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ing Pennie v. Hildreth, 81 Cal. 127, 22 Pac. 389; Adams v. Crawford, 116 Cal. 193, 18 Pac. 188; United Land Ass'n v. P. I. Co., 139 Cal. 370, 69 Pac. 1064, 72 Pac. 988. Also the allegation that the claim of defendants is without right being denied, it also must be proved by plaintiffs-citing Tompkins v. Sprout, 55 Cal. 31. The findings in favor of plaintiffs upon these allegations are challenged as unsupported by any evidence, and that, therefore, the judgment and order should be reversed. Defendant McConnell, by her special denials, failed to deny that she claimed some interest in the land adverse to plaintiffs, but defendant vclannus, by her general denial, raises the question. It defendants' denials are to be treated as general to the unverified complaint, they merely put in issue the title to the land. Pennie v. Hildreth; Adams v. Crawford, supra. We think, however, that these defendants (appellants) have pleaded such claim as they had, shadowy though it in fact was (see Bohnert's Appeal), and on which they oftered no proof whatever. They alleged fraud in the conveyance to plaintiffs, and set up a right to have the action suspended until they could have their claim against the Dorrises, through whom plaintiffs deraign title, ripen into judgment, to be followed by an action to set aside plaintiffs' conveyance. Without a judgment they were in no position to attack the deed for fraud (Aigeltinger v. Einstein, 143 Cal. 609. 77 Pac. 669); but they refused to disclaim any right or interest, and assertel all the title or right they had, as called upon by plaintiffs to do, and, though unavailing, conjectural, and uncertain, it was yet an assertion of a claim of right in the land. The failure of defendants to submit any evidence in support of their claim left the court free to find that it was without right, and also to find that such as it was it was adverse to plaintiffs, and this without aid from plaintiffs' evidence. But plaintiffs, unnecessarily we think, in view of defendants' failure to submit any evidence, did, however, submit evidence touching the issue of fraud tendered by defendants, and fully established the entire good faith of the transactions culminating in plaintiffs' title, free froin any taint of fraud. In commenting upon sections 738 and 739 of the Code of Civil Procedure, it was held in Bulwer M. Co. v. Standard M. Co., 83 Cal. 589, 23 Pac. 1102, that the purpose of averring an adverse claim is to notify defendant of the nature of the action, and requiring him to set forth and litigate any adverse title he may claim to have or to disclaim having such title either expressly or by default; that “the only material issues tendered by a complaint in this class of cases relates to the title of the real property described in the complaint; therefore there was no necessity for a finding upon the formal but immaterial issue, as to whether the defendant had asserted an ad

87 P.-19

verse title before the commencement of the action." It was said further: "The object of sections 738 and 739 is to enable the plaintiff, in such action, to dispel whatever may be regarded by third persons, as well as by defendant, as a cloud upon his title; for even though the defendant makes no adverse claim, third persons may regard plaintiits' title as being subject to an adverse claim by the defendant, which would be a cloud upon plaintiffs' title, depreciating its value, and which he would be entitled to have removed by the decree of the court.” Appellants contend that this is not the law, and that the expressions of the court were not necessary to the decision and were but dicta, and were used in a case where the defendant had disclaimed any estate or interest. It seeus to us that the "material issues” in this class of cases "relate to the title of the real property described in the complaint" and nothing else. When the title is found to be in the plaintiff, and no title or interest is shown in defendant, it necessarily follows that the aim of the defendant is without right, whether adverse or not. If the defendant makes default the court may find the allegations of the complaint to be true; why not also when the defendant answers but fails to support it by evidence? How can plaintiff know the nature of defendant's (laim unless it is pleaded, and would it not be unreasonable to hold to a rule requiring him to show that a claim of which he has no knowledge is without right, except by showing his own right? If defendant's claim be pleaded, the burden is then upon defendant to establish it, failing in which, the findings must be against defendant. Crook v. Forsyth, 30 Cal. 602; Stoddard v. Burge, 153 Cal. 394. This seems to us both reasonable and logical and in conformity with the object of the action, as stated in the case reported in Bulwer M. Co. v. Standard M. Co., supra. However this may be, defendants denied plaintiffs' title, and set up their adverse interest. The issues usual in such cases were thus formed, and each party was called upon to make good by evidence his affirmative averments, touching his own title to or interest in the property. Neither party was required to disprove his adversary's case, but could rest upon proof of his own title.

