by the other appellants on December 12, | evidence and influence their verdict, they are 1910, but gave no bond until after the mo- reversible error. tion 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.

HIGGINS v. LOS ANGELES GAS & ELEC- would produce a spark, and in an answer to a

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

In an action by a landlord against his tenant for damages to plaintiff's building from an explosion caused by defendant, the measure of damages is what the plaintiff really lost in rents by reason of the premises being destroyed by the explosion during such time as it would take with reasonable diligence to repair such building, and this is so whether plaintiff restored the building or not.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 274-278; Dec. Dig. § 111.*]

Department 2. Appeal from the Superior Court, Los Angeles County; Chas. Monroe, Judge.

Action by Thomas Higgins against the Los Angeles Gas & Electric Company. Judgment for plaintiff, and, from an order granting defendant's motion for new trial, plaintiff appeals. Order granting new trial reversed.

the explosion was occasioned by the flame of the oil stove, and that Cressaty, plaintiff's tenant, was negligent in not having extinguished the light of the stove after demand by defendant's employés that he do so. Το demonstrate that the flash light could give out, and might have given out, a spark sufficient to cause the explosion, plaintiff, in rebuttal of the evidence of defendant's experts to the contrary, put an expert witness

on the stand who so testified. Asked to demonstrate before the jury how the spark could be produced and to produce it, he proceeded to unscrew the cap of the flash light and undertook to make a spark by the use of a pair of plyers. Under objection the court stopped this experiment, manifestly for the reason that, to be of value to the jury, a spark should be produced from the flash light unJ. 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 hand to hand and inspected by the jury. While deliberating over their verdict, the jury requested to have with them in the jury room the flash light. The court

atories were submited to the jury, amongst them one in answer to which it declared that the explosion was caused by a spark from the flash light and not from the flame of the oil stove. The general verdict was for plaintiff. Defendant moved for a new trial.

HENSHAW, J. This action was brought to recover damages from defendant for injuries caused to a building, the property of plaintiff. The damage was caused by an ex-permitted them to do so. Special interrogplosion of gas. This explosion occurred in a restaurant of a terrant of the plaintiff, Cressaty by name. The facts attending the explosion have recently been set forth by this court in its consideration of the case of Merrill v. Los Angeles Gas & Electric Company, 111 Pac. 534. It is sufficient to refer to that case; but it is to be borne in mind that that action was for personal injuries occasioned to a patron of Cressaty's restaurant, while the present action is to recover damages oc casioned to plaintiff's building while in the possession of a tenant.

[1] The court denied the motion as to all grounds save one, and granted the new trial "on the sole ground that the court erred in sending into the jury in their consultation room the flash light." The terms of this order eliminate from consideration the question of the sufficiency or insufficiency of the evidence to support the verdict. Kauffman v. Maier, 94 Cal. 270, 29 Pac. 481, 18 L. R. A. 124; Siemsen v. Oakland, etc., Ry., 134 Cal. 496, 66 Pac. 672. There are left for consideration two matters: First, was it error calling for a new trial for the court to have permitted the jury to take with them to their room and to have with them during their deliberations the flash light introduced in evidence by respondent? Second, alleged errors of the court arising in the trial of the case.

Trial was had before a jury. The defendant, as part of its evidence, showed that, the gas leak being in a dark and obscure place, its employés approached the leak with an electric flash light, and while the man holding the flash light was in close proximity to the leak the explosion occurred. The flash light used to inspect the leak was never recovered. It was probably destroyed by the explosion. But a similar flash light was introduced in evidence by the defendant, and the contention was made that it was impossible 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 exand explosion of the gas. It was also inhibits or upon the right of the court to perevidence that an oil stove in the restaurant mit juries to use exhibits in their deliberawas burning at the time of the explosion, and that this oil stove was some 44 feet from the place where the gas was escaping. It was contended by plaintiff that the explosion was probably occasioned by a spark from the electric flash light, and he introduced evidence to establish the fact that a flash light such as that before the jury could produce a spark. It was contended by defendant that

tions is found in section 612 of the Code of Civil Procedure, and this has to do solely with "papers" which have been introduced in evidence. One curious in such matters can learn from the common law why this section of the Code was adopted and why also it is confined to papers. The common. law rule was that jurors were allowed to take with them in their deliberations only

er precaution of instructing the jury in the nature of the use which they shall make of the exhibit. It is a fundamental rule that all evidence shall be taken in open court, and that each party to a controversy shall have knowledge of, and thus be enabled to meet and answer, any evidence brought against him. It is this fundamental rule which is to govern the use of such exhibits by the jury. They may use the exhibit according to its nature to aid them in weighing the evidence which has been given and in reaching a conclusion upon a controverted matter.

of the evidence, then, manifestly, the jury has been itself taking evidence without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain.

