the scouring of the channel of said wasteway | the ditch, it immediately thereafter replaced above said check of all deposits of silt. It is or- the check by a similar and more substantial dered and adjudged that plaintiff is entitled to structure and so placed the same for the conconvenient ingress and egress from the said canal for the purpose of cleaning and caring for venience of the defendants in order that they the same, and that such right extends over the might continue to irrigate their land. Under strip of ground 80 feet in width; that is to say; these circumstances, when the plaintiff on or 40 feet on each side of the center line of said canal. It is further adjudged and decreed that about the 1st of June, 1912, destroyed the the defendant Lucy Wores is entitled to enter gate theretofore established by it, this was upon the said strip of land at all times for the a wrongful denial of a limitation under which purpose of maintaining, repairing, and caring for the said check in the said canal so used by her its continuing right to maintain the ditch exfor the purpose of diverting water therefrom ists. Plaintiff's counsel contends that the for the irrigation purposes aforesaid, and for facts found do not authorize a judgment rethe purposes of making such diversion of water. It is further ordered and decreed that defend-quiring the plaintiff to restore and reconant Lucy Wores recover her costs therein taxed at $ The plaintiff appeals from certain specified portions of this judgment, including in the appeal substantially all of it, except the sentence defining plaintiff's right of way and its right of access thereto. The defendants appeal generally from the judgment. The record consists of the judgment roll and the notices of appeal. [1] The plaintiff claims that it is entitled to this wasteway because at considerable expense it was constructed under a parol license and under circumstances which should now estop the defendants from destroying its efficiency. We have no doubt that a right of way may be thus obtained by virtue of an executed parol license. The circumstances being sufficient to create an estoppel, "the license becomes in all essentials an easement." Crescent Canal Co. v. Montgomery, 143 Cal. 248, 76 Pac. 1032, 65 L. R. A. 940; Stoner v. Zucker, 148 Cal. 516, 83 Pac. 808, 113 Am. St. Rep. 301, 7 Ann. Cas. 704. [2] The request made by the defendants that the plaintiff construct a waste ditch along the south side of their land was not a consent to the construction of such a ditch diagonally through such land. Knowledge by the owner that the work was being done without her permission was promptly followed by a protest from her, and this of course indicates that she did not consent thereto and was giving no license therefor. Following this, however, she informed the plaintiff that she intended to make use of the ditch for the purpose of irrigating her land by using thereon some of the waste water flowing through the ditch. This constituted by implication a consent that the plaintiff might build the ditch. On the other hand, if, without any other or different consent of the owner (and such seems to be the fact), the plaintiff completed the construction of its ditch, it may reasonably be inferred that the plaintiff intended thereby to consent to such use of the ditch by the defendants. That this was the understanding on the part of the plaintiff is evidenced by the fact that subsequently, when it found that a check and gate had been arranged in the ditch for irrigation purposes by the defendants, and when it became necessary for plaintiff temporarily to remove this obstruction in the course of repairs to struct the check torn out by it from the ditch. The judgment does not require the plaintiff to do anything; it merely imposes upon it the condition that it must do a certain thing as a necessary incident to the enforcement of a certain right. It is required to do equity in a matter incidental to its right to have affirmative relief in equity. Having complied with that condition, it is permitted to discharge its surplus water through the ditch in the same manner that it has been accustomed to discharge the same, and suitable provision is made for the free flow of the water, subject only to the temporary checking of that flow during times of irrigation of the land of the defendants by the use of such waste water. It should be distinctly understood that this case does not attempt to settle or determine any right or claim of the defendants to have any water continue to flow through the Rose canal or ditch or across said tract 74. We are dealing solely with the diteh or canal itself and the right of the defendants to a certain limited use of the ditch for the diversion of water therefrom whenever such water is by the plaintiff permitted to flow therein. [3] Plaintiff objects to the provision in the decree that the defendant Lucy Wores recover costs, and insists that the costs should be allowed in favor of the plaintiff. We are referred to Code of Civil Procedure, section 1022, subdivision 5, which provides that costs are allowed of course to the plaintiff upon a judgment in his favor in an action which involves the title or possession of real estate. Although the suit is in equity and includes the right to an injunction, it is primarily an action to quiet title to a right in real property. It has