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To say that he assumed and claimed to act for her is an equivocal finding as to authority to do the acts which were done upon that assumption.
The finding that the money was borrowed for the use and benefit of Mary, and not for the individual purposes of Charles, is not sustained by the evidence. Upon that issue the evidence consisted of the testimony of Charles and of the attorney for the plaintiff. The first testified:
“I borrowed the sum of $57,500 for my sole use and benefit. Of it $50,243.90 were paid to take up prior mortgages made by me upon my own property to the French Savings Bank. *
The amount of those mortgages was paid by plaintiff's attorney in a check to the French Savings Bank.
The balance I received and used for my own personal expenses. * My mother had no interest in the $57,500 so borrowed by me." To this testimony there was no counter evidence. In his testimony the attorney of the plaintiff admits that Charles, to whom the loan was made, borrowed the money to pay off his indebtedness to the French Bank.
“He (Charles) told me that he was going to use part of it, as I remember now, to pay off a debt that was due to the French Bank, and the balance he was going to use in connection with other business; and inasmuch as there would be a surplus after paying the French Bank of about $7,000, why, it would come very near being the exact amount for which Mrs. Moore's lot was taken as security, and which, I may have supposed at the time, she was going to use.”
In addition, he showed that, at the time of the transaction, he made the following memoranda upon Charles'application for the loan, viz.: “Amount of loan finally granted by the board, $57,500, February 1, 1878.
Deduct for check, $50,243.91, February 16, 1878. Pay bal.;" and that upon those memoranda the money was in fact paid out for and on account of said Charles. Knowing that the money borrowed by the defendant Charles was for his individual purposes, the plaintiff must have known that the act was not within the scope of the power of attorney from his mother for which he could legally bind her: Sections 2019, 2315, 2319, Civil Code.
The decree against the defendant Mary A. Moore, and the order denying her motion for a new trial, are reversed, and the cause remanded for further proceedings.
We concur: MYRICK,
MYRICK, J.; MORRISON, C. J.; THORNTON, J.
(68 Cal. 171)
Filed December 5, 1885.
In an action for damages for negligently causing the death of an employe, if the complaint alleges that the acts and omissions constituting the negligence were done or omitted by the defendant itself, as employer, the court cannot presume that they were those of a fellow-employe of the deceased; and, consequently, the question of the liability of a common employer for a co-employe's negligence cannot arise on demurrer to the complaint.
In bank. Appeal from superior court, city and county of San Francisco.
Henry E. Highton, for appellant.
MYRICK, J. Action to recover damages for negligently causing the death of plaintiff's intestate. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and, the plaintiff failing to amend, judgment was rendered for defendant. Plaintiff appealed. The only question presented, therefore, is as to the sufficiency of plaintiff's case as stated in the complaint. After alleging that defendant was operating the railroad at the point named, viz., the Oakland wharf, over and upon a narrow strip of land and trestlework, and that it was necessary for some of defendant's locomotives and trains of cars converging at that point to stop and await the passage of other locomotives and trains, in order to avoid accidents by collision and otherwise, it was alleged that the defendant had devised and prescribed and published a system of signals for the guidance and direction of its engineers (of whom plaintiff's intestate was one) operating and directing said locomotives and trains, which system the engineers were required by defendant to understand and ordered to obey, and it was a part of the contract of employment that the signals should be correctiy given; that it was the duty of the defendant to show and present to view the right signal for the guidance of its engineers; yet, that the defendant did not show and present to view the right signal for the guidance and direction of said intestate, acting as engineer; that while said intestate in his capacity of engineer on a locomotive of defendant, according to directions given to him by defendant, was proceeding over the said place, the defendant did show and present to view the wrong signal for the guidance and direction of said intestate, whereby, without any negligence, unskillfulness, or default of the said intestate, but solely and immediately in consequence of the negligence and improper conduct of the defendant, the locomotive was turned aside from the true and safe course, and was precipitated into the waters of San Francisco bay, and the intestate was killed; that his death was caused solely by the gross neglect and carelessness of the defendant in giving the wrong signal, namely the signal to proceed, and in failing to notify him or give him
any signal, as it ought to have done, that the switch immediately in front of the locomotive was open, thereby inducing and directing him to proceed with the locomotive.
