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railing. The only lantern in the room, the fore ther, that he was gullty of contributory negman had at the place of the accident. The evi

ligence in working there without a light. dence on plaintiff's part tended to show that he bad never been in that part of the room,

It is undisputed in the evidence that thero and did not know of the location of machinery was but one light in the room, and this the in that place. Held, that a verdict for plaintik foreman had with him at the time and place would not be disturbed on the ground that be of the accident. The evidence upon the part bad assumed such risk, or was guilty of contributory negligence.

of plaintiff also tended to show that he was

never upon this platform before the accident, Department 2. Appeal from superior

and that he had no knowledge of the location court, city and county of San Francisco; of the machinery, belts, and pulleys in Eugene R. Garber, Judge.

that part of the mill where he was engaged, Action by one Gisson against cne Schwa and that his general duties were not such as bacher and others. From a judgment for to require him to have such knowledge. We plaintiff, defendants appeal. Affirmed.

cannot, in view of the evidence, disturb the Estee, Wilson & McCutchen, for appel

implied findings of the jury, to the effect lants. A. Ruef, for respondent.

that the injury received by plaintiff was not caused by any of the ordinary risks of his

employment, and that he was not himself DE HAVEN, J. This is an action to re

guilty of contributory negligence in going cover damages alleged to have been sus

to work upon the platform under the circumtained by the plaintiff by reason of the dan

stances above stated. Certainly, unless the gerous condition of a flouring mill conducted

plaintiff knew, or ought to have known, of by defendants, and in which plaintiff was the danger to which he was exposed in employed as a laborer at the time he received

working upon the platform where he was the injuries complained of. The plaintiff injured, he cannot be said to have recklessly recovered Judgment in the superior court exposed himself to such danger, or to have for the suro of $2,500, and the defendants

voluntarily assumed these risks. Sanborn v. appeal.

Trading Co., 70 Oal. 261, 11 Pac. Rep. 710. The plaintiff was employed as a sack sew The court did not err in refusing to give the er, and when not so employed, and when instructions requested by defendants. In so the necessity arose, it wis also his duty to far as they correctly stated the law, they do such other work about the mill as the

were embodied in the instructions given. foreman might direct. On June 29, 1888, The case was submitted to the jury upon he was directed by the foreinan to assist instructions quite as favorable to defendants him in taking apart some rollers upon as they were entitled to, under the law, raised platform on one side of the room in and of which, therefore, they have no right which he was engaged in sewing sacks, the to complain. Judgment and order affirmed. foreman taking with him to the place where the work was to be done a lantern We concur: FITZGERALD, J.; McFARured by plaintiff when engaged in his ordi LAND, J. nary work, and which was the only ught in the room.

Upon this platform, or, rather, passing over and above it, were rollers, belts, and pulleys, such as usually form part


20,949.) of the machinery of a flouring mill, but they could not be distinguished there, on account

(Supreme Court of California. Aug. 31, 1893.) of the darkness of the room. The room was CRIMINAL LAW-CROSS-EXAMINATION OF DEFENDunlighted except with the one lantern which

ANT--IMPEACHMENT. the foreman took with him, as already 1. On a prosecution for an assault with stated, and this was not sufficient to light intent to commit murder with a knife, defendthat part of the platform occupied by the

ant testified as to his presence at the scene of

the assault, and his arrest as the perpetrator plaintiff at the time, and the belts, pulleys, thereof, but made mention of anything and rollers were not protected in any manner happening after his arrest. Held that, under by guards or railing. While engaged with

Pen. Code, § 1323, providing that a defendant

who offers himself as a witness can be crossthe foreman upon this platform, the plain examined only as to "matters about which tiff, in some way, stumbled and fell, and be he was examined in chief," defendant could not came entangled in the belting and pulleys be cross-examined regarding a pistol which fell referred to, and sustained the injuries on

from his person just after his arrest.

2. Defendant, on a prosecution for assault account of which this action is brought. with intent to commit murder, who testifies in The appellants do not dispute the fact that his own behalf, cannot have his character imthe place where plaintiff was injured was ex

peached by evidence that he had a pistol on tremely dangerous to a person working there,

his person at the time of his arrest. and that they knew of its dangerous char Department 2. Appeal from superior court, acter; but their main contention is that city and county of San Francisco; William plaintiff knew, or ought to have known, of T. Wallace, Judge. the risk and danger surrounding the place, Wong Ah Leong was convicted of assault and that he voluntarily assumed such risk with intent to commit murder, and appeals. when he went upon the platform, and, fur Reversed.

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Robert Ferrall and Dorn & Dorn, for ap upon which it can be justified. See People pellant. Atty. Gen. "Iart, for the People. V. O'Brien, 66 Cal. 602, 6 Pac Rep. 695;

People v. Bishop, 81 Cal. 116, 22 Pac. Rep. MCFARLAND, J. The appellant was charg- 477. The only plausible position that can er with and convicted of the crime of an as be taken by respondent is that the matter sault with an intent to commit murder, the inquired of in the cross-examination was not charge being that he committed the assault of sufficient importance to have been preju"with a deadly weapon, to wit, a knife, upon dicial to appellant. But, in the first place, the person of one Leong Ly Chuen,” and he the prosecution, after having persistently appeals from the judgment and from an order endeavored all through the trial to prove denying a new trial.

the fact that appellant had a pistol, can Appellant contends that the court erred hardly be heard to say now that such fact in certain rulings touching the admissibility was not important; and, in the second place, of evidence. The prosecuting witness testi- it is quite clear that evidence of the fact fied that while he was going up a pair of that appellant had a pistol, although he was stairs leading from the street to the upper only charged with having committed the story of a house, he was cut by the appellant, crime with a knife, greatly prejudiced him !n who had followed him; that he (the witness) the minds of the jury. There is no escape, made an outcry, and immediately turned therefore, from the conclusion that for said and pursued the appellant down the stairs, error a new trial must be granted. and that appellant was arrested a few steps As to the other alleged errors in rulings frim the foot of the stairs by a man named on evidence, it is sufficient to say that no exRiordan. There was testimony on the part ceptions were taken at the proper time. The of defendant to the point that it was a third charge of the court to the jury is not upon man who fled down the stairs, that the its face erroneous. We do not think that third man ran away and escaped, and that the language of the charge prevented the the appellant, who was passing along the jury from finding appellant guilty of a lesser street, had merely stopped near the foot of crime included within the information, or the stairs at the time of his arrest, because apparently influenced them to find a verattracted by the outcry of the prosecuting dict for the highest offense. witness. Riordan testified that he delivered The judgment and order are reversed, and the man whom he had arrested to some offi- | the cause remanded for a new trial. cers, and also testified, without objection, that, while the officers were taking appellant

We concur: DE HAVEN, J.; FITZGERto the receiving hospital, a pistol fell from ALD, J. the person of appellant, and, going off, shot appellant in the leg. One of the officers, against the objection of appellant, also swore to the dropping of the pistol, and the KIESSIG v. ALLSPAUGH et al. (No. pistol was admitted in evidence against ap

19,134.) pellant's objection.

(Supreme Court of California. Aug. 31, 1893.) The appellant was a witness in his own

CONTRACTORS' Bonds-ENFORCEMENT AGAINST behalf, and in his testimony in chief merely

