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tried in the justice's court. S. P. R. R. Co. v. Superior Court, 59 Cal. 471; Rickey v. Superior Court, 59 Cal. 661 ; Myrick v. Superior Court, 68 Cal. 98, 8 Pac. 618; xabrette v. Superior Court, 77 Cal. 306, 19 Pac. 481; Maxson v. Superior Court, 124 Cal. 468, 57 Pac. 379; Smith v. Superior Court (Cal.) 84 Pac. 54. When the justice of the peace of Redding township determined that his court was without jurisdiction, the only appeal to the superior court, available to the plaintiff, was upon a question of law, and it became the duty of that court to affirm or reverse the decision of the justice's court, and, if reversed, to remand the case for trial upon the issues of fact. Myrick v. Superior Court, supra.

It is urged that there was a trial upon the issues of fact in the justice's court of Redding township. It appears that a day was agreed upon for a trial of the case, and witnesses were called and examined. But it also appears that the defendant in the action objected to the jurisdiction of the court, and, so far as appears, the evidence may have been, or at least some of it, directed to the question of jurisdiction. The justice seems to have regarded the question of jurisdiction as properly before him and it was the only issue decided by him. There was no trial of the merits of the action or the issues of fact, and no judgment or decision on the merits or on any issue of fact unless it be on the single issue of jurisdiction, which may have involved a question of fact. In effect, the justice dismissed the case at the cost of the plaintiff. De Jarnatt v. Marquez, 132 Cal. 701, 64 Pac. 1090, is cited by respondent. There, although the justice's court had no jurisdiction, the case was tried in the superior court on an appeal from questions of both law and fact, without objection being made to the jurisdiction of the latter court, while here, as we have seen, there was objection to the jurisdiction of the superior court. Personally, I venture to doubt the soundness of the decision in De Jarnatt v. Marquez, supra.

Respondent makes a point that where a judgment has been fully paid and satisfied it will not be reviewed on certiorari, citing Morton v. Superior Court, 65 Cal. 496, 4 Pac. 489; Kenney v. Parks, 120 Cal. 24, 52 Pac. 40; Warner Bros. Co. v. Freud, 131 Cal. 646, 63 Pac. 1017, 83 Am. St. Rep. 400. Where the judgment has been voluntarily paid, it will not be reviewed on certiorari, and this was the case in Morton v. Superior Court, cited by respondent.

respondent. But, if made under what would be regarded as legal compulsion, the judgment may be thus reviewed. Kenney v. Parks, 120 Cal. 22, 52 Pac. 40; Vermont Marble Co. v. Black, 123 Cal. 21, 55 Pac. .)39; Warner Bros. Co. v. Freud, 131 Cal. 639, 63 Pac. 1017, 83 Am. St. Rep. 400. A compulsory payment is one made to prevent seizure by a party armed with apparent authority to seize property. Brumagin v.

Tillinghast, 18 Cal. 265, 79 Am. Dec. 176; Bucknall v. Story, 46 Cal. 599, 13 Am. Rep. 220.

The question, then, here is, upon whom rested the burden to show whether or not the payment of the judgment was voluntary? As respondent sets up this payment to defeat the issuing of the writ, and as all we know of the payment comes from the respondent, we think the burden was on respondent to show that payment was voluntary. The plaintiff company had a judgment on which it could have execution, and there is no evidence that execution was stayed; it was in its power, through execution, to seize the property of defendant in the action.

