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granted by any incorporated city or town for a less sum than hereinbefore specified." In view of these considerations, in so far as State v. Wright, supra, is in conflict with the construction we have given to the constitutional provision in question, it must be considered as uverruled, and the judgment in the case at bar must be affirmed.

were fatal, racked with physical pain, and scared out of his wits by the misfortune that had overwhelmed him; and while in this condition-a condition of mind and body absolutely preventive of intelligent calculation -the company with unseemly baste thrust this cold calculating stipulation into his face, and obtained his signature to it. · The essence of a contract is an agreement of the minds of the parties, or the consent and harmony of their intentions. The circumstances under which the respondent's sig. nature was obtained to the so-called "re lease" shows, indeed, no want of harmony; but it was unilateral harmony; there was but one mind operating; the mind of the respondent was plainly in no condition to agree to anything; and appellant should not be allowed to shelter itself behind an instrument obtained in such a way. The judg. ment should be affirmed.


DATED ST. RY. CO. (Supreme Court of Washington. Nov. 6.


Where a corporation obtains a release from liability for personal injuries from the person injured while he is lying in a hospital, without means or friends, mangled and shock ed, and before his wounds are dressed, or his mind is composed, such release is void. Per Dunbar, C. J., dissenting.

Dissenting opinion.

For report of majority opinion, see 33 Pac. Rep. 351.

DUNBAR, C. J. I dissent. The testimony, to my mind, shows clearly (1) that the agent of the company in charge of the matter was guilty of gross negligence; (2) that the respondent was not guilty of contributory neg. ligence; (3) that undue advantage was taken of the respondent to obtain the release which the appellant pleads in defense. I do not question the law pronounced at great length in the majority opinion, but I assert that it does not govern this case. The opinion does not state the circumstances under which it is alleged the release was obtained. While this man was lying mangled and shocked by the injury, before his wounds were dressed or his mind composed, the agents of the company obtained this socalled “release." The undisputed testimony shows such a condition of mind and body as would render absolutely farcical any attempt of the respondent to enter into a contract concerning important rights. Courts would not hesitate to set aside a contract urged and procured by a private individual under such circumstances as are proven in this case, and no different rule should be prescribed for & corporation. Contracts, when they are honestly and fairly entered into, must be rigidly maintained and enforced by the courts, because contracts, express or implied, are at the bottom of all business relations. But a contract is only entitled to respect from the presumption that the contracting parties were standing on an equal footing at the time the contract was entered into. Will any man assert that the parties to this action were on an equal footing at the time this contract was entered into? Here was a man without means and without friends, torn and bruised by an accident, and jolted and shocked until he was prostrated, his wounds not yet examined to ascertain if they

LEDDY V. ENOS. (Supreme Court of Washington. Nov. 3,


STITUTE-BREACH-LIABILITY. 1.1 Hill's Code, $ 1424, provides that a warranty deed containing the words "convey and warrant" shall be construed to contain express covenants by the grantor to the grantee, his heirs and assigns, that the premises are free from all incumbrances, “and such cove nants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at full length in such deed." Held, that the statute applies to a deed drawn in the form prescribed by statute, and which set out the exact things warranted by the grantor. Per Dapbar, C. J., dissenting.

2. A covenant which recites that the grantor covenants, grants, and agrees that he, "against all and every person and persons whomsoever lawfully claiming or to claim the same, or any part thereof, shall and will war. rant and forever defend,” is a covenant against incumbrances. Per Dunbar, C. J., dissenting.

3. Outstanding city and county taxes at the time the deed is executed constitute a breach of such covenant, and the payment of such taxes by the grantee, before any move is made to collect the same, imposes a liability on the grantör, under the covenant. Per Dunbar, C. J., dissenting.

Dissenting opinion.

For report of majority opinion, see 33 Pac. Rep. 508.