We have not, in the above statement, given the language in full of the complaint, but have given sufficient, in substance, to present the point of law involved. In our opinion, the question of the responsibility of a common employer for the acts of negligence of another person employed in the same general business (section 1970, Civil Code) is not here presented. The case, as presented in the complaint, is of alleged acts and omissions on the part of the defendant itself, as employer. Section 1969, Civil Code. Whether the proofs will sustain the allegations is not now for consideration. As against positive allegations that the acts and omissions complained of were by the defendant, we cannot presume that they were those of a fellowemploye of the deceased. The demurrer should have been overruled.
Judgment reversed and cause remanded, with directions to overrule the demurrer, with leave to defendant to answer.
THORNTON, J.; MORRISON, C. J.; SHARPSTEIN, J.
McKEE, J., (dissenting.) For the reasons given in my opinion heretofore filed in this case, (7 Pac. Rep. 447,) I think the court below properly sustained the demurrer.
Ross, J. I also dissent.
(68 Cal. 176) Ex parte Brown and another on Habeas Corpus. (No. 20,155.)
Filed December 7, 1885. CRIMINAL LAW – BAIL AFTER VERDICT, WHEN ALLOWABLE —“CONVICTION," IN
A defendant convicted of felony in a case not punishable with death is not, under the California statute, (section 1271, Pen. Code,) entitled, as a matter of right, to be admitted to bail after conviction, bail being allowable in such cases only as a matter of discretion. The word “conviction,” as used, signifies a finding by the jury of a verdict that the accused is guilty. In bank. Application for writ of habeas corpus. George W. Tyler, for petitioners. John N. E. Wilson, contra.
THORNTON, J. Application for admission to bail by Brown and Weile, after the verdict of the jury finding each of them guilty of a felony, and before judgment pronounced on the verdict. The verdict was accepted and recorded by the court. It is contended that under the law of this state the applicants are entitled to be admitted to bail as a matter of right. It was held in People v. Tinder, 19 Cal: 539, under the constitution of 1849, that in all other than capital cases, and in all capital cases where the guilt is not evident or the presumpdion great, that a defendant is entitled to bail as a matter of right. The constitution of 1879 has made no change in the law as just above stated; and, under the former constitution, (and the same is the rule under the present constitution,) the guaranty of bail as a matter of right extends only to those cases where the party has not already been convicted. Ex parte Voll, 41 Cal. 29.
The statute (see Pen. Code, SS 1270-1272) is in accord with the foregoing. We insert here the text of these sections:
“1270. A defendant charged with an offense punishable with death cannot be admitted to bail, when the proof of his guilt is evident or the presumption thereof great. The finding of an indictment does not add to the strength of the proof, or the presumptions to be drawn therefrom.
“1271. If the charge is for any other offense, he may be admitted to bail before conviction, as a matter of right.
“1272. After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail (1) as a matter of right, when the appeal is from a judgment imposing a fine only; (2) as a matter of discretion, in all other cases.'
It is said that there has been no conviction in this case, as judgment has not been pronounced on the verdict.