The petitioner asks to have it adjudged that neither the justice's court of Redding town. ship nor that of Anderson township ever acquired jurisdiction of the person of petitioner or of the cause of action on said promissory note, also that the said superior court was without jurisdiction to determine the merits of the said action. The question as to the jurisdiction of the superior court to determine the merits of the action depends entirely, in the view we take of the case, upon the failure of the justice's court to try the issues of fact, and we hold that the superior court was without such jurisdiction. Its power over the case was limited to the question of the jurisdiction of the justice's court, which it should have decided and remanded the case, with directions either to proceed with the trial of the issues of fact, or to dismiss the case, according as the court found on that single question. We cannot anticipate the decision of the superior court, or direct what it should be. It has jurisdiction to determine the question of law brought before it by the appeal. Furthermore, we cannot know what the respective parties may do when the cause is remanded. The pleadings and issues may be materially modified or changed should the superior court direct a trial of the case. In determining the question of jurisdiction of the justice's court whence came the appeal, the superior court will take into consideration all the facts that may have been, or may hereafter be, submitted to it touching the institution of the action and its history thereafter and the steps taken by the respective parties.

Let the writ issue with directions to respondent to vacate the judgment in the action of J. F. Bedford Company v. E. M. Null, petitioner herein, and to proceed thereafter to hear and determine the jurisdiction of the justice's court and to remand the cause with directions to the last-named court to either try the issues of fact or to dismiss the action, according as the said superior court shall det nine the question of jurisdiction of said justice's court.

We concur: BUCKLES, J.; MCLAUGH. LIN, J.

.(7 Cal. Unrep. 279)

15 feet long and 3 feet wide, and extending PLYLER v. PACIFIC PORTLAND CEMENT and suspended over a cement floor 19 feet CO. (Civ. 182.) *

below said walk, thence up a ladder standing (Court of Appeal, Third District, California. | perpendicularly, about 10 fetlong, to said

July 16, 1906. On Rehearing, Aug. 15, 1906.) platform; that said walk had no rails, guard, 1. TRIAL - SPECIAL ISSUES – DISCRETION OF or protection of any kind on either side there COURT.

of.” The complaint then alleges the unsafeUnder Code Civ. Proc. $ 625, as amended by Act March 6, 1905 (St. 1905, p. 56, c. 62),

ness of said platform, walk, and means of requiring that the court, on request in writing,

ascending and descending, etc., and then conmust direct the jury to find a special verdict tinues: “And immediately after plaintiff had on all or any of the issues, the court must sub- arrived at said platform, and before being inmit the special issues formulated in writing by

formed of the exact character of the work either party only when they are within the issues, and where, in an action for injuries, the

he was to perform, and while plaintiff was plaintiff alleged that his fall from an elevat in the exercise of all due care and skill, walk was caused by smoke and the absence of and without any negligence on his part, deguards, special issues, limiting, respectively, the cause of the injury to the absence of the guards

fendant carelessly and negligently caused and and to the smoke and not referring to the com- suffered a great quantity of dense smoke to bination of the two dangers, were properly re- arise and envelop the space in and about fused.

said plank walk and said ladder and plat2. SAME-ISSUES NOT INVOLVED. Where special issues were requested as a

form and the space in and about which whole and some submitted issues not in the plaintiff was standing, the said smoke rencase, the court was not bound, without a special dering said space

dark and impenrequest, to direct the jury to find on any of etrable to sight, and making it impossible them.

for plaintiff to see, and causing partial suffoAppeal from Superior Court, Solano Coun- | cation of plaintiff and rendering it dangerous ty; L. G. Harrier, Judge.

to his life to remain on said platform ; that Action by James Plyler against the Paci- plaintiff by reason of said darkness and danfic Portland Cement Company. From a judg- ger occasioned by said smoke, endeavored to ment for plaintiff, defendant appeals. AL- descend from said platform, and did descend firmed.

said ladder and was in the act of stepping

on said plank walk to escape said danger Paul C. Harlan and C. H. Wilson, for ap

from said smoke, when, by reason of said pellant. Frank R. Devlin, for respondent darkness and partial suffocation

and by reason of the absence of rails, guards, BUCKLES, J. This is an action for per- or other protection on said walk, plaintiff sonal injuries suffered by plaintiff while in fell

to the said cement floor be. defendant's employ. The case was tried with neath said walk, a distance of 19 feet," and a jury, and a verdict rendered for plaintiff | received the injury, to recover for which this for the sum of $2,500. Judgment was render- suit was brought. ed accordingly, and the appeal is from the Before the defendant offered any evidence, judgment.