SURETIES. gave an account of how he happened to be

1. Code Civil Proc. Cal. § 1183, provides near the stairway at the time of his arrest. that a building contract which is not recorded His narrative stopped at the point of his ar before work is commenced thereunder, when rest. He said nothing about anything that the contract price exceeds $1,000, shall be void, occurred afterwards, and made no allusion

and no recovery thereon can be had by either

party thereto. Held, that a bond for $5,000 to the episode of the pistol, but on cross given by tbe contractor to the owner to secure examination the prosecution immediately the latter against claims and liens for labor on commenced asking him about the pistol; the

materials, and which refers to a written con

tract that has not been recorded, made between very first question being, "Did you ever

the principal and obligee, is not within the see that pistol before?" To this appellant's meaning of the statute, and may be enforced counsel objected as "not in cross-examina without violating the above section. Kiessig tion," and also as irreleyant and immaterial,

V. Allspaugh, 27 Pac. Rep. 662, 91 Cal. 231,

followed. Lumber Co. v. Neal, 27 Pac. Rep. and "calculated to convict the defendant of

192, 90 Cal. 213, overruled; McFarland, J., another and different charge." The objec- holding that the cases are distinguishable. tion was overruled, and appellant excepted.

2. The failure to record the contract did

not increase the obligation of a surety on the The ruling was clearly erroneous. By sec

bond. tion 1323 of the Penal Code a defendant

Garoutte and Harrison, JJ., dissenting. who offers himself as a witness can be crossexamined only as to "matters about which In bank. Appeal from superior court, San he was examined in chief." As the cross Diego county; George Puterbaugh, Judge. examination was not as to a matter about Action by Kiessig against A. M. Allspaugb wbich appellant had been examined in chief, and M. S. Hall, as principals, and N. P. Lunand as it was not admissible for the purpose deen, as surety, to recover on a building conof impeaching his character, (Code Civil Proc. tractor's bond. From a judgment for plain$ 2051,) we cannot conceive of any theory | tiff, defendant Lundeen appeals. Affirmed.

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Parrish, Mossholder & Lewis, for appel- | validity of this same bond was attacked by lant. Carl Schutze, for respondent.

one of the principals named therein, upon the

ground now urged by appellant. In anDE HAVEN, J. The plaintiff in this ac swering this objection to its validity, the tion seeks to recover $1,807.25 upon a build- court there said: “Although the original ing contractor's bond executed to him by the contract could not be enforced, because not defendants Allspaugh and Hall as principals, recorded, the contractor might nevertheless and by the defendant Lundeen as surety. perform, and the plaintiff could accept such The bond sued upon was executed on Oc- performance, and neither be guilty of any tober 15, 1887, and, after reciting the fact wrong in so doing; and if, in performing, that the principals therein had upon Octo the appellant incurred a personal liability ber 14, 1887, entered into a contract with for labor or materials, which was discharged the plaintiff here to build for him a certain by the plaintiff in order to remove a lien house, for the price and in accordance with from his own property, or at the request of the specifications contained in said contract, the appellant, the obligation to repay plainproceeds: “Now, therefore, we, A. M. Alls tiff is created by law, and would exist inpaugh and M. S. Hall, as principals, and H. dependently of the building contract, and is V. Poser and N. P. Lundeen, as sureties, not affected by any defect therein, and is a bind ourselves, our heirs, executors, and suc sufficient consideration to support the excessors, in the sum of $5,000, to forever press undertaking of defendant to repay, save and hold harmless the said Charles and the bond may therefore be deemed so Kiessig against any claims, demands, or far an independent undertaking that the liens of all characters whatsoever for ma right to enforce it does not depend upon the terial or labor expended or used in the build- subsequent or continued validity of the ing, constructing, and finishing of the said building contract. As already stated, this house." The original building contract was bond is not within the letter of section 1183 not recorded, and the price therein agreed of the Code of Civil Procedure, and it may to be paid for the construction of the build be added that it is not within its reason ing was $8,000. Work under the contract or spirit, and its enforcement is not in conwas commenced after the execution of the flict with the policy of that section." The bond just referred to, and the building was provision of section 1183 of the Code of Civil completed by the contractors in accordance Procedure making wholly void, as between with the plans contained in the original con the parties thereto, a written contract for tract, but plaintiff was compelled to pay the construction of a building for a price in addition to the contract price the amount exceeding $1,000, unless the same is filed sued for in this action for the purpose of with the county recorder before the comdischarging the liens for materials used in mencement of work thereunder. is an and labor performed the building. bitrary one, and is not to be extended to Judgment was rendered in the superior court any contract not falling strictly within its letin favor of plaintiff, and the defendant Lun ter. It does not extend to a bond like that deen appeals.

under consideration here, the very object of It is provided by section 1183 of the Code which is to provide for the payment of all of Civil Procedure that all contracts for the those liens and claims which it is the chief construction of buildings, when the amount object of the statute to secure. agreed to be paid therefor exceeds $1,000, Nor did the failure of plaintiff to record shall be in writing, and filed in the office of the building contract increase the obligathe recorder of the county where the prop tion assumed by appellant as a surety for erty is situated, before work is commenced the principal obligors named in the bond. under the contract; and, if not so filed with It is true that, if such contract had been the recorder, “they shall be wholly void, filed, the liens upon the property of plaintiff and no recovery shall be had thereunder by could not have exceeded the contract price, either party thereto." The section further and might have been discharged with the provides that in such case the labor and ma money which the plaintiff retained in his terials of all persons except the contractor hands until the final settleinent with the "shall be deemed to have been done and fur contractors, as provided for in the building nished at the personal instance of the own contract But the failure to file this coner, and they shall have a lien for the value tract with the recorder was not an omission thereof." The appellant, Lundeen, claims to discharge any duty which the plaintiff that the bond sued upon in this action is de owed to the defendant as a surety, and did pendent upon the contract referred to there not add to the obligation imposed upon him in, and that, as this contract is wholly void by the terms of the bond which he signed. under the provisions of section 1183 of the Undoubtedly, the defendant might have stipCode of Civil Procedure just cited, because ulated in the bond that the building contract not filed with the county recorder, the bond should be filed as a condition precedent to Is void also. The point thus presented was his liability as a surety; but he did not decided adversely to the contention of ap do so, and the court is not authorized to conpellant in the case of Kiessig v. Allspaugh, strue or interpolate such a condition into 91 Cal. 234, 27 Pac. Rep. 662, in which the the bond, and in this respect to make a




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new contract for the parties who executed deceased. The petitioner, aside from certain it. The bond was executed in view of the matters pertaining to property, rested her fact that the contractors were about to com application upon the foregoing evidence. Apmence the erection of a house for plain- | pellants thereupon requested the court to tiff in accordance with the written contract grant a continuance for such reasonable time mentioned in the bond, and the sole purpose

as would enable them to perfect an appeal of the bond was to protect the plaintiff to the supreme court from the judgment against the consequences of a failure of the in Blythe V. Ayers, and stated that they contractors to pay the personal obligations intended in good faith to appeal from such which they might incur for labor and mato judgment, and also asked for a continuance rials, in the event that they actually con for the purpose of introducing testimony to structed for him the building referred to prove that the petitioner was not, in fact, in the contract; and it is the duty of the the child of said Thomas H. Blythe, de court to enforce it according to its terms. ceased, or a member of his family. These The case of Lumber Co. v. Neal, 90 Cal. 213, motions being denied, appellants then moved 27 Pac. Rep. 192, cited by appellant, does the court to deny the prayer of said petsustain his contention; but, upon a more tioner, upon the grounds that no evidence careful consideration of the question therein had been introduced that she was the child decided, we are not satisfied with the con of said Thomas H. Blythe, deceased, or a clusion reached in that case. Judgment and

member of his family, other than the findorder affirmed.

ings, etc., (to which reference has already

been made,) and that said findings of fact, We concur: BEATTY, C. J.; FITZGER conclusions of law, and decree show that ALD, J.

petitioner never was the adopted child of

Blythe, the deceased. This motion was de MCFARLAND, J. I concur in the judg- nied, and the family allowance ordered. ment and in the opinion of Mr. Justice DE We do not find it necessary to consider HAVEN, except that I think the case dis the claims of counsel that the court abused tinguishable from that of Lumber Co. v.

Its discretion in not granting appellants Neal.

reasonable continuance for the purposes stat

ed, as the decree must be reversed upon We dissent: GAROUTTE, J.; HARRI. other grounds. Neither do we deem the SON, J.

contention of appellants sound wherein it is insisted that the court had no jurisdiction to make the order of allowance, because the

petitioner's status as the child of Blythe was In re BLYTHE'S ESTATE. (No. 14,837.)

denied. That was a question of fact for the (Supreme Court of California. Aug. 31, 1893.) court to determine before denying or grantRES JUDICATA-PexdING RIGHT TO APPEAL. ing the application, and in no sense jurisdic

Since, under Code Civil Proc. $ 1049, by tional. The decree must be reversed be which an action is pending until the time for appeal has expired, or the judgment has been

cause there is no evidence to support it. Apsooner satisfied, a judgment until then is not pellants were present at the hearing of the final, an unsatisfied decree, the time for an ap application, and denied the allegation of peal from which has not expired, is no evidence of the facts thereby adjudged.

the petition that Florence Blythe was the

child and heir at law of Blythe, deceased. In bank. Appeal from superior court, city

To prove that fact, findings, conclusions of and county of San Francisco; J. V. Coffey,

law, and decree in the case of Blythe v. Judge.

Ayers were introduced in evidence. We Petition, in the matter of the estate of think them wholly insufficient to prove it. Thomas H. Blythe, deceased, for a family

The findings and decree in that action were allowance to Florence Blythe. Appeal from filed and entered October 22, 1890. The apan order granting the same. Reversed.

plication for an allowance was filed and H. S. Brown, John R. Jarboe, W. S. Good heard October 31, 1890. The judgment was fellow, and Edward R. Taylor, for appel but nine days old when offered in evidence, lants. W. H. H. Hart, Garber, Boalt & and, under the statute, the losing parties Bishop, Thos. I Bergin, and W. W. Foote, were entitled to an appeal from it at any for respondent.

time within 60 days from its rendition. By

virtue of section 1049 of the Code of Civil GAROUTTE, J. This appeal is prosecuted Procedure, an action is pending until the from an order granting a family allowance time for appeal has expired, or the jpdgment to Florence Blythe. Upon the hearing of the sooner satisfied. This judgment, being but petition for the allowance, counsel for the nine days old at the date of the hearing, and applicant introduced in evidence the findings not satisfied, afforded no evidence of the of fact, conclusions of law, and the decree facts therein found, for it was not a final heretofore made and entered in the action of Judgment, inasmuch as the action was still Blythe v. Avers et al., wherein it is found pending. A judgment, in order to be adand adjudged that Florence Blythe is the missible in evidence for the purpose of proplawful child and heir of Thomas H. Blythe, ing facts therein recited, must be & final

Judgment in the cause; and, if the action in dence upon that issue had been introduced, which the judgment is rendered is still pend the court should have held that it did not ing, necessarily the judgment is not final. constitute a bar, for the reason that under As was said in Hills v. Sherwood, 33 Cal. the provisions of section 1049, Code Civil 478: “Although a judgment may be final Proc., the action was deemed to be still with reference to the court which pro pending.” Other members of the court went nounced it, and as such be the subject of to greater lengths, and declared the judg. appeal, yet it is not necessarily final with ment inadmissible as evidence for any purreference to the property or rights affected pose. For the foregoing reasons we conso long as it is subject to appeal, and liable clude the evidence is wholly insuficient to to be reversed." The sound policy of a law support the order. Let the order be rewhich will not allow a decree to stand upon versed. such evidence is well illustrated by the Blythe litigation. This judgment, which was We concur: MCFARLAND, J.; FITZGERIntroduced in evidence upon the hearing of ALD, J.; DE HAVEN, J. the matter of family allowance to prove the paternity of the child, has since been attacked by appeal, and the matter is now pending in this court. Let us assume that VON SCHMIDT v. WIDBER, Treasurer. the judgment will be reversed upon the find