such instruments as were under seal, and that they were not permitted to take with them any unsealed papers excepting by consent of the parties. The reason for this, ac cording to Lord Hale and Lord Gilbert, was that jurors were supposed to be, and for the most part were, unlettered men. They could not read. A writing conveyed to them nothing. But in the case of sealed instruments, as these jurors were drawn from the vicinage, they were quite apt to be familiar with the armorial bearings of their neighborhood great from which the seals were derived. An instrument under seal, therefore, spoke 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 not risen to the dignity of possessing an armorial bearing to set the stamp of his teeth as his seal upon the instrument, and hence the old time phrase of "proving it to (by) his teeth." But, in the case of other exhibits not involving a knowledge of reading or writing, it seems to have been a matter of discretion with the court to allow the jury to take them into the jury room in aid of their deliberations. This rule, as to papers, however, was in force at a time when learn ing in letters was so rare and the premium upon such learning so high that a felon could save his neck by proving his ability to read a verse of scripture. It was to save the possibility of the question arising in this state as in 1812 it arose in the state of Pennsylvania (Alexander et al. v. Jameson et al., 5 Bin. 238) that the section of the Code was adopted. All distinction between sealed and unsealed instruments had been abolished, and, as the restrictive rule of the common law upon the power of the court had gone only to papers containing printing or writing, it was necessary only to modify that rule as was done by section 612. Therefore section 612 is not to be construed 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.

It will be noted that depositions are excluded by the section. This is for the very obvious reason that depositions may, and usually do, contain matters not admissible in evidence which matters have been eliminated from the consideration of the jury. To permit the jury to take depositions with them would be to put them in possession of this excluded evidence.

[3] In this lies the suggestion of the true rule guiding the court and governing the jury in the use of exhibits. The court may permit the jury to take with them and use in their deliberations any exhibit where the circumstances call for it, observing the prop

Typical intances of the improper and proper experimental use of exhibits by a jury are found, respectively, in Wilson V. United States, 116 Fed. 484, 53 C. C. A. 652, and Taylor v. Commonwealth, 90 Va. 109, 17 S. E. 812. In the first of these cases the indictment charged the defendant with smuggling opium "prepared for smoking purposes." A sealed can had been introduced in evidence by the prosecution and asserted to contain a sample of the smuggled opium. No testimony was given tending to show that the can contained opium prepared for smoking purposes, and yet it was conceded that it was essential to a conviction (since the offense was so laid) to show not only that the can contained opium, and that it was smuggled opium, but also that it was opium "prepared for smoking purposes." In this condition of the evidence the court instructed the jury that it might take the can to the jury room, open it, and extract some of the contents; that they would not be permitted to make a chemical examination of the contents; but that they could in the jury room test the extracted samples and learn to their satisfaction whether or not it would burn, and use the information so obtained in determining whether the can contained "opium prepared for smoking purposes." The Circuit Court of Appeals, in holding this instruction to be erroneous, said: "Surely, if the attor ney for the government, as was his duty, had offered evidence going to show that the can in question contained opium for smoking purposes, the defendants would have been legally and justly entitled to have proved, if they could, that it contained no such thing; in which latter event there must have been a verdict of not guilty, for there was nothing else offered tending to show that there was any opium prepared for smoking purposes

make an experiment without knowledge to the parties of the method or process which was employed. It was an experiment addressed to evidence necessary to the prose cution's case which should have been offered in court. To permit the jury to gather this evidence without the presence of the defendant and without the possibility of knowledge upon his part as to the method by which their conclusion was reached and without the possibility of contesting the correctness of their experiment was, as the court justly held, the equivalent of the taking by the jury of evidence out of court, and a deprivation of the constitutional right of the defendant to be present at the taking of all evidence in his case. Upon the other hand, in the Virginia case the jury was not experi

in the case. Yet the jury was left to determine that essential fact for themselves, by experiment, and in the absence of the defendants, who were thus wholly deprived of the opportunity to contest the correctness of the jury's experiments, and of the possibility of giving any evidence upon one of the essential facts involved in the prosecution." Taylor v. Commonwealth was a case of murder. It was the assassination from ambush at midday of six or seven innocent and unsuspecting people. By the Supreme Court of Virginia it is described as "an inhuman and wholesale massacre of innocent and unsuspecting men, women, and children traveling peaceably upon the public highway." In the ambuscade of the assassins were found certain cartridge shells which had been discharged from a 45-75 Winches- menting along lines without the evidence. ter rifle. Defendant was charged with this murder. It was shown by the prosecution that he carried a rifle of this description and caliber. The defendant introduced his rifle in evidence and with it four empty shells which he proved were fired from his rifle. It was contended that the marks of the firing pin upon the cartridge shells found in the ambuscade were so different from the marks of the firing pin upon the shells introduced by the defendant in evidence as to establish to a certainty that the shells found in the

It merely subjected an exhibit to a more critical examination than had been made of it in court, and by such examination reached a conclusion upon a contested fact by a more careful scrutiny of an exhibit introduced for the very purpose of affording evidence of

the fact.

