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by the other appellants on December 12, | evidence and influence their verdict, they are reversible error. 1910, but gave no bond until after the motion to dismiss had been made, and some

four months after notice. This was fatal to their appeal. They could not rely upon the bond as given by the original appellants, and should have given a separate bond within the five days required by statute. Stans v. Baitey, 9 Wash. 115, 37 Pac. 316; Hopkins v. Satsop Ry. Co., 18 Wash. 679, 52 Pac. 349.

The motion, being well taken, is granted, the appeal is dismissed, and the order ap

pealed from confirmed.

1. APPEAL AND ERROR (§ 867*) - REVIEW EXTENT OF REVIEW ON GRANTING OF NEW TRIAL-REVIEW OF VERDICT.

lord for damages to his property by an exploWhere the jury, in an action by a landsion, have been permitted to take to the jury room an electric flash light similar to the one which it was contended had caused the explosion, after the court had stopped an experiment in court intended to show how the light

(159 Cal. 651)

HIGGINS v. LOS ANGELES GAS & ELEC- would produce a spark, and in an answer to a TRIC CO. (L. A. 2,587.) special interrogatory declared that the explosion was caused by a spark from the flash (Supreme Court of California. April 7, 1911. light, the special verdict, if erroneously arrived Rehearing Denied May 5, 1911.) at, is immaterial to the case and harmless, where, had it been shown that the explosion was caused by a fire in the stove by plaintiff's tenant as contended by defendant, its liability would not have been lessened.

Dig. § 310.*]
[Ed. Note.-For other cases, see Trial, Dec.

IMPEACHING

5. TRIAL (§ 344*) - VERDICT
VERDICT BY JURORS.

A jury is not allowed to impeach its ver-
dict by showing what improper methods it em-
ive at
ployed to

Dig. 8 813; Dec. Dig. § 344.*]
[Ed. Note.-For other cases, see Trial, Cent.

6. APPEAL AND ERROR (§ 1069*)-REVIEW-
HARMLESS ERROR-CONDUCT AND DELIBER-
ATIONS OF JURY.

Where a motion for a new trial is denied

on all grounds save one and is granted on the sole ground that the court erred in sending an exhibit to the jury in their consultation room, the terms of the order eliminate the question of the sufficiency or insufficiency of the evidence to support the verdict.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3477; Dec. Dig. 8 867.*] 2. TRIAL (8 307*)-DELIBERATIONS OF JURY TAKING ARTICLES TO JURY ROOM-STAT

UTES.

Code Civ. Proc. § 612, being the one express provision of the law bearing upon the right of juries to use exhibits or upon the right of the court to permit juries to use exhibits in their deliberations, and relating solely to the "papers" which have been introduced in evidence, is to be construed in view of the fact that the restrictive rule of the common law extended only to papers containing printing or writing and of the obsolete distinction between sealed and unsealed instruments, not as a limitation of the power of the court in the matter of other exhibits, but as a modification and extension of the common-law rule touching exhibits containing writings.

[Ed. Note. For other cases, see Trial, Dec. Dig. 307.*]

3. TRIAL (§ 307*)-CUSTODY AND DELIBERATION OF JURY-TAKING ARTICLES TO JURY ROOM-INSTRUCTIONS AS TO USE.

The rule which should guide the court and govern the jury in the use of exhibits is that the court may permit the jury to take with them and use in their deliberations any exhibit where the circumstances call for it, with a cautionary instruction as to the nature and use they may make of the exhibit, and the jury may use the exhibit according to its nature to aid in weighing the evidence which has been given and in reaching a decision upon a controverted issue.

[Ed. Note. For other cases, see Trial, Dec. Dig. 307.*]

4. TRIAL (310*)-CUSTODY AND DELIBERATION OF JURY-EXPERIMENT BY JUrors.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4136, 4138, 4139; Dec. Dig. § 1069.*]

7. NEGLIGENCE (§ 89*)-IMPUTED NEGLIGENCE

-CONTRIBUTORY NEGLIGENCE OF TENANT.