2. Appellants further contend that, because the court found the specific facts showing ownership, and also found generally that plaintiffs were the owners of the property, the general findings became mere conclusions of law, and the specific findings must support the conclusion of ownership, and neessarily the evidence must support the specific facts found, or a reversal must result. Citing Gruwell v. Seyboldt, 82 Cal. 7, 22 Pac. 938; Sav. & Loan Soc. v. Burnett, 106 Cal. 514, 39 Pac. 922. Appellants designate eight separate findings, which, it is claimed, fall within the above objection. It would unnec

essarily prolong this opinion to state these 2. SAME-PROXIMATE CAUSE. findings and the evidence found in the record Plaintiff alleged that defendant extractel to support them. These findings seem to

seven of her teeth and removed all of them from

her mouth except one, which, by defendant's have had for their main object to deraign carelessness, negligence, and unskillfulness, was the title, untainted by fraud, through permitted to drop and pass into plaintiff's right Churchill to plaintiffs, and to show the cir

lung, without any fault or negligence on plain

tiff's part. Held, that the complaint was not cumstances under which he came into pos- demurrable for failure to show that defendant's session and control of the property, the rela- negligence was the proximate cause of the intion to the Dorrises, the title by which he jury, because it was necessary that plaintiff

should have used the muscles of her throat in held the property, the equity retained by the

order that the tooth could have gotten into her Dorrises, and finally that, in consideration

trachea. of discharging their indebtedness to Church- [Ed. Note.-For cases in point, see vol. 37, ill, they deeded and released all their in- Cent. Dig. Negligence, § 18312.] terest, legal and equitable, to him; it was 3. PHYSICIANS AND SURGEONS NEGLIGENCE found that he conveyed to plaintiffs and that


In an action against a dentist for injuries the transactions set forth were free from

caused by a tooth dropping into plaintiff's fraud. The evidence, we think, supports trachea, and thence into her lung, evidence hell these findings, and, when taken in connection to sustain findings that defendant carelessly with the complete findings, fully support the

and negligently permitted the tooth so to pass

into plaintiff's trachea, without fault on her general findings of title in plaintiffs. Appel

part, by reason of which she was damaged. lants in their brief say that the court obviously attempted to find that the transfer

Appeal from Superior Court, Los Angeles to plaintiffs was not a fraud upon the cred

County; D. K. Trask, Judge. itors of P. A. and C. J. Dorris. We think

Action by Alice C. McGehee against A. F. the court succeeded in its attempt. The al

Schiffman. From a judgment for plaintiff, leged apparent contradiction between finding

and from an order denying defendant's modesignated 8 in defendants' brief and finding

tion for a new trial, he appeals. Affirmed. 5 is not real. The agreement and transfer A. B. McCutchen, for appellant. E. Edgar of the Dorrises to Churchill, and them to Galbreth, for respondent. plaintiffs, occurred on the same day, and when Churchill conveyed to plaintiffs it ALLEN, J. Action to recover damages 01) is true that P. A. and C. J. Dorris no account of injuries sustained through neglilonger had any equitable interest in the gence. Judgment for plaintiff, new trial deproperty, and long before this date the legal | nied, and defendant appeals from such judgtitle had vested in Churchill. It may be ment on the roll, and from an order denying doubted whether the court was called upon to a jew trial. find the evidence going to prove ownership, The first contention of appellant is that having found such ownership in plaintiffs the complaint, which alleges that "the de(Daly v. Sorocco, 80 Cal. 367, 22 Pac. 211) ; fendant did then and there extract seven of but conceding appellants' position that, hav- said teeth and remove all of the same from ing done so, the evidence must support the her mouth excepting one of said teeth, which, findings, we think this requirement is fully by said defendant's carelessness, negligence, met. In point of fact a perfect and unbroken and unskillfulness, was permitted and alchain of title, free from fraud, from the lowed by him to drop and pass into plaintiff's government to plaintiffs is shown. Against right lung, without any fault or negligence it is urged purely technical rules of law on her part," was insufficient, in that the which, though entitled to recognition, are negligence averred was not the proximate without merit under the circumstances and

cause, for the reason that it is manifest that facts disclosed.