DUNBAR, C. J., (dissenting.) I am unable to agree with the reasoning or conclusions. of the majority. I think the contention of the respondent that the deed, which is made in the form prescribed by statute, should be construed as a warranty deed carrying implied covenants as provided for in said statute, is irresistible, and that the deed must be construed as though such covenants had been expressed therein. Nor do I think with the majority that the deed is taken out of the statute because it is made fuller than

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the statutory form requires The excess is the verdict and judgment recovered in the simply surplusage, and does not bring it superior court, it was incumbent upon within the rule of "expressio unius est ex him to show, not only that the injury be clusio alterius." Nor do I think that it was received was proximately caused by the the duty of the grantee to stand idly by and negligence of Mulligan, but also that the see the incumbrances on his land increased latter was incompetent, and that there was by penalties accumulating as delinquent negligence upon the part of the defendant in taxes. He rightly made his damages as light employing him in the first instance, or in as possible by the payment of taxes, and retaining him in its service after notice of ought not to be made to suffer for doing that his incompetency and the alleged careless which the law in every other character of and reckless manner in which he had dis case would compel him to do. Certainly no charged his duties as an engineer. It is not presumption will attach that the taxes were claimed by the plaintiff that the defendant illegally levied, and will be successfully con failed to exercise reasonable and ordinary tested. The presumption is exactly the re care to ascertain whether or not Mulligan verse. The judgment should be affirmed. was a competent engineer at the time of

first employing him, but he contends that the defendant was guilty of negligence in

retaining him as an engineer after notice HOLLAND v. SOUTHERN PAC. RY. CO. that he was careless and reckless in the dis (No. 18,128.)

charge of the duties incident to that posi(Supreme Court of California. Nov. 8, 1893.)

tion, and therefore an unfit person to serve INJURY TO EMPLOYE-FELLOW SERVANTS—NOTICE

in such capacity. The jury so found, and OF PRIOR NEGLIGENCE.

the defendant insists that the verdict is not The fact that an engineer once ran his supported by the evidence, and the question train in 40 minutes over a distance scheduled thus presented is the only one necessary to for an hour, though he knew that hand cars

be considered at this time. and sectionmen might be on the track up to 10 minutes before schedule time, no accident It was shown upon the trial that, some having in fact occurred, does not show that he three or four months prior to the collisico was unfit for his position, and that the com resulting in the injury complained of by the pany ought to have discharged him after no

plaintiff, Mulligan tice.

was the engineer in

charge of one of defendant's trains running Department 2. Appeal from superior court,

between Marysville and Oroville, and upon Yuba county; E. A. Davis, Judge.

that occasion ran a train between MarysAction by one Holland against the South

ville and Moore's Station, a distance of 12 ern Pacific Railway Company for damages

or 14 miles, in 40 minutes, while the schedule for personal injuries. Judgment for plain

time between these points was 1 hour. The tiff. Defendant appeals. Reversed.

plaintiff himself testified that in making S. C. Denson, E. A. Forbes, and Fred Blake, about 142 miles of this run, over a portion of for appellant. W. H. Carlin and Jacob the road which was level, the train was Samuels, for respondent.

driven at a speed of about 40 or 45 miles an

hour; and he further testified that this road DE HAVEN, J. This is an action brought was not considered safe to run fast upon, be to recover damages for personal injuries cause it was laid with light iron rails. There sustained by the plaintiff while in the em was but one train a day run over this road, ployment of the defendant as road but band cars used by construction men master. The injuries were the result of a might have been upon the track at this time, collision between a locomotive engine and a and, under the rules of defendant, would construction train upon which the plaintiff have had the right to remain there until was riding. The engine which came in colli within 10 minutes of the schedule time for sion with the train was then being used in the arrival of the regular train. This run the work of defendant, and was driven by was made in daylight, and without accian engineer named Mulligan, employed by dent or injury to any one. The plaintiff, althe defendant for that purpose. The com though requested by Mulligan not to do so, plaint alleges that Mulligan, for some time notified the proper officers of defendant of prior to and up to the time of the collision, the manner in which this train was run upod “had been and was incompetent, reckless, the occasion just referred to. This was all and grossly negligent in the performance of the evidence tending in any degree to show his duties as an engineer and