The right of a landlord to recover for injuries to his property by a third person cannot be defeated by proof of the contributory negligence of his tenant.

Cent. Dig. §§ 130-137; Dec. Dig. § 89.*]
[Ed. Note. For other cases, see Negligence,

8. NEW TRIAL (§ 50*) — CONDUCT OF JURY-
CUSTODY.

Where the jury, in an action to recover for damages to plaintiff's building from an explosion alleged to have been caused by defendant's negligence, were conducted by the sheriff on their way to lunch in an ordinary and convenient route which happened to pass the building, and it is not shown that they knew the building in passing or that their attention was directed to it, and where it is shown that the building itself had been repaired at the time of the jury's passing it, it is not ground for setting aside the verdict for plaintiff.

[Ed. Note.-For other cases, see New Trial, Dec. Dig. § 50.*]

9. LANDLORD AND TENANT (§ 55*)—INJURIES BY TENANT-EVIDENCE.

Where a witness, called in an action to explosion alleged to have been caused by derecover damages to plaintiff's building from an fendant's negligence, testified that he knew the building before the explosion and had examined it afterwards, and further testified as an expert with over 20 years' experience as a builder as to the cost of repairing the building and the length of time would take, held, that the witness' knowledge of the building was sufficient upon which to predicate his expert testimony. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2359; Dec. Dig. § 5432.*]

The jury may carry out experiments with the articles and exhibits taken to the jury room within the lines of the evidence that has been offered; but, if their experiments do not fall fairly within the scope and purview of the

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r lndexes

In an action by a landlord against his tenant for damages to the leased building from an explosion alleged to have been caused by defendant's negligence, evidence held to support a verdict for the plaintiff.

see Landlord

[Ed. Note. For other cases, and Tenant, Dec. Dig. § 55.*] 10. EVIDENCE (§ 5432*)-OPINION EVIDENCE -COMPETENCY OF EXPERT WITNESSES.

11. DAMAGES (8 111*) – DESTRUCTION OF, the explosion was occasioned by the flame of BUILDING-LOSS OF RENTAL.

In an action by a landlord against his the oil stove, and that Cressaty, plaintiff's tenant for damages to plaintiff's building from tenant, was negligent in not having extinan explosion caused by defendant, the measureguished the light of the stove after demand of damages is what the plaintiff really lost in by defendant's employés that he do so. To rents by reason of the premises being destroyed demonstrate that the flash light could give by the explosion during such time as it would take with reasonable diligence to repair such out, and might have given out, a spark sufbuilding, and this is so whether plaintiff re- ficient to cause the explosion, plaintiff, in stored the building or not.

rebuttal of the evidence of defendant's ex[Ed. Note.--For other cases, see Damages, perts to the contrary, put an expert witness Cent. Dig. $8274-278; Dec. Dig. § 111.*]

on the stand who so testified. Asked to dem. Department 2. Appeal from the Superior onstrate before the jury how the spark could Court, Los Angeles County; Chas. Monroe, be produced and to produce it, he proceeded Judge.

to unscrew the cap of the flash light and unAction by Thomas Higgins against the Los dertook to make a spark by the use of a pair Angeles Gas & Electric Company. Judgment of plyers. Under objection the court stopped for plaintiff, and, from an order granting de this experiment, manifestly for the reason fendant's motion for new trial, plaintiff ap- that, to be of value to the jury, a spark peals. Order granting new trial reversed. should be produced from the flash light un

J. Wiseman Macdonald and Thomas P. der conditions of use like those attending the Higgins, for appellant. Wm. A. Cheney, Gib-explosion. Argument was indulged in before son, Trask, Dunn & Crutcher, and Le Roy M. the jury pro and con over the possibility of Edwards, for respondent.

