MCEWEN v. OCCIDENTAL LIFE INS. CO. (L. A. 3611.) (Supreme Court of California. Jan. 31, 1916.) 1. JUDGES 51-CHANGE OF JUDGE AFFIDAVIT DISCLAIMER OF BIAS AND PREJUDICE -CONCLUSIONS. A motion to strike from the trial judge's affidavit, as conclusions, statements wherein he disclaimed the bias and prejudice on which plaintiff sought a change of judge, was properly denied. [Ed. Note. For other cases, see Judges, Cent. Dig. §§ 224-231; Dec. Dig. 51.] 2. JUDGES 51-CHANGE OF JUDGE-AFFIDAVITS DISCLAIMER OF Judge. An affidavit of the trial judge disclaiming the bias and prejudice for which plaintiff sought a change of judge to hear defendant's motion for new trial was sufficient to overcome plaintiff's slight showing of bias and prejudice, which consisted principally of a showing that the judge expressed dissatisfaction with the verdict, and during the trial had made various rulings adverse to plaintiff. [Ed. Note. For other cases, see Judges, Cent. Dig. 88 224-231; Dec. Dig. 51.] HARMLESS 3. APPEAL AND ERROR 1051 [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. 1051.] 4. JUDGES 49 CHANGE OF JUDGE GROUNDS-ERRONEOUS RULINGS. Erroneous rulings against a litigant, even when numerous and continuous, furnish no ground for a change of judge on account of bias or prejudice to hear a motion for new trial, especially where they are subject to review. [Ed. Note. For other cases, see Judges, Cent. Dig. §§ 187, 188; Dec. Dig. 49.] 5. JUDGES 49-CHANGE OF JUDGE-BIASEXPRESSION OF OPINION. The trial judge's statement on receiving the verdict that he did not see how the jury could have reached such verdict did not show bias or prejudice entitling plaintiff to a change of judge to hear defendant's motion for new trial, where it appeared that such statement was based on the judge's actual observation of the witnesses and his consideration of the evidence. [Ed. Note.-For other cases, see Judges, Cent. Dig. § 187, 188; Dec. Dig. 49.] 6. JUDGES 49-CHANGE OF JUDGE-BIASCHANGE OF OPINION. That the statement of the trial judge on receiving a verdict for plaintiff that he did not see how the jury could have reached such a verdict was inconsistent with his previous action in refusing a directed verdict for defendant and submitting the case to the jury did not show bias or prejudice entitling plaintiff to a change of judge to hear the motion for new trial. [Ed. Note.-For other cases, see Judges, Cent. Dig. $$ 187, 188; Dec. Dig. 49.] 7. NEW TRIAL 128 SPECIFICATION OF 串 it served merely to accelerate * the diseases, * * with said diseases in bringing about such death." and, at most, concurred [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 257-262; Dec. Dig. 128.] 8. NEW TRIAL 128-SPECIFICATION OF GROUND-SUFFICIENCY OF EVIDENCE. icy, a specification of a ground for new trial In an action on an accident insurance polthat there was no evidence tending to prove that insured and plaintiff had fulfilled the conditions of the policy, but that, on the contrary, insured had made a specified false warranty, and that plaintiff refused to permit an autopsy of his body, sufficiently showed defendant's theory and the evidence to which it was desired to call the court's attention, though it be conceded that the burden was on defendant to negative the warranties, and it failed to do so. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 257-262; Dec. Dig. 128.] 9. INSURANCE 646-ACTION ON POLICYDEFENSE-BURDEN OF PROOF. Where, in an action on an accident insurance policy, the execution and delivery of the policy were admitted, the burden was on the defendant to sustain the contentions made by it in its answer that statements made by insured by way of warranty were false. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1555, 1645-1668; Dec. Dig. 646.] GROUNDS DEFECTS IN SPECIFICA 10. APPEAL AND ERROR 302 Defects in the specifications of ground for new trial will not preclude the Supreme Court from considering the case on appeal where the adverse party had not been injured by such defects. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. 302.] 11. NEW TRIAL 70-Grounds-SUFFICIENCY OF EVIDENCE. In an action on an accident insurance policy, wherein defendant contended that insured died, not as a result of an accident, but from rheumatism and nephritis, held, that an order granting a new trial because the evidence was. not sufficient to support a verdict for plaintiff was warranted. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 142, 143; Dec. Dig. 70.1 12. APPEAL AND ERROR 843-REVIEW-IMMATERIAL MATTERS-EVIDENCE. Where, on appeal from an order granting tion on an accident insurance policy, the evia new trial after verdict for plaintiff in an acdence furnished by plaintiff herself was such that the granting of the new trial was not an abuse of discretion, and it did not appear that the court was influenced by a physician's certificate assigning rheumatism and nephritis as the cause of insured's death, it was unnecessary for the Supreme Court to consider the admissibility of the certificate in evidence or the constitutionality of the statute making such a cer For other cases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes tificate prima facie evidence of the cause of death. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3341; Dec. Dig. 843.] 13. APPEAL AND Error 977-DOCUMENTA BY RULING GRANTING OF NEW TRIAL. The granting of a new trial cannot be disturbed on appeal in the absence of an abuse of discretion. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. 977.] 14. APPEAL AND ERROR 1015 GRANTING OF NEW TRIAL-REVIEW. Where an order granting a new trial is in general terms, it will be affirmed on appeal if it can be sustained on any of the assigned grounds. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876; Dec. Dig. 1015.] Department 2. Appeal from Superior Court, Los Angeles County; J. P. Wood, Judge. Action by Rachel A. McEwen against the Occidental Life Insurance Company, a corporation. Verdict for plaintiff. From orders granting a new trial, refusing to transfer the motion for new trial to another judge, and denying motions to strike out affidavits, plaintiff appeals. Affirmed. See, also, 20 Cal. App. 477, 129 Pac. 598. Murphey & Poplin, of Los Angeles, for appellant. J. W. McKinley, Benjamin E. Page, and A. W. Ashburn, Jr., all of Los Angeles, for respondent. MELVIN, J. Plaintiff, who is the widow of Charles R. McEwen, brought this action upon an accident insurance policy upon the theory that deceased met his death by reason of an accidental fall. The defense was that the insured died, not as the result of accident, but of rheumatism and nephritis. The verdict was in favor of the plaintiff. Defendant moved for a new trial upon the minutes of the court. The notice of intention to make the motion specifies insufficiency of the evidence to justify the verdict, that the verdict was against law, and errors of law occurring at the trial and excepted to. The motion was granted. Plaintiff appeals from the order granting the motion for a new trial, and also from an order denying her motion to transfer the motion for a new trial and the cause to another department or to call in another judge. There are also appeals from orders denying motions to strike out parts of the affidavit of the judge, and all of that of E. C. Thompson. We will first consider the motion by which it was sought to disqualify the judge of the superior court to hear the motion for a new trial. The affidavits of the plaintiff and her daughter alleged, in substance, that the case was tried originally before the Hon. J. P. Wood in January, 1911, and that at the close of plaintiff's testimony defendant's motion for a nonsuit was granted; that thereafter plaintiff made a motion for a new trial and to set aside the judgment of nonsuit, which was granted; that upon defendant's appeal this ruling was upheld by the District Court of Appeal (20 Cal. App. 477, 129 Pac. 598); that after the first trial Mrs. McEwen believed Judge Wood to be prejudiced against her; that she so informed her attorneys, and told them that she was willing to make an affidavit to that effect; that they persuaded her not to do so and to allow the cause to remain in Judge Wood's department for trial without protest on her part; that when the verdict was returned and was read by the judge the following occurred: "That affiant was looking at the judge when he was reading the paper, and saw the expression on his face; that she noticed that he changed color and appeared to be very angry, and before the verdict was read aloud he turned to one of the attorneys for the defendant and said: 'I will entertain a motion for new trial upon the minutes of the court at any convenient time. I do not see how the jury could possibly have reached this verdict.' And affiant further understood him to say, although he used a lower tone of voice, 'And I will grant a new trial,' but with relation to the last remark of the court, owing to the low voice which he used, she is not altogether certain that he made the remark, but she believes that