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Department 1. Appeal from superior had the power to relieve him from the effect court, Los Angeles county; J. W. McKin thereof, (Stonesifer v. Kilburn, 94 Cal. 33, ley, Judge.

29 Pac. Rep. 332;) and whether it was the Action by one Cole against one Wilcox, result of such mistake or excusable neglect executor. Defendant had judgment, and was to be determined, in the exercise of its from an order granting a new trial he ap discretion, by the court to which the applicaDeals. Affirmed.

tion was made. The facts stated in the or

der must be accepted by us as having been Wells, Monroe & Lee and Albert M. Ste

fully shown to the court by competent eviphens, for appellant. A. W. Blair and W.

dence, and upon these facts it must be conCole, for respondent.

ceded that the court acted in the exercise

of a wise discretion in making the order. HARRISON, J. This action was brought 2. When the motion for a new trial came to recover damages for the alleged diver on for hearing, the defendant objected to sion of water from a canyon onto the plain the court hearing the same, upon the ground tiff's land, through an artificial channel con that the statement of the case proposed for structed by the defendant's testator. The settlement by the court was not served upcause was tried by jury, which rendered on him by the plaintiff within the time ala verdict in favor of the defendant. A mo lowed by law, and that the court had lost tion of the plaintiff for a new trial, upon the jurisdiction to settle any statement in the ground, among others, that the verdict was case, and now urges that for this reason the contrary to the evidence, was granted by court erred in granting a new trial. The the court, and from this order the defendant correctness of the court's action in granting bas appealed. The plaintiff gave notice of the new trial must be determined upon the his intention to move for a new trial March record, on which it acted upon the hearing 17, 1892, and on the 21st day of March ob of that motion, and is not affected by any tained from the court 10 days' time, in ad error which it may have committed in matdition to the time allowed by law, in which ters not connected with such action. The to prepare and serve his proposed state- judge had settled and allowed the statement ment of the case. On the 29th of March prior to this time, and had recited therein he went to the court for the purpose of pro that it was “duly prepared and settled withcuring additional time in which to prepare

in due time and in the manner required by the statement, and the application which he law;" and, also, that the “defendant objectmade was granted, but the order that was ed to settlement of statement, upon the entered by the clerk was for a stay of exe ground that the same was not served in cution, instead of giving him further time time." If there were any reasons in supto prepare his statement, and he did not dis- | port of this objection on the part of the decover this fact until about April 4th, on fendant, the proper practice would have which day he gave notice that he would been to present them at that time, so that make an application to the court for further the judge could pass upon their sufficiency, time; and on the 11th day of April, in pur and to have the objections, with the rulings suance of this application, the court made of the judge thereon and any exception an order reciting that “it appearing to the thereto, incorporated into the statement. A court that, through mistake and inadvertence, mere objection to the settlement of the statethe plaintiff, upon the 29th day of March, ment, without pointing out the basis or the 1892, applied to this court to procure an or grounds of the objection, or presenting the der for a stay of execution herein for ten facts upon which it was made, was not fair days from that date; that it was his inten to either the judge or the opposite party; tion, when he came into court, to make an and, even if an exception had been taken application to the court for ten days' time to the ruling of the judge upon such objecto prepare, serve, and file affidavits and tion, the party taking the exception would statement on motion for a new trial; and not have the right to its consideration upon that he supposed that he had made such ap appeal. When the motion for a new trial plication, and that such order had been came on to be heard, the court, in its action granted, and so informed his counsel; and thereon, was limited to considering the matthat, through said mistake, the time for ters contained in the statement, and was not filing said statement was by him permit- at liberty to go outside of the statement for ted to expire, the same mistake not having the purpose of determining whether the been discovered until after said expiration, new trial should be granted or refused. It is therefore ordered that the plaintiff be, 3. The action of the trial court in grantand is hereby, relieved from said mistake ing a new trial, for the reason that the and inadvertence, and is given two days former verdict or decision was not support. from this date, thirteen days from the 31st ed by the evidence, is so much a matter of day of March, 1892, to prepare and serve discretion that, unless it appears that there and file the said statement."

was an abuse of that discretion, this court 1. If the failure of the plaintiff to pro will not interfere with its action. Although cure the additional time was the result of in the present case the plaintiff may have an excusable neglect or mistake, the court shown himself entitled only to nominal dam

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ages, yet a verdict for or against him would be decisive of a right which may be available in future litigation. The order is atfirmed.

In bank. Appeal from superior court, Ventura county; B. T. Williams, Judge.

Action for personal injuries by Charles Townsend against J. S. Briggs. Plaintiff had judgment, from which, and an order denying a new trial, defendant appeals. Reversed.

