for which he was asking defendant to account in this action, and the court was then engaged, in effect, in taking an account between these parties. If defendant, during the existence of this trust, had advanced money to plaintiff, either out of the trust moneys or out of his own money, the plainest principles of justice and equity require that in such accounting he should be allowed credit therefor. "When crossdemands have existed between persons under