The question, then, presented for decision is this: What is a conviction? The ordinary meaning of this word is the finding by a jury of a verdict that the accused is guilty. In legal parlance it often signifies the final judgment of the court. The above is said to be the signification of the word “conviction” in Blaufus v. People, 69 N. Y. 109. Blackstone says: “If the jury find him (the prisoner) guilty, he is then said to be convicted of the crime whereof he stands indicted; which conviction may occur two ways: either by his confessing the offense and pleading guilty, or by his being found so by the verdict of his country.” 4 Bl. Comm. 262. The same author says: - "The plea of autrefois acquit, or a former conviction for the same identical crime, though no judgment was ever given, or perhaps will be, (being suspended by the benefit of clergy or other causes,) is a good plea in bar to an indictment.” 4 Bl. Comm. 336. In 1 Inst. 391, it is said: “The difference between a man attainted and convicted is that a man is said convict before he hath judgment; as if a man be convict by confession, verdict, or recreancie, and when he hath his judgment upon the verdict he is said to be attaint.” And further, it is said by the same writer: "So as by conviction of a felon, his goods and chattels are forfeited; but by attainder, that is by judgment given, his lands and tenements are forfeited and his blood corrupted, and not before.” In Jac. Law Dict. 163, it is said: “There is a great difference between a man convicted and attainted, though they are frequently, though inaccurately, confounded together;” and, in the same work, it is said: “Convict, convictus; he that is found guilty of an offense by verdict of a jury. Crompton saith that conviction is either when a man is outlawed, or appeareth and confesseth, or is found guilty by the inquest; and when a statute excludes from clergy persons found guilty of felony, etc., it extends to those who are convicted by confession.' Cromp. Just. 9.” "Judgment amounts to conviction, though it doth not follow that every one who is convicted is adjudged.' 2 Cromp. Just. 63, tit. “Convict and Conviction.” Bishop says: “The word “conviction ordinarily signifies the finding of the jury, by verdict, that the prisoner is guilty. When it is said there has been a conviction, or one is convict, the meaning usually is, not that sentence has been pronounced, but only that the verdict has been returned. So a plea of guilty by the defendant constitutes a conviction of him.” He then quotes the passage first above given from 1 Inst., and continues : "Yet the word conviction, when it stands in such a connection with other words as to indicate a secondary or unusual meaning, sometimes denotes the final judgment of the court. Where the proceeding is civil in form, for the recovery of a fine, there cannot be what in law is called a conviction. It has likewise some other significations; according to one of which “a conviction is defined to be a record of the summary proceedings upon any penal statute, before one or more justices of the peace, or other persons duly authorized, in a case where the offender has been convicted and sentenced.' Bish. St. Crimes, $ 348. The same writer says: “A conviction in ordinary legal language consists of a plea or verdict of guilty, and it is immaterial whether or not final judgment has been rendered thereon.” 2 Bish. Crim. Law, $ 903; 1 Bish. Crim. Law, $ 963. See, also, on this point, People v. March, 6 Cal. 543; People v. Goldstein, 32 Cal. 433; Blair's Case, 25 Grat. 853; Com. v. Williamson, 2 Va. Cas. 211; Shepherd v. People, 24 How. Pr. 388; Com. v. Lockwood, 109 Mass. 324; State v. Alexander, 76 N. C. 231; Com. v. Richards, 17 Pick. 296; Nason v. Staples, 48 Me. 125; U. S. v. Gibert, 2 Sum. 40; 2 Hawk. P. C. c. 36, SS 1, 10; U. S. v. Watkinds, 6 Fed. Rep. 153; Bouv. Law Dict. verb. “Conviction.”
The foregoing references show that the ordinary meaning of the word “conviction” is the verdict of guilty pronounced by a jury. As said by READE, J., speaking for the court in State v. Alexander, supra: "The word is ordinarily used to denote the verdict of the jury, guilty. How did the jury find ? Guilty; or they convicted him. What did the judge do? Sentenced him to be hanged. This is the language ordinarily used in such matters, both in conversation and in books, law and literary. It is never said that the jury sentenced him, nor that the judge convicted him.' 76 N. C. 232. Now, while the word may be used as signifying the sentence pronounced on the verdict, or the record of conviction, including inter alia the verdict and sentence, still such meaning ought not to be attributed to it, unless there is something in the context to indicate that it was used in such sense; as in Com. v. Gorham, 99 Mass. 420; Burgess v. Boetefeur, 7 Man. & G. 481, 508. These words "conviction" and "convicted” are used in the constitution, and frequently in the statutes of this state. See Const. art. 1, § 20, and the following sections of the Penal Code: