63 L. R. A. 238, 98 Am. St. Rep. 85; Herbert v. Southern Pacific Co., 121 Cal. 232, 53 Pac. 651; Thompson v. Los Angeles, etc., Ry. Co., 165 Cal. 754, 134 Pac. 709; Tucker v. United Railroads (S. F. No. 6279) 154 Pac. 835, opinion filed January 17, 1916. [3] The criticisms of the instructions are without substantial merit. An attack is made upon an instruction by which the jury was told in plain and direct language that the burden was on the plaintiff to prove the alleged negligence by a preponderance of the evidence. It was almost a verbatim copy of an instruction approved in Patterson v. San Francisco, etc., Ry. Co., 147 Cal. 182, 81 Pac. 531. It is said that the instruction was misleading because the jury might infer from it that plaintiff was required to produce other proof of negligence than the acts of the defendant's servant himself. There is nothing in the language of the instruction to justify such fear. It merely states a well known rule in well-chosen and well-approved language. The same unmerited criticism is directed to another instruction by which the jurors were told that the burden was upon plaintiff to prove by a preponderance of evidence both defendant's negligence and the fact that it contributed directly or proximately to the injury. [4] Nor was the jury misled because this instruction failed to consider the possible negligence of the driver of the mule team as one of the proximate causes. The jury was elsewhere fully charged on the subject of the concurring negligence of joint tort-feasors in an instruction offered by plaintiff. [5] The jury was told that, where a street railway car is being operated with ordinary care, and the front end of it passes a pedestrian on the street, the motorman is not bound to assume that another vehicle to the rear of said car will be so carelessly driven as to crowd the pedestrian into the rear or any portion of said car. This instruction does not improperly assume that the wagon was behind the car if we interpret the expression "to the rear" as "toward the rear." The language is susceptible of such interpretation, and, as all of the evidence showed that the wagon was towards the rear of the street car at the time of the accident, the jury doubtless so understood it. It was not error to instruct the jurors that, if they found that the front end of the car passed plaintiff in safety, and that afterwards she moved, and "either walked so close to the car that it struck her, or else that a team to the rear both of the plaintiff and of the car was driven in such a manner as to compel the plaintiff to walk in close to the track and hem her in between the team and the rear of the car, and she was struck as a result thereof," then and in that event plaintiff could not recover. This was in consonance with the rule declared in [6] One of the instructions, the giving of which is specified as error by plaintiff, was as follows: "If from the evidence in this case you find that the plaintiff started to cross Ninth street, and that the front end of defendant's said car passed the said plaintiff, and that at the time it passed the said plaintiff the mule team was to the east of said plaintiff and to the east of the motorman, and that the said motorman had no reason to apprehend any danger to said plaintiff, and you thereafter find that the said rear end of the said car struck plaintiff, either by her voluntarily walking so close as to be in danger of being struck by the same, or by the mule team being carelessly driven so as to compel her to walk towards the car, then I charge you that the plaintiff cannot recover herein, and your verdict must be for the defendant.' Counsel say that the words "that said motorman had no reason to apprehend any danger to plaintiff" left to the judgment of the motorman, and not to the jury, a deci sion whether he apprehended danger or not. The instruction may not be properly so in. terpreted. The whole instruction has reference to the belief of the jurors and not that of the motorman. It simply means that, if from what the motorman knew and saw under the circumstances assumed by the instruction he had no reason to apprehend danger to the plaintiff, he could not be held responsible for her injuries. Of course, the and saw was for the jurors upon full condecision regarding what he actually knew sideration of the evidence, and this prerogative was not taken from them by the instruc tion. [7] Defendant's proposed instruction No. 11 given by the court was as follows: "If from the evidence in this case you find that, as the front end of the defendant's car reached a point opposite where plaintiff was standing in the street, the said plaintiff was in a position of safety, and that she either remained in said position or stepped to the south and allowed the front end of the said car to pass her, and if you further find that at that time a mule team was behind the said plaintiff and behind the said motorman in charge of said car, and that plaintiff then turned and walked between the wagon and the end of the car towards the curve of the track, and was struck as a result thereof, then the court charges you that the plaintiff cannot recover herein, and your verdict must be for the defendant." Appellant's counsel say that it was absurd to tell the jury that, if plaintiff "was in a position of safety and remained in said position," and was struck by the car, she could not recover. But the instruction has no such meaning or effect. The words "she either remained in said position or stepped to the south" clearly refer to the moment when she "allowed the front end of the car to pass her." [8] Defendant's instruction No. 13 told the jury that it was not enough for plaintiff to show that she was in a dangerous position when crossing Ninth street, but "she must show that the dangerous position was caused by the negligence of the defendant." This instruction is attacked because it ignores her ing mules. But the instructions did not require the jury to find that the negligence of the defendant was the sole cause of Mrs. Wood's dangerous position before they could give judgment in her favor. It simply charged that, if she was not placed in any danger by reason of defendant's negligence, she could not recover. That is to say, defendant's act or omission must have had some causal connection with plaintiff's danger before said corporation could become liable. The correctness of this rule can scarcely be questioned. But there would be little profit in following further in detail appellant's many criticisms regarding the instructions. We have examined the court's charge as a whole, and find that the jury was fairly and correctly instructed regarding the law applicable to the evidence! [9] The police officer, Bach, who described the approach of the wagon drawn by mules and the attempt to drive the animals into Ninth street just as the car was turning into that thoroughfare, said: "I thought they [meaning the mules and wagon] should have had the right of way." The court struck out this testimony, and properly. It was not shown that the failure to give the team the right of way had anything to do with the accident. Therefore the testimony was entirely immaterial. [10] It is argued that: * on the theory that the misconduct of the carrier has produced the erroneous action of the passenger, and that it does not therefore lie in the mouth of the carrier to defend an action for damages on the ground of such erroneous action thereby taking advantage of his own wrong." The facts of the two cases are so strikingly dissimilar that the Waniorek Case is of no value as an authority in deciding this appeal. The order denying appellant's motion for a new trial is affirmed. We concur: HENSHAW, J.; LORIGAN, J. STEIL v. SUN INS. OFFICE OF LONDON. SAME v. LONDON ASSUR. CORP. SAME v. NORTHERN ASSUR. CO. (S. F. 6752.) (Supreme Court of California. Jan. 31, 1916.) 1. APPEAL AND ERROR 867-REVIEW-MAT TERS REVIEWABLE. Where the trial court, in granting a new trial, stated in its order that it was denied so far as the sufficiency of the evidence was concerned, that ground is excluded from consideration on appeal, but the appellate court may review any other ground, though new trial was denied on such ground. Error, Cent. Dig. §§ 3476-3486; Dec. Dig. ✨m [Ed. Note.-For other cases, see Appeal and 867.] 2. APPEAL AND ERROR 854-REVIEW-ORDERS. Though the trial court granted a new trial on an erroneous ground, yet if the new trial was *properly granted, its action will not be disturbed on appeal. "So gross was the neglect of the motorman in failing to stop his car when he saw the plaintiff in a position of extreme danger * contributory negligence cannot be imputed to the plaintiff, even though she walked toward the rear end of the car in an effort to escape and thereby came in contact with the car when it swung around the corner." Waniorek v. United Railroads, 17 Cal. App. 121, 118 Pac. 947, is cited in support of the argument. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3403, 3404, 3408-3124, 3427-3430; Dec. Dig. 854.] 3. INSURANCE TIONS. 329-FIRE POLICIES · Ac Where a fire policy provided that it should become void if the hazard should be increased by any means within the control or knowledge of the insured, or if any change other than by death of the insured takes place in the interest, title, or possession, the reference to possession than the location of the property, and a change refers to the person having possession, rather in location does not avoid the policy under that provision. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 823, 824; Dec. Dig. 329.] 4. INSURANCE STRUCTION. 327-FIRE POLICIES-CON In the first place, it was not shown, as we have seen, that the motorman saw Mrs. Wood in a position of great peril; in the second place, contributory negligence may be available as a defense to a claim founded upon gross negligence (Sego v. Southern Pacific Co., 137 Cal. 407, 70 Pac. 279; Tucker v. United Railroads, supra); and, finally, the citation does not justify the argument. The case of Waniorek v. United Railroads was one in which the evidence showed that plaintiff, who was a passenger on an electric car, was frightened by the blowing up and burning of a "controller," caused by the negligence of the corporation. He jumped from the car and was injured. The court refused to give an instruction to the effect that, if an ordinarily prudent person, under like circumstances, would have done as plaintiff did then, he was not guilty of contributory negA fire policy insured goods while in a deligence in leaping from the car. This re- scribed building and not elsewhere. The insurfusal was held error, but the District Court ed removed them, notifying the insurer's agents of Appeal quoted with approval from Thomp- of that fact, and they made no objection. Held son on Negligence the declaration that the on obtaining knowledge of facts which avoid or that while ordinarily an insurer's failure to act rule is based upon estoppel and "proceeds up-forfeit a policy operates as a waiver, the mere Where a fire policy declared that the goods were insured while located and contained in a described building and not elsewhere, it does not cover a loss of the goods by fire while they were out of the building; but, as the insured is not prohibited from removing the goods, a removal merely suspends the policy, which may be revived upon return of the goods to the building. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 792, 793; Dec. Dig. 327.1 5. INSURANCE 388-FIRE POLICIES-ESTOP PEL. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes failure of insured's agents to object to the removal does not operate as a waiver and extend the insurance to the new location, there being no prohibition against removal and a removal temporarily suspending a policy; hence to render the insurer liable there must have been some acts creating an estoppel or waiver. [Ed. Note. For other cases, Cent. Dig. §§ 1026, 1027, 1030, 1035, 1040, see Insurance, 1057; Dec. Dig. 388.] 6. INSURANCE 654 — FIRE POLICIES—Ac TIONS. Where the insured claimed that the insurer did not object to his removal of the goods covered to another building and consented that the policy apply to such premises, though there was no indorsement on the policy, evidence that the hazard was less at the new premises is admissible on the question whether the insurer had consented to a continuation of the risk. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1677, 1680, 1681, 1683-1685; Dec. Dig. 654.] Department 1. Appeal from Superior Court, City and County of San Francisco; Frank J. Murasky, Judge. Actions by Henry Steil against the Sun Insurance Office of London, the London Assurance Corporation, and the Northern Assurance Company, which were consolidated. There were verdicts for plaintiff, and, defendants being granted a new trial, plaintiff appeals, the causes being consolidated. Order affirmed. Peter F. Dunne, C. W. Durbrow, and C. H. Wilson, all of San Francisco, for appellant. T. C. Van Ness, T. C. Van Ness, Jr., Chickering & Gregory, and Winfield Dorn, all of San Francisco, for respondents. SHAW, J. Henry Steil had three policies of insurance covering goods situated in the Chronicle building in San Francisco, one issued by Sun Insurance Office of London, one by London Assurance Corporation, and the third by Northern Assurance Company. In January, 1906, he removed the goods to the Shreve building. He claims that this was done with the knowledge and consent of each of said companies, and that they agreed that the removal should not terminate the insurance provided by the policies. On April 19, 1906, the goods were destroyed by the great fire of that date. The companies refused to pay the loss, and thereupon he began three actions, entitled as above, against the respective companies, to recover the amounts due by the respective policies. These actions were consolidated for the purposes of the trial, the issues being practically identical in character. There was a trial by jury, and a verdict and judgment for the plaintiff in each case. Thereupon the defendants, respectively, moved for a new trial. The motion was granted. The plaintiff appealed from the order in each case. By agreement of the parties and with the consent of this court the appeals have also been consolidated, and are presented by a single transcript embracing the record in all the cases. The order granting a new trial states that the court finds that the evidence was sufficient to justify the verdict, that the new trial was granted because the court was of the opinion that it had erred in giving two instructions to the jury set out in full in the to all other grounds presented in support of order, and that it was denied with respect the motion. The instructions referred to are as follows: "(1) If you find from the evidence in this case that the assured notified, or caused to be notified, the defendants, or any of them, of the change of location of his goods, wares, and merchandise from the Chronicle building to the Shreve building, and that said defendant or defendants so notified remained silent and failed to object and cancel or rescind the contract of insurance and return the unearned premium, then I charge you that said defendant or defendants so notified, failing in this regard, is estopped from denying that its policy of insurance was in force and covered the goods, wares, and merchandise of the plaintiff in the Shreve building at the time of the destruction of the same by fire on the 18th day of April, 1906. "(2) I charge you that an insurance company waives or is estopped from asserting a violation of the terms of an insurance contract such as is involved in a change of location of the assured property, if the company, on being notified of such violation or change of location, remains silent and fails to object or fails to declare a forfeiture or cancel or rescind the contract within a reasonable time, returning the unearned premium." [1] Where the trial court, in granting a new trial, states in the order that it is denied so far as the sufficiency of the evidence is concerned, that particular ground is excluded from our consideration upon appeal from such order. With respect to any other ground advanced in support of the motion, however, the decision of the court below that the new trial was refused with respect to any one of them is not binding upon this court and, upon appeal, we may consider such question. [2] If we find that the court below erred in granting the new trial, so far as the grounds upon which that court based the order are concerned, but conclude that the new trial should have been granted because of some other ruling on a question of law, which the trial court believed was not erroneous, we will affirm the order. Kauffman v. Maier, 94 Cal. 269, 29 Pac. 481, 18 L. R. A. 124; Shanklin v. Hall, 100 Cal. 28, 34 Pac. 636; Thompson v. California, etc., Co., 148 Cal. 38, 82 Pac. 367; Weisser v. S. P. Co., 148 Cal. 428, 83 Pac. 439, 7 Ann. Cas. 636; Bresee v. Los Angeles Traction Co., 149 Cal. 134, 85 Pac. 152, 5 L. R. A. (N. S.) 1059; Gordon v. Roberts, 162 Cal. 508, 123 Pac. 288. The respondents claim that there were such other rulings. The main questions, however, are those involved in the instructions aforesaid. A preliminary statement of the facts and of the law relating to them is necessary. [3] The policies are all in the same form, and we will speak of them as if there were but one. In what may be termed the "insurance clause," the policy declares that the company insures the goods "while located and contained as described herein, and not elsewhere," the place described being the Chronicle building. The description of the goods was immediately followed by the qualifying phrase, "all while contained in the Chronicle building." The policy provided that it could be canceled at any time "at the request of the insured, or by the company by giving five days' notice of such cancellation," and that in case of such cancellation the unearned premium should be returned on the surrender of the policy. It further provided that the policy should become void "if the hazard be increased by any means within the control or knowledge of the insured, * * or if any change, other than by the death of the insured, takes place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard)," and the usual clause that no agent of the company had power to waive any provision of the policy, except by indorsement on the policy or by writing attached thereto. We think the above-quoted passage, relating to a change of "possession" of the goods, refers to the person having the possession, rather than to the location of the property, and it does not make the policy void where the only change relating to the possession is a mere change in the location of the goods by removal to another building. respect to the goods so removed. The quali fication was a part of the description of the things insured. They were not merely the goods, but were the goods while contained in the Chronicle building. A loss of the goods by fire while they were out of the building would not be a loss covered by the policy, and the insured would not be liable therefor. Mawhinney v. Southern I. Co., 98 Cal. 184, 32 Pac. 945, 20 L. R. A. 87; Benicia A. Works v. Germania I. Co., 97 Cal. 468, 32 Pac. 512; Slinkard v. Manchester, etc., Co., 122 Cal. 595, 55 Pac. 417. This language of the insurance clause did not constitute a warranty, either express or implied, by Steil, that he would not remove the goods. The company had no occasion to demand of Steil a warranty against removal. Such removal would not increase its obligation, but would relieve it therefrom. The insurance clause completely protected it against a loss occurring to the goods in any other place. The language does not imply a warranty. Its effect is merely that the goods were insured only while kept in the building designated. There being no condition or covenant against removal, the result would be that while such removal would, for the time being, terminate the risk incurred by the company, it would not avoid the policy. If the goods were subsequently returned, the company would be liable, as before, for a loss occurring to them while in the building. About two months before the removal of Steil to the Shreve building a fire occurred [5] In order to continue the insurance upin the Chronicle building which damaged his on the goods, or, in other words, to carry it goods. This loss and the amount thereof due to the goods in the new location, something from each of the defendants was in process more was required than a mere notification of adjustment at the time of the removal. by the insured to the insurer of the fact that The evidence on the question whether Steil the goods were, or were about to be, renotified the defendant companies of his removed. That fact alone would only suspend moval to the Shreve building of the goods the insurance risk. The insurer must be incovered by the policy is in sharp conflict. | formed, or be given good cause to believe, That for the plaintiff tended to show that he had presented the policies to the defendants for the purpose of having the consent of the companies to the removal indorsed thereon, that owing to the pending settlement of the previous loss, he declined to leave the policies with the companies to have such indorsement made, and that he was thereupon informed by the agents of each of the defendants that it would be all right and that the goods were covered in the Shreve building, as before the removal. The facts that none of the companies have objected to the removal, or have given notice that the goods were not covered in the new place, are not disputed. It was to this condition of the evidence that the above instructions were addressed. [4] As above stated, there is no provision in the policy that the removal of the goods should operate to annul it. The provision in the insurance clause that the goods were insured while contained in the Chronicle building, and not elsewhere, coupled with the qualified description, operated to relieve the company of further obligation, upon the removal of the goods from said building, with that the party insured desired to have the insurance on the goods continued in the new place, that he wished a modification of the policy to make it cover the goods in the new location, and must then, by positive act, or by failure to act, cause the insured to believe that the insurer consented to such transfer or modification, and that the goods were covered by the policy. Something in the nature of a new agreement, either express, or implied from conduct or words, or created by estoppel, was necessary. The instructions informed the jury that a notification of removal, followed by silence and failure to cancel the policy and return the unearned premium, would operate to estop the insurer from denying that it had consented to the removal and had agreed that the policy should cover the goods notwithstanding such removal. They should have contained the additional premise that the assured, upon such notification, requested that the policy be transferred to the new location, or that the insurance be continued notwithstanding the removal, or something to indicate that the notification was given under circumstances which would have given the insurer reason- | insurance. They are therefore not authority able cause to believe that the assured de for the proposition that bare knowledge, or sired or expected the matter to be so adjust- a mere notice of the fact of removal, followed. The evidence concerning the notification ed by silence and inaction, will estop the referred to all indicated that such desire company and carry the insurance to the new and expectation existed and was made known place. We are of the opinion that the court to the assured, but the instructions omitted below was correct in its conclusion that these all reference thereto. In this respect they instructions do not fully state the law. We were defective, incomplete, and possibly mis- cannot say that its order was an abuse of leading. discretion. It is stated in the briefs that the instructions were based on a passage from Cooley's Briefs on Insurance (vol. 3, p. 2665) regarding "the effect of an insurer's failure to act on obtaining knowledge of facts which either avoid or forfeit a policy," and saying: "The weight of authority supports the proposition that an insurance company waives or is estopped to assert a violation of the terms of an insurance contract if the company, on being notified of the violation, remains silent and fails to object or to declare a forfeiture, or cancel or rescind the contract, within a reasonable time. This rule is, no doubt, in most cases based on the theory that it is a breach of good faith on the part of an insurance company to remain silent and inactive on notice of a breach, and to retain the unearned premiums, and so lead the insured to believe that his insurance contract is regarded as valid notwithstanding the breach." This rule is doubtless applicable in all cases where the facts brought to the insurer's knowledge show some violation of the terms of the policy which, either by law or because of some provision of the policy itself, operates to avoid or forfeit the policy. As we have shown, the removal of the goods neither forfeited nor avoided the policy, and was not a violation of any of its express provisions. Some cases are cited which it is claimed support the position that a mere knowledge of removal, under such a policy, requires prompt action by the insurer by way of rescission or cancellation and return of the unearned premium, if it does not consent to the removal and to a continuation of the insurance in the new location. These are Pollock v. German Co., 127 Mich. 460, 86 N. W. 1017; Williamsburg v. Cary, 83 Ill. 453; Ohio, etc., Co. v. Burget, 65 Ohio St. 119, 61 N. E. 712, 55 L. R. A. 825, 87 Am. St. Rep. 596; McIntyre v. Liverpool, etc., Co., 131 Mo. App. 88, 110 S. W. 604; Shutts v. Milwaukee, etc., Co., 159 Mo. App. 436, 141 S. W. 15; Henschel v. Oregon, etc., Co., 4 Wash. 476, 30 Pac. 735, 31 Pac. 332, 765; and Maryland, etc., Co. v. Gusdorf, 43 Md. 506. An examination of the opinions in these cases shows that they did not involve instructions so bare of detail as those here given. In each of them the law was predicated upon a statement of facts which included a request, express or implied, by the assured to continue the insurance described in the policy, notwithstanding the removal of the goods insured to a place not covered by the terms of the policy. In the Ohio case, the policy provided that a removal of the goods without the consent of the insurer would forfeit the [6] It was not error to admit evidence that the Shreve building was a less hazardous location than the Chronicle building. It was material upon the disputed question whether or not the companies' agents had consented to continue the risk in the new place, showing that it was not against their interest, and, consequently, that it was more probable that they would consent than if the risk had been thereby increased. It tended to corroborate the testimony of the plaintiff's witnesses as to such consent. There are no other points that require notice. The order is affirmed. (L. A. 3642.) Jan. 31, 1916.) 89 CON RECTOR v. LEWIS et al. (Supreme Court of California. 1. VENDOR AND PURCHASER TRACTS-RESCISSION-DELAY. Where no time was fixed for performance by plaintiff of certain agreements with reference to the exchange of lands, unexplained delay ants in rescinding. from April 10th to June 11th warranted defend [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 148, 149, 151, 156; Dec. Dig. 89.] 2. SPECIFIC PERFORMANCE 130-JURISDICTION-RELIEF TO DEFENDANTS. formance of a contract for the exchange of Where plaintiff filed suit for specific perlands, he could not complain that a court of equity, having taken jurisdiction, granted relief to defendants, who cross-complained, asserting rescission. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 424, 425; Dec. Dig. 130.] 3. VENDOR AND PURCHASER TRACTS-RESCISSION. 89 CON the exchange of lands and personalty on the Where defendants rescinded a contract for ground of plaintiff's delay in performance, their right to rescind is not affected because it was agreed that defendants should pay plaintiff personal property. a small sum of money in respect to some of the [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 148, 149, 151, 156; Dec. Dig. ~89.] 4. APPEAL AND ERROR HARMLESS ERROR. 1073 REVIEW |