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All Reporters → cal-app → Volume 116

Opinions in cal-app Volume 116

The above actions grew out of an automobile accident which occurred in San Mateo County. Inasmuch as both cases involved the same accident and the witnesses were the same in each, there was an order of consolidation in the court below. The cases were tried together and the appeals are presented through one bill of exceptions, under stipulation. The accident referred to was a collision between the ...
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The plaintiff commenced an action against the defendants to foreclose a mechanic’s lien. The trial court made findings in favor of the defendants and from a judgment entered thereon the plaintiff has appealed. In his complaint the plaintiff based his cause of action on a written contract employing him as architect. The indenture of employment, set forth as an exhibit, is dated January 22, ...
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The plaintiff sued to recover a judgment for damages for personal injury. At the end of the plaintiff's case the defendant moved for a nonsuit. The motion was granted. The plaintiff made a motion for a new trial. That motion was denied and the plaintiff has appealed. [1] In his first point the plaintiff contends that the motion for a nonsuit was not sufficiently specific. The motion was based on t...
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General and special demurrers having been sustained, the plaintiff appealed from the resultant judgment. Respondent Schreiber was a notary public in and for the county of Los Angeles, and the respondent corporation issued its usual bond guaranteeing the faithful performance of her services as such notary public. A deed of trust, bearing the forged signature of appellant as one of three trustees of...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 21 This is an appeal from a judgment of $11,846.80, which was recovered against the appellant, for personal injuries sustained by the plaintiff in an automobile casualty. The plaintiff was employed as housekeeper at the Lincoln Hotel in Stockton. She was the ...
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The plaintiffs commenced separate actions against the defendant to recover damages caused by the collision of two automobiles. The defendant answered and thereafter both actions were consolidated for the purposes of the trial. In each action judgment went for the defendant and the plaintiffs have appealed. At about 3 o’clock in the morning, on January 1, 1930, the defendant was driving a Ford a...
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This is an action for personal injuries. Judgment went for the plaintiff and the defendants have appealed. On the evening of the sixteenth day of March, 1930, the plaintiff was knocked down and suffered the injuries complained of when he was a few feet from the westerly side of the highway leading from San Mateo to San Francisco. The accident occurred in the city of San Mateo approximately ninety ...
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On August 20, 1928, default of plaintiff was entered for failure to answer defendant's cross-complaint. Thereafter on December 11, 1928, and pursuant to said default, judgment on the cross-complaint was entered. On February 19, 1929, pursuant to notice given, cross-defendant presented to the court a motion that the said default and judgment be set aside and that the execution on the judgment be re...
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The plaintiff filed his second amended complaint in the court below alleging two causes of action, both in substance that in the month of October, 1929, one Edwin S. Pascoe was the owner of certain real property in Imperial County and entitled to the rents *Page 43 and profits thereof; that during the month of November, 1929, the defendant was appointed receiver in a certain mortgage foreclosure ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 46 The above-entitled action, Luvada R. Lewis v. SouthernCalifornia Edison Company and Harry Plotz, was an action brought by appellants for the wrongful death of Henry E. Lewis, husband of Luvada R. Lewis and father of Mary Lewis. The action entitled"City of ...
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The defendant was charged with the crimes of incest and rape, in two counts of an information filed by the district attorney of Imperial County. The first count of the information charges the defendant with an act of intercourse with the prosecutrix, committed on January 15, 1931, alleging that the prosecutrix was "a female child of the age of 16 years, she . . . being then and there the daughter ...
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This application was made in behalf of Luther Branham. The petitioner alleges that he is unlawfully imprisoned and detained 'by the sheriff of San Diego County. It is further alleged that he was found guilty of violating section 367d of the Penal Code by the police judge of the city of Chula Vista and by him sentenced to pay a fine of $50 or, in lieu thereof, to be confined twenty days, in the co...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 63 The defendant Hodges was, jointly with Anthony W. Patton, E.T. McCoy and G.M. Hunter, charged with the crime of murder in an indictment returned by the grand jury of Imperial County. The defendant Hunter was never apprehended, the defendant Patton was give...
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Defendant Martin was the payee of a promissory note for $3,500 made by his co-defendants, payment of which was thereafter guaranteed in writing by Martin and the same was deposited with the Peoples National Bank of Los Angeles as collateral security for a debt owing by him to the bank. Plaintiff brought suit on *79 the note and guaranty. Defendant Martin alone was served and the action was appa...
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The petitioner filed in the superior court a petition for a writ of mandamus to compel the City Council of the City of Oceanside to call a recall election. The petitioner recites that he, and other qualified electors, prepared and circulated a petition for the recall of H.D. Brodie and E.A. Walsh as Trustees and Members of the City Council of the city named. It is alleged that the petition was sig...
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The plaintiff was injured by being struck by an automobile which was at the time being driven by one of the defendants but which was owned by the other defendant. The defendants answered and a trial was had before the trial court sitting with a jury. The jury returned a verdict in favor of the plaintiff and fixed his damages in the sum of $1,000. The plaintiff made a motion for a new trial and the...
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This action was brought by respondent to recover damages for personal injuries alleged to have been sustained by reason of a collision between an automobile driven by himself and a street-car alleged to have been negligently operated by the appellant on Grand Avenue at its intersection with Twelfth Street in the city of Los Angeles. The answer of appellant denied the negligence charged and specifi...
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Upon a trial by the court sitting without a jury plaintiff recovered judgment in the sum of $2,509.94, with interest, for goods alleged to have been sold and delivered to defendant by plaintiff's assignor. Defendant appeals from the judgment. [1] Appellant contends that the findings are not supported by the evidence. In our opinion this contention must be sustained, but we do not deem it necessary...
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This is an action in which the plaintiff, the assignee of Mrs. N.E. McCann, alleges that on or about the 2d of March, 1926, the defendant entered into a contract with said Mrs. McCann by the terms of which he agreed to give to her the exclusive agency for selling certain property and to pay her the regular commission allowed to relators on sales and, in addition thereto, to pay two and a half per ...
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In this action for conversion of certain capital stock, judgment was entered in favor of defendant, from which judgment plaintiff appeals. On the trial no evidence was offered by defendant. There is no dispute regarding the facts hereinafter set forth, which facts were proved either by the uncontradicted testimony introduced by plaintiff or by stipulation. Plaintiff borrowed the sum of $500 from d...
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Upon objection to the first and final account of the appellant as administrator of the estate of Nellie A. Montague, deceased, and a petition to determine heirship and distributive rights, filed by the sisters and a brother of said deceased, a decree was made and entered apportioning the estate to appellant and to the said petitioners. The administrator appealed from that portion of the decree whi...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 116 This action was instituted to recover damages from the City of Los Angeles and the Department of Water and Power of said city for personal injuries. The United States Fidelity and Guaranty Company, compensation insurance carrier for Francisco and Ellingto...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 128 In this action respondent seeks to recover damages against appellant for personal injuries sustained by him while employed by appellant in interstate commerce as a switch-tender, which position he had occupied in the Los Angeles yards for approximately th...
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This appeal is prosecuted under what is known as the alternative method, provided for by section 953a of the Code of Civil Procedure and by several other sections which follow it. Section 953c provides, in part: "In filing briefs in said appeal the parties must, however, print in their briefs, or in a supplement appended thereto, *Page 140 such portions of the record as they desire to call to the...
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This is an action brought by appellant against respondent under the provisions of section 29, subdivision b, of the Workmen's Compensation Act (Stats. 1925, p. 494), which, in brief, provides that in the event an employer fails to insure, the employee, or in the case of death, his dependents, may bring an action for damages against the employer as though the act did not apply, with the provision t...
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Plaintiff commenced an action against the defendants on a promissory note, claiming a balance due thereon of $606 together with interest at twelve per cent per annum from March 16, 1926, attorneys’ fees and costs. On June 18, 1928, a default judgment against the defendants was entered in the sum of $839, together with costs. This judgment became final without any appeal therefrom. Thereafter, upo...
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These appeals include two actions which were consolidated for trial. In action 42,098 the defendant was accused of burglary committed on September 12, 1930, at the house of one Katayama in the city of Arcadia. In said action it was further charged that before the commission of said offense the defendant on May 11, 1925, was convicted of burglary in the county of Los Angeles; and in April, 1911, wa...
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This is an action to recover damages for personal injuries sustained by plaintiff, such injuries having been caused, so it is alleged, by the negligence of the defendant McJimsey in the operation of a certain automobile bus which was the property of defendant D.B. Maurice, doing business under the fictitious firm name of West Coast Rapid Transit Co. During the trial of the action it was stipulated...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 172 This is an action to recover a secret profit realized and retained by the defendant from a sale of real property negotiated by himself and the plaintiff. From a judgment in favor of the plaintiff the defendant takes this appeal. It is the theory of the pl...
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This is an appeal by plaintiffs from a judgment in favor of the defendant, rendered by the court sitting without a jury, in a trial held after plaintiffs' demand for a jury trial had been denied. This appeal presents just one question, viz., did the court err in denying plaintiffs' demand for a jury trial? On March 21, 1929, the attorney for the plaintiffs wrote the clerk of San Diego County askin...
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This is an action brought by appellant for damages for personal injuries. He was struck by an automobile being driven by respondent at the intersection of Fifth and Robinson Streets in the city of San Diego, at about 7:30 o’clock on the evening of Friday, May 13, 1927. Fifth Street runs north and south. It is fifty feet in width between curb lines and has parallel street-car tracks on each side...
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The first of these two actions grew out of the ordinary automobile accident in which the plaintiff Rosebelle King, a minor, was severely injured and was awarded judgment against both defendants. In the second case the plaintiff Lucile H. King, the mother of Rosebelle King, recovered judgment against both defendants for medical and hospital expenses. The two cases were by stipulation of all parties...
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This action was brought by plaintiff against defendant to recover damages for an alleged breach of contract. The cause was tried by the court, sitting without a jury, and from an adverse judgment plaintiff prosecutes this appeal. The record is voluminous and comes to us through a bill of exceptions. The contentions advanced cover almost the entire law of contracts and appellant urges that the most...
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This is an appeal from an order or judgment by which a portion of the estate of the decedent was distributed to each of certain corporations either specifically mentioned or sufficiently described as a legatee by the provisions of the last will of the deceased. That part of the will which is questioned by appellant was as follows: "After funeral expenses are paid whatsoever property remains, is to...
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The appellant Harold Vincent was convicted of robbery in the second degree and sentenced to serve the term prescribed by law in the state penitentiary at San Quentin. Judgment was pronounced on April 6, 1931, and on the same day defendant gave oral notice of appeal from the "judgment of conviction". On April 8, 1931, written notice of appeal was filed, stating that the defendant appealed from the ...
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Plaintiff recovered judgment in conversion in the lower court. This action was originally commenced against James C. Byers, who was sheriff of San Diego County and who levied an attachment on the stock of goods in an action against C.X. Thompson. Plaintiff, who is the wife of C.X. Thompson, filed a third party claim. The attaching creditor filed with the sheriff an indemnifying bond and obtained j...
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Plaintiff sustained injuries by reason of a collision between a motorcycle driven by him and an automobile operated by defendant. The case was tried by the court sitting without a jury and plaintiff had judgment. Defendant appeals. Plaintiff was a traffic officer and deputy sheriff; was on duty and chasing a hit-and-run driver whose car had struck another automobile and injured the occupants. The ...
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This is an action for personal injuries. The defendant in his answer pleaded contributory negligence. A jury rendered a verdict in the sum of $2,000 in favor of the plaintiff. The trial court granted a motion for a new trial on the ground of the insufficiency of evidence to sustain the verdict. Plaintiff appealed from the order granting the motion for a new trial. At about 11 o'clock P.M. on the n...
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The plaintiff sued to recover broker's commissions alleged to be due and owing to him from the defendant's testator. The defendant asserts that there is no testimony to support the finding that the plaintiff performed the contract under which he claims relief. She also asserts that there was no agreement employing the plaintiff. And she further asserts that the purported agreement *Page 228 was o...
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This is an application for a writ of habeas corpus based principally upon the ground that the trial court was without jurisdiction to punish petitioner for contempt. The commitment was issued after the court had made two orders, one of which found the petitioner guilty of contempt of court for failure to pay alimony, and sentenced the petitioner to two days in the county jail, which order was afte...
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Defendant Lane appeals from a judgment rendered against him in favor of plaintiff in an action for personal injuries. [1] The sole question presented by appellant is whether the amount of damages awarded to plaintiff is excessive; and the reason urged by appellant for a reversal of the judgment is that the decision of the court and the judgment based thereon are not sustained by the evidence. As s...
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It appears that the defendant is the owner of a tank steamship which at the time in question was berthed in the port of Los Angeles, which harbor was under the direct control of the harbor department of the plaintiff, and that the action of the defendant in shifting the position of said ship from the berth then occupied by it to another berth, which at that time was vacant and open to occupancy, r...
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Pursuant to count two of an information duly filed, defendant was convicted of the crime of violation of chapter 339, Laws of 1923 (Act 1970 of Deering’s Gen. Laws 1923), “committed as follows: That the said John Forrester, on or about the twenty-ninth day of January, 1931, at and in the county of Los Angeles, state of California, did wilfully, unlawfully and feloniously have in his possession an...
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Appellant was convicted upon ten counts of an indictment, each charging a separate crime of grand theft. His motion for a new trial was granted as to the first nine counts, but was denied as to the last. This tenth count accused appellant of the crime of grand theft by charging that on June 11, 1930, he unlawfully took the sum of $260, the property of the complaining witness. From the order denyin...
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Defendants and appellants Pennington owned and operated an apartment house in San Francisco. Plaintiff and respondent Aileen Fisher paid one month's rent in advance for a furnished apartment. On the morning of the thirteenth day of March, 1929, plaintiff was occupying a bed in the furnished apartment when the door to which the bed was attached fell inward over the top of the bed, causing injuries ...
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Plaintiff sued for $3,500, the balance due on a promissory note. Defendant admitted the execution of the note and pleaded that the transaction was usurious. The cause was tried without a jury. Plaintiff had judgment as prayed and defendant appeals upon a bill of exceptions. On September 21, 1927, defendant wired plaintiff’s assignor : “We will gladly pay you five thousand shares (stock in New E...
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Plaintiffs employed Mr. Gloria and Mr. Hennessy as their attorneys to prosecute an action in tort for injuries arising from a motor vehicle accident. After the suit was filed plaintiffs moved for leave to substitute other counsel. Their motion was granted and Mr. Gloria and Mr. Hennessy appeal upon a bill of exceptions. [1] The contract of employment was in writing. The parties agreed to pay their...
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Plaintiff sued for damages for the death of her minor son who was employed in the playfield of the Golden Gate Park operated by the city and county of San Francisco. The defendants are the park commissioners, the park superintendent, the superintendent of playgrounds and the manager of the "Fleishhacker Playfield". The cause was tried with a jury. At the close of plaintiff's case the trial judge g...
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Plaintiffs instituted the present action alleging in their complaint that they owned and held legal title to a large number of parcels of real property specifically described and that defendants claimed some interest in said property adverse to plaintiffs' ownership, which claims of interest were alleged to be without legal right, constituting clouds upon the title of plaintiffs. Plaintiffs prayed...
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The trial court, sitting without a jury, awarded plaintiff a judgment against the defendants for the sum of $1853.59, in an action for damages based upon the alleged negligence of defendants in operating a motor-truck, and defendants have appealed, contending as sole ground for reversal that the evidence is insufficient to support the trial court's finding on the issue of defendants' negligence. I...
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This is an action for damages for personal injuries alleged to have been sustained by the plaintiff Herman Clark under the following circumstances. On August 2, 1929, the plaintiff was driving a 1927 Dodge coupe automobile in a westerly direction on Addison Avenue in the city of Palo Alto. At the same time and place the defendant was driving a 1930 Nash sedan automobile in a southerly direction on...
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In this action to recover for personal injuries judgment upon the verdict was entered in favor of plaintiff from which judgment defendant appeals. Appellant urges several grounds for a reversal, the main contentions being: First, that there is no evidence of negligence on the part of appellant; and second, that even if it can be said that there is testimony showing negligence on appellant's part, ...
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This is a petition for a writ of habeas corpus. It is contended the order of a magistrate holding the petitioner for trial in the superior court upon a charge of attempting to extort money contrary to the provisions of section524 of the Penal Code is void for failure to have established at the preliminary examination the corpus delicti. It is asserted the record fails to show probable cause to bel...
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Respondent instituted this action to recover the sum of $2,000 for the use of pasturage on property which he owned in Imperial County. The case was tried before a jury. The court gave a peremptory instruction to return a verdict in favor of respondent in the sum of *Page 291 $928.20, upon which verdict the judgment was entered. From this judgment an appeal was taken. At the time of the trial the ...
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The original complaint in this action sets forth two causes of action: First, an action to quiet title, containing the usual averments, and second, a cause of action for cancellation, as to the defendant, of a deed from one Hartley, conveying to all of the parties, as joint tenants, the property described in the complaint, on the ground that the defendant's interest in the property had been obtain...
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This is an appeal by defendant from an adverse judgment in an action to recover the sum of $2,000 which plaintiff claims was loaned by him to the defendant at the *Page 303 latter's request to enable defendant to purchase certain shares of stock in a mining corporation which the parties were organizing. The defendant denied that the money advanced by plaintiff constituted a loan, but the trial co...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 308 The above-entitled cases were consolidated for the purpose of trial and pursuant to stipulation and order were consolidated for the purpose of appeal. In the trial court judgments were entered upon the verdicts in favor of plaintiffs Sarah J. Maggart and ...
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This is an appeal from an order deny-in the motion of the Zurich General Accident Liability Insurance Company to set aside a satisfaction of judgment and consent thereto, and for a lien upon that judgment in favor of the insurance company. The plaintiff Lidberg was injured while in the course of his employment as an interior decorator. In due course the Industrial Accident Commission awarded him ...
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Plaintiff sued to foreclose a mechanic’s lien. The cause was tried before the court and, at the close of plaintiff’s case, the trial court granted a nonsuit, as to certain defendants. The plaintiff appeals on typewritten transcripts. Plaintiff is the assignee of Union Tank and Pipe Company, a corporation. This company sold to defendant Bailes a quantity of oil-well casing which Bailes used in s...
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A petition for the writ of mandamus was filed by plaintiff in the court below. The defendants interposed a demurrer on general and special grounds which was sustained. Judgment was thereafter entered and this is an appeal from an order vacating that judgment. The points now raised by appellants will be more readily understood if we set down all the facts surrounding the making of the order. The pe...
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Plaintiff brought this action to recover certain sums of money alleged to be due on several assigned claims against the defendant corporation, one of which was based on a promissory note for $5,000. The trial took place before the court sitting without a jury, and judgment was given in favor of plaintiff on all counts but one, which related to the promissory note. With reference thereto the court ...
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Respondent, by a written agreement, employed appellant to design a sewerage and sewerage disposal works, to prepare all drawings and the contract for its construction and to supervise and inspect such construction for a percentage of its cost, payable in progress installments, subject to final determination thirty-five days after completion. Although providing that time was of its essence, the agr...
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The defendant appeals from an adverse judgment in an action to quiet title to a lot situate in the city of Santa Monica. The appeal is taken on the judgment-roll alone, the main ground urged for reversal being that the findings do not support the judgment, in that they show that' plaintiff acquired the property with knowledge of the fact that defendant held an unrecorded deed thereto. The entire ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 341 Plaintiff sued for personal injuries resulting from a collision between a motor vehicle which he was operating and a street-car operated by defendant. The cause was tried with a jury. A verdict was returned for defendant and plaintiff appeals from the jud...
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Plaintiff brought this action seeking to recover damages against defendant Carmichael's U-Drive Autos, Inc., for personal injuries inflicted upon plaintiff when struck by an automobile belonging to defendant. The trial court directed a verdict in favor of defendant and from the judgment entered upon the directed verdict plaintiff appeals. The accident occurred on the evening of August 7, 1928. The...
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This is an appeal by defendant Soffel from a judgment awarded on two trade acceptances signed by said defendant and held by plaintiff. *Page 354 [1] The points raised by appellant would require a weighing of the evidence by this court. It cannot be said that there was not sufficient evidence to support the findings or that the findings were not sufficient to support the judgment. This is an acti...
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From the record presented on this appeal it appears that for the sum of $4,250 defendant purchased from plaintiff's assignor a two-thirds interest in "one ambulance, all the furnishings and equipment located down stairs at 1011 North Wilmington street, Compton, California, and all outstanding contracts with any person, corporation, or municipality, the subject of which are the performance of dutie...
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The defendants appealed from a judgment rendered by the Superior Court of Los Angeles County in favor of the plaintiff for the possession of personal property. [1] Said judgment is based upon allegations of the complaint and findings of fact reciting merely that the plaintiff was the mortgagee and entitled to the immediate possession of the property described, and that the defendants were at all t...
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Claiming to be a member of the police department of the city of Oakland, the plaintiff applied to the trial court for a writ ofmandamus commanding the defendant as auditor to draw his warrant in payment of two salary claims. His application was denied. He made a motion for a new trial and the motion was denied and he has appealed from the judgment. Plaintiff set forth a cause of action to recover ...
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THE COURT. The above action was brought upon a promissory note executed to plaintiff by defendants T.M. Rallis and L. Rallis, his wife. The instrument, which was for $1303, was dated August 2, 1926, and payable with interest on August 1, 1927. Some time before its date defendant T.M. Rallis became indebted for money loaned and services rendered by the plaintiff and others. The latter assigned thei...
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Defendants' demurrers to plaintiff's second amended complaint were sustained with leave to amend. Plaintiff failed to amend after notice and judgment was *Page 369 entered in favor of defendants. Plaintiff appeals upon the judgment-roll. [1] The complaint in question is entitled "Action for Damages" and covers twenty pages of the transcript. It appears to be drawn upon the theory that a conspirac...
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It appears that plaintiffs, together with Stuart M. Salisbury and Lois C. Salisbury, were the owners of certain real property which, for the purpose of drilling and operating thereon for the production of petroleum, etc., they leased to the A.F. Gilmore Company, a corporation, and that thereafter, following several preceding assignments thereof, the said lease was assigned to defendants E.C. Joann...
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In an action for damages against a hospital, two nurses and a surgeon, in Ventura County, the jury were directed to return a verdict in favor of the defendants, and the plaintiff appealed from the judgment. From such argument in the briefs as is based upon evidence appearing in the record, as distinguished from statements of counsel, we assume that the contention as to its sufficiency to warrant s...
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Appellant instituted this action seeking to abate an alleged nuisance and to recover damages alleged to have been occasioned thereby. At the close of appellant's case respondents made a motion for nonsuit which was granted. From the judgment entered, appellant has prosecuted this appeal. This action grew out of a controversy over the construction to be placed upon certain provisions of a deed exec...
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Plaintiff sued upon a written contract for advertising. The cause was tried by the court without a jury and judgment went for plaintiff as prayed. The defendant appeals upon typewritten transcripts. On February 20, 1928, the parties executed a contract in writing under which plaintiff agreed to run thirty feet of advertising film six days a week alternating weekly between the Southern Pacific and ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 394 This is an action for personal injuries. The jury returned a verdict in favor of plaintiff for the sum of twenty-five hundred dollars. [1] The defendant Pacific Auto Stages, a corporation, operates auto stages upon the San Francisco-San Jose highway. The ...
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This action was brought by plaintiff to recover the sum of $3,000 alleged to have been had and received by defendants for the use and benefit of plaintiff. Motion for nonsuit was granted as to defendant Nakamura. At the time of trial, by a pleading called a "supplementary answer", Inoguchi not only admitted that he was indebted to plaintiff in the sum for which the action was brought, but as well ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 405 This is an action to secure a decree quieting title to real property and to cancel restrictions. In April, 1922, defendant C.W. Boden, the owner and entitled to possession of a tract of land situated in the city of Oakland, county of Alameda, subdivided t...
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THE COURT. An information was filed in the Superior Court of the City and County of San Francisco which charged one Leo Buckbee with the commission of a felony, to wit, burglary, and with a prior conviction of a felony in the state of Utah. Upon his arraignment in such cause Buckbee entered a plea of not guilty and denied having suffered a prior conviction. Subsequently on the day set for the tria...
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Plaintiff sought to recover the sum of $1,000 deposited by his assignors with defendants as lessors *Page 418 under the terms of a lease. The cause was tried without a jury and from a judgment in favor of defendants, plaintiff appeals. The lease, executed on May 1, 1926, by defendants and Michael McGuinn and Robert W. Lawton, plaintiff's assignors, was for a term of five years commencing July 1, ...
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This is an appeal from a judgment covering two cases – Nos. 162,584 and 171,792 – which two cases were consolidated for trial and were tried together upon the same evidence. The first of these actions was brought to recover on twenty-five promissory notes, the complaint alleging that the defendant for a valuable consideration waived any right which he (the respondent here) thereafter had to plead ...
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Appellant was found guilty of murder in the first degree and sentenced to life imprisonment. A large number of witnesses testified at the trial. The testimony on the part of the witnesses for the state tended to show that appellant was guilty of murder in the first degree. Testimony of witnesses for appellant substantiated his plea of self-defense. The evidence discloses that appellant, with his f...
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The petitioner has applied for a writ of prohibition to prohibit the Industrial Accident Commission from proceeding with the rehearing of his ease before said Commission upon the ground that the order granting the petition to reopen said case was made in violation of the requirements of section 20 (d) of the Workmen’s Compensation Act (Stats. 1917, p. 850), in that it was granted without notice t...
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Robert Marsh and Company, a corporation, gave its note, the subject of this action, to United Finance Company for $6,496.86 indorsed by Robert Marsh. This note was transferred before maturity to J.H. Scales, the president of the United Finance Company. Scales, individually, borrowed the sum of $3,500 from the Pacific National Bank giving his promissory note therefor and the $6,496.86 Marsh Company...
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Plaintiff sued for damages for the death of her adult son, Lester G. Wessling. The cause was tried with a jury, which returned a verdict for the defendant. From the judgment on the verdict plaintiff has appealed upon typewritten transcripts. On July 1, 1926, at about 5:45 P.M. Albert and Lester Wessling left the latter's home in the city of Richmond in an automobile owned by Lester Wessling and hi...
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In addition to the errors noted in the foregoing decision (Civ. No. 7869, ante, p. 447 [3 P.2d 22]) the appellant in this case complains of the application to him of the rule of imputed negligence. [1] The facts upon which this defense rested are simple. This appellant and his deceased brother were ministers, the appellant located in the city of Lodi and the deceased in the city of Richmond. While...
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Defendant appeals from a judgment rendered against him in an action for damages for personal injuries. The injuries sustained by plaintiff were the result of a collision between him personally and an automobile owned and operated by defendant at a time when defendant was backing his automobile a distance of twenty-six feet out of his private driveway across a public sidewalk on which plaintiff was...
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In this motion to dismiss the appeal from the judgment, the record shows that the judgment was entered on December 2, 1930; that the notice of intention to move for a new trial was filed on February 28, 1931, which motion was denied on March 31, 1931; and that the notice of appeal from the judgment was not filed until the twenty-seventh day of April, 1931. [1] It thus appears that considerably mor...
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THE COURT. Plaintiff corporation, which has its principal place of business in Los Angeles, was at all times material to this case and until about January 25, 1926, a member of an unincorporated association of merchants known as the San Francisco Board of Trade (which will be hereinafter referred to as the board). For some time prior to the month of August, 1925, William R. Davis and Brother, Inc....
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Plaintiff sued for separate maintenance. The defendant answered setting up a divorce from plaintiff in the courts of the Republic of Mexico. The trial court awarded plaintiff $75 a month and defendant appeals upon a bill of exceptions. [1] Appellant insists that there is no evidence of his ability to pay the amount of the award. The only evidence found is that the appellant was without property, w...
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Plaintiff was the owner and operator of a clothes cleaning and pressing business which he conducted in a storeroom which was a part of a certain building to and for the use of which the defendant furnished steam for heating and other purposes. By means of a tunnel the steam was conveyed in an eight-inch pipe to a point beneath a basement of the building of which plaintiff's storeroom was a part an...
Views: 1
THE COURT. This action was brought by plaintiffs to recover from defendant the sum of $2,500, alleged to be due under the terms of a certain written agreement. The case was tried by the court, without a jury, and judgment went for plaintiffs, as prayed. Defendant appeals. On October 5, 1928, the plaintiffs as parties of the first part, and defendant as party of the second part, executed a certain ...
Views: 5
From the record herein it appears that one Scrimsher while working in the course of his employment received injuries (which later resulted fatally to him) from the negligent operation of a power shovel, which Scrimsher's employer, Oswald Brothers, had rented from the defendant Reliance Rock Company. On the trial of the action brought by the widow and guardian ad litem of the children of the deceas...
Views: 4
These are actions for personal injuries consolidated for trial wherein judgments were entered for each plaintiff. The cases have likewise by stipulation been consolidated on appeal. Defendant Prukop filed a cross-complaint against the plaintiff Noles wherein he claimed damages. During the trial plaintiffs deemed it material to establish the particular hospital to which defendant had been taken aft...
Views: 5
Prom the record herein it appears that defendant was a general contractor to whom plaintiff’s assignor (as a subcontractor) furnished labor and material on each of several different jobs, amounting in the aggregate to an ascertained balance of $2,320.22; that on each of three of such jobs a certain materialman from whom plaintiff’s assignor had purchased paint supplies which had been used on such...
Views: 0
This action grew out of a written agreement between the parties hereto for the sale of a one-half interest *Page 514 in land in San Diego County, California, and a one-quarter interest in the minerals and oils therein, which contract was in words and figures as follows: "March 21, 1927. "This agreement entered into by and between J.H. Ratcliffe and L.A. Ratcliffe of Chula Vista, of the first part...
Views: 1
Action to recover damages for personal injuries alleged to have been sustained in a collision claimed to be due to defendant’s negligence. The injuries suffered consisted of the destruction of plaintiff’s automobile, medical services and loss of time. The answer and' amendment thereto denied the negligence charged and specifically alleged contributory negligence on the part of plaintiff. Upon the...
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Plaintiff sued for damages for the death of her son, who was drowned while employed in the construction of a tunnel for the East Bay Municipal Utility District. The demurrer of the district was sustained and the cause went to trial before a jury, which returned a verdict against the defendant Smith Bros., Inc., for $7,500. This defendant has appealed under section 953a of the Code of Civil Procedu...
Views: 15
This is an appeal from an order purporting to grant a new trial after a previous order had been duly made and entered denying plaintiff's motion for a new trial. The appeal is presented to this court upon a bill of exceptions. It is contended the court was without jurisdiction to change its original order denying a new trial. The plaintiff lost a hand in operating a drag-line excavating machine. I...
Views: 5
This is an appeal by plaintiff American Material Service Company, a corporation, from a judgment allowing priority of a deed of trust of defendant John R. McCoy and Title Guarantee and Trust Company over the mechanic's lien of plaintiff. The facts are briefly these: Defendant L.O. Wallin, Fred W. Klein and Frances Klein owned a lot in the city of Los Angeles. During the early part of 1926 they com...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 534 The plaintiff, Edith Magnuson, brought this action to recover damages for the death of her minor son, Kenneth Charles Harrison, charging that his death was caused by the negligent manner in which the defendant, City of Stockton, maintained in said city a ...
Views: 14
The defendant in this action appeals from a judgment on a bond which it issued to plaintiff. On February 25, 1927, defendant issued this bond indemnifying plaintiff against any loss it might sustain after February 9, 1927, by reason of any act of larceny or embezzlement by any of its employees set forth in the schedule attached thereto, of which the employee named in the complaint was one. [1] On ...
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This action grew out of an automobile accident which occurred on E Street in the city of Coronado, *Page 546 California, on the ninth day of July, 1929. David Fitch was the owner and operator of an automobile in which Peter Cookson was riding as his guest at the time of the accident. The engine and chassis were those of a 1924 model T Ford. The remaining portions of the car had been obtained by F...
Views: 3
The defendant, the county assessor of the county of San Diego, was convicted on two counts of an indictment charging him with malfeasance in the use of public funds. The first of said counts charges that the said defendant did wilfully, unlawfully and feloniously use for purposes not authorized by law, public moneys in the amount of $21,599.69, which moneys were in his possession in his official c...
Views: 8
This is an appeal from a judgment of nonsuit which was rendered against the plaintiff in an action for damages for personal injuries sustained as a result of alleged negligence. The appeal is presented upon a purported bill of exceptions which was settled by the trial judge, over the objection of the defendants, fifteen months after the judgment was entered. The plaintiff failed to present his pro...
Views: 1
Respondent is a corporation whose principal place of business is in the city of San Pedro, California, *Page 564 where it is engaged in the business of supplying gear, tackle and supplies to ocean-going boats. The defendants J.V. Giaconi, Mrs. K.M. Giaconi and Peter M. Hanson were the owners of the ocean-going motor boat Astorian, which was engaged in fishing along the Pacific Coast from Alaskan ...
Views: 0
Action in claim and delivery. The property described in the complaint is an oil storage tank and a nonautomatic oil burner, together with pipes, valves and fittings necessary for the complete installation in a home. The complaint alleges that plaintiff agreed to sell the above-described equipment to one Lawton to be installed in the home of defendants which Lawton was erecting. Defendants deny tha...
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Appeal from an order granting plaintiffs a new trial after verdict and judgment for defendants. Respondent Harris sued to recover for personal injuries alleged to have been negligently inflicted by defendants. Respondent Market Street Railway Company having paid compensation to Harris for his injuries under the Workmen's Compensation Act brought a separate action under the statutory subrogation. T...
Views: 14
Plaintiff sued to establish a trust and for an accounting. Demurrers to his amended complaint were sustained without leave to amend. Plaintiff then moved for leave to amend and tendered a proposed amendment. Leave was denied and judgment for defendants was entered. Plaintiff has appealed on a bill of exceptions. The complaint alleged that on November 20, 1917, plaintiff, as legal owner, transferre...
Views: 7
This is an appeal from a judgment for $10,000 for personal injuries entered pursuant to the verdict of a jury. The sole ground of appeal is that the verdict is excessive. [1] In passing upon such a claim we start with the settled rules that every conflict in the evidence must be resolved in favor of respondent (8 Cal. Jur. 837; Reneau v. Hirsch, 88 Cal.App. 1, 7 [262 P. 1100]), that every intendme...
Views: 0
On November 10, 1927, defendant borrowed the sum of $50,000 from plaintiff. The loan was evidenced by a promissory note and a deed of trust. Subsequently defendant failed to meet the installment payments of the note and plaintiff declared the note and deed of trust to be in default and commenced proceedings on April 23, 1929, for the sale of the property under the deed of trust. *Page 586 In due ...
Views: 6
Plaintiff sought reimbursement from defendant in the sum of $2,155.70 for money paid out in settlement of a judgment and for necessary expenses incurred in the defense of an action brought by the lessee of certain premises after a wrongful eviction. From a judgment in favor of defendant plaintiff appeals. The facts are not disputed and even as presented in the trial court the controversy involved ...
Views: 7
The two plaintiffs sued separately for damages for personal injuries. By stipulation the causes were tried together before the same jury. The plaintiff Taylor had a verdict for $1,000; the plaintiff Goff a verdict for $3,000. The defendant has appealed on typewritten transcripts and, by order of court, these appeals have been heard jointly. The two plaintiffs were guests of the defendant, who was ...
Views: 5
The plaintiff sued to recover broker's commissions alleged to have been earned in negotiating an exchange of tracts of real estate in Los Angeles County. The defendant answered and the action was heard before the trial court sitting without a jury. The court made findings in favor of the defendant and from the judgment entered thereon the plaintiff has appealed. On the trial of the case the plaint...
Views: 2
This is an appeal by defendant Lewis from an order requiring the clerk of the superior court (Los Angeles) to enter only partial satisfaction of a judgment outstanding against appellant and other defendants, based on their joint tort. Appellant sought to have full satisfaction entered, contending that the judgment had been completely satisfied by the act of his co-defendants' *Page 604 counsel in...
Views: 0
This action was instituted by the plaintiff to foreclose a vendor's lien upon lot 7, block 1 of tract No. 5647 in the city of Beverly Hills, county of Los Angeles. The record shows that the defendants Martin H. Mead, Theresa Mead and B.D. O'Niel defaulted, and that a separate judgment was entered against them. Execution thereafter issued and the interest of said defendants in the *Page 608 proper...
Views: 7
Plaintiff appeals from a judgment denying recovery in an action instituted by it to recover damages from a notary public and the surety on her official bond. The record discloses the following pertinent facts: For approximately two and one-half years prior to December 27, 1928, one Lewis H. Homer was an attorney-in-fact for respondent Indemnity Insurance Company of North America in the city of San...
Views: 2
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 624 THE COURT. An appeal by defendant John R. Gregory from a judgment for plaintiff in an action for damages for personal injuries sustained by plaintiff when struck by defendant's automobile. Defendant denied the alleged negligence, and as a separate defense...
Views: 12
On October 5, 1923, the plaintiff entered into a contract with the defendant Coffey to sell him certain land located in Los Angeles County at an agreed price of $35,000. By the terms of the contract $15,000 was to be paid in cash upon delivery of a grant deed together with a certificate showing good title and the balance of the purchase price was to be secured by defendant by executing a second mo...
Views: 0
Plaintiff sued in equity to set aside a money judgment obtained by defendants herein against plaintiff and others in the municipal court. Plaintiff had judgment and the defendants appeal upon the judgment-roll. For the purposes of this opinion it is sufficient to say that plaintiff bases his action on the allegations that the judgment was obtained against him by fraud and without service of summon...
Views: 7
The plaintiff commenced an action to obtain a judgment of declaratory relief. The defendants answered and the issues were tried before the court sitting without a jury. The trial court, made findings in favor of the plaintiff and from a judgment entered thereon the defendants have appealed and have brought up the judgment-roll. The controversy between the parties arose over the proper interpretati...
Views: 0
Plaintiff sought to recover damages from defendant for the alleged conversion of certain shares of stock. At the close of plaintiff's case, defendant's motion for nonsuit was granted. From the judgment thereupon entered in favor of defendant, plaintiff appeals. This controversy arose out of the alleged wrongful action of defendant as pledge-holder in selling certain stock of plaintiff during the m...
Views: 1
On this appeal it must be assumed that the defendant was properly convicted of the crime of robbery, committed on the eighth day of August, 1930. No contention is made to the contrary. The questions raised by appellant relate to an alleged former conviction of burglary. In the information it was alleged that before the commission of the offense charged the defendant, in the said Superior Court of ...
Views: 0
The defendant appeals from a judgment on one of its policies. On June 12, 1926, one Joseph R. Paez applied for a policy of health and accident insurance of the defendant company. At the time the application was made he paid to the agent of the company $3, to be applied on the first premium, and on his death held a receipt issued by the agent therefor. On July 4, 1926, the said Joseph R. Paez was k...
Views: 8
Action upon an indemnity agreement. Plaintiff issued a policy of insurance to one G.P. Haiden, insuring him against loss or damages for personal injuries or death sustained by any person by reason of his ownership of certain automobiles used in his business. While the policy was in full force and effect, Herbert O'Meara, a minor, was injured by an automobile owned by Haiden and operated in the sco...
Views: 0
Plaintiffs sued for damages for false representations. Before trial the action was dismissed as to the tire company. The cause was tried as to defendant Daum before a jury, which returned a verdict for plaintiffs in the sum of $7,218.88 Defendant Daum appeals upon a bill of exceptions. Plaintiffs purchased certain real property from the tire company through its agent Daum. Prior to the negotiation...
Views: 0
We approve the conclusion reached by the trial court, that the defendants were released from their agreement to lease to plaintiff a portion of a building to be erected, because not the building contemplated but a different one was constructed, the change being due to causes over which the parties had no control. The agreement in question was written by C.H. Gibson, plaintiff's president, and by h...
Views: 1
Plaintiff was an employee of a firm which occupied a portion of the sixth floor of a building owned by defendant. On March 21, 1927, coming into the building on his way to work, he found, as he said, the elevator doors open, and the light being dim he stepped through the doors and fell into the basement, injuring himself. His employer was insured under the Workmen's Compensation, Insurance and Saf...
Views: 2
The plaintiff began this action to restrain the defendant Security Title Insurance and Guarantee Company, a corporation, from executing and delivering a trust deed to the defendant Harry H. Andrews, conveying certain property hereinafter mentioned, or in lieu thereof judgment against each of said defendants in the sum of $8,000, together with interest at the rate of eight per cent per annum thereo...
Views: 8
[1] Respondent has moved this court to dismiss such appeal upon the grounds of the failure of the appellants to perfect their appeal and file the necessary record on appeal as required by law. The record before us shows due service of the moving papers upon the attorney for the appellants, but he did not appear or resist the motion. On the twentieth day of April, 1931, the appellants filed a notic...
Views: 0
THE COURT. The above action was brought to recover on a promissory note assigned to plaintiff corporation. The note with the indorsements thereon is in words and figures as follows: "11,270.00 Oakland, California, "September 10, 1926. "On or before February 1st, 1928, we jointly and severally promise to pay to the order of Mark R. Monze and Beach C. Soule, Jr., the s...
Views: 14
The plaintiff Earl Justin McCully, an attorney at law, brought this action against his former client, Jennie C. Gano, to recover the sum of $2,581.30 for professional services alleged to have been performed by him for her under a written contract. The cause was tried by the court without a jury and resulted in a judgment in favor of the plaintiff for the sum of $700. From this judgment the defenda...
Views: 14
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 701 A rehearing was granted herein for the purpose of giving further consideration to the point that the action of the trial court in granting respondent's motion for a directed verdict at the conclusion of the trial was justified by reason of the fact that t...
Views: 11
The trial court sitting without a jury awarded plaintiff $600 damages on account of personal injuries suffered by him while riding as a passenger for hire in an automobile operated by defendant as a “jitney bus”, and defendant appeals, contending that the evidence is insufficient to sustain the trial court’s findings upon the issues of negligence and contributory negligence. It appears from the...
Views: 1
The trial court, sitting without a jury, rendered a judgment in favor of the plaintiff, awarding him damages for injuries suffered in an automobile collision. The defendant appealed from the judgment. The accident occurred at about 8 P.M. in the evening on September 5, 1929, on San Pablo Avenue, at a point a few feet south of Dartmouth Avenue safety station. The defendant was driving south and the...
Views: 8
The accident occurred at the intersection of two highways near Azusa in Los Angeles County. The defendant was driving a Cadillac automobile going west on Fifth Street, and William F. White, now deceased, was driving a Dodge automobile going south on Los Angeles Street. The plaintiff, as administrator of the decedent's estate, brought the action as permitted by statute, on behalf of the heirs at la...
Views: 5
This is an action brought for the recovery of the possession of a Pierce Arrow automobile. The respondent had judgment in the court below and plaintiff has taken this appeal. Prior to August 1, 1929, Max Jacobs was transacting the business of lending money to finance the sale and purchase of automobiles under the fictitious name of the Universal Finance Company. After the controversy here involved...
Views: 6
THE COURT. An appeal by defendants United States Fire Insurance Company and North River Insurance Company from a judgment in favor of plaintiff in the sum of $1500. The complaint alleged that on or about August 25, 1925, in consideration of a premium of $45, defendants issued a policy of insurance upon certain alfalfa hay owned by plaintiff for a term of six months; that during the policy period, ...
Views: 3
From the completed record herein it appears that following the recovery of a judgment by plaintiff *Page 734 from the defendant, the giving by the former to the latter of a notice of its entry, and the issuance of an execution on such judgment, the defendant gave notice to the plaintiff of his intention to move for a new trial, which latter motion having duly come on for hearing, was by the court...
Views: 0
These two cases were tried together, as they involve exactly the same questions, both of fact and law. The actions were for damages and arose because of the running down of two children by a motor-truck. Judgment went for defendants, but the trial judge made an order granting a new trial. The defendants have appealed from this order. The new trial was granted by the trial judge upon the ground ...
Views: 5
Defendant Moe appeals from a conviction under a charge of murdering Carlisle Lord and from an order of the trial court denying his motion for a new trial. [1] One of the points made by appellant is that the evidence in the cause was insufficient to justify the verdict against him. Before we proceed to a discussion of that question, let us recite portions of the evidence which do not bear directly ...
Views: 15
MEMORANDUM CASE. THE COURT. [1] It is the claim of the petitioner that the evidence is insufficient to support the order. The petitioner has presented no transcript of the testimony. The writ is denied under the authority of In re Rasmussen, 56 Cal.App. 368 [205 P. 72], and Brune v. Superior Court, 113 Cal.App. 21 [297 P. 566]. *Page 770 [EDITORS' NOTE: THIS PAGE IS BLANK...
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it is the claim of the petitioner that the evidence is insufficient to support the order. The petitioner has presented no transcript of the testimony. The writ is denied under the authority of In re Rasmussen, 56 Cal. App. 368 [205 Pac. 72], and Brune v. Superior Court, 113 Cal. App. 21 [297 Pac. 566]....
Views: 0
In a complaint filed in the police court of the city of Glendale, California, on February 25, 1931, the appellant, a teacher in the public schools of that city; and principal of Thomas A. Edison School, was charged with a violation of section 273a of the Penal Code of California. The offense was alleged to have been committed on February 24th, when the defendant, as stated in the complaint, “did w...
Views: 3
After a jury had been impaneled and sworn to try the defendant upon a complaint charging him with petty theft of property of the value of $200, the complaint was dismissed at the request of the prosecuting attorney. Thereupon, the defendant stipulated that the jury might try him upon a new complaint, which was then prepared, sworn to and filed, and upon which he was finally convicted. The defendan...
Views: 0

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