the incompetency of Mulligan as an engineer ploye of defendant,” and that defendant had prior to the collision in which plaintiff re notice of such incompetency and negligence.ceived his injuries. Counsel for plaintiff in The case was tried by a jury, and a verdict their very able brief filed in this court argue returned in favor of plaintiff for the sum of that this evidence was sufficient to show that $7,500, and judgment was rendered in the Mulligan knew, or ought to have known, that superior court in accordance therewith. The it was dangerous to run a train so fast upon defendant appeals.

this particular road; and that in so doing be The plaintiff and Mulligan were fellow not only endangered the lives of the passervants, and, in order to entitle plaintiff to sengers on the train, but also imperiled the



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19 connection

od plor: lives of the section or construction men who I found free from the detuc's and infirmities Liwa were on the road, and who had the right to of humanity. A single act may, under some DE LJ S. remain there until within 10 minutes of the circumstances, show an individual to be an DIDE! time for the regular approach of the train, improper and unfit person for a position of Van, and that the jury were justified in finding trust or any particular service, as when DOC: from this single act of Mulligan that he was such act is intentional and done wanton.y Da un reckless and careless to such a degree as to regardless of consequences, or malicious.y. 1 I de render him wholly incompetent as an en So the manner in which a specific act is perIs it a gineer; and that the defendant could not, formed may conclusively show the utter 117. CT 02. with notice of the incompetency thus shown, competency of the man and his inability to Die retain him in its service as an engineer with- perform a particular service. But a singi, ABS LO out rendering itself liable to those of its em act of casual neglect does not, per se, terw i ployes who might thereafter be injured to prove the party to be careless and imthrough bis negligence. But we do not think prudent, and unfitted for a position requiring

It may be, and doubtless is, true that care and prudence. Character is formed and a single act may be such as to furnish an qualities exhibited by series of acts, and bine tine unerring index of the character of the actor, not by & single act." See, also, Elevator and, when considered by itself and in Co. v. Neal, 65 Md. 438, 5 Atl. Rep. 338. Ani with the circumstances

in Wharton on Negligence (section 238) it rounding it, be sufficient to demonstrate is said: "If single exceptional acts of negli

the unfitness of a person to be placed in any gence should prove an officer to be incompe me position requiring great or even ordinary tent, no officer could be retained in service,

care in the discharge of its duties. Still, the for there is no person who is not at some act relied upon here was not of a character time to some degree negligent. Hence it has to necessarily stamp Mulligan as unfit or in- | been properly held that intelligent men, of competent to discharge the duties of an en good habits, who are engineers or brakemen gineer. It did not of itself show him to be or switchmen on railroads, are not necesa grossly careless person, or reckless of the sarily to be discharged by their employers lives, either of the passengers committed to for the first error or act of negligence such his charge, or the lives of the employes of employes commit; nor will railroad compadefendant at work upon the track. No ac nies necessarily be liable for a second error • aident occurred at that time, nor is there or negligent act of a servant to all other anything in the evidence to show that this servants of such companies when the latter result was due more to chance or good for sustain damages by reason thereof." It nectune than the management of the engine and essarily follows from these views that the the actual condition of the road upon which judgment and order appealed from must the train was running; and, although men be reversed. were liable to have been working on the track, do not appear that they could We concur: MCFARLAND, J.; FITZGER

not have been easily seen, and would not ALD, J. 23 €. have had ample time to escape all harm after

being warned by bell or whistle of the ap

proach of the train. Upon the facts disas closed by the evidence, the jury was not

PHELAN et al. v. SMITH. (No. 19,147.) warranted in finding that the defendant (Supreme Court of California. Oct. 20, 1893.) failed in its duty to plaintiff or its other

COMMUNITY PROPERTY CONVEYANCE OF HOME115 employes in not discharging Mulligan from STEAD RIGHT - EJECTMENT - OUSTER-ADMINISfurther service as an engineer because of this

- INVENTORY - SETTING ASIDE HOMEone act, assuming it to have been a negligent one. The true rule upon this subject is

1. Civil Code, &$ 1384, 1402, provide that stated with great precision and clearness by

on the death of a husband intestate the title

to one-half of the community property vests in Allen, J., in delivering the opinion of the

the surviving wife, subject to the debts and court of appeals of the state of New York the control of the probate court for purposes in the case of Baulec v. Railroad Co., 59 N.

of administration. Held, that the widow could Y. 363, as follows: “An individual who

not by a conveyance of her interest in the land

bar a homestead therein for herself and chilby years of faithful service bas shown him dren. self trustworthy, vigilant, and competent is

2. The latter clause of Code Civil Proc. 8 not disqualified for further employment, and

1485, which defines the rights of successors by proved either incompetent or careless and

purchase to homesteads and to the right to

have homesteads set apart to them, relates not trustworthy, by a single mistake or act only to such purchasers as have succeeded to of forgetfulness and omission to exercise the rights of all the persons entitled to a the highest degree of. caution and presence

homestead, but has no application where the

succession is to the rights of only one of such of mind. The fact would only show, what

persons. must be true of every human being, that the 3. In ejectment by a widow, who had sold individual was capable of an act of negli- her interest in community property, and by gence, forgetfulness, or error of judgment.

her daughter, to get possession of their homeThis must be the case as to all employes of

stead right, defendant cannot contend that he

has not contested the right of the daughter to corporations until a race of servants can be possession as a tenant in common with hiin,


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so that there has been no ouster, when the order denying a new trial, defendant ap complaint avers title in plaintiffs and ouster

peals. Affirmed. by defendant, and the answer denies every material allegation of the complaint, and pleads the statute of limitations, and when the

O'Melveny & Henning, for appellant W.L agreed statement of facts admits that on a

Foley and Chapman & Hendrick, for re given date the widow, on behalf of herself spondents. and daughter, demanded of defendant that they be let in possession, but that defendant refused, and has since' withheld possession SEARLS, O. This is an action of electfrom plaintiffs.

ment to recover a parcel of land situate in 4. Where the affidavit of the administratrix, attached to the inventory and appraise

the county of Los Angeles. Plaintiffs had ment, was almost in the precise language pre

judgment, from which, and from an order scribed by the Code, except that the affidavit denying a motion for a new trial, defend. reads "and of all just claims of the said de ant appeals. The parcel of land in question ceased' against the said decedent," instead of

is part of a larger tract, of which Joha "against the said affiant,” such affidavit was sufficient, the error being merely clerical, and

O'Connor died seised July 21, 1882. The exit could not in any way vitiate the subsequent tire tract was community property of John proceedings.

O'Connor and Maggie O'Connor, (now Mag 5. The clause in Code Civil Proc. § 1443,

gie Phelan,) his wife. John O'Connor died requiring the administrator to file his inventory and appraisement within three months

intestate, and left him surviving the said after his appointment is directory, and does not Maggie, his widow, and their two minor render them invalid when subsequently filed. children, Louis Francis, who died intestate,

6. The fact that a second inventory was filed did not affect the validity of the proceed

a minor, without issue, February 22, 189, ings, for, if the first was in proper form, and

and the plaintiff, Mary O'Connor, who is still the second involved no changes, it was mere a minor. Maggie O'Connor was on the 13th surplusage; but if, from the destruction of day of October, 1882, appointed guardian of some property or the discovery of more, the court wished a further inventory, it was with

the person and estate of her infant daughter, in its power to order one taken.

Mary O'Connor, and on the 8th of November, 7. The petition for a homestead asked that | 1882, she was duly appointed administratrix it be set apart for the widow and her two

of the estate of her deceased husband, and children, but the decree stated that the property described "is hereby set apart for the use

qualified as such administratrix. On the 14ti • of the family of said O., deceased." The of April, 1883, Maggie O'Connor entered into

family of O. was shown by the record to have an agreement with the defendant, Edward consisted of the widow and two minor chil

Smith, and his brother, W. D. Smith, where dren. Held that, as the term "family” is used throughout the chapter providing for home by she agreed to convey to them a tract steads to denote the surviving husband or wife of land consisting of 934 acres, which isand children, it must be regarded as used in cludes the land involved in this action. The the decree in that sense, and as sufficiently

consideration was $3,000. W. D. Smith as describing the widow and children. 8. Objections to a decree setting apart a

signed his interest in the contract to de homestead urged on an appeal in an ejectment fendant, and, the consideration therefor har suit, a collateral proceeding, can only avail by ing been paid, on the 1st day of September, showing such errors as render the decree ab

1885, Maggie O'Connor conveyed the insolutely void. 9. Even if the probate proceedings were

divided one-half of the land by deed of grant void, the infant plaintiff could still recover, as to the defendant. The land so conveyed was the heir of her deceased father, (Code Civil community property, as aforesaid, and be Proc. 1452,) her interest in the real proper longed to the estate of John O'Connor, de ty, and possession thereof, except as against the administrator.

ceased. No order or authority of the pro10. Evidence was properly excluded that bate court was had, either authorizing or after the death of her husband the widow pur approving such sale, and it was made by chased with her separate funds a lot in anoth

Maggie O'Connor individually, and not in er town, and resided there with her children, and declared a homestead thereon, which lot any representative character. Defendant was subsequently sold by her, before the ap went into possession of the land at the date plication for a homestead herein, for the right

of the agreement, by consent of Maggie to a homestead herein inured to her and her children as a joint right which she could not

O'Connor, and since the date of the conter: individually waive.

ance. has remained in possession, claiming 11. The possession of defendant under the title to an undivided one-half thereof under agreement to purchase, made by the widow in

said deed, and not otherwise, adversely to 1883, was in subordination to plaintiffs' title, and did not become adverse to either of them

plaintiffs, and has paid all taxes levied there until the date of the deed September 1, 1885,

on. On July 9, 1888, the land was appraised and, as the ejectment action was begun April as of the estate of John O'Connor, deceased, 11, 1890, less than five years after the execu

in two parcels. The first parcel, being the tion of the deed, it was not barred by the statute of limitations.

land in dispute in this action, was appraised

at $4,500, and the second parcel at $3.510 Commissioners' decision. Department 1. On the 18th day of August, 1888, said Mag Appeal from superior court, Los Angeles coun gie O'Connor, as administratrix of the es ty; William P. Wade, Judge.

tate of John O'Connor, deceased, filed her pe Ejectment by Maggie Phelan and Mary tition in the superior court asking that parel O'Connor against Edward Smith. From a one of the land aforesaid, with the dwelling judgment in favor of plaintiffs, and from an house thereon, be set apart by said cut it as

a homestead for the use of said Maggie discussed at considerable length in Estate O'Connor, widow, as aforesaid, and her two of Moore, 57 Cal. 437. That case, like the minor children, aforesaid, and such proceed- present, was one in which the husband died ings were thereafter had that on the 18th intestate, leaving community property, and das of August, 1888, said first parcel of land, one in which there had been no homestead with the dwelling house, etc., thereon, was

declared during the lives of the spouses. set apart by the court as a homestead. After The widow had there, as here, conveyed her the death of Louis Francis O'Connor, and interest in the real property; the only differon the 15th day of August, 1889, a decree ence being that in that case it was by quitof distribution in the matter of said estate claim deed while here it is by grant. She was given and made, by which decree three subsequently applied to have a homestead fourths of said estate was awarded and dis- for herself and children carved out of the tributed to Maggie O'Connor, the widow, and real estate so conveyed. The court below one-fourth part thereof to Mary O'Connor, refused her application. On appeal, this the surviving child. Maggie O'Connor, on the court, in reversing the order denying a home 11th day of March, 1889, married E. F. stead, said: “The deed of Mrs. Moore is Phelan, and still is the wife of said Phelan. silent upon the subject of homestead. What

Appellant contends that as against the ever its effect as a conveyance, it was no plaintit Maggie Phelan the deed of Septem more than to convey the interest in the propber 1, 1885, from her to him, divested her erty of the deceased which she received upof all title she had to the land, and that she on his death by succession. A homestead had the one half thereof, under section 1402 right, or a right to have a homestead, is not of the Civil Code. That if the decree of the a right which vests under the law by succourt setting aside the homestead out of the cession. It is a right bestowed by the benefestate of John O'Connor vested any new in icence of the law of this estate for the beneterest or estate in said Maggie, the same in fit of the family. Upon the death of an inured to her grantee, and that the homestead testate his property goes by succession to decree is not sufficient to enable her to main his heirs, subject to administration. The obtain ejectment against her grantee. “Upon jects of administration are: (1) To support the death of the husband, one-half of the the family for a period; (2) to set apart a community property goes to the surviving homestead to the family; (3) to pay the exwife. • • • In case of the dissolution of penses of administration; (4) to pay the the community by the death of the husband, debts of the deceased; (5) to distribute the the entire community property is equally balance of the estate to those who take it subject to his debts, the family allowance by law. If an heir convey his interest in and the charges and expenses of administra the estate, or any part thereof, he conveys ton." Civil Code, & 1402. We assume at such interest only as will remain to him the outset of the inquiry that whatever title after satisfying the first four objects above Maggie O'Connor eould at the date of her named, unless the deed should in terms exdeed convey to defendant in and to the un pressly cover more. Setting apart a home divided one-half of the property in question

stead is a part of the probate proceeding, as passed to the latter by her deed. Her deed much as is a family allowance.

* The being in forin and substance one of grant, homestead, when set apart, is to be set apart an after-acquired title, vesting in her as an for the benefit of the widow and children. individual, and which she could convey as

* It certainly could not be said that such, passed by operation of law to her gran

her deed, conveying her interest as successor, tee under such deed. It remains to inquire would interfere with and defeat the purpose as to her capacity to convey an interest in of the law in giving the family an abiding the community property of her deceased place.” In re Lahiff's Estate, 86 Cal. 151, husband, pending proceedings in administra 24 Pac. Rep. 850; Estate of Moore, 57 Cal. tion, and the limitations, if any, attaching to 446. The right to have a probate homestead the title conveyed. “The property, both real carved out of the estate is in the nature and personal, of one who dies without dis of a charge upon the estate, from which the posing of it by will passes to the heirs of widow, under her right of succession, could the intestate, subject to the control of the no more discharge than she could free the probate court, and to the possession of any estate from its liability for the debts of her administrator appointed by that court for deceased husband. The right is inherent, the purposes of administration.” Civil Code, not in her alone, but in the children as well; § 1384. The title to one half of the com and she can no more foreclose their right munity property, under sections 1384 and thereto than she can their rights as heirs to 1402 of the Civil Code, upon the death of the estate. It is conferred for the beneficent the husband who dies intestate, at once vests purpose of affording a home in which the in the surviving wife, subject to the pay. minor children may be sheltered and shielded ment of debts, etc., and subject to the exer from want. To hold that the widow, or any cise by the probate court of the powers over less than all the parties in interest, can by it, vested in that court, and qualified or sub a conveyance defeat the object of the law. ject to be qualified by the exercise of those would be a fraud upon the rights of those powers. The objects of administration were not joining in such conveyance. To say that

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