author: THE COURT.

text:
    [Sac. No. 5230.
    In Bank.
    February 14, 1939.]
    BLISS I. HINKLE et al., Respondents, v. SOUTHERN PACIFIC COMPANY (a Corporation) et al., Defendants; SOUTHERN PACIFIC COMPANY (a Corporation) , Appellant.

      T. L. Chamberlain, Devlin & Devlin & Diepenbrock for Appellant.
    Robert E. Burns, Patrick J. Murphy and Peter J. Mullins for Respondents.
    M. Mitchell Bourquin, as Amicus Curiae, on Behalf of Respondents.
   THE COURT.

This is an action for damages for personal injuries suffered by plaintiffs, husband and wife, as a result of a collision between their automobile and a train of the defendant railroad company at a highway crossing. The conductor of the train, Rablin, was joined as a defendant. Other members of the train crew were named in the complaint as First Doe, Second Doe and Third Doe, but were never served with summons. The complaint charged that the said defendants, and each of them, “so negligently operated, conducted and ran a certain train owned by the defendant, Southern Pacific Company, a corporation, in a generally easterly direction, over and along said railroad tracks so as to cause it to, and it did, at said time and place aforesaid collide with the automobile in which plaintiff Bliss I. Hinkle was being driven. ...” The complaint contained a like count with reference to the other plaintiff, George H. Hinkle. The case was tried in the Superior Court in and for the County of Placer and resulted in a verdict by the jury in the sum of $11,000 in favor of Bliss I. Hinkle, and in favor of George H. Hinkle in the sum of $2,500, against the Southern Pacific Company alone. Motions by said defendant for non-suit, for a directed verdict, for a judgment notwithstanding the verdicts, and for a new trial, were denied by the trial court. From the judgment entered upon said verdicts, and from the order denying the motion for judgment notwithstanding the verdicts, this appeal is taken.

The accident occurred at about the hour of 10:20 P. M. on the night of July 31, 1935, at the crossing where highway No. 89, connecting the town of Truckee and Lake Tahoe, intersects the main track of the branch line of the appellant Southern Pacific Company, which runs from Truckee to the summer resort known as “The Tavern” on Lake Tahoe. This railroad crossing is about a quarter of a mile west of the railroad station at the Tavern, and is within the railroad yards maintained by the railroad company. The Southern Pacific Company regularly operates two mixed trains daily over the branch line, one of which arrives at the Tavern at 7:35 A. M. and leaves the Tavern at 10:30 P. M. The highway extends-in a northerly and southerly direction. At the time of the collision, respondents were traveling, with George H. Hinkle at the wheel, in their Ford Sedan in a general southerly direction. The train operated by the agents of the Southern Pacific Company, the engineer, fireman and two brakemen, was being hacked in an easterly direction toward the Tavern. The train consisted of a locomotive and tender, a dark red box-car and a dark colored oil-tank car. As they were being backed over the crossing, they approached the crossing in the reverse order, the oil-tank car being the lead car which came in contact with the respondents’ automobile. Respondent George H. Hinkle is an instructor at Stanford University and his wife is a teacher in a branch of the Placer Union High School. They were on their way to the Tavern Casino to bring their three children and Mr. Hinkle’s mother home from the moving picture entertainment which they had been attending at the Tavern Casino. Respondents’ home was north of the railroad tracks, and finding the other road to the Casino which was on the south side of the tracks obstructed by the train of the appellant railroad company which was being “made up” preparatory to its schedule leaving at 10:30 P. M., the respondents turned around and took highway No. 89 to reach the Casino. There were three tracks of the railroad company at this crossing, the northerly track, the main line track, and the southerly track. The track is straight at the crossing, but looking east from the crossing, it curves at a distance of 200 feet to the south, and looking west from the crossing, it curves at a distance of 359 feet to the south. The crossing is a narrow crossing of approximately twenty feet in width, and large pine trees grow within eight or nine feet of the track on both sides of the crossing. It was a very dark night, and there was no overhead artificial lighting at the crossing or any point west of the crossing, the direction from which the train was backing, although there was an overhead light 150 feet to the east of the highway in the direction of the Tavern. There was no automatic electric signaling device nor a mechanical warning of any kind maintained by the railroad company at the crossing. The highway was a good road of asphalt but the pavement between the tracks was corrugated. It was the practice of the railroad company to “spot” or leave empty cars on the northerly or southerly tracks both to the east and west of the crossing, and on the night in question an old-fashioned sleeping coach had been left standing on the northerly track to the east of the crossing.

As often happens in cases of this character, the evidence with reference to the accident was sharply conflicting and the testimony of the witnesses for the appellant, not being reconcilable with the testimony of the respondent and their witnesses, it was necessary for the jury as triers of fact, to determine which of the contrary versions of the accident should be accepted as true. It is self-evident that the jury accepted as true the testimony of the respondents, and necessarily rejected a portion, at least, of the evidence proffered by appellant. It follows that it is incumbent upon this court upon appeal to accept as true the evidence in favor of respondents and to resolve all conflicts in the evidence in their favor.

The testimony of the respondents is to the effect that they were familiar with the crossing, and as they approached it they slowed down, came to a full stop within four to eight feet of the northerly track in order to have a view down the track, and looked both to the right and left for any approaching train, but saw nothing and heard nothing. Mrs. Hinkle testified that her husband put the car into gear and was proceeding across the crossing, being between the rails of the northerly track and the main line track, when she noticed to her right a backing train “looming out of the trees” about twenty or twenty-five feet away from her, that she screamed, “Train!” and the next instant the impact took place. Mr. Hinkle testified that he did not see the train at all and did not know that they had been struck, that he was dazed after the accident and had only the most confused recollection of what happened after the accident. His first lucid moment came when he found himself in the doctor’s office to which he had been taken after the accident. It was Mrs. Hinkle’s testimony that after the accident, both she and her husband climbed out of the automobile by themselves and that none of the train crew were present to give them assistance. She testified that the conductor, Rablin, who was not on the backing train but was up by the station helping passengers board the train, and who upon hearing the noise of the collision came down the track, was the first employee to reach them. Respondents denied emphatically that the radio in the ear was going at the time of the collision, and Mr. Hinkle categorically denied that on July 31st, the day of the accident, he had anything to drink which contained alcohol. Both the doctor who treated Mr. Hinkle and Mrs. Hinkle after the accident, and a woman friend of the Hinkles who came to the doctor’s office at 10:35 P. M. immediately after the accident, testified that there was no odor of liquor upon Mr. Hinkle’s breath at that time.

The testimony by members of the train crew was to the effect that the train crew had been instructed by the conductor Rablin, to go to the Moss Hill siding west of the crossing and pick up the two freight cars which were to be made up into the mixed train. The train crew testified on behalf of the railroad company that the usual crossing whistle had been given and the bell was continuously rung; that the headlight was lit and there was a deck light of 300 candle-power in the engine cab and the engineer’s reading light, as well as two indicator lights on the engine; that the two brakemen each carrying a white lantern were stationed on the rear of the oil-tank car which was the end nearest the crossing; that the train which had been going at a rate of about ten miles an hour slowed down to four miles as it neared the crossing; that when the end of the oil-tank car was about four or five car lengths from the crossing, Nixon, one of the brakemen, jumped off the oil-tank car and ran ahead of the car at a speed of about eight miles an hour to protect the crossing ; that he waved his lantern to warn the respondents, and that he had to jump out of the way to avoid being struck by the automobile of the respondents. There was testimony that the brakeman at the same time he jumped gave the signal for the emergency stop and that the fireman repeated the signal to the engineer who had already reached for the automatic brake valve to make the stop. When the train came to a stop, it had pushed the automobile parallel to the tracks and the automobile was just off the highway on the east side of the crossing. The two brakemen testified that after the accident the radio in respondents’ car was playing jazz music and that they smelled liquor on Mr. Hinkle’s breath. Mr. Nixon testified that he assisted both Mr. Hinkle and Mrs. Hinkle from the automobile.

Appellant railroad company in its closing brief states that it has raised but two points on the appeal, that is that the plaintiffs were guilty of contributory negligence as a matter of law for violating the well-established “stop, look and listen” rule, and secondly, that the court erroneously instructed the jury in two particulars.

Appellant insists that the train necessarily must have been seen by respondents if they had looked, and that their evidence to the contrary that they did look but did not see the train is not worthy of credence and will not support the verdict in their favor. Upon this phase of the ease it will suffice to say that appellant bases its assumption that the train must necessarily have been seen by the respondents in time for them to have avoided the accident if they had in fact looked, upon the testimony of its train crew, which the jury, as triers of fact, were at liberty to reject, and which they evidently did reject.

In this regard it should be noted that it is quite obvious that the jury did not accept as true the evidence in behalf of the appellant that Nixon, the brakeman, jumping off the rear end of the oil-tank car and running ahead of the car, reached the crossing ahead of the backing train, and gave a warning signal to the respondents with his white lantern in time to enable them to stop their automobile outside of the danger zone. The jury was specifically instructed by the court with reference to the purported giving of the warning signal by the brakeman as follows: “You are instructed that the law of the State of California provides that it shall be unlawful for the driver of a vehicle to traverse a grade crossing when a human flagman gives or continues to give a signal of the approach or passage of a railway train or car, and if you find from the evidence that plaintiff, George Hinkle, violated this positive rule of law, I instruct you that plaintiff, George Hinkle, was guilty of negligence as a matter of law, and if you find that such negligence, if any, proximately contributed to the injuries complained of, then I instruct you that neither plaintiff can recover. ” It is to be presumed that the jury followed this instruction and if so, the only possible conclusion is that they did not believe that at a time prior to the accident the brakeman did protect the crossing by giving a warning signal. It is highly probable, in our opinion, that the implied finding of the jury exonerating the respondents from contributory negligence was based upon their acceptance of the respondents’ testimony that they saw no one at the crossing and the jury’s belief that the respondents did not see anyone because in fact there was no one there. Having in mind the fact that the jury was at liberty to reject much of the evidence proffered in behalf of appellant, together with the circumstance that the accident happened on a very dark night at a narrow crossing where large pine trees were growing close to the tracks, and that the train was not approaching head-on with its headlight lighting up the track ahead, but was backing toward the crossing, we cannot say as a matter of law that respondents were negligent in not seeing the backing train in time to avoid it. They were not, therefore, guilty of contributory negligence as a matter of law.

The specific instruction complained of by the appellant, the giving of which, it claims, constituted prejudicial error on the part of the trial court, requiring a reversal of the judgment by this court, is as follows: “You are instructed that although as a matter of law the defendant was not required to equip its employees with a red lantern for the purpose of signaling the approach of a train at a highway grade-crossing, and although in this action you cannot find the defendants guilty of negligence because of the absence from the crossing of an automatic signaling device to warn travelers upon the highway of the approach of a train, and also, although the law does not require the defendant to have any light on the forward end of the lead car in any switching movement within the yard limits, and it is not negligence to make such a movement without a light on the forward end of the lead car, nevertheless, if from a consideration of all the facts and circumstances of this case you find from the evidence that at the time and place referred to in plaintiffs’ complaint and in the evidence, an ordinarily prudent person Avould have maintained a person Avith a red lantern, avouM have furnished an automatic signaling device or Avould have had [a light] on the forAvard end of the lead car in such SAvitehing movement Avithin the yard limits, or Avould have maintained a flagman, or would have rung a bell, or sounded a whistle, or either one or more thereof, at or near the crossing, to warn travelers of the approach of said train to said crossing, and you further find that the Southern Pacific Company, a corporation, through its agents and servants acting in the discharge of their duties and within the scope of their authority, did not furnish and maintain the same, and that by reason thereof, the plaintiffs were injured, then and in that event I instruct you, the defendant, Southern Pacific Company, was guilty of negligence.”

While it must be conceded that the instruction above quoted is not as precise in its language nor as free from ambiguity as would be desirable, nevertheless, we do not feel it is susceptible to attack upon the grounds advanced by appellant. Appellant’s first ground of criticism is that this instruction permitted the jury to find the railroad company guilty of negligence by virtue of its failure to maintain an automatic wigwag signal at the crossing, or a failure on its part to equip its employees AAdth red lanterns rather than white ones, all of which failure to maintain warnings at the crossing was completely outside of the issues of the case by reason of the fact that the only negligence charged in the complaint was the negligent operation of the train by the appellant railroad company through its employees. The accident was caused not by the mere failure by the railroad company to provide proper warnings at the crossing, but by the operation of the train across the crossing in the absence of proper warnings, for of course, unless the train was in fact being operated, and there was a movement of the cars, the accident could not possibly have happened. It is true that in the case of Young v. Southern Pacific Co., 182 Cal. 369 [190 Pac. 36], it was held that an instruction should not have been given because the complaint had failed to allege as a basis of the claim of negligence the failure to have a flagman at the crossing. But the real basis of the decision reversing the judgment in that case was not the giving of that particular instruction, but the finding by the appellate court that the deceased was guilty of contributory negligence as a matter of law. Moreover, we are of the opinion that the more recent decision of Sheets v. Southern Pacific Co., 1 Cal. (2d) 408 [35 Pac. (2d) 121], is contrary to appellant’s contention. In that case the contention was made that inasmuch as the complaint alleged that the defendants “so negligently and carelessly operated said freight car” as to cause the accident, the plaintiff was restricted to proof of the operation of the freight ear to sustain his claim of negligence, claiming that the action of a brakeman in guarding the traffic and guarding the crossing was no part of the operation of the train. This claim of the defendant was repudiated by the trial court, and upon appeal, the correctness of its action was affirmed by this court. The facts of the instant case are sufficiently similar to the facts of that case to warrant an application of the same rule.

Moreover, from a reading of the respective instructions proposed to the trial court by the respondents and by the appellant, it appears that respondents made no request whatever for any instructions relative to the maintenance of automatic signaling devices or the furnishing by the railroad company of red lanterns to its employees. It is apparent therefrom that the respondents had no intention of relying for a finding of negligence against the railroad company upon the absence from the crossing of any automatic signaling device, or the fact that the brakemen were using white lights rather than red ones, but principally predicated their claim of negligence by the company upon the absence from the crossing of a brakeman with either a red or white lantern to give a warning signal. However, appellant proposed two separate instructions to be given by the trial court, one of which was to the effect that it “was not required as a matter of law for any of defendant’s employees to be equipped with a red lantern for the purpose of signaling the approach of a train at a highway crossing”, and the other one to the effect that the jury “could not find the defendant guilty of negligence because of the absence from this crossing of an automatic signaling device to warn travelers upon the highway of the approach of a train”. These proposed instructions are in almost the identical words of the first part of the instruction now complained of by appellant. The trial judge was of the opinion that these instructions, standing alone, under the cireumstances of the instant case, by failing to completely state the law, failed to state it correctly, and proposed that such instructions should be added to other instructions referring to other warning signals such as the bl-owing of the whistle, the ringing of the bell, and maintaining of lights on the forward end of the lead car. Appellant made no objection to this procedure and at no time drew the attention of the court to the fact that the question of the maintenance of automatic signaling devices or the failure to equip its employees with red lanterns was not within the issues raised by the complaint. In view of the fact that the questions of whether the maintenance of automatic signaling devices, or the failure to equip the company’s employees with red lanterns constituted negligence on the part of the railroad company were injected into the case by the appellant itself, we do not think it can now fairly be heard to complain that such questions were not in issue in the case.

With reference to the contention of appellant that there was no evidence that the crossing was a particularly dangerous crossing and in the absence of such showing there could be no finding of negligence on the part of the railroad company in failing to maintain an automatic signaling device, we are not prepared to say that a specific finding by the jury that the crossing was sufficiently hazardous to require the maintenance of an automatic signaling device would not find support in the evidence. It is true the crossing is not in a populous city, but it is over a public highway where there is much travel to and from a popular summer resort. Moreover, it is apparent from the photographs introduced as exhibits that an unobstructed view of the tracks cannot be had until one is almost upon them. The fact that a crossing is frequently crossed over by travelers is not an indispensable factor to a determination that a crossing is a particularly dangerous one, but the hazardous nature of the crossing may depend upon the physical nature of the crossing itself.

When the instruction is read in its entirety, and not, in segregated portions thereof, we think it is apparent that it contained a correct exposition of the law. The gist of the instruction was to the effect that although the railroad company was not required by statutory provisions, as a matter of law, to furnish certain warning devices at public crossings, such as red lanterns to its employees, automatic signaling devices, or any light on the forward end of the lead car in any switching movement within the yard limits, nevertheless, the absence of such statutory requirement did not relieve the defendant railroad company of its obligation to exercise reasonable care for the safety of travelers at crossings, and if an ordinarily prudent person would have supplied one or more of these warnings and the injury to respondents was a result of the failure by the railroad company to furnish and maintain one or more of such warnings, then the railroad company was guilty of negligence. This is substantially correct. (Bush v. Southern Pacific Co., 106 Cal. App. 101 [289 Pac. 190].)

Finally, it may be said, as before indicated, that we doubt very much that the verdict of the jury was based upon a failure to maintain an automatic signaling device, or to furnish red lanterns to its employees. The fact that the conductor, Rablin, was exonerated by the jury does not conclusively prove that the jury did not find the railroad company guilty of negligence in the operation of the train through its agents, the train crew, and must, therefore, have based the negligence of the company upon the factors for which it alone was solely responsible. The other members of the train crew were named in the complaint as First Doe, Second Doe and Third Doe. As they were not served, a judgment could not be rendered against them. ' If the brakeman did in fact fail to properly protect the crossing, then the defendant railroad company was guilty of negligence, despite the fact that no verdict could be returned against such negligent brakeman.

In our opinion, no error was committed by the trial court either in failing to find the respondents guilty of contributory negligence as a matter of law, or in instructing the jury.

The judgment is affirmed, and likewise the order denying the motion for judgment notwithstanding the verdicts is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    [S. F. No. 16095.
    In Bank.
    February 15, 1939.]
    A. D. CLAYTON, Plaintiff; PHINEAS D. CLAYTON, Plaintiff in Intervention and Appellant, v. WILLIAM A. SCHULTZ et al., Respondents.

      J. E. White and Abraham Setzer for Appellant.
    Thomas T. Califro for Respondents.
   THE COURT.

The petitioner in this proceeding, Phineas D. Clayton, seeks a writ of supersedeas to stay the execution of a money judgment amounting to the sum of $1633.58, which was rendered against him in a quiet title action in which he intervened, claiming to be the owner of the real property involved by virtue of a tax sale and his subsequent acquisition of the rights of the purchaser thereunder. The money judgment was for the amount of rentals collected by him as such purported owner, less expenses incurred by him in his efforts to secure title to the real property from the state. After denial of issuance of the writ of supersedeas by this court, and upon a further showing by petitioner of the alleged necessity therefor, a rehearing thereof was granted and thereupon an order was made to show cause why the writ should not issue, the court meanwhile ordering the stay of execution pending determination of the said order to show cause.

As grounds for the issuance of the writ, the petitioner alleged, among other things, that the judgment of the court below was in excess of the power of the court to render, in that no pleading had been filed on the part of any defendant (respondent) which raised an issue sufficient to support an affirmative judgment in favor of such defendant; that certain inconsistencies existed in said judgment in that therein petitioner was charged with the payment to respondents of the gross rentals collected by him, without an allowance to him of certain interest he asserts he was entitled to, but with regard to which he contends the court in its judgment had failed to allow him because of an erroneous computation of the amount of said interest; that a certain item of expense which he claimed to be entitled to was erroneously denied him; that the form of the judgment was such that upon noncompliance therewith, it might subject him to contempt of court, and that the said judgment was intended to have such effect.

Respondents’ return to the order to show cause discloses the situation that certain undeniable facts and circumstances arising out of proceedings theretofore had in this litigation were not divulged to this court by the petitioner in Ms petition for issuance of the writ, and that these facts and circumstances so omitted have a material bearing on the propriety of the issuance of the writ.

It appears by the said return of respondents that on July 29, 1932, one A. D. Clayton filed an action to quiet title to the real property involved in the above-entitled proceedings; that Phineas D. Clayton (petitioner in the instant proceedings) intervened in said action, claiming title to the premises to be vested in himself by virtue of a purported tax sale by the tax collector of the city and county of San Francisco, at Avhich sale A. D. Clayton was the purchaser and to whose rights as such the petitioner succeeded. By the complaint in intervention it was alleged that the defendants in the action (respondents herein) claimed some interest or title to the said real property, but that such claim or interest was subordinate to petitioner’s title. The defendants who appeared in the action answered specifically, denying all the allegations that were contained in the complaint in intervention, but admitting that they claimed some interest in, title to or lien upon, the said real property,—praying that plaintiff in intervention take nothing by his complaint, and decreeing that plaintiff’s asserted title be declared invalid and void. The judgment was in favor of the defendants, one of whom was adjudged to be the owner of the property. The plaintiff in intervention appealed from the judgment (Clayton v. Schultz, 4 Cal. (2d) 425 [50 Pac. (2d) 446]); and on such appeal it was held that the record was insufficient to properly determine the rights of the parties under the tax sale proceedings and the judgment was therefore reversed, this court there stating that if upon a retrial the tax proceedings should be held to be defective, the purchaser would be entitled to reimbursement for all taxes, penalties, costs and expenses incurred in his attempt to secure the title from the state, with foundation for such award laid by introduction of evidence as to the amount of these items, and that the said purchaser should be held to account for rentals collected by Mm from the property during the period of his possession thereof under the tax deed. The court there also held, upon the authority of the case entitled Bisso v. Crooks, 217 Cal. 219 [17 Pac. (2d) 1001], that even though affirmative relief had not been specifically asked for by defendants by virtue of a cross-complaint or otherwise, an award in their favor in the judgment which would benefit the plaintiff in securing an allowance to him of moneys expended by him for taxes, even if erroneous, would not be prejudicial to plaintiff’s substantial rights. The return further shows that thereafter a retrial was had and that it resulted in a judgment for the intervener, from which judgment an appeal was again taken to this court by the defendants. Thereafter, the appeal was transferred to the District Court of Appeal, Third Appellate District, where the judgment was reversed (Clayton v. Schultz, 22 Cal. App. (2d) 72 [70 Pac. (2d) 512]), that court holding that because the proceedings leading up to the sale of the real property for nonpayment of taxes were irregular and illegal, the tax deed was void, and the intervener secured no rights thereunder. The court there reiterated the direction of this court on the former appeal to the effect that since the cause again might be retried, the purchaser must be reimbursed for all expenditures incurred in his attempt to secure title from the state, with foundation for such award laid by the introduction of evidence as to the amount of these items and that “The purchaser may also be held to account for rentals collected from the property during the period of possession under the tax deed.”

It further appears from the return of respondents to the, order to show cause that on November 29, 1937, the trial court granted their motion to give effect to the decision of the appellate court, which motion was supported by affidavits and the respective remittiturs of the Supreme Court and of the District Court of Appeal relating to said two appeals, and to the granting of which motion petitioner made no objection; that pursuant thereto the court appointed a referee and directed that an “accounting” be had for the purpose of giving effect to the decision of the District Court of Appeal and, in accordance therewith, to determine the amount of “all taxes, costs, penalties, and expenses” incurred by the plaintiff in intervention in his attempt to secure title from the state, together with the amount of “rentals collected from the property” during his possession under the tax deed.

By the terms of the judgment which followed the “aceount.ing” proceedings, the respondents were adjudged to be the legal owners of the property involved—and petitioner was ordered to pay to respondents the sum of $1633.58, which was found to be the sum remaining after deducting the amount of expenses incurred by petitioner in his pursuit of title, from the total amount of rentals collected by him while in possession of the said real property. It is thus seen that the "accounting” proceedings and the rendition of the judgment which followed, and of which petitioner now complains, were had in response to the specific directions of both of the appellate tribunals hereinbefore mentioned.

It further appears by the terms of the said judgment that petitioner was permanently enjoined from asserting or setting up any claim whatsoever in or to the real property involved, or to the possession of any of the rents, issues or profits thereof. It appears, however, by the return to the order to show cause that “ever since the taking of said accounting . . . and the making and entering of said judgment of the . . . Superior Court”, the petitioner has “demanded, and continues to demand from the tenants and occupants of said premises . . . rentals therefrom”, and that he has entered the premises and asserted ownership in the property and threatened the tenants and occupants with eviction unless they paid to him the rentals of said premises.

It is clear that the rights and equities of the respective parties to this litigation were conclusively and finally determined in favor of the respondents and against the petitioner by virtue of the appellate court decision above referred to; that the “accounting” proceedings and judgment rendered thereon were necessarily in furtherance thereof and that if, in the judgment which followed the “accounting” proceedings, error may have been committed in the allowance or rejection of certain or any items of the accounting, or in a computation of interest—which assumed fact, however, we do not concede—such error (if any) is not a sufficient reason, in itself, for the issuance of the writ here sought. Upon a consideration of the merits of the appeal the question of such alleged error may properly be passed upon by the court. One of the other grounds urged for the issuance of the writ, to wit, that the court was without power to render affirmative relief to the defendants in the absence of a cross-complaint or its equivalent, is now res judicata by virtue of the decisions rendered on the two former appeals in this case. Nor is the fact that contempt proceedings against petitioner might be instituted pending the appeal from the judgment a sufficient cause under these circumstances for the issuance of the writ. (People v. City of Westmoreland, 135 Cal. App. 517 [27 Pac. (2d) 394], Wolf v. Gall, 174 Cal. 140 [162 Pac. 115], and In re Graves, 62 Cal. App. 168 [216 Pac. 386].)

Manifestly, the facts of this case do not warrant the issuance of an order for the stay of execution of the judgment without adequate protection to the rights of respondents. (Segarini v. Bargagliotti, 193 Cal. 538 [226 Pac. 2]; Nonpareil Mfg. Co. v. McCartney, 143 Cal. 1 [76 Pac. 653]; Rosenfeld v. Miller, 216 Cal. 560 [15 Pac. (2d) 161]; and Swift v. Shepard, 64 Cal. 423 [1 Pac. 493].) Even if it be conceded that in the case of a prohibitory injunction this court has inherent power to issue a writ of supersedeas to maintain the subject of the action in status quo pending appeal (People v. Associated Oil Co., 211 Cal. 93 [294 Pac. 717]; Ohaver v. Fenech, 206 Cal. 118 [273 Pac. 555]; Dry Cleaners & Dyers Institute v. Reiss, 5 Cal. (2d) 306 [54 Pac. (2d) 470]; Goodall v. Brite, 1 Cal. (2d) 583 [36 Pac. (2d) 190]), petitioner has not presented such a statement of facts as would justify this court in exercising the power in his behalf. In this regard it is said in 2 California Jurisprudence, page 465, that an “appellate court must, ... [in issuing an order which will stay proceedings upon a prohibitory injunction] consider the rights of the respondent as well as of the appellant, and contemplate the possibility of an affirmance as well as a reversal. If, therefore, a stay can be granted only at the risk of destroying rights which will belong to the respondent if the judgment is affirmed, it cannot be said to be necessary or proper to the complete exercise of appellate jurisdiction”. (See, also, Hulbert v. California etc. Cement Co., 161 Cal. 239, 256 [118 Pac. 928, 38 L. R. A. (N. S.) 436]; 23 Cal. Jur. 982; Dry Cleaners & Dyers Institute v. Reiss, 5 Cal. (2d) 306, at p. 310 [54 Pac. (2d) 470]; Ohaver v. Fenech, 206 Cal. 118, at p. 124 [273 Pac. 555].)

It follows from the foregoing that the order to show cause should be discharged, and the petition denied. It is so ordered.


author: WASTE, C. J.

text:
    [L. A. No. 16863.
    In Bank.
    February 17, 1939.]
    H. A. HARTH, Sr., Respondent, v. WARREN TEN EYCK et al., Defendants; L. E. OLINGER, Appellant.
    L. Lee Bernstein for Appellant.
    Cummins, McMillan & Cummins for Respondent.
   WASTE, C. J.

This cause conies here on motion of plaintiff-respondent for diminution of record. He seeks to have the reporter’s transcript of testimony added to the record heretofore certified by the trial judge.

During the trial of the cause, plaintiff in open court dismissed the action as to defendant 0linger (appellant here). The court thereupon ordered said defendant dismissed with prejudice, which order of dismissal was entered in the minutes of the court. Plaintiff continued to prosecute his action against the remaining defendants, and the cause was submitted on briefs to be filed. Plaintiff thereupon moved the court, under section 473 of the Code of Civil Procedure, to set aside such dismissal and to reopen the cause for further evidence, which motions were denied. Subsequently, plaintiff moved for a reconsideration of the denial of these two motions. This last motion was granted by the trial court on April 18, 1938. Defendant dinger has appealed from the order granting this motion.

During the course of the argument before this court, the question was raised as to whether or not the order of the trial court from which 0linger attempted to appeal was, in fact, an appealable order. Section 963, subdivision 2, Code of Civil Procedure, provides, among other things, that an appeal from the superior court may be taken from “any special order made after final judgment”. It is appellant’s contention that the order under consideration comes within the classification of a special order made after final judgment. With that contention we are in accord. (James v. Center, 53 Cal. 31, 32; Robinson v. Southland Produce Co., 98 Cal. App. 365, 366 [276 Pac. 1036]; Colby v. Pierce, 15 Cal. App. (2d) 723, 726 [59 Pac. (2d) 1046].)

As to the motion for diminution of record, respondent failed to avail himself of the opportunity to urge inclusion of the material now requested when the transcript was presented to the trial judge for certification, or to have objected to its certification as presented on the ground that the notice to the clerk requesting that a transcript be made up and prepared (Code Civ. Proc., sec. 953a) waived a reporter’s transcript of the evidence with the exception of certain designated portions. An order admitting a “Supplemental Transcript” was made by the District Court of Appeal to which the cause was inadvertently appealed, and at a time when that court was without jurisdiction.

The motion for diminution of record is denied.

Shenk, J., Curtis, J., Langdon, J., Edmonds, J., and Houser, J., concurred.


author: CURTIS, J

text:
    [Sac. No. 5200.
    In Bank.
    February 17, 1939.]
    PACIFIC GAS AND ELECTRIC COMPANY (a Corporation), Respondent, v. JIROKICHI NAKANO et al., Defendants; RETAILERS’ CREDIT ASSOCIATION OF SACRAMENTO (a Corporation), Appellant; JIROKICHI NAKANO, Respondent.
    John A. McGilvray and Kenneth G. McGilvray for Appellants.
    R. H. Schwab and Walter T. Tsukamoto for Respondent.
   CURTIS, J

Action in interpleader. Plaintiff had in its possession the sum of $1,080, being the balance due on a judgment rendered against it and in favor of one Hiroshima for personal injuries. The two defendants laid claim to this money, whereupon plaintiff paid the same into court, and brought this action for the purpose of having it determined which of the two defendants was entitled to the money. The plaintiff herein, being the defendant in the personal injury action, appealed from the judgment in said action, which was subsequently affirmed. The defendant, the Betailers’ Credit Association, claimed to be entitled to said money by virtue of two executions or garnishments levied upon said fund, one pending said appeal, and the other after the judgment in the personal injury action had become final through affirmance. The defendant Nakano claimed to be entitled to said money through and by virtue of an assignment of one-half of said judgment. (The other half had been assigned to the attorneys in the personal injury action in payment of their services, and no question is raised as to the validity of that assignment.) The assignment to Nakano was executed and delivered and notice given to the plaintiff after the levy of the first execution or garnishment, but before the levy of the second execution or garnishment. The trial court rendered judgment in favor of the defendant Nakano, and the Betailers’ Credit Association appeals. We shall refer to the plaintiff herein as the plaintiff, to the Betailers’ Credit Association as the appellant, and to Nakano as the respondent.

The respondent contends that a judgment rendered in a purely tort action is assignable after its entry and pending the time it is on appeal, and therefore claims that his assignment takes precedence over the subsequent levy of appellant’s garnishment. Bespondent does not discuss the effect of appellant’s prior garnishment of the money in plaintiff’s possession. If the debt represented by said judgment was assignable pending the appeal, it was also subject to execution, and upon the service of the first execution or garnishment upon the plaintiff, the rights of the judgment creditor, the appellant in this case, would be prior to the subsequent assignment to respondent of said debt. On the other hand, if this debt was not subject to execution pending appeal therefrom, it was not assignable, and the respondent took nothing by his assignment. Therefore, whether we hold that the judgment was assignable or not assignable, the result in so far as the rights of the parties defendant in this action are concerned is the same. In either case, the appellant’s claim to said fund would take priority over the claim of respondent.

However tfye weight of authority supports the rule that pending an appeal from a judgment rendered in a tort action, the debt represented by said judgment is not subject to garnishment. (Arp v. Blake, 63 Cal. App. 362 [218 Pac. 773]; Waples-Platter Grocery Co. v. Texas & P. Ry. Co., 95 Tex. 486 [68 S. W. 265, 59 L. R A. 353]; Miller v. Newell, 20 S. C. 123 [47 Am. Rep. 833]; 4 Am. Jur., p. 685, see. 206.)

The case of Arp v. Blake, supra, is on all-fours with the instant action. The facts in that ease show that Blake recovered a judgment against Arp in a tort action. Arp appealed from the judgment, and pending the appeal a third party instituted an action against Blake in which an attachment was issued and served on Arp purporting to attach and garnishee all debts, credits, etc., belonging to Blake in the possession of Arp. Under this attachment, the plaintiff in the attachment suit claimed to have garnisheed the claim for damages in the case of Blake v. Arp. The judgment in the action of Blake against Arp was subsequently affirmed. It was held that the garnishment having been served pending an appeal from the judgment was of no validity, that the effect of that appeal was to deprive the judgment of its finality, and to keep alive the case as one of tort as it existed before the judgment was rendered. (See, also, 4 Am. Jur., p. 686, sec. 206.) Under these authorities the first execution or garnishment levied by the appellant upon the judgment against Hiroshima must be declared invalid and of no legal effect.

The further question is then presented as to the validity of the assignment by Hiroshima of the one-half of said judgment to respondent, which assignment was also made pending the appeal from said judgment. It is well settled in this jurisdiction that a purely tort claim is not assignable. (Wikstrom v. Yolo Flyers Club, 206 Cal. 461, 463 [274 Pac. 959]; Cassetta v. Del Frate, 116 Cal. App. 255 [2 Pac. (2d) 533].) It is further held, however, that while a cause of action for tort is not assignable, such a claim when merged in a final judgment is a debt and may become the subject of an assignment. (Adams v. White Bus Line, 184 Cal. 710, 712 [195 Pac. 389]; 15 Cal. Jur. 249; 2 Black on Judgments, 2d ed., sec. 942; Lawrence v. Martin, 22 Cal. 173, 174.) However, the judgments which were the subject of discussion in the authorities just cited had prior to assignment become final either by affirmance or by the lapse of time in which an appeal could have been taken. No reference in any of these authorities is made to the status of a tort claim merged in a judgment pending on appeal from said judgment.

The decisions in this state indicate that a judgment does not become final so long as the action in which it was rendered is pending (Feeney v. Hinckley, 134 Cal. 467 [66 Pac. 580, 86 Am. St. Rep. 290]; 15 Cal. Jur., pp. 123, 122), and an action is deemed pending until it is finally determined on appeal or until the time for appeal has passed. (Sec. 1049, Code Civ. Proc.) The judgment, therefore, in favor of Hiroshima, at the time he made a purported assignment thereof to the respondent herein was not a final judgment in the sense that it determined the respective rights of the parties to the action. It was final in that it had reached the state when an appeal could be taken from it, but pending such appeal the determination of the issues in the case was held in abeyance until the appeal was finally passed upon in the appellate court. The effect of the appeal “operated to keep alive the case as one of tort as it existed before the judgment was rendered”. (Arp v. Blake, supra, p. 373.) Therefore, pending the appeal, the plaintiff in said action had only a claim for damages for injuries suffered by the acts of the defendant, or a chose in action arising on tort. Such a claim, as we have seen, is not subject to assignment.

In the ease of Miller v. Newell, 20 S. C. 123 [47 Am. Rep. 833, 840], we find the following statement: "Under this ease the appeal was pending, and such being the case the rights of the parties had not been determined. The matter was still a chose in action arising on tort of a strictly personal character and therefore not assignable.”

Applying the principles of law announced in the authorities hereinbefore cited to the assignment of said judgment to the respondent, it must be concluded that said assignment, having been made pending an appeal from said judgment, was of no legal effect and passed to appellant no right to said judgment.

The judgment in favor of Hiroshima haying become final by affirmance was subject to the execution of garnishment levied thereon after its affirmance. (4 Am. Jur., p. 688, sec. 212; Burke v. Hance, 76 Tex. 76 [13 S. W. 163, 18 Am. St. Rep. 28].) The case just cited holds that a judgment is subject to garnishment when all proceedings in the suit in which it was rendered, whether original or appellate, are at an end.

The judgment further made an allowance of $100 as attorney’s fee in favor of plaintiff for the institution of this interpleader action. It is well settled in this state that an allowance of an attorney’s fee in favor of a plaintiff in an interpleader action is improper and is without authority of law. (Los Angeles Trust & Sav. Bank v. Ward, 197 Cal. 103, 107 [239 Pac. 847]; Peterson v. Chorley, 103 Cal. App. 783, 787 [284 Pac. 956].)

The judgment is reversed.

Edmonds, J., Waste, C. J., Houser, J., and Shenk, J., concurred.

Rehearing denied. Seawell, J., and Houser, J., voted for a rehearing.


text:
    [L. A. No. 16853.
    In Bank.
    February 27, 1939.]
    GEORGE O. MONJAR, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

      T. Paul Moody and Thomas Hawkins for Petitioner.
    J. H. O’Connor, County Counsel, and Douglas De Coster, Chief Deputy County Counsel, for Respondents.
   WASTE, C. J.

Application for a writ of prohibition to restrain the respondent court from taking any further steps in connection with an order made in a divorce action instituted by Pay Monjar against the petitioner herein, George O. Mon jar, in so far as said order affects the care, custody and control of their minor son.

The facts are not involved. On or about December 14, 1937, petitioner, who with his wife and their minor child had been living in Los Angeles, left for the state of Iowa, following some domestic trouble, with the intention, he alleges, of making his residence in that state. Later, he returned to Los Angeles, and again left for Iowa, taking the minor child with him. While in that state, he obtained letters of guardianship over the person and estate of the minor. Petitioner was an employee of the United States postal service, and made application for transfer from California to Iowa. He states he was informed by the postal service that it would take time to effect such transfer, and that in the meantime he should continue his work as a mail carrier in Los Angeles, whereupon he once more returned to California to carry out the suggestion of the postal department, leaving the child in Iowa.

Subsequently and on or about April 18, 1938, in Los Angeles, petitioner was served with a complaint for divorce, summons, order to show cause regarding alimony, attorney fees, court costs, and care, custody and maintenance of the minor child. Petitioner asserts that this was his first knowledge of the filing of the divorce action by his wife on Decernber 31, 1937. After a hearing on the order to show cause, the respondent court, on May 11, 1938, made its order directing, among other things, that petitioner herein “return the child to California by June 1, 1938”, and setting the matter of the custody for hearing on the latter date. On May 27th, the petitioner applied to "the District Court of Appeal for a writ of prohibition staying further proceedings affecting the minor, which petition was denied without opinion.

Petitioner then filed a petition for hearing in this court. According to the allegations of his petition here, the respondent court, on June 1, 1938, following the denial by the District Court of Appeal of the petition for writ of prohibition, made its order finding petitioner in contempt of court, and threatened to send him to jail until he perform the order commanding him to return the child to California. Relying on that allegation, among others, this court granted the petition and issued an alternative writ. The allegation that petitioner was adjudged guilty of contempt of court is not borne out by the record, and petitioner himself states that “no element of contempt is now being contested”, his points and authorities being directed solely to the question of the respondent’s jurisdiction over the minor child. It would appear, from the somewhat incomplete record before us, and as contended by respondents, that “no hearing has ever been held to determine whether or not petitioner here has been guilty of contempt of court in failing to obey the order” requiring him to return his child to California.

Under these circumstances, we do not find it necessary at this time to pass upon the question of the court’s jurisdiction. Petitioner has mistaken his remedy. The courts of this state have repeatedly held that prohibition will not be granted in an appellate court to prevent the superior court from proceeding in a contempt matter merely upon the ground that the court has erred in the proceeding out of which the alleged contempt grew. The remedy of the petitioner in such a case is to first present his defense upon the hearing of the contempt proceeding, and then, if found guilty of contempt, to apply to a higher court for a writ of certiorari or habeas corpus. (Wessels v. Superior Court, 200 Cal. 403 [253 Pac. 135]; Commercial Bank v. Superior Court, 192 Cal. 395, 397 [220 Pac. 422]; Drew v. Superior Court. 43 Cal. App. 651, 655 [185 Pac. 680].)

The peremptory writ of prohibition is denied, and the alternative writ is discharged.

Shenk, J., Edmonds, J., Curtis, J., Langdon, J., and Houser, J., concurred.


text:
    [S. F. No. 16214.
    In Bank.
    February 27, 1939.]
    OSCAR SELTZER, Appellant, v. MUSICIANS’ UNION LOCAL No. 6 et al., Respondents.
    Milton Marks and Morris Lowenthal for Appellant.
    Clarence E. Todd and Henry C. Todd for Respondents.
   THE COURT.

This is an application for a writ of supersedeas. The petitioner is conducting a roller derby in San Francisco. A controversy arose between him and the respondent Musicians’ Union in the course of which, on February 4, 1939, he filed in the superior court a complaint praying for an injunction to restrain the defendants in said action, respondents herein, from interfering with the conduct of the plaintiff’s business. Upon the filing of the complaint the presiding judge of the superior court issued an order requiring the defendants to show cause on February 9, 1939, if any they had why they should not be enjoined from doing the acts complained of, and, as a part of the same order, issued a temporary restraining order pending the hearing. The order to show cause came on for hearing and was held on February 9, 10 and 14, 1939, in the law and motion department of said court, at the conclusion of which the defendants moved the court to vacate the temporary restraining order theretofore issued. This motion was granted on February 16th, whereupon the plaintiff filed a notice of appeal from said order and commenced this proceeding for a writ of supersedeas “to preserve the status quo” of the action pending the appeal. Upon the filing of said application an order was issued by this court requiring the respondents to show cause on February 23d, why the writ of supersedeas should not issue as prayed.

Upon the consideration of the return and the authorities presented therewith it is concluded that the order of the superior court vacating the temporary restraining order became effective immediately upon its entry and was self-executing ; that no proceeding or other process of the superior court is pending or outstanding upon which the writ of supersedeas may appropriately operate within the rule laid down in In re Imperial Water Co. No. 3 v. Hall, 199 Cal. 556 [250 Pac. 394]; Hulse v. Davis, 200 Cal. 316 [253 Pac. 136], and other similar cases (see 10 Cal. Jur. Ten-Year Supp., p. 461). To grant the writ would, in effect, grant an injunction which the trial court had refused. (McCann v. Union Bank & Trust Co., 4 Cal. (2d) 24 [47 Pac. (2d) 283]; Wollenshlager v. Riegel, 186 Cal. 622 [200 Pac. 726]; Southern Pac. Co. v. Smith, 171 Cal. 8 [151 Pac. 426].)

The order to show cause is discharged and the petition for the writ is denied.