plaintiff, having control over her own muscles The judgment and order are affirmed.

and breathing apparatus, the tooth by any

negligence or omission of defendant could We concur: MCLAUGHLIN, J.; BUCK

only have been allowed to escape into the LES, J.

mouth, and that it should reach the lung

comprehended action on plaintiff's part which (4 Cal. App. 50)

would be the proximate cause of the injury; McGEHEE V. SCHIFFMAN. (Civ. 247.)

that, if there was an unbroken sequence of (Court of Appeal, Second District, California.

events through which the injury was chargeJuly 5, 1906. Rehearing Denied

able to defendant, those continuous events Aug. 30, 1906.)

should have been pleaded; that the complaint 1. NEGLIGENCE-PLEADING-COMPLAINT.

was uncertain, in that it cannot be ascerIn an action for injuries alleged to have tained "how or in what manner any carelessresulted from

from defendant's negligence, it is sufficient for the complaint to charge that the

ness on the part of the defendant occasioned act was negligently done, without stating the the injury, nor how the defendant by any particular omission which rendered the act act or omission of his could permit or allow negligent, provided it also appears from the facts

the plaintiff's tooth to drop or pass into her averred that the negligence caused or contributed to the injury.

right lung. It is sufficient to allege the negli[Ed. Note.–For cases in point, see vol. 37,

gence in general terms, specifying, however, Cent. Dig. Negligence, 88 174, 175, 182.] . S8

, ] the particular act which is alleged to have

been negligently done. "Negligence is the ultimate fact to be pleaded, and it forms part of the act from which an injury arises. * * * It is the absence of care in the performance of an act, and is not merely the result of such absence, but the absence itself.” Stephenson v. Southern Pac. Co., 102 Cal. 148, 34 Pac. 620. When we consider that the demurrer admits that through want of care defendant allowed the tooth to drop into the lung, whereby the injury followed, it removes from consideration the possibility of any intervening facts or circumstances being the proximate cause of the injury. “It is sufficient to say it was negligently done, without stating the particular omission which rendered the act negligent. But it must appear from the facts averred that the negligence caused or contributed to the injury." Smith v. Buttner, 90 Cal. 100, 27 Pac. 29. In the complaint under consideration it is a verred that he dropped the tooth into the lung, the fact which caused the injury. The dropping of such tooth is admitted to have been occasioned through want of care. Nor can a court say, as a matter of common knowledge, that the fact admitted was impossible without some other agency acting upon it. We regard the complaint as sufficient, and in no sense as ambiguous or uncertain.

Upon the appeal from the order, it is contended that there is no evidence in support of the finding of the court that defendant was negligent, or that such negligence caused the injury. There was evidence tending to

. show that defendant undertook for a consideration to extract certain teeth; that preliminary thereto he administered an anesthetic, from which plaintiff was rendered entirely unconscious, and that four teeth were extracted; that thereupon plaintiff was placed a second time under the influence of the anesthetic, and defendant undertook the extraction of three other teeth; that when plaintiff regained consciousness she was strangling and coughing as though she were choking, and she felt as if some foreign substance had gone through her windpipe; that she continued this coughing and became sick; that an abscess formed in the lower lobe of the lung, and quantities of yellow pus were expectorated; that her condition was such as might be expected to result from a foreign substance in the lung; that afterwards, during a fit of coughing, she expelled from her lung a tooth. It appears further that plaintiff was in perfect health before she entered defendant's office to have such teeth extracted; that from that day she began to be sick, and thereafter was continuously under the care of a physician; that after the tooth was

expelled, though in a weak condition, she began to improve. It was further in evidence that by the use of ordinary care the extractor could keep the mouth of the patient clear of blood and, in case a tooth should escape from the forceps, as is frequently the case, he is able to remove it; that constant care is necessary to be exercised that teeth may not escape into the trachea; that a skillful operator keeps track of the teeth as extracted and knows when he has taken them all from the mouth, and examines the teeth actually extracted to see that no fragments are left in the mouth; that in the exercise of ordinary care the operator could discover whether any of the teeth or any fragments thereof had not been removed from the mouth. It further appears that a tooth slipping from the forceps may pass into the lungs; that the use of nitrous oxide as an anesthetic would increase the possibility of a tooth escaping from the mouth into the windpipe. There is no evidence in the record that defendant took any of the precautions before mentioned, or made any observations to see whether or not he had completed his task. In addition to all this, there was evidence tending to show that ordinarily a patient regaining consciousness will not cough; that, if coughing and strangling ensues after consciousness is regained it is recognized as an evidence of the fact that a foreign substance has escaped, and that unusual and great precautions are thereupon taken by the operator to cause its immediate removal; that, notwithstanding plaintiff's coughing and giving every evidence of having some foreign substance in her windpipe, no attention was paid to her by the defendant, and no effort made to ascertain the cause of her unusual condition. There was therefore competent evidence tend ing to establish the averments of the complaint, not only as to the negligence, but as to the proximate cause of the injury. Nor can we say that there was established any intervening act of plaintiff, voluntary or otherwise, which contributed to such injury. We think, therefore, that there is evidence in the record sustaining the findings of the court that defendant carelessly and negligently permitted and allowed a tooth to drop and pass into and down plaintiff's windpipe, and thence into plaintiff's right lung, without fault upon her part, by reason of which plaintiff was damaged.

There is no prejudicial error apparent in the record, and the judgment and order are affirmed.

We concur: GRAY, P. J.; SMITH, J.

(17 Okl. 162)

S. II. Harris and Dale & Bierer, for apBEADLES V. SMYSER, Mayor, et al. pellant. A. X. Whiteside, for appellees. (Supreme Court of Oklahoma. Sept. 6, 1906.) 1. MUNICIPAL CORPORATIONS--ACTIONS–Ex- BURWELL, J. This is an action of manECUTIOX-PROPERTY SUBJECT.

damus commenced by the plaintiff to compel In the absence of statutory inhibition,

the officers of the city of Perry to take steps an ordinary execution may issue on a judgment against a city of the first class, and, while looking toward the payment of some 32 judgon the ground of public policy it cannot be ments against that city, which amount in all levied on any of the general revenues of the

to something over $16,000. All of these judg. city, either before or after they are collected, or upon any property either real or personal,

ments were rendered more than six years which is reasonably necessary for government prior to the commencement of this action, and purposes, still, if any property can be found

are now owned by the plaintiff. No execution which is not reasonably necessary for the public welfare, and which is held by the city

was ever issued on any of these judgments, as private property for its benefit, it may be

nor have any of them been revived under the levied upon and sold to satisfy an execution. statute. The answer pleads the statute of

[Ed. Note.-for cases in point, see vol. 36, limitation, and this is really the only question Cent. Dig. Municipal Corporations, $ 2211; involved in the case. vol. 21, Cent. Dig. Execution, $ 133.] 2. JUDGMENT-DORMANCY.

It is contended by the defendant that, unUnder Section 4337 of the Statutes of

der section 4337 of the Statutes of Oklahoma Oklahoma of 1893, which provides that: “If of 1893, the judgments involved in this action execution shall not be sued out within five

are dormant. It provides as follows: "If years from the date of any judgment that now

execution shall not be sued out within five is or may hereafter be rendered, in any court of record in this territory, or if five years shall

years from the date of any judgment that have intervened between the date of the last now is or may hereafter be rendered, in any execution issued on such judgment and the court of record in this territory, or if five time of suing out another writ of execution thereon, such judgment shall become dormant,

years shall have intervened between the date and shall cease to operate as a lien on the

of the last execution issued on such judgment estate of the judgment debtor"-a judgment and the time of suing out another writ of against a city of the first class becomes dor

execution thereon, such judgment shall bemant after five years from the date of its rendition, unless the judgment creditor, within come dormant, and shall cease to operate as such time, causes execution to issue thereon. a lien on the estate of the judgment debtor."

[Ed. Note.--For cases in point, see vol. 30, This court had occasion to construe this idenCent. Dig. Judgment, § 1567.]

tical statute in the case of J. B. Beadles y. 3. MANDAMUS -- COMPELLING PAYMENT OF


ry, et al., 15 Okl. 28, 82 Pac. 1041, 2 L. R. A. Where a judgment creditor fails to have (N. S.) 835, and it was therein held that this execution issued within five years on a judg- statute of limitation would run in favor of a ment against a city of the first class, and also fails to revive such judgment within one year

city of the first class on a judgment against after it becomes dormant, it will be treated as it, unless the judgment creditor sue out an exbarred by the statute of limitation, and the ecution within five years from the date of its courts will deny the aid of mandamus to

rendition. It was also stated in that opinion compel payment of the same.

that: “Where a judgment creditor fails to [Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Mandamus, § 231.)

have execution issued within five years on a 4. JUDGMENT - DORJANCY - AGREEMENT

judgment against a city of the first class, and LACIIES OF JUDGMENT CREDITOR.

also fails to revive such judgment within one An agreement between practically all of year after it becomes dormant, it will be the judgment creditors of a city that such city shall pay such creditors in the order of priority

treated as barred by the statute of limitation, of the date thereof, instead of paying such and the courts will deny the aid of mandamus judgment creditors their pro rata shares, and to compel payment of the same." In that a resolution of a city council which refers to

case, as in this, the plaintiff contended that such agreement and orders the city treasurer to pay such judgment according to such con

the city council had passed a resolution aptract, do not change the legal status of the proving an agreement entered into by all of city toward any of such creditors ; nor do they

the judgment creditors of the city, to the excuse any judgment creditor from suing out an execution within five years of the date his judg

effect that all judgments should be paid in ment was rendered, or from securing a revivor the order of their rendition. It is insisted of his judgment within one year after it became that this contract and resolution took the dormant.

judgments in question out of the statute of [Ed. Note.-For cases in point, see vol. 30,

limitation, even if such statute would run m Cent. Dig. Judgment, § 1569.]

favor of a city, which plaintiff denies. ANI (Syllabus by the Court.)

of these questions were decided against the Appeal from District Court, Noble County ; contention of the plaintiff in the case referred before Justice Bayard T. Hlainer.

to. These and other questions were fully dise Action by J. B. Beadles against A. E. cussed in that opinion. Smyser, mayor of city of Perry, and others. The two cases involve exactly the same Judgment for defendants, and plaintiff ap- questions, and upon that authority the judgpeals. Affirmed.

ment of the lower court is hereby affirmed, at the cost of the appellant. All of the Justices, the plaintiff. The injuries sustained by the concurring, except HAINER, J., who presided plaintiff were the principal ground of conat the trial below, not sitting,

tention. The plaintiff claimed that he received serious injuries to his head and

spine, on account of which he was wholly (17 Okl. 97)

incapacitated to pursue his usual vocation. CHICAGO, R. I. & P. RY. CO. v. STIBBS.

On the other hand, the railway company (Supreme Court of Oklahoma. Sept. 5, 1906.) contended that the plaintiff received but 1. EVIDENCE-CoxclusION OF WITNESSES. slight injuries, if any, and that the injuries

It is not error for the court to strike the plaintiff claimed to have sustained to from a deposition, or exclude from the testi

his spine were merely feigned and a sham. mony of a witness, any statement or answer which is merely a supposed inference or (o'l

A great deal of evidence was introduced clusion of the witness drawn from a given state on both sides, and the jury returned a verof facts.

dict for the plaintiff, and assessed his dam[Ed. Vote.-For cases in point, spe rol. 20,

ages at $6.500. At the request of the deCent. Diy. Evidence, $ 2186.)

fendant, special findings of fact were sub2. CARRIERS-INJURIES TO PASSENGERS-DILI

mitted, which were answered by the jury, GENCE.

A common carrier of persons for hire or and returned with their general verdict. reward must use the utmost care and diligence These answers are in harmony with the for their safe carriage, and must provide every

general verdict. Judgment having been enthing necessary for that purpose. and must exercise to that 'end a reasonable degrce of

tered by the court in accordance with the skill.

verclict, a motion for new trial was filed. [Ed. Note.-For cases in point, ser vol. 9, and was considered and overruled by the Cent. Dig. Carriers, $$ 1087-1092.]

court, and exception was saved, and the de3. DAMAGES-PERSONAL INJURIES.

fendant brings the case here for review. In an action for personal injuries which prevent the plaintiff from pursuing his usual

M. A. Low, Paul E. Walker, Blake, Blake occupation, his loss of earnings is a proper & Low, and J. C. Robberts, for plaintiff in element of damages, and evidence of his average

error. P. C. Simons and A. M. Vackey, for monthly earnings is admissible.

defendant in error. 4. TRIAI.-IXSTRUCTIONS.

The instructions in this case with reference to the measure of damages do not assume

HAIWER. J. (after stating the facts). the existence and proof of disputed facts, and The first error assigned and argued is that thereby invade the province of the jury in the court erred in striking out certain pordetermining the measure of damages, but fairly and correctly state the law'.

tions of the affidavit of Paul E. Walker for (Syllabus by the Court.)

continuance, and which was treated as the

deposition of the absent witness, Bert Streets, Error from District Court, Grant county;

under the provisions of section 329 of our before Justice James K. Beauchamp.

Code of Civil Procedure (page 816, Statutes Action by John Stibbs against the Chic i

of 1893). The portions striken out were cago, Rock Island & Pacific Railway Com

merely the opinion or conclusion of the witpany. Judgment for plaintiff, and defend

ness, and not a statement of fact. It is not ant brings error. Affirmeel.

error for the court to strike from a deposiThis was an action for personal injuries tion, or exclude from the evidence of a witbrought in the district court of Grant coun. ness, any statement or answer which is merety, by John Stibbs, defendant in error, ly an inference or conclusion of the witness against the Chicago, Rock Island & Pacific drawn from a given state of facts. In Da Railway Company, plaintiff in error. The Lee v. Blackburn, 11 Kan. 190, the rule is facts, briefly stated, are that the plaintiff thus stated: “It is not error for the court was a lawful passenger on the defendant's to exclude statements of a witness when the train, having purchased at Kansas City a statements are not statements of fact or (onticket to Medford, Okl. That about the versation, but merely conclusions of the withour of three o'clock on the morning of ness drawn from facts and conversations." March 14, 1903, at a point near Dwight, In Shepard v. Pratt, 16 Kan, 209, it is said: Kan.. the train (ollided with the past "A witness should state the facts, and not bound train known as the “Golden State his conclusions from the facts. So, where, Limited." The plaintiff at the time was in a deposition, a witness, after testifying asleep in one of the coaches of the west- that he heard a conversation between cerbound train, and was thrown from the seat ; tain parties, proceeds as follows: 'From such

1 in which he was reclining at the time, conversation I learned,' and then gives, not against the furniture or seat of the car, his recollection of what the parties stated, whereby he claims he sustained serious in- but what he understood was the result of the juries to his head and back, and that said · conversation, held, there

conversation, held, there was no error in injuries were occasioned by reason of the ruling out that portion of the deposition.” negligence of the defendant company. The Plaintiff in error contends that the court defense was a general denial, and contribu- erred in giving instruction 5, which is as tory negligence. There was little, if any, follows: "You are instructed that, under

' conflict in the evidence, except on the issue the law of this territory, a carrier of persons for the injuries that were sustained by | for reward must use the utmost care and dili

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