so producing a spark, and the flash light was

passed from band to hand and inspected by HENSHAW, J. This action was brought the jury. While deliberating over their verto recover damages from defendant for inju- dict, the jury requested to have with them ries caused to a building, the property of in the jury room the flash light. The court plaintiff. The damage was caused by an ex- permitted them to do so. Special interrog. plosion of gas. This explosion occurred in atories were submited to the jury, amongst a restaurant of a terrant of the plaintiff, them one in answer to which it declared that Cressaty by name. The facts attending the the explosion was caused by a spark from explosion have recently been set forth by this the flash light and not from the flame of the court in its consideration of the case of Mer- oil stove. The general verdict was for plainrill v. Los Angeles Gas & Electric Company, tiff. Defendant moved for a new trial. 111 Pac. 531. It is sufficient to refer to that [1] The court denied the motion as to all case; but it is to be borne in mind that that grounds save one, and granted the new trial action was for personal injuries occasioned "on the sole ground that the court erred in to a patron of Cressaty's restaurant, wbile sending into the jury in their consultation the present action is to recover damages oc room the flash light.” The terms of this orcasioned to plaintiff's building while in the der eliminate from consideration the quespossession of a tenant.

tion of the sufficiency or insufficiency of the Trial was had before a jury. The defend- evidence to support the verdict. Kauffman ant, as part of its evidence, showed that, the v. Maier, 94 Cal. 270, 29 Pac. 481, 18 L. R. gas leak being in a dark and obscure place, A. 124; Siemsen v. Oakland, etc., Ry., 134 its employés approached the leak with an Cal. 496, 66 Pac. 672. There are left for electric flash light, and while the man hold consideration two matters: First, was it ering the flash light was in close proximity to ror calling for a new trial for the court to the leak the explosion occurred. The flash bave permitted the jury to take with them light used to inspect the leak was never re- to their room and to have with them during covered. It was probably destroyed by the their deliberations the flash light introduced explosion. But a similar flash light was in- in evidence by respondent? Second, alleged troduced in evidence by the defendant, and errors of the court arising in the trial of the contention was made that it was impos- the case. sible for this flash light as used to give out [2] The only express provision of the law any spark which would cause the ignition bearing upon the right of juries to use esand explosion of the gas. It was also inhibits or upon the right of the court to per. evidence that an oil stove in the restaurant mit juries to use exhibits in their delibera. was burning at the time of the explosion, tions is found in section 612 of the Code of and that this oil stove was some 44 feet from Civil Procedure, and this has to do solely the place where the gas was escaping. It with “papers” which have been introduced was contended by plaintiff that the explosion in evidence. One curious in such matters was probably occasioned by a spark from the can learn from the common law why this electric flash light, and he introduced evi- section of the Code was adopted and why dence to establish the fact that a flash light also it is confined to papers. The common. such as that before the jury could produce law rule was that jurors were allowed to a spark. It was contended by defendant that I take with them in their deliberations only •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes such instruments as were under seal, ander precaution of instructing the jury in the that they were not permitted to take with nature of the use which they shall make of them any unsealed papers excepting by con- the exhibit. It is a fundamental rule that sent of the parties. The reason for this, ac all evidence shall be taken in open court, (ording to Lord Ilale and Lord Gilbert, was and that each party to a controversy shall that jurors were supposed to be, and for the have knowledge of, and thus be enabled most part were, unlettered men. They could to meet and answer, any evidence brought not read. A writing conveyed to them noth- against him. It is this fundamental rule ing. But in the case of sealed instruments, which is to govern the use of such exhibits as these jurors were drawn from the vicin- by the jury. They may use the exhibit acage, they were quite apt to be familiar with cording to its nature to aid them in weighthe armorial bearings of their neighborhood | ing the evidence which has been given and great from which the seals were derived. in reaching a conclusion upon a controverted An instrument under seal, therefore, spoke matter. for itself, and the jurors were permitted to [4] They may carry out experiments withtake such instruments with them, not for in the lines of offered evidence; but if their the purpose of reading the instrument itself, experiments shall invade new fields, and they but rather for the purpose of verifying their shall be influenced in their verdict by disrecollection of the seal and testing its gen- coveries from such experiments which will uineness. The curious inquirer will also find not fall fairly within the scope and purview that it was not uncommon for one who had of the evidence, then, manifestly, the jury not risen to the dignity of possessing an ar- has been itself taking evidence without the morial bearing to set the stamp of his teeth knowledge of either party, evidence which as his seal upon the instrument, and hence it is not possible for the party injured to the old time phrase of “proving it to (by) weet, answer, or explain. his teeth.” But, in the case of other exhib- Typical intances of the improper and propits not involving a knowledge of reading or er experimental use of exhibits by a jury are writing, it seems to have been a matter of found, respectively, in Wilson v. United discretion with the court to allow the jury States, 116 Fed. 484, 53 C. C. A. 652, and to take them into the jury room in aid of Taylor v. Commonwealth, 90 Va. 109, 17 S. E. their deliberations. This rule, as to papers, 812. In the first of these cases the indicthowever, was in force at a time when learn. ment charged the defendant with smuggling ing in letters was so rare and the premium opium "prepared for smoking purposes.” A upon such learning so high that a felon could sealed can had been introduced in evidence save his neck by proving his ability to read by the prosecution and asserted to contain a rerse of scripture. It was to save the a sample of the smuggled opium. No testipossibility of the question arising in this mony was given tending to show that the state as in 1812 it arose in the state of can contained opium prepared for smoking Pennsylvania (Alexander et al. v. Jameson purposes, and yet it was conceded that it et al., 5 Bin. 238) that the section of the was essential to a conviction (since the ofCode was adopted. All distinction between fense was so laid) to show not only that the sealed and unsealed instruments had been can contained opium, and that it was smugabolished, and, as the restrictive rule of the gled opium, but also that it was opium "precommon law upon the power of the court pared for smoking purposes.” In this conhad gone only to papers containing printing dition of the evidence the court instructed or writing, it was necessary only to modify the jury that it might take the can to the that rule as was done by section 612. There jury room, open it, and extract some of the fore section 612 is not to be construed as contents; that they would not be permitted a limitation of the power of the court in the to make a chemical examination of the conmatter of other exhibits, but as a modifica- tents; but that they could in the jury room tion and extension of the common-law rule test the extracted samples and learn to their touching exhibits containing writings. satisfaction whether or not it would burn,

It will be noted that depositions are ex- and use the information so obtained in decluded by the section. This is for the very termining whether the can contained “opium obvious reason that depositions may, and prepared for smoking purposes.” The Circuit usually do, contain matters not admissible Court of Appeals, in holding this instruction in evidence which matters have been elim- to be erroneous, said: "Surely, if the attorinated from the consideration of the jury. ney for the government, as was his duty, To permit the jury to take depositions with had offered evidence going to show that the them would be to put them in possession of can in question contained opium for smoking this excluded evidence.

purposes, the defendants would have been [3] In this lies the suggestion of the true legally and justly entitled to have proved, if rule guiding the court and governing the ju- they could, that it contained no such thing; ry in the use of exhibits. The court may in which latter event there must have been permit the jury to take with them and use a verdict of not guilty, for there was nothing in their deliberations any exhibit where the else offered tending to show that there was circumstances call for it, observing the prop- any opium prepared for smoking purposes in the case. Yet the jury was left to deter-, make an experiment without knowledge to mine that essential fact for themselves, by the parties of the method or process which experiment, and in the absence of the de- was employed. It was an experiment adfendants, who were thus wholly deprived dressed to evidence necessary to the prose of the opportunity to contest the correctness cution's case wbich should have been offered of the jury's experiments, and of the possi- | in court. To permit the jury to gather bility of giving any evidence upon one of this evidence without the presence of the the essential facts involved in the prosecu- defendant and without the possibility of tion.” Taylor v. Commonwealth was a case knowledge upon his part as to the method of murder. It was the assassination from by which their conclusion was reached and ambush at midday of six or seven innocent without the possibility of contesting the corand unsuspecting people. By the Supreme rectness of their experiment was, as the court Court of Virginia it is described as "an in- justly held, the equivalent of the taking by human and wholesale massacre of innocent the jury of evidence out of court, and a de and unsuspecting men, women, and children privation of the constitutional right of the traveling peaceably upon the public high- defendant to be present at the taking of all way.” In the ambuscade of the assassins evidence in his case. Upon the other hand, were found certain cartridge shells which in the Virginia case the jury was not experi. had been discharged from a 45-75 Winches- menting along lines without the evidence. ter rifle. Defendant was charged with this It merely subjected an exhibit to a more murder. It was shown by the prosecution critical examination than had been made of that he carried a rifle of this description it in court, and by such examination reached and caliber. The defendant introduced his a conclusion upon a contested fact by a more rifle in evidence and with it four empty shells careful scrutiny of an exhibit introduced for which he proved were fired from his rifle. the very purpose of affording evidence of

the fact. It was contended that the marks of the firing pin upon the cartridge shells found in the

In this state it was held, in People v. ambuscade were so different from the marks Conkling, 111 Cal. 616, 44 Pac. 314, that it

was error demanding a new trial, when cerof the firing pin upon the shells introduced by the defendant in evidence as to establish tain of the jurors, to satisfy themselves at to a certainty that the shells found in the der-mark cloth, procured a rifle out of the

what distance a rifle discharged would powambuscade were not fired from defendant's rifle. During the trial the rifle admitted in courtroom and experimented with it. Here evidence was inspected by the jury but was

was a clear case of the jury's obtaining evinot taken to pieces. After retiring to de- without the presence and knowledge of the

dence by unauthorized experiments made liberate the jury asked if the gun could be defendant. But, on the other hand, in People sent to them. This was done without ob

v. Mahoney, 77 Cal. 530, 20 Pac. 73, clothing jection from either side. After verdict of guilty defendant moved in arrest of judg- cide was, upon the jury's request, sent to

worn by the deceased at the time of the homi. ment, nte ding that the jury had improper. the jury room, and in the matter of the ly taken the gun to pieces and examined the Thomas Estate, 155 Cal. 488, 101 Pac. 798, plunger or firing pin. It was shown in sup- it was held that a memorandum book admitport of the motion that the jury had actually ted in evidence was properly allowed in the done this thing, and that from their exam-jury room in aid of the jury's deliberations. ination had concluded that the plunger or

In most of the cases, because of the very firing pin had been tampered with. The Su- nature of the exhibit and of all the possible preme Court of Virginia very properly up-uses to which it may be put in the jury room, held the verdict, the conduct, and the ex- there is no occasion for the court to admonperiment of the jury. The purpose of the in- ish the jury or to caution and limit it as to troduction of the gun in evidence was to the nature of the use or experiment which show that its firing pin did not strike the shall be made. But where, from its nature, cartridge in a particular way. The gun was it may be susceptible to improper use, as in offered by the defendant to establish his con- the case of the can of opium, it is the duty tention in this regard. A more acute prose- of the court, by instruction to the jury, to cuting attorney might have caused the exam- limit and restrict that use. ination to have been made in open court, and Coming to the case at bar, it is certain that thus have demonstrated the trick and fraud ; the trial judge conceived that he had fallen but his failure to do so afforded no ground into error in allowing the jury to take with for overthrowing the verdict of an intelli- them and to experiment with an exhibit gent and scrutinizing jury, which, making its which they might subject to an improper use, own examination of the evidence admitted without limiting the scope of their experito prove or disprove the very fact, discovered ments by proper instruction. It will be rethat the plunger "had been recently tamper- membered that the court checked one exed with and fixed for the occasion of the periment in the courtroom during its progress, trial.” These cases, we have said, are typic- and it is probable that the judge thought that al. In the one the jury was permitted to by delivering the exhibit to the jury he bad

prepared the way for them to perform the tions, and without the consent of the defendvery experiment which he had forbidden.

ant or its attorneys, pass the building which [5] Since a jury is not allowed to impeach was damaged, and thereby affording said juits verdict by showing what improper meth- ry an opportunity of viewing said premisods it employed to reach it, the need of such es.” The evidence upon this point discloses cautionary instructions in a proper case be merely that the sheriff in charge of the jury, comes imperative, and we would by no means conducting the members to lunch, led them disturb the ruling of a trial court granting by an ordinary, natural, and convenient a new trial if it appeared that injury re- route, which happened to pass plaintiff's sulted from its failure to give such instruc- building. This was the only way in which tions.

the court “took the jury.” The jury was But if, on the other hand, it could not have not conducted past the building for the purresulted in injury to the defendant even if pose of inspection. It does not even appear the jury did perform an improper experiment that they knew they were passing the buildand from it reached its conclusion that the ing, much less that their attention was diexplosion of gas was caused by a spark from rected to it. The building itself had been the flash light, then clearly no new trial repaired at the time, and the circumstance should be granted for an error which could was of so trifling a character that even if the not have resulted in injury. To this con- case had been criminal it would not be a sideration we now come.

ground for disturbing the verdict. Thus [6] The special verdict that the explosion Wharton lays it down that a mere casual viswas caused by a spark from the flash light it of the jury to the scene of the res gestæ, was not material to the case, and defend- as where the jury when taking exercise unant's position would not have been bettered der the custody of an officer walked by such if the jury had found that the cause of the scene is no ground for setting aside the verexplosion was not the spark from the flash dict. Wharton,. Crim. Pl. & Pr. (9th Ed.) § light, but the fire from Cressaty's stove. It 834. The proposition is fully supported by is to be remembered that this is not Cres- authority, and, certainly, the rule would be saty's action to recover, which might be de- no more rigid in a civil case than in a crimfeated by proof of his own contributory neg. inal. ligence. It is the action of his landlord, and, The measure of damages touching loss of unless it can be said that the landlord was rents was accurately given to the jury. Linresponsible for the negligent act of the ten- forth v. San Francisco G. & E. Co., 156 Cal. ant so as to defeat the landlord's recovery, 62, 103 Pac. 320. the statement just made is unanswerable. [9] It was in evidence that it would take

[7] Upon this proposition something of from 60 to 75 days to restore the building to what was said by this court in Merrill v. its condition before the explosion. It was Los Angeles G. & E. Co., supra, is applicable. shown that the rental value of the destroyed We are not cited to any authority support- building amounted to $700 a month. The juing respondent's position that a landlord ry's award for loss of rents was $1,264.75, would be responsible for the tenant's negli and it was within the evidence. gence, and, indeed, the rule is directly to the [10] Mr. Rebman qualified as an expert of contrary. “Deplorable, indeed, would be the 22 years' experience as a contractor and situation of landlords if they were liable to builder. He testified that he "knew the be harassed by actions for the culpable neg- building known as Nos. 114-116-118 West ligence of their tenants." Cheetham v. Second street prior to February 13, 1907, and Hampson, 4 D. & East. 319. See, also, Kalis had examined the building after the explov. Shattuck, 69 Cal. 594, 11 Pac. 346, 48 Am. sion." His testimony as to the cost of reRep. 568; White v. Montgomery, 58 Ga. 204; pairing the building and the length of time it Batterman v. Finn, 32 How. Prac. (N. Y.) would take to restore it, it is said, was in502. Since the landlord is not responsible admissible, in that it was not shown that he for the negligence of the tenant, proof of that had sufficient knowledge of the character of negligence could not be used to defeat his the building before the explosion. He did, recovery for injuries to his property, and however, testify that he knew the building thus, if it were established that the negli- before the explosion and examined it aftergence of the gas company, running concur- ward. Here was sufficient upon which to rently with the negligence of the tenant, unit- predicate his expert testimony, and, if deed to produce the injury to the property, the fendant desired more elaborate information landlord would have his recourse against as to the extent of his knowledge, he should both or either for the reasons given in Mer- have been examined to that end. rill v. Los Angeles G. & E. Co., supra. There- [11] The court instructed that the plaintiff fore, in this case, the finding that the spark was entitled to recover such an amount as from the flash light caused the explosion, the jury might find that “he really lost in even if erroneous, or if erroneously arrived rents by reason of the premises being deat, could not have worked injury to the de- stroyed by the explosion during such time as fendant.

it would take with reasonable diligence to re[8] It is next urged that the court erred pair such building.” It is urged that as the "in taking the jury during their delibera- building was originally two stories in height,

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