(No. 15,160.) ings, and the cause remanded, with direc (Supreme Court of California. Sept. 11, 1893.) tions to enter judgment for appellants; by

COURTS-PRACTICE-ORDERS. such assumption the judgment upon which 1. Under the present constitution, whenthe decree of family allowance was based ever a judge of the superior court is present at has gone forever. It has not only disap- judicial business, and there assumes to trans

the place designated for the transaction of peared, but the evidence of the paternity act such business, his acts are the acts of the of the child upon which the allowance was "court;" and therefore an order dispensing granted is declared by the court of last re

with an undertaking on an appeal, made and sort to be no evidence of such paternity.

signed by a judge of the superior court of San

Francisco county while holding a session of one If this judgment was evidence of the fact of of the departments of the court at its court paternity, it was conclusive evidence of that room, is a sufficient compliance with Code Civ

il Proc. $ 946, providing that the "court" befact,-it was res adjudicata. Yet that can

low, may dispense with an undertaking on apnot be possible, for nothing is res adjudicata peal in certain cases. until it has reached final judgment. As was

2. Since there is no provision requiring orsaid in Webb v. Buckelew, 82 N. Y. 560: "It

ders of the superior court to be entered at

length on its minutes, it is sufficient if an oris therefore only a final judgment upon the der dispensing with an undertaking on appeal merits which prevents further contest upon be filed with the clerk. the same issue, and becomes evidence in

Department 1. Appeal from superior another action, between the same parties

court, city and county of San Francisco; or their privies. Until final judgment is

A. A. Sanderson, Judge. reached, the proceedings are subject to

Action by one Von Schmidt against one change and modification, are imperfect and inchoate, and can avail nothing as a bar or

Widber, treasurer of the city and county of

San Francisco. There was a judgment for as evidence, nntil the judgment, with its plaintiff, and defendant appealed. Respondverity as a record, settles finally and conclusively the question at issue." And, again:

ent moves to dismiss Denied. "Whenever it fails to fix and determine the

Harry T. Creswell, for appellant Tilden ultimate rights of the parties, wherever it

& Tilden, for respondent. leaves room for a final decision yet to be made, it is not admissible in another action, HARRISON, J. Motion to dismiss the apfor the plain reason that it has finally de peal. The appellant was sued in his official cided and settled nothing. Until the judg. capacity, as treasurer of the city and county ment comes, no man can know what the ulti of San Francisco, and has appealed from the mate decision will be." In Harris v. Barn judgment against him. Section 946, Code hart, (Cal.; decision filed March 18, 1893,) Civil Proc., provides that the court below 32 Pac. Rep. 589, it decided that a may, in its discretion, dispense with an unjudgment cannot be pleaded in bar where it dertaking on appeal “when the appellant is has not been satisfied and the time for ap an executor, administrator, trustee, or other peal has not expired. In other words, the person acting in another's right;" and in judgment is not a final judgment if the ac Scheerer v. Edgar, 67 Cal. 377, 7 Pac. Rep. tion is still pending, and the plea should be 760, it was held that this section applied In abatement. In Naftzger v. Gregg, (Cal.; to an action against a municipal officer in decision filed July 21, 1893,) 33 Pac. Rep. his official capacity. On the 19th of July, 757, the doctrine is again declared, some of 1892, after the defendant had given his the justices holding that “when, upon the notice of appeal, the Honorable James M. submission of the case, it appeared to the Troutt, one of the judges of said superior court that a year had not elapsed since the court, and the presiding judge thereof, while entry of the judgment, and no other evi holding a session of one of the departments

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