he did." The affidavit of Mrs. McEwen also contained the following language: "To further show that said judge is prejudiced and biased against her, affiant says that on the trial she noticed that generally on any objections made by counsel for defendant that said judge decided against plaintiff in nearly every important particular, that on the trial, among other things, he allowed former physicians of the deceased to testify to certain matters over the objection of plaintiff's counsel that the same was privileged, but that after the case was closed and just before reading the instructions, without any motion on the part of plaintiff's attorney, he struck out the said evidence, as having been improperly allowed before the jury, but allowed the certificate of death which was made by one of the physicians who attended deceased before his death to remain, and which had been objected to by her counsel as privileged and hearsay." Judge Wood made and filed an affidavit denying any bias or prejudice against the plaintiff or her cause of action, and denying also that he had said as alleged in Mrs. McEwen's affidavit that he would grant defendant's motion for a new trial. He did say upon receipt of the verdict: "I do not see how the jury could possibly have reached this verdict." Mr. Thompson, the official court reporter, made an affidavit regarding the proceedings on the motion for transfer of the cause under section 170, Code of Civil Procedure. It appeared from this affidavit, among other things, that the judge stated his belief that, instead of letting the case go to the jury, he should have directed a verdict in favor of the defendant. [1-3] The affidavit of the judge was entirely pertinent, and the motion to strike out, as conclusions, those parts in which he disclaimed bias and prejudice, was properly denied, because his state of mind was the very matter in dispute, and he was in a better position to know his own feelings toward the plaintiff than any one else. Besides, it was his duty, if he could do so, to negative the allegations of prejudice under oath in the form of an affidavit, reciting his mental attitude. Keating v. Keating, 169 Cal. 759, 147 Pac. 974. This affidavit was in itself sufficient to overcome the very meager showing made by the plaintiff in her effort to establish prejudice on the part of the judge. It makes little difference therefore whether Mr. Thompson's affidavit was, strictly speaking, admissible or not. which had been presented in the case and in reference to the sufficiency of plaintiff's proof. Such conviction in the mind of the judge, based upon his actual observation of the witnesses, the hearing of their testimony, and his knowledge of the law applicable to such cases does not amount to that prejudice against a litigant which the statute contemplates as a basis for change of venue. Western Bank of Scotland v. Tallman, 15 Wis. 92. no doubt of the justness and propriety of the court's action in denying the motion made by plaintiff under section 170, Code of Civil Procedure. The subject of alleg [6] Appellant argues that the demeanor of the judge at the time when the verdict was returned was inconsistent with the previous submission of the case to the jury after denying a motion for a directed verdict in favor of defendant. But such inconsistency [4, 5] Plaintiff's affidavit shows that after (if inconsistency it be) does not prove prejuruling against her in the first trial Judge dice. It merely indicates that upon maturer Wood granted her motion for a new trial, consideration of the case than the court had that an appeal was taken by her opponent, given at the time of the submission thereof and that she prevailed over that opponent to the jury the judge deemed it his duty, in the Court of Appeal. We fail to see how under his oath, to grant a new trial. The these facts indicated any bias or prejudice showing of prejudice was very slight, and, on the part of the judge. On the contrary, in our opinion, it was met so fully by the they evidenced a desire to do justice which affidavit of Judge Wood that there can be caused the judge frankly to admit that his ruling in granting the nonsuit was incorrect. Next we find that the plaintiff feared she would not be fairly treated on the second trial; but her state of mind is not evidence. ed disqualification of a judge has recentShe complains that the judge generally de- ly received so full and careful consideration cided against her on objections made by her in the matter of the Estate of Friedman, counsel, but she does not show, nor even as- 153 Pac. 918, that we need not review it sert, that such rulings were not generally anew with any degree of elaboration. Judge justified. Three of the four rulings of which Wood's suggestion that a motion for a she makes specific complaint seem to have new trial should be made upon the minutes been reversed by the court of its own mo- of the court was no more sinister in this tion. We refer to those by which the privi- case than was Judge Graham's remark to Mr. leged communications made by deceased to Woodworth in one of the proceedings in the three physicians were first admitted, and Friedman estate that counsel "should not then stricken out. Surely these things do appeal" from a certain order. If Judge not indicate prejudice. On the contrary, Wood displayed annoyance at what seemed they exhibit a desire on the part of the to him the misconception by the jury of the court to be fair. Erroneous rulings against a effect or weight of the evidence, he merely litigant, even when numerous and continuous showed what almost every judge of a trial form no ground for a charge of bias or prej- court has felt at times; yet such feeling udice, especially when they are subject to with reference to the insufficiency of the review. Estudillo v. Security Loan, etc., Co., case presented by one of the litigants is not 158 Cal. 66, 109 Pac. 884; Burke v. Mayall, the prejudice which the statute makes the 10 Minn. 287 (Gil. 226); State v. Bohan, 19 basis for its removal to another court. Fre Kan. 28; Stahl v. Schwartz, 67 Wash. 25, 120 quently the possession of such a feeling is a Pac. 856; Bell v. Bell, 18 Idaho, 636, 111 Pac. proof of the legal learning and the sense of 1074; State v. Barnett, 98 S. C. 422, 82 S. E. justice of the presiding jurist who harbors it. 795. Nor are a judge's expressions of opinion [7] Counsel for appellant insists that specuttered in what he conceives to be the dis-ifications of insufficiency of evidence numbercharge of his judicial duty evidence of bias ed VII, IX, X, XI, and XII are improper, or prejudice. State v. Bohan, supra; State because they relate to matters for proof of v. Crilly, 69 Kan. 802, 77 Pac. 701; Ex parte Fairbank Co. (D. C.) 194 Fed. 978; Epstein v. United States, 196 Fed. 354, 116 C. C. A. 174. which the burden was upon defendant, and because the affirmative statements in the specifications as to what the evidence showed are mere conclusions. The seventh specificaThe vexation of the judge and his remark tion recites that there was no evidence provthat he did not see how the jury could possi- ing or tending to prove that Mr. McEwen's bly have reached such a verdict does not death was not due to the concurrence of show prejudice against Mrs. McEwen. These nephritis and rheumatism with the effects of things indicated, perhaps, that he had form- his fall, if any. It then concludes as foled an opinion regarding the legal questions lows: "But, on the contrary, the evidence proves | recumbent position and sat on the edge of by an overwhelming preponderance that, if the the bed with his feet upon the floor. He then said fall suffered by the said McEwen contributed in any manner or degree to the death of sent his daughter to summon her mother said McEwen, it served merely to accelerate from a room across the hall, and during the the progress of the diseases from which the absence of the former from the apartment of said McEwen was then, suffering, and the last the sick man he fell. When his wife and stages of which were then approaching, to wit, nephritis and rheumatism, and, at most, con- daughter arrived in his room they found Mr. curred with said diseases in bringing about said McEwen with his head doubled under his death." shoulder in a limp manner. He was unconThis, we think, sufficiently directed the at-scious. They placed him on the bed, and tention of the court and the adverse party to he became conscious in a few minutes. He the particular point on which the evidence complained of a pain in his neck. He grew was claimed to be insufficient, and thus meas- worse, and died about 24 hours afterward. ured up to the requirements of section 659, All of these facts appear from the testimony Code of Civil Procedure. of plaintiff's witnesses. Dr. Phillp, called by the plaintiff, testified that he examined the body of Mr. McEwen after death. He found an abrasion on the outer part of the left arm-"a scraping of the epidermis," as he described it. He also testified as follows: "And I turned the body over, and saw what we call ecchymosis or discoloration of the skin over the neck and back of the left shoulder extending down the back a short distance. It was a deep purple discoloration, fading off. I didn't see any other marks or discolorations on the body. I looked over the body to see whether there were others or not. In my opinion, that bruise or discoloration was caused before death, because there was a faint bruise still about the scrape on the arm, and the ecchymosis or discoloration was apparently fresh and localized." [8-10] The ninth specification is to the effect that there is no evidence proving or tending to prove that Charles R. McEwen and plaintiff fulfilled the conditions of the policy, but that, on the contrary, he made a certain quoted warranty which was false, and she refused to permit an autopsy upon his body after death. It may be that, under the pleadings the burden was on the defendant to negative the warranties in the policy, and that it failed to do so, but this specification and the others which are attached sufficiently show defendant's theory and the evidence which it was desired to call to the court's attention. It is our opinion that, the execution and delivery of the policy being admitted, the burden was upon the defendant to a show the falsity of statements of Mr. McEwen made by way of warranty; such statements having been attacked by the answer. If the defendant failed, as appellant asserts, and no such proof was made, we must assume that the court granted the motion for some other reason. There are other specifications the form of which appellant does not attack. For example, the eighth specification is, in substance, that there was no evidence over coming the prima facie case established by the certificate of death attributing the decease of Mr. McEwen to rheumatism with nephritis as a contributory cause. We cannot see that the opposite party was injured by the alleged defects in some of the specifications, and for that reason we will not refuse to consider the case on appeal. American Type, etc., Co. v. Packer, 130 Cal. 461, 62 Pac. 744; In re Yoakam, 103 Cal. 503, 37 Pac. 485; Abbott v. Jack, 136 Cal. 513, 69 Pac. 257; Seymour v. Oelrichs, 156 Cal. 789, 106 Pac. 88, 134 Am. St. Rep. 154. [11] Without reviewing the testimony very extensively, we may say that Mr. McEwen had been confined to the house with a serious illness for a number of days. Dr. Ferbert was in attendance. The condition of the patient was such that he required the constant nursing of his wife or his daughter. On the night of the fall his daughter had persuaded her mother to take some rest, and she, the daughter, was taking care of the patient. During the night Mr. McEwen wish He further stated that it was possible for healthy person to be struck a blow on the shoulder or neck which would not break any bones, but would cause death. On crossexamination he said that such a thing was possible, but not probable. He had been asked a hypothetical question on direct examination based upon a statement of some of the circumstances in evidence, but would not venture to say what the cause of death would be in view of such circumstances. On cross-ex amination he said: question asked me I believe it is impossible to "From the matters stated in the hypothetical tell or determine the cause of death. The only possible way to determine it would be by an autopsy." Other physicians testified that the post mortem conditions did not result from a blow or fall, and that there was a swelling of the leg which might be a symptom of nephritis, or a diseased condition of the heart or liver. Unquestionably there was no autopsy. Upon this evidence the court might well have concluded that there was no sufficient showing to support the burden of proof which was upon plaintiff. [12-14] Appellant attacks the ruling whereby the certificate made by Dr. Ferbert and assigning rheumatism and nephritis as the causes of death was admitted in evidence. It is not necessary for us to go into this matter nor to discuss the constitutionality of the statute which makes such a certificate prima facie evidence of the cause of death. There is no showing that the court depended upon the certificate of Dr. Ferbert in reaching the should be granted. Without the certificate sons acting under any statute are deemed and upon the evidence furnished by plaintiff herself there was ample scope for the exercise of that wide discretion which is committed to a trial court in granting or denying a motion for a new trial. Unless there has been an abuse of discretion, the action of that court is conclusive. The order was in general terms, and it must be affirmed if it can be sustained upon any of the assigned grounds. Gordon v. Roberts, 162 Cal. 508, 123 Pac. 288; Condee v. Gyger, 126 Cal. 547, 59 Pac. 26; Empire Investment Co. v. Mort, 169 Cal. 736, 147 Pac. 960. Clearly the court was guilty of no abuse of discretion in granting the motion for a new trial. to have acted in contemplation of this power In Bank. Appeal from Superior Court, Seawell, Judge. and others, wherein J. F. Bradford and J. Action by H. A. Moss against C. C. Moore Howard Smith intervened. From a judgment sustaining demurrers to the complaints, plaintiff and Bradford appeal. Affirmed. Schlesinger & Shaw and Edwin H. Wil The orders from which plaintiff appeals liams, all of San Francisco, for appellants. are affirmed. Garrett W. McEnerney, Alfred Sutro, and We concur: HENSHAW, J.; LORIGAN, J. San Francisco, for respondents. MOSS et al. v. SMITH et al. (S. F. 6412.) (Supreme Court of California. Jan. 29, 1916.) 1. CORPORATIONS 326-CREATION OF EXCESSIVE DEBT · LIABILITY OF DIRECTORS PUNITIVE STATUTE. Civ. Code, § 309, making participating directors jointly and severally liable to the corporation and to creditors thereof to the full amount of a debt created beyond the subscribed capital stock, though it be conceded to be remedial so far as the creditor is concerned, is highly punitive so far as concerns the directors. [Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 1443, 14602, 1469, 1498; Dec. Dig. 326.] Corbet & Selby, of San Francisco, for respondent Moore. Pillsbury, Madison & Sutro, of San Francisco, for respondent Pillsbury. Morrison, Dunne & Brobeck, of San Francisco, for respondent Martin. HENSHAW, J. The plaintiff, H. A. Moss, brought this action against the defendants, directors of the Ocean Shore Railway Company, based upon the provisions of section 309 of the Civil Code. He averred that the Ocean Shore Railway Company had a capital stock of $5,000,000 all of which had been subscribed for and issued, and all of which was held and owned by divers persons; that the Ocean Shore Railway Company had issued and sold $5,000,000 of its bonds, equal to the total amount of its capital stock and of its subscribed capital stock, and owed $5,000,000 indebtedness on account of this bond issue; that plaintiff is the owner of eight of these bonds of the par value of $1,000 each; that, while the Ocean Shore Railway Company thus had outstanding debts represented by its notes and bonds in the sum of $5,000,000, the defendants became 3. CORPORATIONS 326-CREATION OF Ex-directors of the company, and as such diCESSIVE DEBT-LIABILITY OF DIRECTORS— REPEAL OF STATUTES. Civ. Code, § 309, making the participating directors liable for debts contracted in excess of the amount of the capital stock, in so far as it affected an action brought thereunder by a creditor on behalf of himself and other creditors, judgment in such action being entered April 15, 1912, was repealed by the Public Utilities Act, effective March 23, 1912 (St. 1911, p. 18), which covers the same subject-matter and prescribes a monetary penalty against the corporation, rather than against the directors, and makes the directors guilty of a felony, instead of a misdemeanor, but contains no clause saving pending litigation or inchoate rights. rectors created debts of the corporation in the amount of upwards of $2,000,000 more; that all of this $7,000,000 indebtedness is due and unpaid; that the corporation became and is insolvent; that this action is brought by plaintiff as a creditor of the corporation on his own behalf and on behalf of all the creditors of the Ocean Shore Railway Company. The prayer is for a joint and several judgment against these defendants to the amount of $8,000, the indebtedness due plaintiff, with interest; further, that defendants be ordered to pay $2,000,000 into court for the purpose of satisfying the claims of the other creditors. J. F. Bradford and Ac-J. Howard Smith by leave of court filed their complaints in intervention, which comUnder Pol. Code, § 327, providing that any statute may be repealed at any time except plaints in intervention are in all particulars when otherwise provided therein, and that per- essential to this consideration identical with [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1443, 14602, 1469, 1498; Dec. Dig. 326.] 4. CORPORATIONS 326 - DIRECTORS TIONS REPEAL OF STATUTE. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |