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plaint: "The defendant on the 27th day time and place of starting it, but in protectof August, 1904, intentionally and negligently ing against its spread afterwards." The kindled a fire on said defendant's land in Co- opinion proceeds: “There is no doubt that lusa county, Cal., and adjoining the said land a party having taken reasonable precautions of plaintiffs, and negligently suffered said to avoid the spread of fire may, on a calm fire to extend beyond its own land, and so morning in a dry time, set fire to rubbish upnegligently watched and tended said fire that on his premises, and if, during the progress it came into the plaintiffs' said land and de- of the fire, a violent wind causes the fire to stroyed all the property hereinbefore describ- escape to his neighbor's premises, he cannot ed without any fault or negligence on the be said to have been negligent. But the law part of plaintiffs or either of them, and the does not justify the use of fire at a time and loss of plaintiffs by reason of the destruction place when the probable consequences are thereof was the sum of $1,023."

communication with the property of others." 1. The court committed no error in overrul- In the case at bar there was some evidence ing the demurrer. The property was suffi- that a brisk south or southeast wind was ciently described for identification, and it blowing at the time the fire was started. was located "on lands owned by plaintiffs in Some of the witnesses denied this, but there township seventeen (17) north, range one (1)

was such a conflict as to make it a proper west in Colusa county" and adjoining the question for determination by the jury. The property of defendant. Defendant could thistles on defendant's premises to which the hardly be mistaken as to what property was

fire was set were high and close together. It intended. As to the title, it was sufficient to was late in the summer season, and everyallege "that on the 27th day of August, 1904, thing was dry and inflammable. If the wind and for a long time prior thereto, plaintiffs was blowing, we can understand how a reawere the owners of the following described sonable man might reach the conclusion that property.” When such an allegation is made, the probable consequences of starting the fire the presumption follows that they are ten

would be the destruction of the neighbor's ants in common. The suggestion that the property on the north, and therefore that averment "and the loss of plaintiffs by rea

the defendant had not exercised due care unson of the destruction thereof was the sum,' der the circumstances. Besides, the evidence etc., is not equivalent to an allegation that left it a disputable proposition whether the plaintiff's were damaged in said sum, seems

preliminary preparations were adequate to hypercritical and not entitled to serious at- prevent the fire from spreading. It cannot tention.

be said as a matter of law that the jury was 2. It is claimed that no negligence was not justified in finding that the defendant shown, and therefore the verdict of the jury was negligent in starting the fire. is not supported by the evidence. In this con- 3. Complaint is made of certain rulings of nection the following cases are cited: Gar

the court in the admission of evidence to nier v. Porter, 30 Cal. 105, 27 Pac. 55;" Gal

show the amount of damage done to plaintiff's vin v. Gualala Mill Co., 98 Cal. 268, 33 Pac. by the fire. Granting that some of them are 93; Sweeney v. Merrill, 38 Kan. 216, 10 Pac. technically erroneous, yet no prejudice is 451, J Am. St. Rep. 734; Needham v. King, 34

shown, as testimony to the same effect was X. W. 891, 9.5 Mich. 303; Bolton v. Calkins,

received without objection. And, again, there 60 N. W'. 297, 102 Mich. 69. We deem it un

is no issue raised by the pleadings as to the necessary to notice in detail these various

value of the property destroyed. The comdecisions. They all substantially agree as to

plaint was verified and the value of each arthe law applicable to this class of cases. In

ticle destroyed specifically averred. The andeed, there could be no dispute, and there is swer denied that plaintiffs were the owners none here, that plaintiffs are not entitled to of the property, or that the fire destroyed it, recover unless defendant was negligent in

or that defendant was guilty of any neglisetting out the fire or in the management of

gence; but the only denial as to the amount it after it was started, and that this negli

of damage is as follows: "Defendant denies gence was the proximate cause of the injury.

that the loss of plaintiffs, by reason of the Yo difficulty attends the determination of destruction of the property described in said what is negligence in the abstract, but the complaint, as therein alleged, was the sum attempt to apply the principle to concrete of $1,02)." There is no denial that it was facts often gives rise to serious controversy. of any sum less than that. In the Veedham Case, supra, the whole ques- 4. There seems no escape from the conclution of negligence in allowing fire to spread sion that the court erred in its refusal to to the property of one's neighbor is discussed give the following instruction requested by elaborately, and a large number of cases is defendant: "I instruct you that if for any reviewed. It is therein stated by the Su- reason it was impossible for the employés of preme Court of Michigan that: “Fire is a the defendant company to have prevented the dangerous element and in making use of it fire from getting beyond their control, owing a degree of care is required corresponiling to to any sudden rising of the wind after the the danger." And the following is quoted | fire was set out, the defendant company would with approval from Cooley on Torts: "Due not be liable for the damages aceruing to care requires circumspection not only as to į plaintiffs, providing due care was taken before the fire was set out." The instruction is distinction is of no practical importance, as based upon the proposition that, if defend- each juror, whether prejudiced or not, must ant exercised due care in setting the fire, it necessarily be guided by the evidence as it would not be liable for any negligence in its affects his own mind, and it is impossible for subsequent care of said fire, if that negli

him to determine how the evidence would gence was not the proximate cause of the influence some other mind. Besides, of injury to plaintiffs. If by the exercise of course, the presumption must be indulged due care in the management of the fire de

that each juror is unprejudiced and of averfendant could not have prevented the dam

age intelligence. age, it is not liable for its failure to exercise

It is due the learned trial judge to say such care. The whole doctrine of responsi- that he had no opportunity to review the bility for negligence is based upon the post

record, as no motion was made for a new ulate that without such negligence the injury

trial; the appeal being from the judgment would not have occurred, or, in other words,

alone. that the negligence is the proximate cause

For the error pointed out the judgment is of the injury. The following cases illustrate

reversed. the point: Kevern v. Providence J. Co., 70 Cal. 394, 11 Pac. 7-10; Vizelich v. S. P. R. R. We concur: CHIPMAX, P. J.; HART, J. Co., 126 Cal. 587, 59 Pac. 129; Puck haber v. S. P. R. R. Co., 132 Cal. 303, 61 Pac. 450; Luman v. Golden A. C. M. Co., 110 Cal. 706,

(6 Cal. App. 115) 74 Pac. 307. Defendant was entitled to the SSIPSIC CO. v. RIVERSIDE MUSIC CO. instruction, as there was evidence that the

(Cir. 401.) communication of the fire to the premises of (Court of Appeal, Second District, California, plaintiffs was caused by a sudden whirlwind

July 24, 1907.) which defendant could neither anticipate nor APPEAL-TRANSCRIPT-CERTIFICATE OF CORcontrol. The instruction was adapted to de- RECTXESS-NECESSITY. fendant's theory of unavoidable casualty,

An affidavit of an appellant that the trans

cript is correct cannot be substituted for the which theory finds support in the testimony

certificate of the clerk or attorneys as to the corof some of the witnesses. That the failure rectness thereof required by Code Civ. l'roc. $ to give the instruction may have resulted

953, and Supreme Court rule 2 (78 Pac, vii), and to the prejudice of defendant is apparent

in the absence of the latter certificate the judg

ment appealed from cannot be reviewed. from the reflection that the jury under the evidence may have believed that defendant

Appeal from Superior Court, Riverside exercised due care in setting out the tire,

County; F. E. Densmore, Judge. but was negligent in caring for it, and also

Action by the Snipsic Company against the that the damage was caused by the whirl

Riverside Music Company. From the judg. wind over which defendant could exercise

ment, plaintiff appeals. Motion to dismiss no control. A verdict resting upon this state

appeal. Dismissed. of facts would be unjustifiable as ignoring Howard K. James and F. G. Hall, for apthe doctrine of "proximate cause.” Respond- pellant. Purington & Adair, for respondent. ents' answer to the contention is that the principle was covered by another instruction SHAW, J. This is a motion on the part appearing at folio 51 of the transcript. But

of the respondent to dismiss an appeal from the latter is not authenticated in any man- a judgment of the superior court of Riverner. It is not incorporated in the bill of side county. The transcript of the record exceptions, and it is no part of the judgment contains no certificate either by the clerk roll. In fact, it does not purport to have or attorneys of the correctness of the same, been given by the court, but it is printed as nor does it contain any certificate of the a part of "Instructions Requested by Plain- clerk or attorneys that an undertaking on tiffs.” It is manifest that it cannot be con- appeal in due form has been properly filed, sidered. But, if it could be regarded, it is or waiver thereof. Section 953, Code Civ. clear that it does not cover the contingency Proc.; Supreme Court rule 2 (78 Pac. vii). suggested, but requires defendant, in any Appellant has presented an affidavit averring event, to exercise ordinary care, in attend- "the said transcript as the same is now of ing said fire, to escape responsibility.

record is in all respects true and correct"; Appellant criticises the action of the court but the affidavit of appellant cannot be subin giving this instruction: "By preponder- stituted for the certificate required by said ance of the evidence is not necessarily meant section 953, Code Civ. Proc., and the rules a greater number of witnesses, but only such of this court, in the absence of which, the weight of evidence as satisfies the jury of judgment appealed from cannot be reviewed. the truth of the allegation to be established." Ellis v. Bennet, 3 Pac. 801; Pacific M. Life The contention is that section 1835, Code Ins. Co. v. Edgar, 132 Cal. 197, 64 Pac. 260. Civ. Proc., provides that it must satisfy the The motion is granted, and appeal dismisunprejudiced mind; whereas, the mind of sed, without prejudice to another appeal. the juror may be prejudiced. The argument is somewhat tenuous and metaphysical. The We concur: ALLEN, P. J.; TAGGART, J. (6 Cal. App. 190)

mand, and at all times thereafter, said afEGILBERT V. SUPERIOR COURT OF fiant W. D. Egilbert was unable to produce SHASTA COUNTY. (Civ. 384.)

or submit for inspection said books"; that Court of Appeal, Third District, California. on said June 14, 1907, affiant appeared in Aug. 5, 1907.)

response to said order of said court, and a MAXDAMI'S-VIOLATION OF WRIT—CONTEMPT. hearing was had and evidence introduced in

Petitioner for writ of review answered a petition for a writ of mandamus to compel him

relation thereto; that at said hearing said is secretary of a corporation to submit its books Egilbert offered to produce evidence that his to examination, admitting that he was then, resignation as such secretary "was made withApril 22, 1907, secretary of the corporation. | out any intent or effort on his part to evade The cause was set for trial on May 22, 1907, on issues joined, and on May 18th petitioner re

or render null or of no effect the order of sigued as secretary, not for the purpose of evad-said superior court, but said superior court ing the order of the court, and on the 25th, when thereupon refused to receive or adnit such he was served with a peremptory writ command- evidence”; that the fact that said Egilbert to examination, he was not secretary and could did not have the care or custody of said

books not comply with the order. Il eld, that he was was not controverted at said hearing; that not chargeable with contempt in failing to obey the said court made findings in said proceedthe writ.

ing and found that said Egilbert resigned Application for a writ of review by W. D.

from his said office on May 18, 1907, and it Egilbert against the superior court of Shasta

was not found or determined that he so recounty to determine the validity of a judg- signed for the purpose of evading any order ment against petitioner for contempt. Writ of the court, or that he did not resign in good granted. Petitioner discharged.

faith; that petitioner was adjudged to be Geo. 0. Perry and C. H. Braynard, for re- guilty of contempt, and as punishment was titioner. T. W. II. Shanahan, for respondent. fined in the sum of $200, and in default of

payment to be imprisoned one day for each CHIPMAN, P. J. The petition shows: $2 thereof. Most of the allegations of the That on April 10, 1907, a petition for a writ of petition are admitted. It is admitted in the mandate was filed in defendant court, and return of the judge that Egilbert resigned thereafter, to wit, on May 22, 1907, a per- | on May 18, 1907, but it avers want of knowlemptory writ was issued out of said court, edge as to the acceptance thereof, and on indirected to affiant, as secretary of the Pacific formation and belief denies that it was acPower Company, commanding affiant “as such cepted; avers want of knowledge as to the secretary immediately after the receipt of allegation in the petition that Egilbert was said writ to permit one T. W. H. Shanahan, not the secretary of the said company at the at whose instance and in whose behalf said said date or in possession of certain of said peremptory writ of mandate was granted, books, and therefore denies said allegation ; to inspect all of the books

* of the admits that Egilbert filed his aflidavit in Pacific Power Company"; that said peremp- said contempt proceedings, setting forth the tory writ was served on affiant on May 25, | facts as above shown by him; admits that 1907; that prior to May 18, 1907, affiant was at the hearing he offered to prove that he actsecretary of said company, but resigned as ed in good faith in resigning and through no such secretary, and his resignation was ac- purpose to evade any order of the said court; cepted on said May 18th, and at no time and admits that the evidence that Egilbert thereafter was he such secretary or in posses- was not secretary and did not have the care sion of or had control of said books. It next or control or custody of said books was not appears that on the day of June, 1907, controverted. It further appears from the said Shanahan made and filed in said court return of respondent that the petition for a an affidavit setting forth, in substance, the writ of mandate was filed April 10, 1907; foregoing facts: That he had made demand that an alternative writ was duly issued on for the production and inspection of said that day, returnable April 17, 1907; that Egilbooks by virtue of said writ after service bert made answer April 22, 1907, and admittl:ereof on petitioner herein, but was not ted that he "was and now is" such secretary ; furnished access to or allowed to inspect said that, issues being joined the cause was set books, and that the said Shanahan prayed for for trial for May 20, 1907, and was then tried an order of court requiring said Egilbert to and judgment rendered in favor of petitioner, show cause before said court on June 14, among other things, that at all times men1907, why he should not be punished for con- tioned in the petition for writ of mandate, tempt of said court for failing and refusing said Egilbert was and now is such secretary; to obey said writ; that affiant (petitioner that a peremptory writ was thereupon, on herein) thereupon made and filed his affidavit | May 22, 1907, duly issued, was served on in said court setting forth the fact of his Egilbert on May 25, 1907, and he failed and resignation as such secretary and the accept- neglected to obey its directions, and thereance thereof on May 18, 1907, and that since upon said proceedings in contempt were comsaid day he had not had the custody or control menced; that at the hearing of the contempt of said books, and “that at the time of the proceedings the court determined that said service of said writ of mandate and de- Egilbert was secretary when the alternative writ was issued in April, but that he resigned Es parte Todd, 119 Cal. 57, 50 Pac. 1071 ; on May 18th; that the cause was heard on In re Cowden, 139 Cal. 244, 73 Pac. 156. Pe. May 20th; "that he failed and neglected el- titioner could show his resignation, and that ther before or at the trial of said case to notify | he was no longer in control of the company's the court of his resignation, and allowed the books, as an answer to contempt proceedcourt to proceed to judgment under the im- ings for noncompliance with the writ of manpression that he was secretary of the said damus. U. S. v. Seaboard R. Co. (C. C.) 85 Pacific Power Company; that at all times Fed. 955. The Supreme Court said, in Ex during said proceedings and up to the time parte Hoar, 146 Cal. 132, 79 Pac. 853: "In of the present contempt proceedings he was cases of contempt, every court exercises a a director of said corporation; that as such special and limited jurisdiction, and its audirector he had actual knowledge that the thority to impose a fine or term of imprisonjudgment had been rendered against him as ment must be shown by the record of consecretary of said corporation; that on the viction"-citing Overend v. Superior Court, 25th day of May, 1907, he was duly served 131 Cal. 280, 63 Pac. 372. with a copy of the peremptory writ of man- The judgment adjudging petitioner guilty of date, the refusal to obey which resulted in contempt, and imposing punishment therefor, the contempt proceedings.” Reduced to the is hereby vacated and declared to be null and simplest statement, the material facts were: void. That in April Egilbert answered the petition for a writ of mandate, stating that he was We concur: HART, J.; BURNETT, J. then, April 22, 1907, the secretary of the company; that the cause was, on the issues then joined, set for trial May 20, 1907; that

(6 Cal. A. 195) on May 18th he had resigned and thencefor- BAUTER v. SUPERIOR COURT OF SHASward ceased to be secretary or to have con

TA COUNTY et al. (Civ. 385.) trol of the books of the company; that on

(Court of Appeal. Third District, California. May 25th, when the writ was served, he was

Aug. 5, 1907.) not the secretary and could not comply with

MANDAMUS-VIOLATION-CONTEMPT. the order; that his resignation was not for Proceedings having been instituted against the purpose of evading the order of the court. E., as secretary of a corporation, to compel him At the hearing on May 20th, the issue was the to produce the books of the company and submit same as when Egilbert filed his answer, name

the same for inspection, he resigned as secretary

in good faith prior to the issuance of a peremply, that he was then, April 22d, the secretary tory writ commanding him to produce the books of the company. If he continued to be such for examination, etc. Petitioner was elected secretary until the hearing. May 20th, the

temporary secretary to fill the vacancy until the

permanent secretary, who had been selected, fact should have been proven, or, if he re- should take office. A copy of the peremptory signed contumaciously to evade the operation writ was served on petitioner, and demand made of any writ that might be issued, that fact

on him to produce and submit them to inspec

tion, but, before the time arrived for submission should have been shown. But the court con

of the books, under an agreement with relator, ceded that the resignation had no such object petitioner resigned as secretary; the permanent in view, by eliminating all evidence on that secretary having assumed the office. Held that, point, and it not only did not find that Egil

petitioner being no party to the mandamus pro

ceedings, the court had no jurisdiction to punish bert was secretary on May 20th, but did him for his failure to comply with the writ. find that he had resigned on May 18th. The fact that Egilbert withheld from the court the

Petition for a writ of review by L. A. Bautfact of his resignation on May 20th, and al

er against the superior court of Shasta counlowed the court to grant the writ under the

ty and George W. Bush, judge thereof. Writ impression that Egilbert was then the sec

granted. Petitioner discharged. retary, is not the ground on which the con- Geo. 0. Perry and C. H. Braynard, for tempt judgment was based. That judgment

That judgment petitioner. T. W. H. Shanahan, for respondrested on his failure and refusal to produce ents. the books of the company. Respondent did not appear at the hearing here and has filed CHIPMAN, P. J. It appears from the peno brief of points and authorities.

tition herein that petitioner was adjudged to It clearly appears, and is not controverted, be guilty of contempt in disobeying the writ that it was beyond the power of petitioner to of mandate issued out of the proceedings in comply with the order when the peremptory the cause entitled W. D. Egilbert, Petitioner, writ of mandate issued and when it was v. Superior Court of Shasta County (No. 384, served upon him, and that his inability to this day decided) 91 Pac. 748, in which cause comply was not brought about through any this petitioner was not a party in any cadesign or purpose to evade the order of the pacity, and was not named therein. It is court. Upon this state of facts the court was alleged that petitioner was on May 18, 1907, without jurisdiction to punish him for con- elected as temporary secretary of the Pacific tempt. Adams v. Haskell & Woods, 6 Cal. Power Company to fill a vacancy caused 316, 65 Am. Dec. 517; Ex parte Cohen, 6 Cal. by the resignation of said Egilbert, until one 319, cited in Ex parte Cottrell, 5 Cal. 420; A. A. Martin, who had been selected as per

manent secretary, should be able to take such office; that a copy of the said writ was served on petitioner on May 28, 1907, and demand was then made upon him to produce and submit for inspection the books of said company; that petitioner replied to said de mand that the books were not in his possession or under his control, but that he would produce them as soon as he could procure possession and control of them; that thereafter he made an arrangement with T. W. H. Shanahan (who had procured said writto issue) to submit said books to him for inspection on June 10, 1907, but that prior thereto he (petitioner) resigned as such secretary, said Martin having become able to take up the duties of said office. It is then shown that said Shanahan took proceedings to obtain an order of the court adjudging petitioner berein to be guilty of contempt for disobeying said writ of mandate; that at the hearing of said contempt proceedings, to wit, on June 14, 1907, this petitioner answered setting forth his appointment as secretary and resignation as aforesaid; that he was not a party to the mandate proceedings; that evidence was introduced and the court made findings upon the facts alleged by petitioner (but it is not shown what the findings were), and thereupon the said court decreed that this petitioner was guilty of contempt, and imposed as punishment therefor that he be fined the sum of $100, or be imprisoned one day for each $2 thereof.

Under the facts as they appear, the question is: Had the court jurisdiction to punish petitioner for contempt of the writ issued in a proceeding brought against Egilbert alone, to which proceeding at no stage was this petitioner a party, and in which he had no opportunity to be heard and was not heard? In our opinion the question must be answered m the negative. Whether or

or not petitioner was the successor of Egilbert as secretary, he was not bound by anything adjudged in the proceedings against Egilbert alone. Ex parte Tinkum, 54 Cal. 201. It was there held that the successor in office of the county treasurer could not be punished for contempt for refusing to obey a writ issued against his predecessor, who had gone out of office when the writ issued; that the judge ment of the court against the former treasurer "had no validity against the petitioner, as his successor in oflice, because the court had not, by any proper proceedings had or taken in the action, made the petitioner a party defendant in the action." See Ex parte Widber, 91 Cal. 367, 27 Pac. 733; Ex parte Truman, 124 Cal. 387, 57 Pac. 223. See, also, Sargent v. Cavis, 36 Cal. 552; Ex parte Hollis, 59 Cal. 405.

The judgment adjudging petitioner guilty of contempt, and imposing punishment there for, is hereby vacated and declared to be null and void.

(6 Cal. A. 174) COMMERCIAL NAT. BANK OF OGDEN .

SCIILITZ. (Civ. 343.) (Court of Appeal, Third District, California.

July 31, 1907.) 1. NEW TRIAL-NOTICE OF INTENTION-FIL. ING.

The court may treat a notice of intention to move for a new trial as filed on the day on which it was served and was handed to the clerk, though for some unexplained reason he failed on that day to indorse it as filed; he having three days later, on his attention being called to it, marked it as filed as of the day it was left with him, and his failure to mark it on that day having been through no fault of plaintiff's attorney who handed it to him, though the fee was not then paid, no fee having been demanded, and there having been no refusal to file, and the clerk testifying that the failure to pay made no difference. 2. TAXATION-ASSESSMENT-PRESUMPTION OT REGULARITY.

As against the recitals of a tax deed that the assessment was made under a certain act, and the provisions of the tax laws that a tax deed is prima facie evidence that the assessment was levied according to law, the statement in a letter of the grantee in the deed is no evidence that the assessment was under another act, in which case it would be irregular.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, $$ 1555, 1565.] 3. SAME-ASSESSMENT IN WRONG NAME.

The assessment of land in the name of another than the owner does not make it or the tax sale thereon invalid.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, $ 701.) 4. SAME_Tax DEED_DESCRIPTION OF PROPERTY.

The description in a tax deed, "strip of 50 acres on the north line of fractional N. W. 14 of section 7," is insufficient.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, $$ 1520, 1521.) 5. ADVERSE POSSESSION-PAYMENT OF TAXES.

Under Code Civ. Proc. $ 323, requiring one, as a condition to establishing title by adverse possession, to occupy it for five years continuously, and pay all the taxes, the running of the statute is interrupted by the true owner paying the taxes in any of such years prior to the payment thereof by the adverse claimant.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Adverse Possession, $ 526.)

Appea) from Superior Court, Tulare County; W. B. Wallace, Judge.

Action by the Commercial National Bank of Ogden against John J. Schlitz. From an order granting plaintiff a new trial, defendant appeals. Affirmed.

C. L. Russell, for appellant. T. E. Clark, for respondent.

99

CHIPMAN, P. J. Action to quiet title. Findings and judgment were in favor of defendant. Plaintiff moved for a new trial, which was granted, and defendant appeals from the order.

Defendant urges that there was no proper bill of exceptions before the trial rourt on. which to base a motion for a new trial, for the reason that the notice of intention was not filed in time. The notice of decision was served on plaintiff's counsel April 17,

We concur: HART, J.; BURNETT, J.

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