been held that where the plaintiff has any judgment in his favor in an action to quiet title, though it be for only a part of the property, the costs should be in favor of the plaintiff. Sierra Union, etc., Co. v. Wolff, 144 Cal. 430, 77 Pac. 1038. And there seems no doubt that the right claimed by the plaintiff herein is a right to real property. Lower Kings R. W. D. Co. v. Kings R. & Fresno C. Co., 60 Cal. 408. It is true that a mere license revocable in its nature would not amount to an interest or estate in the land. Emerson v. Bergin, 76 Cal. 197, 201, 18 Pac. 264. But where the right, al though originating in a license, exists for the benefit of the licensee's land and has become irrevocable, its character becomes that of an easement which is an interest in real property within the meaning of the Code section above mentioned. Schmidt v. Klotz, 130 Cal. 223, 62 Pac. 470; Stoner v. Zucker, supra. Concerning the plaintiff's claim that the defendants had not maintained a check in the canal and had not used the ditch for a period of five years, and therefore that the defendants had not acquired any prescriptive right therein, a sufficient answer is that the right of the defendants, so far as recognized by the judgment herein, is not based upon adverse use, but solely upon the condition inhering in the plaintiff's right of way as we have construed it in this opinion. The judgment is modified by striking therefrom the provision contained therein allowing costs to the defendant Lucy Wores, and the court below is directed to further amend the judgment by allowing costs to the plaintiff. As so amended, the judgment shall stand affirmed. We concur: JAMES, J.; SHAW, J. SCHEELINE et al. v. PEZZOLA et al. (Civ. 1410.) invalid, and there could be no recovery of the price. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 467-472; Dec. Dig. Appeal from Superior Court, Plumas County; J. O. Moncur, Judge. Action by Henriette Scheeline and others, Judga copartnership doing business as Roth & Co., against S. A. Pezzola and another. ment for plaintiffs, and defendants appeal. Reversed. L. N. Peter, of Quincy, for appellants. H. B. Wolfe, of Quincy, for respondents. BURNETT, J. The appeal is from a judgment for $1,023.25, and costs. The following statement made by appellants is not disputed and seems to be substantially accurate: Respondents are a wholesale liquor firm engaged in the business of selling intoxicating liquors. They made certain sales of such liquors to appellants to be used by the latter in conducting a saloon in Plumas county. When the orders were placed with respondents for the delivery of the liquors, there was an ordinance in said county prohibiting any person from engaging in the saloon business without a license, and no person could obtain a license who was not a citizen of the United States. Appellant A. Pezzola was not such citizen. (District Court of Appeal, Third District, Cali- The facts were known to respondents. fornia. Dec. 27, 1915.) 1. INTOXICATING LIQUORS FOR PRICE-EVIDENCE. - 329 ACTIONS In an action by wholesale liquor dealers to recover for liquors sold to defendants for use in a saloon in P. county, wherein there was an ordinance prohibiting any person from engaging in such business without a license and denying licenses to persons not citizens of the United States, it was error to exclude evidence that, when the first sale was made, one of the plaintiffs knew that the business which was to be conducted in the name of one of the defendants was for himself and the other defendant, that such other defendant was not permitted to engage in the business or hold a license because he was not a citizen, and that it was a violation of the ordinance for such defendant to engage in such business. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 474-481; Dec. Dig. 329.] 327 SALES 2. INTOXICATING LIQUORS Re spondent Edwin S. Scheeline had an under- Said That he understood "at the time that A. Pezzola, Steve Pezzola's father, was not a citizen of the United States, and not entitled to engage in the liquor business under the ordinance of Plumas county; that S. A. Pezzola was running the business for his parents in his own name; they were unable to get a license." [1] Appellants contended that it thus appeared that there was a conspiracy, participated in by respondents, to violate or circumvent the law, and therefore that respondents were wrongdoers, and would not be aided in a court of justice to reap any advantage from contract, and appellants their unlawful sought still further to develop the situation, as is shown by the following quotation from the transcript: "Q. You understood it was in violation of the liquor ordinance of this county at that time? Mr. Wolfe: Objected to as irrelevant, As to the particular fraudulent contract before us it is sufficient to quote from Cyc. as follows: immaterial, and incompetent. The Court: Sus- | law cannot be made the foundation of a valid tained. Mr. Peter: Will your honor hear me contract." on that? The Court: I can't see how it is material. Mr. Peter: I want to develop that there was a conspiracy here to violate the law, and this plaintiff was a party to it, and they cannot take advantage of their own wrong, and the court will leave them where they left themselves. The Court: I don't think there is anything in that; I will hear the evidence." His answer