In this state it was held, in People v. Conkling, 111 Cal. 616, 44 Pac. 314, that it was error demanding a new trial, when certain of the jurors, to satisfy themselves at what distance a rifle discharged would powder-mark cloth, procured a rifle out of the ambuscade were not fired from defendant's courtroom and experimented with it. Here rifle. During the trial the rifle admitted in was a clear case of the jury's obtaining evievidence was inspected by the jury but was not 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 obv. Mahoney, 77 Cal. 530, 20 Pac. 73, clothing jection from either side. After verdict of worn by the deceased at the time of the homiguilty defendant moved in arrest of judg- cide was, upon the jury's request, sent to ment, contending 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 firing pin had been tampered with. The Supreme Court of Virginia very properly upheld the verdict, the conduct, and the experiment of the jury. The purpose of the introduction of the gun in evidence was to show that its firing pin did not strike the cartridge in a particular way. The gun was offered by the defendant to establish his contention in this regard. A more acute prosecuting attorney might have caused the examination 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

In most of the cases, because of the very nature of the exhibit and of all the possible uses to which it may be put in the jury room, there is no occasion for the court to admonish the jury or to caution and limit it as to the nature of the use or experiment which shall be made. But where, from its nature, it may be susceptible to improper use, as in the case of the can of opium, it is the duty of the court, by instruction to the jury, to limit and restrict that use.

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

[5] Since a jury is not allowed to impeach its verdict by showing what improper methods it employed to reach it, the need of such cautionary instructions in a proper case becomes imperative, and we would by no means disturb the ruling of a trial court granting a new trial if it appeared that injury resulted from its failure to give such instructions.

But if, on the other hand, it could not have resulted in injury to the defendant even if the jury did perform an improper experiment and from it reached its conclusion that the explosion of gas was caused by a spark from the flash light, then clearly no new trial should be granted for an error which could not have resulted in injury. To this consideration we now come.

ant or its attorneys, pass the building which was damaged, and thereby affording said jury an opportunity of viewing said premises." The evidence upon this point discloses merely that the sheriff in charge of the jury, conducting the members to lunch, led them by an ordinary, natural, and convenient route, which happened to pass plaintiff's building. This was the only way in which the court "took the jury." The jury was not conducted past the building for the purpose of inspection. It does not even appear that they knew they were passing the building, much less that their attention was directed to it. The building itself had been repaired at the time, and the circumstance was of so trifling a character that even if the case had been criminal it would not be a 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.

[7] Upon this proposition something of what was said by this court in Merrill v. Los Angeles G. & E. Co., supra, is applicable. We are not cited to any authority supporting respondent's position that a landlord would be responsible for the tenant's negligence, and, indeed, the rule is directly to the contrary. “Deplorable, indeed, would be the situation of landlords if they were liable to be harassed by actions for the culpable negligence of their tenants." Cheetham v. Hampson, 4 D. & East. 319. See, also, Kalis v. Shattuck, 69 Cal. 594, 11 Pac. 346, 48 Am. Rep. 568; White v. Montgomery, 58 Ga. 204; Batterman v. Finn, 32 How. Prac. (N. Y.) 502. Since the landlord is not responsible for the negligence of the tenant, proof of that negligence could not be used to defeat his recovery for injuries to his property, and thus, if it were established that the negligence of the gas company, running concurrently with the negligence of the tenant, united to produce the injury to the property, the landlord would have his recourse against both or either for the reasons given in Merrill v. Los Angeles G. & E. Co., supra. Therefore, in this case, the finding that the spark from the flash light caused the explosion, even if erroneous, or if erroneously arrived at, could not have worked injury to the defendant.

[8] It is next urged that the court erred "in taking the jury during their delibera

[9] It was in evidence that it would take from 60 to 75 days to restore the building to its condition before the explosion. It was shown that the rental value of the destroyed building amounted to $700 a month. The jury's award for loss of rents was $1,264.75, and it was within the evidence.

[10] Mr. Rebman qualified as an expert of 22 years' experience as a contractor and builder. He testified that he "knew the building known as Nos. 114-116-118 West Second street prior to February 13, 1907, and had examined the building after the explosion." His testimony as to the cost of repairing the building and the length of time it would take to restore it, it is said, was inadmissible, in that it was not shown that he had sufficient knowledge of the character of the building before the explosion. He did, however, testify that he knew the building before the explosion and examined it afterward. Here was sufficient upon which to predicate his expert testimony, and, if defendant desired more elaborate information as to the extent of his knowledge, he should have been examined to that end.

[11] The court instructed that the plaintiff was entitled to recover such an amount as the jury might find that "he really lost in rents by reason of the premises being destroyed by the explosion during such time as it would take with reasonable diligence to repair such building." It is urged that as the building was originally two stories in height,