he handed to the judge of the court the folThe appellant states at the beginning of lowing: “The court is hereby respectfully his closing brief that "the only question pre- requested to direct the jury to find a special sented on this appeal is: Does section 625, verdict in writing upon the following issues Code Civ. Proc., as amended March 6, 1903 in this case, to wit: First. Was the accident (St. 1905, p. 56, c. 62), and which requires a and injury complained of caused by the failjury to give proper reasons for its verdict, ure of defendant to provide rails or guards impose a mandatory duty upon the trial on the plank walk described in the pleadings judge to submit issues and questions of fact and evidence? Second. Was the accident and to the jury, whenever requested to do so by injury complained of caused by a great voleither party?" There are other errors alleged ume and quantity of dense smoke arising and as having taken place at the trial, but as ap- enveloping the spare in and about the plank pellant relies only on the one that is the walk and ladder described in the pleadings refusal of the court to direct the jury to and evidence? Third. If you answer the last find on certain special issues, we will con- interrogatory in the affirmative, was the sider no other.

smoke alone of such a character as to threatThe defendant owns and operates a large en plaintiff with great bodily injury, or justify plant in Solano county for the manufacture of him in really believing that he was threatened cement, and the plaintiff was a laborer employ. with such great bodily injury as to require ed in the buildings and about the said plant prompt action on his part to escape such inOn June 22, 1904, plaintiff was directed, as jury? Fourth. Did plaintiff see and know, a part of his duty, to go to a certain elevated when he first went upon the plank walk platform in the upper part of one of the build- described in the pleadings and evidence, that ings to perform certain work, the character of there were no rails or guards on said plank which he did not know until his arrival at said walk?”

walk?” The record shows that, before makplatform. "The only means of ascending to, ing the request of the judge, the defendant and descending from, said platform was to did not show said special findings to the pass over and across a plank walk about | attorney for plaintiff, Mr. Devlin; that five

*Opinion vacated and rehearing granted by Supreme Court Soptember 12, 1906

minutes before the argument of the case to stands, the court must submit the special isthe jury, the judge did show Mr. Devlin sues formulated in writing by either party these special issues and he thereupon ob- when the same are within the issues and subjected to them being presented to the jury servient of the general issue in the case. because of their uncertainty and ambiguity, Now as to the special issues asked in this and because contradictory in form, and fur- case. The complaint alleges that the fall ther because the jury could not render a ver- which caused the plaintiff's injury was causdict on the general issues and find on the ed by said smoke and by reason of the abspecial issues offered. Mr. Wilson, counsel for sence of rails, guards or other protection on defendant, then rose and stated: “We take said walk. The injury was caused by both exception to the action of the court in sub- the smoke and the fact that there were no mitting to counsel the special issues presented guards on the walk.

guards on the walk. Just how much each to the court on behalf of defendant, and we contributed to the fall is beyond the power assert that, under the law, it is the duty of of man to tell. In the first place, having the court to submit to the jury all special is- such a walk 19 feet abo' : the ground is an sues that may be presented, and we also ob- element of danger, but probably when the ject to the action of counsel in presenting rision is in no wise blinded one might not before the jury any objections to the special fall. The smoke was only dangerous simply interrogatories that have been presented to causing partial suffocation, but when it darkthe court.” The cause was then argued and ened the vision, the fact that defendant was the court instructed the jury, but refused to standing on a plank walk 19 feet high and direct the jury to find special verdicts as re- only 3 feet wide, and with no guards and quested by defendant.

no protection from the danger of falling, it, Defendant made the request for these spe- in conjunction with the smoke and the smoke cial findings under the provisions of section in conjunction with the said walk, made the 025, Code Civ. Proc., as amended in 1905. danger so great that the plaintiff was prePrior to said amendiment, the court might, cipitated to the floor and seriously injured. or might not, direct the jury to find special The first question the jury was called verdicts, for the words “may direct” were upon to answer as a special verdict would used. By the amendment of 1903, the word seem to limit the cause of the injury to but "may" was changed to "must," and reads: one thing—that of the absence of guards “In all cases the court must, upon the re- on the plank walk, while, in fact, that was quest in writing of any of the parties, direct but a contributory cause. The same may the jury to find a special verdict in writing be said of the second special issue. The upon all or any of the issues.” It is (on- case was brought, and the trial was had, tended by appellant that, as amended, the upon the theory that both these things comcourt has no discretion, but must direct the bined to cause the injury, and not either the jury to find specially. The court is not one or the other solely. If to the first special bound to prepare such special issues, but verdict the jury should answer "Yes," the "when requested in writing" must be taken effect would be to say the smoke was no to mean interrogatories prepared and set factor in causing the injury.

Should the forth in such writing. But, even then, I ap- jury answer the first with "No," and the prehend the other side would have a right second with “Yes,” the result would be to to offer amendments to such special interrog. eliminate the condition of the plank walk atories or special issues, and it would be the entirely. Special finding No. 3, being based duty of the court then to settle the same upon the answer the jury might give to and make them conform in an intelligent way No. 2, which is not responsible to any issue, to the real issues in the case. Unless the becomes immaterial. Special verdict No. 4 question the party desires the jury to an- is responsive to an issue made by the pleadswer as special verdict are questions and ings. But, as these special issues were issues pertinent to the real issue in the case, asked as a whole and not all being issues in he has no right to have the jury directed the case, the court was not bound to direct to answer them, and, as in all other ques- the jury to find on any of them, without tions submitted to the jury, it becomes the being specially requested so to do. The duty of the court to first deterinine whether special issues could have been easily framed it is pertinent to the issue the jury is called so that they would have correctly stated the to try. Were it otherwise, and had the issues and not been misleading or confusing Legislature intended to have taken away had the plaintiff been given an opportunity all discretion of the court of saying whether to offer amendments thereto. matters parties may ask to have submitted We think the refusal of the court to direct to the jury are legitimate and pertinent, then the jury as requested was within its power a defendant in a damage suit with no legiti- and the power was properly exercised. Theremate defense could have such matters sub- fore, in answer to the issue before us, we are mitted to the jury as would so befog the of the opinion the requirements of section minds of the jurors as to make it impossibló. 625 of the Code of Civil Procedure, comto have a verdict that would stand. The manding the court to submit special issues Legislature never intended to take away such to the jury are mandatory, and such special discretion. Under the section as it now issues, when embodying the real issues in

the case and not subject to other legal objections, must be submitted to the jury. But the court must pass upon their pertinency, their materiality and legality, as it is the court's duty to pass upon all other matters submitted to the jury. If such issues are in every way proper, the court has no discretion to refuse them.

The judgment is affirmed.

MCLAUGHLIN, J. I concur in the order affirming the judgment. There can be no doubt that section 625 of the Code of Civil Procedure as amended in 1905 makes it the absolute duty of the court to direct the jury "to find a special verdict in writing upon all or any of the issues," and to instruct them, “if they render a general verdict, to find upon particular questions of fact" whenever a written request for such direction or instruction is made. But this is far from saying that the court in the case at bar was bound to direct the jury to fix upon some particular fact as the sole cause of the injury, or to find upon each evidentiary fact addressed to any of the several issues or questions of fact raised by the pleadings. The general issue, which might have been answered by a general verdict, involved the liability of defendant and the extent of such liability. And the several issues or particular questions of fact involved in this main inquiry, concerning which the court was bound to direct the jury to find specially, must be gleaned from an analysis of the pleadings, and not from a survey of the numerous incidental questions arising from conflicting evidence touching some auxiliary fact. Eliminating questions of law which are not properly a matter of pleading, the issues or questions of fact raised by the pleadings are: (1) Was the platform an unsafe, unsuitable, or dangerous place for plaintiff to work? (2) Should the defendant, in the exercise of ordinary care, have known that it was an unsafe and dangerous place for an employé to work? (3) Was the means of ascending or descending from said platform unsafe and dangerous, and should defendant, in the exercise of ordinary care, have known of its dangerous and unsafe character? (4) Did the defendant, immediately after plaintiff went upon the platform, cause or suffer a dense volume of smoke to envelop the same, rendering the space in and about the plaintiff and the platform dark and impenetrable to sight? (5) Did plaintiff, by reason of such darkness, in endeavoring to escape from impending danger of suffocation, through the absence of guard rails on said platform, fall and receive the injuries complained of? (6) Was the plaintiff damaged thereby in the sum of $10,000 or any other sun? (7) Were these injuries caused in whole or in part by the negligence of plaintiff himself? (8) Did the injuries suffered by plaintiff grow out of the risks assumed by plaintiff in his contract of employment?

Wherever these questions include two or more propositions of fact they might properly be subdivided, and each question be made to include only one averment of fact disputed in the answer. Aside from such subdivision, however, the eight questions above enumerated include all of the questions of fact or issues which it was the duty of the court to consider in determining the propriety of directions or instructions requested.

Instead of submitting a request for a special verdict or finding on any one or all of these issues or particular questions of fact, the defendant submitted requests which it was no part of the duty of the court to grant. The requests numbered 1 and 2 are palpable attempts to compel the jury to fix upon one particular fact as the cause of the plaintiff's injuries, and are confusing and misleading. The complaint clearly and specifically charges that the accident was due to a combination of both causes, and the court was not bound to split an issue which the parties had made single, and which could not be divided without danger of confusion leading to incongruous and untoward results. For instance, the jury might answer both of these questions in the negative and still find that the injuries were caused by defendant's negligence in causing a smoke to envelop a platform, safe under ordinary conditions, but dangerous under the circumstances narrated in the complaint. The third request is based on an affirmative answer to the second, and as the latter was improper, the request was properly refused. The fourth request is an attempt to compel the jury to find on an auxiliary evidentiary fact pertinent to one of the several issues or questions of fact and was, for that reason, improper. Every law must receive a reasonable construction, and it certainly was never intended by the framers of this law that either party could by simple request compel a jury, through a direction of the court, to answer each collateral fact going to make up a single issue, or give a finding touching each disputed item of evidence. Such a practice would lead to intolerable confusion, not only in the minds of jurors, but in the trial of causes. The request must come within, and be confined to, the issues or questions of fact presented by the pleadings, and cannot be made to include a separate finding on every minor detail of an issue, and on every one of a series of facts going to establish or controvert averments from which these issues arise.

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section 625 of the Code of Civil Procedure, to be a request of the party asking it, and as enacted in 1872 with the section as amend- the statute would be no longer mandatory. ed in 1905 (St. 1905, p. 56, c. 62), I see no sub- This discretion, of course, is subject to restantial difference except that "upon the re- view by the appellate court as is the exercise quest in writing of any of the parties," if a of discretion generally. general verdict is rendered, it is made man- Upon further consideration of the case I datory upon the court to direct the jury "to agree with my associate, Justice BUCKLES, find upon particular questions of fact”; that the fourth question was responsive to an whereas, the section formerly left it discre- issue, and was a proper question of fact to tionary with the court. I cannot, therefore, be submitted to the jury. It was alleged see that the amendment has introduced any in the complaint that the absence of rails new practice aside from making it the duty guarding the walk in question was one of of the court to do what it formerly had the causes leading to the injury, but the dethe discretion to decline to do. The scopie fendant submitted the series of questions and and purpose of the section appear to be un- : asked that they be submitted in their enchanged so far as they relate to the "par- tirety, and, when the request,' as made, was ticular questions of fact” upon which the jury refused, it was the duty of defendant, if it must be directed to make written findings. desired any one of the questions to be submitI think it is the right of either party to ted separately, to so request the court. It submit any one single question material to would certainly be of advantage to the prothe issue or any of the issues, whether or fession if a comprehensive statement could not he desires to submit other such questions

authoritatively be given as to the complete of fact. He is not obliged, in other words, rights of the parties to an action as matter by his proposed questions of fact, to address

of practice under this section 625. When questions to all the material issues of the such an exposition is made, however, it would case.

be perhaps better that it should come from Counsel in their petition for rehearing

the Supreme Court. Here the case does not claim that it is their right, under said sec

seem to call for such statement. tion 625, “to interrogate the jury as to matters material to the issues, yet not necessarily

(4 Cal. App. 26) covering any of the issues." If counsel mean

COPRIVIZA V. RILOVICH et al. (Civ. 90.) by the phrase italicized that the jury may be interrogated as to facts not related or perti

(Court of Appeal, First District, California.

June 25, 1906. Rehearing Denied by nent to the issues or any of them, I cannot

Supreme Court Aug. 23, 1906.) agree with them, and I agree with Justice MCLAUGHLIN in what I understand to be


Where different conclusions inay be reasonhis view of the meaning of the section, that it ably drawn by different minds from the same is not the right of a party to submit ques- evidence as to whether an account is a mutual tions for the jury upon every evidentiary

account, the question is one for the jury. fact, though material to the issue. A wise

[Ed. Note.-For cases in point, see vol. 46.

Cent. Dig. Trial, $S 336-313.) discretion must be exercised by the trial court in determining to what extent questions of


OF RIGT OF ACTION-MUTUAL ACCOUNT fact pertinent to the issues should, for their

ADVANCING MONEY TO THIRD L'ERSONS. elucidation, be submitted to the jury. It is Moneys which are advanced by a debtor to not easy to draw the precise line of demarca

third parties at the request of a creditor, upon

which demands arise by the debtor against the tion between questions of fact which it would

creditor, and which are charged on an account be the duty of the court to submit to the between them, render the account a mutual, jury, and such as the court may properly open, current account, an action on which is

not barred until the expiration of the period of refuse to so submit. An examination of the

limitation from the time of the last term therecases will show a somewhat wide latitude of proved. allowed under this section. See Los Angeles [Ed. Note.--For cases in point, sre vol. 33, C. Assn. v. Los Angeles, 103 Cal. 461, 37 Pac. Cent. Dig. Limitation of Actions, $$ 295–298.] 375; McAulay V. Moody, 128 Cal. 202, 60 3. SAME-EVIDENCE-SUFFICIENCY. Pac. 778.

A bookkeeper to whom his employers were

indebted testified, in an action based on a muI agree with counsel for defendant that it

i tual account, that he requested his employers to is their right to submit questions of fact to buy and pay for certain goods for his sister, the court for the jury without first having and notify him of the amount, that he might submitted them to opposing counsel, and the credit appearing on the company's books as cash

charge himself therewith. This was done, the responsibility is then put upon the court to items, but, on a personal account kept by plaindetermine whether or not to place them be- tiff. the goods purchased were specified. Held fore the jury. I see no controlling analogy

sufficient to justify a verdict based on the theory

that the account was a mutual account, and between the practice under this section and

therefore the action was not barred, having been the practice as to instructions. The discre- brought within the period of limitation after tion rests with the court either to submit or

the last item of the account proved. refuse the questions as requested, for, if it Appeal from Superior Court, Santa Cruz be held that the court may change or modify County : Lucas F. Sinith, Judge. the questions as propounded, it would cease Action by George Copriviza against Martin

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