was: "All I understood that they were violating the order was the fact, if A. Pezzola should have the license, he couldn't have a license; they got the license for him." * "Where a license or certificate is required by statute as a requisite to one practicing a particular profession, an agreement of a professional character without such license or certificate is illegal and void. * * The same is held where a license is required for the carrying on of a particular trade or business, as in the case of a wholesale or retail liquor dealer. * * * In such instances agreements made without the requisite license are generally held Afterward the court sustained an objection to be void." 9 Cyc. 478. to this question: "You understood that under the law, under the liquor ordinance of this county and laws of the state, you had no right, no one had a right, to engage in the liquor business without a license, did you?" Counsel for appellants then stated that he offered to prove by the witness: "That at the time he made the first sale testified to by him that he knew and understood that all the business, that the business, which was thereafter to be conducted in the name of S. A. Pezzola, was for himself and A. Pezzola; that A. Pezzola was not permitted to engage in the business, to hold a license under the liquor ordinance of Plumas county, because he was not a citizen of the United States; * and that he knew the fact of A. Pezzola engaging in the business was a violation of the ordinance. The court, however, held it to be immaterial. In this we feel satisfied the court was in error. [2] The law is well settled as to matters of this character, and is aptly set forth in many quotations made by appellants from various authorities. The Penal Code of this state, in section 435, provides that: "Every person who commences or carries on any business, trade, profession, or calling, for the transaction or carrying on of which a license is required by any law of this state, without taking out or procuring the license prescribed by such law, is guilty of a misdemeanor." And that any contract having for its object the violation of the law is against public policy is expressly provided in section 1668 of the Civil Code. The decisions are collated in 6 R. C. L. p. 692 et seq., and we may content ourselves with quoting section 98, as follows: "At no time in the history of the common law were contracts in violation of law regarded as valid. Individuals were never allowed to stipulate for iniquity. A contract, though it may be based on consent, derives its obligatory force from the sanction of the law. It would therefore be anomalous, indeed, if the law were to sanction contracts which violate the law. The law which prohibits the end, will not lend its aid in promoting the means designed to carry it into effect. It will not promote in one form that which it declares wrong in another. The whole doctrine relating to illegal contracts is founded on a regard for the public welfare. In fact, it has been asserted that the maintenance of this doctrine is essential to the preservation of the state. It may therefore be said to be a fundamental principle of the law of contracts that a contract must have a lawful purpose, and that transactions in violation of "Where the illegal sale of liquor enters into sideration, or the terms or conditions of the any contract as an inseparable part of its concontract are inseparably connected with the illicit traffic in liquors, it is against public policy and immoral, and therefore void." 23 Cyc. 334. the case within the purview of the foregoing HOUGHTON v. DICKSON. (Civ. 1760.) 1. PHYSICIANS AND SURGEONS 18 Ac SUFFICIENCY OF In an action against a physician and surgeon, evidence held insufficient to show negligence in treating a fracture of one of the bones of the arm, though the fractured bone failed to unite, or in failing to discover a dislocation of the other bone of the arm, there being no expert testimony as to any want of care or skill, but only evidence of the failure of the bone to unite and the failure of defendant to discover the dislocation. [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. §§ 34-41, 43-46, 48; Dec. Dig. 18.] 2. PHYSICIANS AND SURGEONS OF SKILL AND CARE REQUIRED. 14-DEGREE The implied contract on the part of a physician and surgeon is that he possesses that reasonable degree of learning and skill possessed by others of his profession, and that he will use reasonable and ordinary care and skill in the application of such knowledge to accomplish the purpose for which he is employed. [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. §§ 21-30; Dec. Dig. 14.] 3. PHYSICIANS AND SURGEONS OF SKILL AND CARE REQUIRED. 16-DEGREE If a physician and surgeon possesses the reasonable degree of learning possessed by others of his profession and in the treatment of an injury exercises ordinary care and skill in applying it, he is not liable for results that follow. [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 31; Dec. Dig. 16.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. PHYSICIANS AND SURGEONS 18 Ac- otherwise treated the arm until March 29th, TIONS FOR NEGLIGENCE-PRESUMPTIONS. In the absence of evidence to the contrary, the law will presume the exercise of a reasonable degree of care and skill by a physician and surgeon. [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. §§ 34-41, 43-46, 48; Dec. Dig. 18.] 5. EVIDENCE 508- EXPERT TESTIMONY EXERCISE OF CARE BY PHYSICIAN. Whether a physician and surgeon called upon to set a fracture of one of the bones of the arm should, in the exercise of ordinary and reasonable care and skill, have discovered a dislocation of the other bone of the arm was a question for expert testimony. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2311; Dec. Dig. 508.] Appeal from Superior Court, Los Angeles County; J. P. Wood, Judge. Action by A. O. Houghton against C. B. Dickson. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed. R. P. Jennings and Jennings & Horton, all of Los Angeles, for appellant. J. L. Flem ing and W. S. Knott, both of Los Angeles, for respondent. SHAW, J. This is an action to recover damages alleged to have been sustained by plaintiff as the result of negligent surgical treatment administered to him by defendant. The case was tried by a jury which rendered a verdict in favor of plaintiff, in accordance with which judgment was entered against defendant in the sum of $3,500. The appeal is from the judgment and an order denying defendant's motion for a new trial; his chief contention being that the evidence was insufficient to justify the verdict. [1] It appears that on January 25, 1911, due to the kick of a horse, the ulna of plaintiff's right arm was broken, and that, after receiving emergency treatment, he, on the day following the injury, placed himself in the care of defendant, who was a physician and surgeon and who undertook the treatment of the injured arm. The negligence of defendant is predicated, not only upon the alleged fact that in setting and treating the fracture there was a lack of care and skill by reason of which the fractured bone failed to unite, but that the bone known as the radius was at the time, or at a later date during the treatment, dislocated at the elbow, which fact defendant, by reason of his failure to exercise ordinary care and skill, failed to discover or properly treat. On January 26th, on which date plaintiff consulted Dr. Rowley, who found a dislocation, at the elbow, of the bone known as the radius; that there had been no union of the ends of the fractured bones; that the wire used in securing the same had broken, and that pus had developed in the wound, all of which conditions, except the formation of pus in the wound, were indicated by an X-ray photograph of plaintiff's arm taken on said lastmentioned date. At this time plaintiff placed himself in the care of Dr. Rowley, who treated the injured arm until about May 1st, when he and Dr. Lewis operated upon the arm by cutting off the head of the radius, declared necessary in order to reduce the dislocation, and reset and wired the fractured bone, which, however, as under defendant's treatment, from some cause unknown to Drs. Rowley and Lewis and contrary to their expectations, failed to unite. While plaintiff by his evidence shows in detail just what defendant did in operating upon the arm and in the treatment thereof while under his professional care, he produced no evidence tending to prove that defendant, either in performing the operation or treatment adminisThe condition of the arm on March 29thtered thereafter, was guilty of negligence. that is, the dislocation of the radius; the fact that the wire intended to retain in place the fractured bones had broken; failure of the fractured bones to unite, and suppuration of the wound-was not, in the absence of other proof, sufficient evidence that there had been a want of ordinary care and skill on the part of defendant in treating plaintiff's injuries. In short, the record merely shows what defendant did in caring for plaintiff professionally, the condition of the arm existing on and prior to March 29th, when plaintiff placed himself in the care of Dr. Rowley, and what he and Dr. Lewis thereafter did professionally to effect a cure. Indeed, not only is there no evidence of negligence on the part of defendant, but the evidence of both Dr. Rowley and Dr. Lewis, who, by the way, were the only witnesses called on behalf of plaintiff who were competent to testify whether or not defendant had exercised reasonable care and skill in treating plaintiff's injury, tends to prove the contrary. This evidence was to the effect that the nature of the fracture was such as to demand the wiring of the bones, and that the wire used was such as surgeons generally used in such cases; that in operating upon the fracture they used like wire, which in the adjusting thereof likewise broke. Dr. Lewis said: after an examination of the fractured arm with a fluoroscope, defendant set the arm, using splints to retain the broken bones in place. On the following day he discovered "After I operated on the bones they did not that it would be necessary to wire the frac-unite with a bony union, and have never united." tured ends of the bone and had plaintiff go to a hospital, where the operation of wiring was performed by defendant. After the operation, defendant dressed, bandaged, and And, further: the bones at the fracture, referring to the loca"I did not see anything in the condition of tion of the holes in which the wires had been placed or the manner in which the wires were For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes there, that would indicate that the operation * * -and that he certainly expected, in performing the operation and his wiring of the bones, they would make a perfect union, in which, however, he was disappointed, since the result was to secure a ligamentous union only, and that he did not know what caused such condition. [2-5] The implied contract on the part of defendant was, not only that he possessed that reasonable degree of learning and skill possessed by others of his profession, but that he would use reasonable and ordinary care and skill in the application of such knowledge to accomplish the purpose for which he was employed (Bonnet v. Foote, 47 Colo. 282, 107 Pac. 252, 28 L. R. A. [N. S.] 136), and if he possessed such reasonable degree of learning, and in the treatment of plaintiff's injury exercised ordinary care and skill in applying it, he is not liable for results that followed (Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111; Sims v. Parker, 41 Ill. App. 284; Staloch v. Holm, 100 Minn. 276, 111 N. W. 264, 9 L. R. A. [N. S.] 712). In the absence of evidence to the contrary, the law will presume the exercise of a reasonable degree of care and skill. State v. Housekeeper, 70 Md. 162, 16 Atl. 382, 2 L. R. A. 587, 14 Am. St. Rep. 340. "No presumption of the absence of proper skill and attention arises from the mere fact that the patient does not recover." Haire v. Reese, 7 Phila. (Pa.) 138. "A physician is not a warrantor of cures." Ewing v. Goode (C. C.) 78 Fed. 442. of the muscles and ligaments following continued nonuse of the arm and the carrying of that it was dislocated at the time when deit bandaged and in splints. But assuming fendant undertook the treatment of the fractured bone, or that it occurred thereafter during the treatment, such fact alone does not show that defendant was lacking in ordinary care and skill in not discovering such condition. No evidence whatever was offered on the part of plaintiff showing that, if it did exist at such time, defendant was negligent in his failure to make such discovery. So far as appears, he was called upon to set the fractured bones.. No intimation was given him of any injury to the elbow. Whether or not defendant should, under the circumstances, in the exercise of ordinary and reasonable care and skill, have discovered such condition, assuming it to have existed, was a question for expert testimony, and none was offered. Conceding that Dr. Rowley, as stated by him, had no difficulty on March 29th in discovering the dislocation, nevertheless this fact does not show a want of ordinary care and skill on the part of Dr. Dickson in failing to discover it, since Dr. Rowley, by reason of superior learning and advantages, may have been a man possessing far more than ordinary skill in his profession. In James v. Crockett, 34 New Brunswick, 540, it is said: "A surgeon does not undertake to perform a cure, nor does he undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself; but he undertakes a fair, reasonable, and competent degree of skill, and in an action against him by a patient, the question for the jury is whether the injury complained of must be referred to a want of a proper degree of skill and care in the defendant or not." To the same effect is Spain v. Burch, 169 In McGraw v. Kerr, 23 Colo. App. 163, 128 Mo. App. 94, 154 S. W. 172. Pac. 873, it is said: "Negligence on the part of a physician consists in his doing something which he should not have done, or in omitting to do something which he should have done." Quoting again from McGraw v. Kerr, su pra: "The authorities are practically uniform in holding * that as to what is or is not proper practice in examination and treatment, or the usual practice and treatment, is a question for experts, and can be established only by their testimony." Whether or not plaintiff's elbow was dislocated at the time when he first called upon defendant is not disclosed; indeed there is no evidence as to when the dislocation occurred, or as to what caused it. It is a subject purely for conjecture. While one witness states that a blow upon the arm, if of sufficient force and in the right direction, might dislocate it, there is no evidence that such blow was given, or that the dislocation was caused by the kick of the horse which broke the bone of the arm. Indeed, from aught that appears to the contrary, the dislocation might have been caused by the enfeebled condition The evidence wholly fails to show any lack of care and skill on the part of defendant in setting and treating the fractured bone of plaintiff's arm, and likewise fails to show when the dislocation of the elbow occurred, or that a physician in the exercise of ordinary care and skill in treating plaintiff, should, under the circumstances shown, have discovered the dislocation and treated the same. The judgment and the order denying defendant's motion for a new trial are reversed. We concur: CONREY, P. J.; JAMES, J. HILBORN v. SOALE et al. (Civ. 1776.) (District Court of Appeal, Second District, California. Jan. 3, 1916. Rehearing Denied by Supreme Court March 2, 1916.) 1. FRAUDULENT CONVEYANCES 299-SUITS TO SET ASIDE EVIDENCE. In a judgment creditor's action to set aside alleged interest in land purchased with the a conveyance by a husband to his wife of his wife's money, and conveyed to the husband and wife as joint tenants with the right of survivor For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |