the exercise of the power of sale; that this election transformed the debt into a matured obligation, on which an action might have been maintained on June 14, 1899; that the statute of limitations began to run at that date; and, hence, that the action was barred two years thereafter. In support of this claim the defendant cites Brickell v. Batchelder, 62 Cal. 624, Maddox v. Wyman, 92 Cal. 674, 28 Pac. 838, and Phelps v. Mayers, 126 Cal. 549, 58 Pac. 1048. In none of these cases was there any question concerning the effect which the exercise of such a power of sale as the one here involved would have in accelerating the time of maturity of any balance on the debt remaining unpaid after the proceeds of the sale were applied thereon. The question in each case was concerning the right to foreclose for the entire debt, where the mortgage authorized a foreclosure suit upon a default in some minor condition, before the maturity of the entire debt. The cases are therefore not strictly in point, even if the instruments were alike. But they are not identical. There is a difference in the terms which is important and material. The The case of Brickell v. Batchelder is as strongly in favor of the defendant as any of the cases cited, and a comparison of the mortgage there construed with that here involved will serve to distinguish them all. In that case the mortgage provided as follows: "But in case default shall be made in the payment of the said principal sum or the interest thereon, or any part thereof, * * * then said party of the second part, his heirs, executors, administrators, or assigns, are hereby empowered to proceed to sell the premises above described, with all the appurtenances, in the manner prescribed by law. And out of the money proceeding from such sale, the party of the second part shall retain the above amount of thirty-six thousand dollars," with interest and costs and 2 per cent. for attor ney's fees, which the instrument declared should become a debt to the mortgagee "upon filing the complaint in foreclosure." (The italics are ours). The other cases are substantially the same in this respect. The provision in the mortgage here involved was that the mortgagee "may sell the granted premises at public auction," said sale to be "on the granted premises" or at the Boston real estate exchange, and "without notice or demand except" a three weeks' notice in a newspaper. The reason for holding that the mortgage in Brickell v. Batchelder, supra, required a declaration making the entire debt immediately due, was that the provision authorizing the sale of the premises "in the manner prescribed by law" could not be construed otherwise than as requiring a sale upon execution issued upon a decree of foreclosure in an action for that purpose. This was said to be obvious from the fact that there was no other manner "prescribed by law" that could be applicable to such a case. And, as this made a foreclosure suit neces

sary to the exercise of the supposed power, it necessarily, in the opinion of the court, implied that the mortgagee was given power to declare the entire debt fully matured, notwithstanding that, by the terms of the mortgage, the principal was not yet payable. It was assumed, although not stated, that an action of foreclosure could not be maintained, unless the entire debt was declared due. In the present case the terms of the mortgage imposed no such necessary implication and presented no such difficulty. The sale was not to be made by the sheriff as upon an execution sale, but at public auction on the premises, and by the mortgagee upon a notice specially prescribed in the power. No suit for foreclosure was required. The mortgagee could execute the power without judicial authority. It provided that the mortgagee should retain out of the proceeds of sale a sum sufficient to pay the note and interest. This implied that, when the sale was made, a part of the principal and interest on the debt equal to the proceeds which might be applicable thereto should thereupon be payable. But to say that a sum is payable is not the same as to say that it is due. A note made payable "on or before" a fixed date is payable at any time after it is executed; but it does not become due until the date fixed. In the mortgage under consideration there is not a word to the effect that the debt shall become due upon the sale, nor to the effect that the mortgagee, as a condition to the exercise of the power. must declare that it is due. The express language of the instrument is that it shall not become due until three years after its date. To interpolate a provision that it shall all become due upon a sale under the power, or that by such sale a greater part of the principal shall be immediately payable than the proceeds of the sale will pay would be to put in the contract that to which the parties did not agree, and that which would contradict the express terms to which they did agree. By the contract, the payor of the note was to have the full term of the note within which to pay any deficiency remaining thereon, after the application of the proceeds of the sale. The mortgagee was given no power to deprive the payor of this advantage by any declaration he could make at the time of the sale. The effect of the sale and of the application of the proceeds was a mere payment upon the debt, a payment authorized to be made before its maturity and of no more force in accelerating the maturity of the debt than any other payments authorized to be made upon a debt before it becomes actually due. It disposed of the mortgaged property in execution of the mortgage, and practically extinguished that part of the contract, leaving remaining the covenant to perform and the promise contained in the note which remained in force to the extent of the balance remaining unpaid. These were separate obligations and the suit is upon the note. No action could have been