We concur: SON, J.


Brousseau & Thomas and Blackstock &

Shepherd, for appellant. Barnes & Selby EXCELSIOR PAV. CO. v. LEACH et al.

and H. L. Poplin, for respondent. (No. 19,174.) (Supreme Court of California. Sept. 1, 1893.) STREET-PAVING CONTRACTS-REPAIRS BY CON

MCFARLAND, J. After a consideration TRACTOR.

of this case upon a hearing in bank, we are 1. A requirement in a street-paving con

satisfied that the judgment and order denytract that the contractor shall keep the street ing defendant's motion for a new trial should in repair for five years imposes an additional

be reversed. This action is to recover damburden on the property owners, and so vitiates the assessment, unless expressly authorized by

ages for personal injuries caused by an alstatute. Brown V. Jenks, (Cal.) 32 Pac. Rep. leged wrongful and malicious assault made 701, followed.

by defendant upon the person of plaintiff. 2. Testimony that the requirement of repairs did not enhance the amount of the suc

The jury rendered a verdict for plaintiff in cessful bid is worthless against the objection

the sum of $9,000, upon which judgment of additional burden, since it may have en was entered, from which, and from an order hanced other bids. Brown v. Jenks, (Cal.) 32 denying his motion for a new trial, defendPac. Rep. 701, followed.

ant appeals. The main question in the case Department 2. Appeal from superior court, was whether the appellant used unnecesSan Diego county; George Puterbaugh, Judge. sary force in expelling the respondent from

Action by the Excelsior Paving Company a building in the possession of appellant; against Maggie Leach, personally and as ex and we think that certain instructions of the ecutrix of the will of Wallace Leach, de court to the jury were misleading and prejuceased, and others. From a judgment for dicial to appellant. plaintiff, defendants appeal. Reversed.

The undisputed facts are these: AppelE. Parker and Haines & Ward, for appel

lant and his partner, Leach, were in the lants. Shaw & Holland and C. T. H. Palmer,

rightful and peaceable possession of a small for respondent.

workshop, in which they were engaged in

making and experimenting with certain maPER CURIAM. Upon the authority of chines for pitting fruits. Respondent enBrown v. Jenks, (Cal.; opinion filed March tered the shop at a time when appellant was 27, 1893,) 32 Pac. Rep. 701, the judgment and in an 'adjoining rear room, and, after speakorder denying a new trial herein are re ing to a young man in the shop, immediately versed.

commenced in a rude and wrongful manner to handle two of said machines with

great force, and to whirl the wheels thereof, TOWNSEND v. BRIGGS. (No. 14,889.)

and to operate said machines with great

violence, so as to put them in great danger (Supreme Court of California. Sept. 5, 1893.)


the whirling wheels attracted the attention 1. In an action for assault by one who was

of appellant, who came into the shop, and in trespassing when assaulted, plaintiff testified a peremptory manner ordered respondent to that defendant said to him, “You get out of let the machines alone, and to leave the here, or I will pound your head with a hamThe jury was instructed that, “before

premises. Respondent replied that he had defendant would have been authorized to use

left the machines alone, but did not proceed force to remove plaintiff,

he should to leave the shop. As to the details of what have requested plaintiff to depart." Held, that then immediately occurred there is some conthe instruction was misleading, as it gave the jury to understand that the language used by

flict of testimony; but appellant, with an defendant did not constitute a "request" to

oath, told respondent that if he did not leave leave.

he would pound him on the head, and re2. Defendant removed plaintiff from his spondent replied with an oath that he would shop as a trespasser for injuriously handling the machines, and, in an action for the assault, the

like to see him pound him on the head; and jury was instructed that "if

plaintiff, appellant then picked up a mallet, and at the time of the injury complained of, was struck respondent on the head. Respondent not trying to injure defendant or his property, was staggered by the blow, but rallied, and then any force used against plaintiff was wrongful." Held error, as it was imma

advanced towards appellant, whọ struck him terial that plaintiff was not handling the ma once or twice more. Respondent, either chines at the moment the force was used.

from the effect of one of the blows, or from 3. In an action for personal injuries, plain- slipping on fruit pits and skins on the floor, tiff having adduced mortuary tables to prove his probable expectation of life, excluding evi

fell on the knife of one of the machines, dence of his habits as to sobriety is error,

and was thereby seriously injured. Respond.


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ent was at the time about 47 or 48 years old, weighed 170 pounds, and was apparently in good health. He testified that after the first blow he was dazed, and did not realize what afterwards happened. The appellant was over 60 years old, weighed 128 pounds, was in bad health, and subject to hemorrhages of the lungs. He testified that he was nervous and excitable; that respondent was "fighting drunk;" that he thought respondent wanted to fight, and, as he (appellant) was too old to fight respondent with his fists, he thought he would pick up something that he could defend himself with.

Whether or not the business and shop of appellant were of such a character as to carry an implied Invitation to the public to enter the shop for business purposes need not be determined, for it is clear that respondent did not enter for any purpose of business. He was clearly a trespasser, at least from the moment he commenced to unlawfully and violently manipulate the said machines. The case, then, is within the rule that a man's house is his castle, and that he has the right to defend it against an intruder with all the force reasonably necessary to the defense. Of course, in such a case, a man would be liable for the result of a brutal use of force clearly beyond what the occasion warranted; but, in determining such a question, due allowance should always be made for the difficulty which a reasonable man would have in measuring, under exciting circumstances, the exact amount of force necessary; and it is extremely important that a jury, in passing upon such a case, should not in any way be misled by an instruction of the court.

We think that the jury were misled by instructions 4 and 5 given at request of plaintiff. In instruction 5 the court told the jury that, "before the defendant would have been authorized to use force to remove plaintiff from his place of business, he should have requested plaintiff to depart, and then," etc. Now, this instruction either assumes that the evidence left some doubt as to whether appellant told respondent to leave before any force was used; or else the jury were given the impression that there should have been a “request" couched in some polite and mildmannered language different from that used by appellant. But there was no conflict at all in the evidence on the point. Respondent himself testified as follows: "While I was in there, Mr. Briggs came in, and ordered me out of the shop;" and then, after some conversation, "he said, 'You get out of here, or I will pound your head with a hammer,' or something of that sort.” The jury, therefore, may well have thought that the language used by appellant did not constitute a "request," within the meaning of the said Instruction; and it is difficult to perceive what other meaning they could have attached to it; and, indeed, the respondent seems to insist that he was not called upon to leave

because appelant had not requested him in gentler tones to do so. But, whatever might be thought of appellant's language in a school of politeness, it was sufficient in a court of law if it plainly told respondent to go.

We think, also, that instruction 4 was erroneous and misleading. By that instruction the jury were told that “f the jury finds from the evidence that the plaintiff, at the time of the injury complained of, was not trying to injure the defendant, or his property, then any force used against plaintiff

was wrongful." From this Instruction the jury might well get the impression that if, when the force was used, the respondent was not, at that very moment, engaged in the act of injuring appellant's property, that appellant had no right to use force, and such impression would have been a wrong one. When respondent went into the room, and commenced endangering appellant's property, as above stated, he became a trespasser, and appellant had a right to put him out, and to use sufficient force to do so; and the fact that, at the moment when the force was used, respondent was not then handling the machines, was of no consequence.

We think, also, that the court erred in a ruling upon the admissibility of evidence in a matter affecting the amount of damages. The respondent introduced as evidence tending to prove the probable future duration of his life certain mortuary tables, which, under the authorities, were admissible for that purpose. The witness who identified the tables was asked by appellant the question, "Can you tell what insurable persons are ?” and the objection by respondent that it was not in cross-examination was properly sustained. But we think that the court erred in sustaining the objections of respondent to appellant's question to his own witnesses, as follows: "Do you know his [Townsend's] habits as to sobriety?" The mortuary tables had been introduced by respondent as evidence tending to show what was the probable expectation of life of persons of his age. These tables, as we understand it, are based upon what experience shows to be the average expectation of life of all persons of that age; and therefore, in rebuttal of that evidence, appellant was entitled to prove any fact tending to show that respondent's expectation of life was below such average. We apprehend that an insurance company would not take the same risk upon every man of respondent's age without particular inquiry as to his condition, upon the theory that the average expectation of life of persons of his age was a certain number of years. If we assume that the tables established a prima facie case of respondent's expectation of life, the appellant clearly had the right to overcome that prima facie case by showing facts which lessened that expectation; and the fact that respondent had the habit of drinking liquor to excess, or was

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a drunkard, was certainly a fact proper to such attorney knows such action cannot be be proved in that connection. It is contend maintained, for want of jurisdiction, ed tliat the question was properly excluded

6. But if the attorney advised his client,

in such case, that the service by publication because it did not refer to the time of the

was good, and a valid judgment could be oballeged injury, which was about two years tained, such attorney cannot recover for serv. before the trial; but we see nothing in that

ices rendered therein. or.Ltention. As "habits" are not formed hur

7. Where an attorney renders services in

various matters, and the client makes a partial riedly, it is probable that the question would payment "on account of fees for legal servhave been proper as a preliminary one, even

ices," the attorney cannot credit the money on if the inquiry should have been confined to

certain items of his account, so as to place them

beyond controversy. the date of the injury; but we do not see why it should have been so confined. The

Commissioners' decision. Department 1. mortuary tables were introduced to show Appeal from superior court, Los Angeles what, at the time they were introduced, - county; J. W. McKinley, Judge. that is, at the time of the trial,-respondent's

Action by A. G. Hinckley against August probable expectation of life was; and any

Krug on an account for professional services fact which, at that time, lessened that ex

rendered by plaintiff, as an attorney, for de pectation, was admissible. Suppose that aft

fendant. From a judgment entered on the er the date of the injury respondent had

verdict of a jury in favor of plaintiff, and been attacked by some disease which is gen

from an order denying his motion for a new erally fatal, such as cancer or consumption; trial, defendant appeals. Reversed. would not that fact have been admissible in Lacey & Trask and D. K. Trask, for appel. evidence? We see no other points neces lant. A. G. Hinckley and Calvin Edgerton, sary to be specially noticed. The judgment for respondent. and order appealed from are reversed, and the cause remanded for a new trial.

TEMPLE, C. This appeal was taken by

the defendant from the judgment, and from We concur: BEATTY, C. J.; DE HAVEN,

the order refusing a new trial. It is an acJ.; FITZGERALD, J.; HARRISON, J.

tion to recover $675 for services as attorney at law, alleged to have been rendered defendant “between the 1st day of June, 1889, and

the 1st day of June, 1891, in prosecuting HINCKLEY v. KRUG. (No. 19,161.)

and defending suits, and 'for like services, (Supreme Court of California. Aug. 31, 1893.)

at his request, in drawing, copying, and enATTORNEY-ACTION FOR Services --DAMAGES POR

grossing of divers conveyances, deeds, and NEGLIGENCE UNPROFESSIONAL CONDUCT – INCORRECT Advice.

other paper writings, and for divers jour1. A client cannot recover of his attorney

neys and other attendances," etc. The dedamages on account of negligence, in the ab fense consists of a general denial and of six sence of any injury to the client caused by counterclaims for damages alleged to hare such negligence. 2. In an action by an attorney to recover

been caused by the negligence and incompefor professional services, defendant claimed

tency of plaintiff as attorney, and of a demand damages for incompetency and negligence, and for $125, money due from plaintiff to defendthere was evidence that he employed plaintiff ant. The case was tried with the aid of a to prosecute certain actions to judgment for a fixed sum in each case, and that plaintiff was

Jury, which rendered a general verdict against discharged before judgment for negligence and defendant for $325. The defendant not only incompetency, in failing to file lis pendens in attempted to recoup damages resulting froin two foreclosure suits. Held, that evidence that

alleged negligence and incompetency of the plaintiff explained to defendant the effect of filing and failure to file such notices, and the plaintiff, but he claimed at the trial that probable expense, and that defendant said he such negligence and incompetency justified did not want to spend the money for filing defendant in discharging plaintiff as his atthem, was admissible. 3. In such case it is not error to exclude ev

torney, and that he was compelled to and idence that part of the property covered by one

did discharge him before the services were of the mortgages plaintiff was employed to fore completed, and, further, that plaintiff had close was conveyed by the mortgagor before, contracted to perform the services for & but the deeds were not recorded until after, the foreclosure suit was commenced, where it ap

stipulated compensation for the entire serv. pears that the remaining property sold for ices. Upon this point the court properly inenough to satisfy defendant's judgment.

structed the jury that under such circum4. Where part of the services for which

stances, the contract being an entirety, plainplaintiff seeks to recover consisted in examining the title to a lot, it is error to exclude evi

tiff could not recover for his services. It dence that, through the advice of plaintiff that is important to bear in mind, therefore, that the title was clear, defendant purchased the the question of negligence is presented in two lot, and was afterwards compelled to redeem

ways: First, on a claim to recover damages, it from a prior tax lien. 5. It is not unprofessional conduct on the

and as a justification for the discharge of part of an attorney to bring an action on a plaintiff as his attorney before the comple just claim against a nonresident, and serve tion of the stipulated service. An action summons by publication, when employed to do 80, with the hope that possibly the defendant

could not be maintained on account of the therein will pay the judgment obtained, on its

negligence or incompetency unless injury had being sent to the place where he resides, though resulted to the client, but the same neglie

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gence might justity and necessitate the dis | also, to show that defendant held a mortgage
charge of the attorney, to avoid damage. upon this lot; that the mortgagor proposed

The first alleged error consists in an order to convey the property to defendant in full
striking out the first claim for damages, on payment, which offer the defendant accept-
the ground that the averments show that ed, provided he could get a good title, and
defendant was not injured. I think this rul- employed plaintiff to examine it for him and
ing correct. It was averred that, in an ac to attend to the conveyance; that, through
tion to foreclose a mortgage, plaintiff, through the advice of plaintiff that the title was clear,
negligence, failed to file a notice of the he took the deed, and then had to purchase
pendency of the action. It appeared that no the tax title, at a cost of $50. Plaintiff ob-
one acquired any interest in the mortgaged Jected to this evidence on the ground that
premises during the pendency of the suit; Lossing, the mortgagor, was admitted to be
that defendant purchased the premises at insolvent, and the tax lien was superior to
the mortgage sale, paying the full amount of the lien of the mortgage, and therefore de
his debt and costs. It was not alleged that fendant would have been compelled to re-
he was ignorant of the defect, if it was a deem from the tax sale, even if he had tore-
defect. Not having been injured, he could closed his mortgage. The objection was sus-
not maintain an action for the lleged neg. tained, and defendant excepted. It is not
tigence. There was evidence at the tiine necessary to say whether this evidence was
tending to show that defendant had employed inadmissible to prove the claim for damages
plaintiff as his atorney to prosecute certain founded upon this charge of negligence. It
actions to inal judgment, for a fixed and was clearly admissible, as going to the value
stipulated fee in each case, and that plaintiff of plaintiff's services. The service was with-
had been discharged as such attorney, be in the allegations of the complaint.
fore the actions had been brought to judg Defendant also offered to show that a por-
ment, for alleged negligence and incompeten tion of the property includod in one of his
cy, consisting partly in his failure to file such mortgages which he employed plaintiff to
notices in two actions to foreclose mortgages foreclose, for which service plaintiff is seek.
for defendant. In regard to the matter the ing compensation in this action, had been
testimony of plaintiff and defendant was conveyed before the suit to foreclose was
conflicting. Plaintif testified: “Krug did commenced, but that the deeds had not
not want to spend the money for filing them.

been recorded. This evidence was offered
I explained to him that, if no notice of action to show damage from failure to file notice of
was filed, people who bought interests in the action. But under the supposed condi-
the property could come in at any time and tions, as the remaining property was sold
redeem. He said he did not want any such for enough to satisfy the defendant's judg-
paper filed; the more people came in and ment, the notice would have had no effect
redeemed, the better. I told him the ex upon the alleged purchasers before the in-
pense in the Eddy suit would probably be stitution of the suit. Section 726, Code Civil
four or five dollars for the lis pendens. I Proc.

The dence was properly excluded. explained to him that he would have to The defendant asked the court to give the have the title searched again before he took following instruction: “If an attorney brings the decree, to see that nothing appeared of

an action that he knows cannot be mainrecord, and if he decided not to file his lis tained, merely for the purpose of 'bluffing' pendens he would put me to that much and bulldozing the defendant, he is guilty extra trouble.” The defendant testified posi of unprofessional conduct, violates his oath tively that no such conversation occurred, as an attorney, and cannot collect any comand that nothing was said upon the subject; pensation for services rendered in such acthat he did not know that such a notice tion,"--which instruction the court refused was required. Defendant objected to the to give, and defendant duly excepted. Such testimony of plaintiff in regard to the con refusil is assigned as error. Defendant had versation, and assigns the ruling admitting a money demand against Thacker, who was the testimony as error. The evidence was residing in Seattle, Wash. Thacker had no mainly directed to the question as to whether property in this state. A suit was defendant was justified in discharging plain menced against Thacker by plaintiff, as detiff as his attorney. While it may be doubt- | fendant's attorney, and a summons was taken ed whether plaintiff sufficiently excused him out and published. Plaintiff had agreed self, I think the evidence was competent. to prosecute the action to ju<lgment for $30, Defendant complains, also, of certain instruc but was discharged before judgment was tions in regard to this matter, but the state entered. Both parties testified in regard to ment fails to show that any exception was

the institution oť the suit. Defendant said
reserved to the instructions at the trial. that plaintitf told him that such service

At the trial, defendant offered in evidence would be good, and that the judgment could
a certificate of sale for taxes of a certain lot be sent to Seattle, and collected there.
assessed to one Lossing, in which it appeared Plaintiff said: “I

intimated that
that taxes had not been paid upon the lot we could get service of summons on them
for the fiscal year 1887; also, a tax deed to by publication when they were out of the
one Tring for the lot, on failure to redeem; state. There being no property in this state,

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