maintained for the balance due thereon until the expiration of three years from its date. It follows that the action was not barred by the statute of limitations.

The judgment and order are affirmed.

We concur: MCFARLAND, J.; SLOSS, J.; LORIGAN, J.; HENSHAW, J.

(151 Cal. 113)

MALONE v. SIERRA RY. CO. OF CALI-
FORNIA. (Sac. 1,470.)
(Supreme Court of California. May 2, 1907.
Rehearing Denied May 31, 1907.)

1. APPEAL REVIEW PREJUDICE JURY -CHALLENGE FOR BIAS.

The Supreme Court will not review the refusal of the trial court to allow a challenge for bias, unless injury is shown, and where it does not appear that defendant was forced to exercise a peremptory challenge on a juror, or that he had exhausted his peremptory challenges, no injury is shown.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4126.]

2. DAMAGES — ASSESSMENT - PHYSICAL AMINATION OF PLAINTIFF.

Ex

Where, in an action for personal injuries. plaintiff consented to submit to an examination by any physicians appointed by the court, and offered, while on the witness stand, an inspection of his injured arm to defendant's medical experts, and it appeared that two of such experts had previously examined and inspected plaintiff's injuries, and the third was given an opportunity to inspect them, being appointed by the court for such purpose, it was not error to refuse defendant's application that a personal examination be made of the body of plaintiff.

[Ed. Note. For cases in point. see Cent. Dig. vol. 15, Damages, § 531.]

3. APPEAL-HARMLESS ERROR-INSTRUCTIONS.

Where, in an action for personal injuries, the reasonableness of the expenses which plaintiff had incurred for medical treatment, etc., was not disputed, an instruction that plaintiff was entitled to recover such sum as would ccmpensate him for the expense he had incurred for medical treatment during the time he was disabled, while erroneous as not limiting the expenses to the necessary and reasonable value of the medical services, was harmless.

[Ed. Note. For cases in point. see Cent. Dig. vol. 3, Appeal and Error, § 4219.] 4. DAMAGES-PERSONAL INJURIES-NOMINAL

DAMAGES.

Where, in an action against a carrier for injuries to a passenger through negligence. there was no evidence as to what wages plaintiff earned or as to his earning capacity, but the nature of plaintiff's employment and the occupations at which he had worked were in evidence, plaintiff was entitled to recover more than merely nominal damages.

5. SAME-MENTAL ANGUISH.

In an action for personal injuries, through negligence, mental suffering or anguish is an element of damage.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, § 255.]

6. SAME-INSTRUCTIONS.

Under Civ. Code. § 3283, providing that damages may be awarded in a judicial proceeding for detriment resulting after the commencement thereof, or certain to result in the future, instructions, in an action for personal injuries. authorizing the jury to estimate prospective

damages upon what they believed might be the plaintiff's future suffering, were erroneous. [Ed. Note. For cases in point, see Cent. Dig. vol. 15, Damages, § 552.]

7. TRIAL-INSTRUCTIONS-ERROR CURED BY SUBSEQUENT INSTRUCTION.

The error in the instructions was not cured by a subsequent instruction that plaintiff was entitled to recover not only such damages as he might have suffered, but also such damages as by the evidence it was reasonably certain he would suffer in the future.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46. Trial, § 715.]

Department 2. Appeal from Superior Court, Tuolumne County; L. W. Fulkerth, Judge.

Action by Edward D. Malone against the Sierra Railway Company of California. Judgment for plaintiff, and defendant appeals. Reversed.

S. D. Wood, J. C. Campbell, and F. W. Street, for appellant. F. D. Nicol, F. P. Otis, and Ashley & Neumiller, for respondent.

HENSHAW, J. Plaintiff was a passenger upon one of defendant's trains, and was injured by a collision between his train and He another, also belonging to defendant. brought his action to recover damages for injuries inflicted, and the jury returned a verdict in his favor. From the judgment which followed defendant moved for a new trial, which the court refused. Defendant appeals from the judgment and from the order refusing it a new trial.

1. It is urged that the court erred in not allowing the challenge for bias interposed by defendant to one of the panel; but it has long been the rule of this court that it will not review the action of the trial court in this regard, unless prejudice or injury is shown. People v. McGungill, 41 Cal. 429; People v. Gatewood, 20 Cal. 149; People v. Gaunt, 23 Cal. 157; People v. Weil, 40 Cal. 268. By the record before us it is not made to appear that defendant was forced to exercise a peremptory challenge upon the juror, or that defendant had exhausted his peremptory challenges. In no way, therefore, is it made to appear that it suffered any detriment by the ruling of the court.

2. It is contended that the court erred in refusing defendant's application that a personal examination be made of the body of the plaintiff. This court has recently had oc casion to consider this matter in Johnson v. Southern Pacific Company, 89 Pac. 348. The facts in this case, however, disclose that plaintiff consented to submit to an examination by any physicians appointed by the court; that he had, while on the witness stand, offered an inspection of his injured arm to the defendant's experts, Drs. Anderson, Congdon, and Gould. Drs. Anderson and Congdon had previously examined and inspected the plaintiff's injuries, and Dr. Gould was given an opportunity to examine and inspect them, and was appointed by the

court to make such examination. We see no force, therefore, in defendant's objection.

3. In instructing the jury upon the measure of damages, the court declared as one of the elements of damage "such sum as will compensate him for the expense, if any, he has paid or incurred in the employment of a physician and the purchase of drugs during the time he was disabled by the injuries, not exceeding the amounts alleged in the complaint." It is objected to this instruction that the correct measure of damage in this regard is not the amount which he may have paid or become liable for, but the necessary and reasonable value of such services as may have been rendered him; such reasonable sum, in other words, as has been necessarily expended or incurred in treating the injury. Such unquestionably is the true rule: yet we do not believe that the jury could have been led into error prejudicial to the defendant by the instruction which was given. The reasonableness of the expenses which plaintiff had incurred was not disputed.

4. The court further charged the jury that the plaintiff could recover for the value of his time during the period that he was disabled by the injury. It is said that there was no evidence as to what wages the plaintiff earned, or as to his earning capacity, and that it was therefore error for the court so to charge. But the nature of plaintiff's employment, he occupations at which he had worked, were in evidence, and, even without any positive testimony as to the wages which he had previously earned, there was sufficient to have warranted the jury, in case they found a permanent impairment of earning capacity, to have awarded more than merely nominal damages. Storrs v. Los Angeles Traction Co., 134 Cal. 91, 66 Pac. 72.

5. The court instructed the jury that an element of damage was "the pain and anxiety that he has suffered or may suffer by reason of his injuries." And, again, it instructed them that in estimating damages "you may take into consideration the

physical and mental suffering he may have sustained or may undergo in the future by reason of the injuries." It is argued that mental suffering is not an element of damage. In support of this proposition is cited Newman v. Smith, 77 Cal. 22, 18 Pac. 791, which was an action in fraud concerning real property, and the plaintiff sought a recovery for the worry, annoyance, and anxiety which the fraud had caused him. This court held that these were not elements of damage in such a case. Munroe v. Dredging Co., 84 Cal. 516, 24 Pac, 303, 18 Am. St. Rep. 248, was an effort in an action by the personal representatives of the deceased to recover damages for the grief and mental suffering of the deceased's next of kin, and it was held that in such a case this was not a permissible element of damage. In Morgan v. S. P. Co., 95 Cal. 510. 30 Pac. 603, 17 L. R. A. 71, 29 Am. St. Rep. 143, an action by a mother to

recover damages for the death of her child, the same effort was made to recover for the sorrow and mental anguish of the parent, and it was held that in that case it was not an element of damage. But, upon the contrary, where the suffering or mental anguish is endured by the victim. it has been recognized as an element of damage since the case of Malone v. Hawley, 46 Cal. 409. See Sloane v. So. Cal. Ry. Co., 111 Cal. 668, 44 Pac. 320, 32 L. R. A. 193.

6. In instruction 18, the court informed the jury that an element of damage was "such reasonable sum as the jury shall award him on account of the pain and anxiety that he has suffered or may suffer by reason of his injuries." In instruction 19, the jury was informed that "in estimating the damages to be awarded you may take into consideration *** how far his injuries are permanent in their character and results, as well as the physical and mental suffering he may have sustained or may undergo in the future by reason of the injuries." These instructions were erroneous in permitting the jury to estimate prospective damages upon what they believed might be the plaintiff's future suffering. The rule as laid down in section 3283 of the Civil Code declares that: "Damages may be awarded, in a judicial proceeding. for detriment resulting after the com mencement thereof or certain to result in the future." An instruction that the jury may award such prospective damages, if any, "as they believe plaintiff has sustained or will sustain," has been held erroneous. Pa. Co. v. Files, 65 Ohio St. 403, 62 N. E. 1047. An instruction that the plaintiff could recover for bodily pain and suffering, which "he may have to endure in the future," is condemned. Raymond v. Keseberg, 91 Wis. 191, 64 N. W. 861. An instruction that a recovery might be had for the pain and suffering which "plaintiff was likely to endure in the future" is also condemned. Kucera v. Merrill Lum. Co., 91 Wis. 637, 65 N. W. 374. An instruction that, "in estimating the damages, you will allow plaintiff for any physical suffering and pain and mental anguish, if any, she has suffered and shown in evidence, or which she may in the future suffer, if any, in consequence of the alleged injury," is erroneous, as permitting the jury to enter the realm of speculation regarding such future suffering. Hall v. Cedar Rapids, etc., Ry. Co., 87 N. W. 739, 115 Iowa, 18. To the same effect is Chicago Ry. Co. v. De Clow, 124 Fed. 142, 61 C. C. A. 34; Chicago, etc., R. R. Co. v. McDowell, 92 N. W. 121, 66 Neb. 170: Ross v. Kansas City, 48 Mo. App. 440: Ohio, etc.. Ry. Co. v. Cosby, 107 Ind. 32, 7 N. E. 373. It is true that in a succeeding instruction the court declared that plaintiff was entitled to recover, not only such damages as he may have suffered, but also "such damages as by the evidence it is reasonably certain he will suffer in the future." Herein is a declaration of the true

PEOPLE ex rel. McCONNELL v. CITY OF WILMINGTON et al. (L. A. 2,000.) (Supreme Court of California. Aug. 13, 1907.

Rehearing Denied Sept. 12, 1907.) MUNICIPAL CORPORATIONS-INCORPORATION—

ORGANIZATION-CHARTER-REPEAL.

Act Feb. 20, 1872 (St. 1871-72, p. 108, c. 113), as amended by Act March 21, 1872 (St. 1871-72, p. 446, c. 337), incorporating the town. of Wilmington, never having been followed by an organization of the town as a municipal corporation, the Legislature was not deprived, by Const. art. 11, § 6, providing that municipal corporations organized prior to the adoption of the Constitution of 1879 might continue their existence and save their form of government, etc., from repealing such incorporation act as amended and passing a new act for the incorporation of a city comprising the territory included within the boundaries of the contemplat

ed town.

In Bank. Appeal from Superior Court, Los Angeles County; Waldo M. York, Judge.

Quo warranto by the people, on relation of Lee A. McConnell, against the city of Wilmington and others. From a judgment sustaining a demurrer to the complaint, relator appeals. Affirmed.

U. S. Webb. Atty. Gen., and Hunsaker & Britt, for appellant. Bicknell, Gibson & Trask (Dunn & Crutcher, O. P. Widaman, and Edward E. Bacon, of counsel), for respondents.

HENSHAW, J This is a proceeding in quo warranto in which a judgment is sought declaring and adjudging that the defendant, the "city of Wilmington," and the other defendants, claiming to be officers of such city, are usurping and exercising without authority of law the franchises and powers of a city of the sixth class, and enjoining them from asserting or attempting to exercise such franchises. A general demurrer to the complaint was sustained, and, plaintiff declining to amend, judgment was rendered for defendants. From this judgment plaintiff appeals.

It appears from the complaint that on the 6th day of November, 1905, certain persons presented to the board of supervisors of the county of Los Angeles a petition praying that a portion of said county, within the boundaries defined in the petition, be incorporated as a municipal corporation of the sixth class, with the name of the city of Wilmington, under an act of the Legislature entitled "An act to provide for the organization, incorporation, and government of municipal corporations," approved March 13, 1883. The petition com

plied with the act as to the number of bona fide residents within the boundaries of the proposed city, and also with respect to the number and character of the signers thereof. The board of supervisors granted the prayer of the petitioners and called for an election to be held on December 22, 1905, at which election a majority voted "for incorporation" and the personal defendants were elected trustees of said proposed city, whereupon the board declared that the said city of Wilmington was duly organized and it is exercising corporate functions as such city.

The appellant does not object to the regularity of the proceedings leading to the alleged incorporation of said city, and does not attack the validity of the incorporation, except on this one ground, namely, that most of the territory embraced in the petition was inclosed in a previously organized municipal corporation called the town of Wilmington, and that the territory not embraced in such previously organized corporation does not contain 500 residents, which number of residents is required by the act. It is therefore contended by appellant that the proceedings under which respondents are claiming to be a city are void, because there cannot be at the same time within the said territory two distinct municipal corporations exercising conflicting powers, and because the municipal corporation act expressly applies only to territory "not incorporated as a municipal corporation." In support of this proposition the complaint avers that on February 20, 1872, (St. 1871-72, p. 108, c. 113), the Legislature passed an act incorporating the town of Wilmington, and that the entire territory embraced in the boundaries of the said town as thus incorporated is included within the boundary of the alleged "city of Wilmington," and also that on March 21, 1872 (St. 1871-72, p. 446, c. 337), the Legislature passed another act to amend the first act above mentioned.

Respondent's main answer to this proposition is that in 1887 the Legislature passed two acts-the one repealing the act to incorporate the town of Wilmington, and the other repealing the act amending the act incorporating the said town-and, as a fact, such repealing acts were passed and approved. But appellant contends that these repealing acts were unconstitutional and void, and therefore had no effect upon the continued existence of the said town of Wilmington. Its main reliance in this regard is placed on section 6, art. 11, of the Constitution. The second sentence of this section gives to municipal corporations organized before the adoption of the Constitution of 1879 the right of continuing their existence and of saving their form of government, and this right, it is contended, is wholly inconsistent with any asserted power of the Legislature to destroy them. In support of this contention, reference is made to Desmond v. Dunn, 55 Cal. 243; Staude v. Election Comm., 61 Cal. 313;

Ex parte Armstrong, 84 Cal. 655, 24 Pac. 598; People v. Com. Council, 85 Cal. 369, 24 Pac. 727; Ex parte Helm, 143 Cal. 553, 77 Pac. 453.

Without pausing to analyze these decisions, but conceding, for the purposes of this case, that they go as far as appellant contends in holding that the Legislature is denied the power to abrogate and annul special charters antedating the Constitution of 1879, respondents show a marked and important difference between those cases and the one at bar. Those decisions, one and all, were made with reference to organized and operating municipal corporations. In the case at bar it is made clearly to appear that the town of Wilmington, though incorporated, never became organized at all. The allegation of the complaint in this regard is as follows: "That the town of Wilmington is, and ever since the 20th day of February, 1872, has been, a municipal corporation, duly incorporated under and by virtue of that certain act of the Legislature of the state of California entitled 'An act to incorporate the town of Wilmington in the county of Los Angeles, in the state of California,' approved February 20, 1872, and of that other certain act of the Legislature of the state of California, amendatory thereof, entitled, 'An act to amend an act entitled "An act to entitle the town of Wilmington, in the county of Los Angeles, in the state of California," approved February 20, 1872, approved March 21, 1872.'" A reading of the incorporating act of the town of Wilmington shows that for the organization of the town an election was to be held in April to select town trustees, marshal, assessor, and other officers, and that the board of trustees elected were to assemble within 10 days after the notice of their election and organize. This act was approved upon February 20, 1872, and the allegation of the complaint is that ever since that day the town of Wilmington has been a municipal corporation. This allegation distinctly negatives the idea that any organization could have been effected, and amounts to nothing more than the legal conclusion of the pleader that the town became a municipal corporation because the Legislature passed a certain incorporating act. This pleading respondents insist is equivalent to an admission that the inhabitants of the territory affected by the incorporation act never exercised any corporate rights or incurred any corporate duties under the act. This, they assert, was the ground for the ruling of the trial judge in sustaining the demurrer to the complaint for insufficiency and in allowing plaintiff 10 days in which to amend to cover this defect. Plaintiff's failure to amend in this regard, they contend, is a pregnant admission that the town of Wilmington never in fact organized under the act. Respondents quote in their brief from the language of the learned trial judge as follows: "I have considered it necessary to discuss the constitutional question involved only

with reference to the fact that the town gov ernment of Wilmington was never organized under the incorporation act, and, in view of the fact that there may be some contention over the question as to whether there ever was such organization, the plaintiff will be allowed 10 days in which to amend, should plaintiff desire to allege the fact."

In view, therefore, of the uncontested fact that plaintiff's attention was called to this omission in its pleading, and that the demurrer was sustained to it upon this ground, with leave to plaintiff to amend, and in view of the further fact, as shown by the judgment, that plaintiff failed and refused to avail itself of this permission, the conclusion is irresistible that it was unable to do so. The real question, then, with which we are confronted, is whether the Legislature has the power to repeal an act of incorporation which has stood for years upon its statute books without organization under it. As to this we entertain no doubt that it can do so. The constitutional provisions which are relied upon deal exclusively with cities and towns which are organized municipalities. We know of no constitutional inhibition which prevents the Legislature from clearing away the dead underbrush of such laws as this. A mere incorporating act, never in any way acted upon, presents an entirely different case from one where the act of incorporation has been followed by organization. While in a certain sense territory becomes incorporated by the incorporating act, it is in a sense most limited. There is plain recognition of this distinction in the language of article 11, § 6, of our Constitution. Thus that section, while providing that cities and towns heretofore organized or incorporated may become organized under general laws, in the next sentence declares, not that cities and towns heretofore incorporated shall be subject to and controlled by general laws, but that cities and towns "heretofore or hereafter organized shall be so controlled." Thus the Constitution designedly protects only organized municipalities from legislative interference other than by general laws. The legislative power is plenary excepting as limited by the Constitution, and there is nothing in that instrument to prevent the lawmaking power from wiping off of its statute books an incorporating act under which no organization has ever been effected. Not only may the Legislature do this, but it may often be desirable that it should be done to the very end that a new municipality incorporated and organized under the existing general laws of the state may proceed with its corporate duties without the possibility of embarrassment. For this reason, the demurrer was properly sustained, and the judgment appealed from is affirmed.

We concur: BEATTY, C. J.; McFARLAND, J.; SLOSS. J.; ANGELLOTTI, J.; SHAW, J.; LORIGAN, J.