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ing Pennie v. Hildreth, 81 Cal. 127, 22 Pac. 389; Adams v. Crawford, 116 Cal. 495, 48 Pac. 488; United Land Ass'n v. P. I. Co., 139 Cal. 370, 69 Pac. 1064, 72 Pac. 988. Also the allegation that the claim of defendants is without right being denied, it also must be proved by plaintiffs-citing Tompkins v. Sprout, 55 Cal. 31. The findings in favor of plaintiffs upon these allegations are challenged as unsupported by any evidence, and that, therefore, the judgment and order should be reversed. Defendant McConnell, by her special denials, failed to deny that she claimed some interest in the land adverse to plaintiffs, but defendant McMannus, by her general denial. raises the question. If defendants' denials are to be treated as general to the unverified complaint, they merely put in issue the title to the land. Pennie v. Hildreth; Adams v. Crawford, supra. We think, however, that these defendants (appellants) have pleaded such claim as they had, shadowy though it in fact was (see Bohnert's Appeal), and on which they offered no proof whatever. They alleged fraud in the conveyance to plaintiffs, and set up a right to have the action suspended until they could have their claim against the Dorrises, through whom plaintiffs deraign title, ripen into judgment, to be followed by an action to set aside plaintiffs' conveyance. Without a judgment they were in no position to attack the deed for fraud (Aigeltinger v. Einstein, 143 Cal. 609. 77 Pac. 669); but they refused to disclaim any right or interest, and asserted all the title or right they had, as called upon by plaintiffs to do, and, though unavailing, conjectural, and uncertain, it was yet an assertion of a claim of right in the land. The failure of defendants to submit any evidence in support of their claim left the court free to find that it was without right, and also to find that such as it was it was adverse to plaintiffs, and this without aid from plaintiffs' evidence. But plaintiffs, unnecessarily we think, in view of defendants' failure to submit any evidence, did, however, submit evidence touching the issue of fraud tendered by defendants, and fully established the entire good faith of the transactions culminating in plaintiffs' title, free from any taint of fraud. In commenting upon sections 738 and 739 of the Code of Civil Procedure, it was held in Bulwer M. Co. v. Standard M. Co., 83 Cal. 589, 23 Pac. 1102, that the purpose of averring an adverse claim is to notify defendant of the nature of the action, and requiring him to set forth and litigate any adverse title he may claim to have or to disclaim having such title either expressly or by default; that "the only material issues tendered by a complaint in this class of cases relates to the title of the real property described in the complaint; therefore there was no necessity for a finding upon the formal but immaterial issue, as to whether the defendant had asserted an ad87 P.-19

verse title before the commencement of the action." It was said further: "The object of sections 738 and 739 is to enable the plaintiff, in such action, to dispel whatever may be regarded by third persons, as well as by defendant, as a cloud upon his title; for even though the defendant makes no adverse claim, third persons may regard plaintiffs' title as being subject to an adverse claim by the defendant, which would be a cloud upon plaintiffs' title, depreciating its value, and which he would be entitled to have removed by the decree of the court." Appellants contend that this is not the law, and that the expressions of the court were not necessary to the decision and were but dicta, and were used in a case where the defendant had disclaimed any estate or interest. seems to us that the "material issues" in this class of cases "relate to the title of the real property described in the complaint" and nothing else. When the title is found to be in the plaintiff, and no title or interest is shown in defendant, it necessarily follows that the claim of the defendant is without right, whether adverse or not. If the defendant makes default the court may find the allegations of the complaint to be true; why not also when the defendant answers but fails to support it by evidence? How can plaintiff know the nature of defendant's claim unless it is pleaded, and would it not be unreasonable to hold to a rule requiring him to show that a claim of which he has no knowledge is without right, except by showing his own right? If defendant's claim be pleaded, the burden is then upon defendant to establish it, failing in which, the findings must be against defendant. Crook v. Forsyth, 30 Cal. 662; Stoddard v. Burge, 53 Cal. 394. This seems to us both reasonable and logical and in conformity with the object of the action, as stated in the case reported in Bulwer M. Co. v. Standard M. Co., supra. However this may be, defendants denied plaintiffs' title, and set up their adverse interest. The issues usual in such cases were thus formed, and each party was called upon to make good by evidence his affirmative averments, touching his own title to or interest in the property. Neither party was required to disprove his adversary's case, but could rest upon proof of his own title.

2. Appellants further contend that, because the court found the specific facts showing ownership. and also found generally that plaintiffs were the owners of the property, the general findings became mere conclusions of law, and the specific findings must support the conclusion of ownership, and neeessarily the evidence must support the specific facts found, or a reversal must result. Citing Gruwell v. Seyboldt, 82 Cal. 7, 22 Pac. 938; Sav. & Loan Soc. v. Burnett, 106 Cal. 514, 39 Pac. 922. Appellants designate eight separate findings, which, it is claimed, fall within the above objection. It would unnec

essarily prolong this opinion to state these
findings and the evidence found in the record
to support them. These findings seem to
have had for their main object to deraign
the title, untainted by fraud, through
Churchill to plaintiffs, and to show the cir-
cumstances under which he came into pos-
session and control of the property, the rela-
tion to the Dorrises, the title by which he
held the property, the equity retained by the
Dorrises, and finally that, in consideration
of discharging their indebtedness to Church-
ill, they deeded and released all their in-
terest, legal and equitable, to him; it was
found that he conveyed to plaintiffs and that
the transactions set forth were free from
fraud. The evidence, we think, supports
these findings, and, when taken in connection
with the complete findings, fully support the
general findings of title in plaintiffs. Appel-
lants in their brief say that the court ob-
viously attempted to find that the transfer
to plaintiffs was not a fraud upon the cred-
itors of P. A. and C. J. Dorris. We think
the court succeeded in its attempt. The al-
leged apparent contradiction between finding
designated 8 in defendants' brief and finding
5 is not real. The agreement and transfer
of the Dorrises to Churchill, and them to
plaintiffs, occurred on the same day, and
when Churchill conveyed to plaintiffs it
is true that P. A. and C. J. Dorris no
longer had any equitable interest in the
property, and long before this date the legal |
title had vested in Churchill. It may be
doubted whether the court was called upon to
find the evidence going to prove ownership,
having found such ownership in plaintiffs
(Daly v. Sorocco, 80 Cal. 367, 22 Pac. 211);
but conceding appellants' position that, hav-
ing done so, the evidence must support the
findings, we think this requirement is fully
met. In point of fact a perfect and unbroken
chain of title, free from fraud, from the
government to plaintiffs is shown. Against
it is urged purely technical rules of law
which, though entitled to recognition, are
without merit under the circumstances and
facts disclosed.

The judgment and order are affirmed.
We concur:

LES, J.

(4 Cal. App. 50)

MCLAUGHLIN, J.; BUCK

McGEHEE v. SCHIFFMAN. (Civ. 247.) (Court of Appeal, Second District, California. July 5, 1906. Rehearing Denied Aug. 30, 1906.)

1. NEGLIGENCE-PLEADING-COMPLAINT.

In an action for injuries alleged to have resulted from from defendant's negligence, it is sufficient for the complaint to charge that the act was negligently done, without stating the particular omission which rendered the act negligent, provided it also appears from the facts averred that the negligence caused or contributed to the injury.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 174, 175, 182.]

2. SAME-PROXIMATE CAUSE.

Plaintiff alleged that defendant extracted seven of her teeth and removed all of them from her mouth except one, which, by defendant's carelessness, negligence, and unskillfulness, was permitted to drop and pass into plaintiff's right lung, without any fault or negligence on plaintiff's part. Held, that the complaint was not demurrable for failure to show that defendant's negligence was the proximate cause of the injury, because it was necessary that plaintiff should have used the muscles of her throat in order that the tooth could have gotten into her trachea.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, § 18312.]

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3. PHYSICIANS AND SURGEONS NEGLIGENCE OF DENTIST-EVIDENCE.

In an action against a dentist for injuries caused by a tooth dropping into plaintiff's trachea, and thence into her lung, evidence held to sustain findings that defendant carelessly and negligently permitted the tooth so to pass into plaintiff's trachea, without fault on her part, by reason of which she was damaged.

Appeal from Superior Court, Los Angeles County; D. K. Trask, Judge.

Action by Alice C. McGehee against A. F. Schiffman. From a judgment for plaintiff, and from an order denying defendant's motion for a new trial, he appeals. Affirmed.

A. B. McCutchen, for appellant. E. Edgar Galbreth, for respondent.

ALLEN, J. Action to recover damages on account of injuries sustained through negligence. Judgment for plaintiff, new trial denied, and defendant appeals from such judgment on the roll, and from an order denying a new trial.

The first contention of appellant is that the complaint, which alleges that "the defendant did then and there extract seven of said teeth and remove all of the same from her mouth excepting one of said teeth, which, by said defendant's carelessness, negligence, and unskillfulness, was permitted and allowed by him to drop and pass into plaintiff's right lung, without any fault or negligence on her part," was insufficient, in that the negligence averred was not the proximate cause, for the reason that it is manifest that plaintiff, having control over her own muscles and breathing apparatus, the tooth by any negligence or omission of defendant could only have been allowed to escape into the mouth, and that it should reach the lung comprehended action on plaintiff's part which would be the proximate cause of the injury; that, if there was an unbroken sequence of events through which the injury was chargeable to defendant, those continuous events should have been pleaded; that the complaint was uncertain, in that it cannot be ascertained "how or in what manner any carelessness on the part of the defendant occasioned the injury, nor how the defendant by any act or omission of his could permit or allow the plaintiff's tooth to drop or pass into her right lung. It is sufficient to allege the negligence in general terms, specifying, however, the particular act which is alleged to have

been negligently done. "Negligence is the ultimate fact to be pleaded, and it forms part of the act from which an injury arises. *** It is the absence of care in the performance of an act, and is not merely the result of such absence, but the absence itself." Stephenson v. Southern Pac. Co., 102 Cal. 148, 34 Pac. 620. When we consider that the demurrer admits that through want of care defendant allowed the tooth to drop into the lung, whereby the injury followed, it removes from consideration the possibility of any intervening facts or circumstances being the proximate cause of the injury. "It is sufficient to say it was negligently done, without stating the particular omission which rendered the act negligent. But it must appear from the facts averred that the negligence caused or contributed to the injury." Smith v. Buttner, 90 Cal. 100, 27 Pac. 29. In the complaint under consideration it is averred that he dropped the tooth into the lung, the fact which caused the injury. The dropping of such tooth is admitted to have been occasioned through want of care. Nor can a court say, as a matter of common knowledge, that the fact admitted was impossible without some other agency acting upon it. We regard the complaint as sufficient, and in no sense as ambiguous or uncertain.

Upon the appeal from the order, it is contended that there is no evidence in support of the finding of the court that defendant was negligent, or that such negligence caused the injury. There was evidence tending to show that defendant undertook for a consideration to extract certain teeth; that preliminary thereto he administered an anesthetic, from which plaintiff was rendered entirely unconscious, and that four teeth were extracted; that thereupon plaintiff was placed a second time under the influence of the anesthetic, and defendant undertook the extraction of three other teeth; that when plaintiff regained consciousness she was strangling and coughing as though she were choking, and she felt as if some foreign substance had gone through her windpipe; that she continued this coughing and became sick; that an abscess formed in the lower lobe of the lung, and quantities of yellow pus were expectorated; that her condition was such as might be expected to result from a foreign substance in the lung; that afterwards, during a fit of coughing, she expelled from her lung a tooth. It appears further that plaintiff was in perfect health before she entered defendant's office to have such teeth extracted; that from that day she began to be sick, and thereafter was continuously under the care of a physician; that after the tooth was

expelled, though in a weak condition, she began to improve. It was further in evidence that by the use of ordinary care the extractor could keep the mouth of the patient clear of blood and, in case a tooth should escape from the forceps, as is frequently the case, he is able to remove it; that constant care is necessary to be exercised that teeth may not escape into the trachea; that a skillful operator keeps track of the teeth as extracted and knows when he has taken them all from the mouth, and examines the teeth actually extracted to see that no fragments are left in the mouth; that in the exercise of ordinary care the operator could discover whether any of the teeth or any fragments thereof had not been removed from the mouth. It further appears that a tooth slipping from the forceps may pass into the lungs; that the use of nitrous oxide as an anesthetic would increase the possibility of a tooth escaping from the mouth into the windpipe. There is no evidence in the record that defendant took any of the precautions before mentioned, or made any observations to see whether or not he had completed his task. In addition to all this, there was evidence tending to show that ordinarily a patient regaining consciousness will not cough; that, if coughing and strangling ensues after consciousness is regained it is recognized as an evidence of the fact that a foreign substance has escaped, and that unusual and great precautions are thereupon taken by the operator to cause its immediate removal; that, notwithstanding plaintiff's coughing and giving every evidence of having some foreign substance in her windpipe, no attention was paid to her by the defendant, and no effort made to ascertain the cause of her unusual condition. There was therefore competent evidence tending to establish the averments of the complaint, not only as to the negligence, but as to the proximate cause of the injury. Nor can we say that there was established any intervening act of plaintiff, voluntary or otherwise, which contributed to such injury. We think, therefore, that there is evidence in the record sustaining the findings of the court that defendant carelessly and negligently permitted and allowed a tooth to drop and pass into and down plaintiff's windpipe, and thence into plaintiff's right lung, without fault upon her part, by reason of which plaintiff was damaged.

There is no prejudicial error apparent in the record, and the judgment and order are affirmed.

We concur: GRAY, P. J.; SMITH, J.

(17 Okl. 162)

BEADLES v. SMYSER. Mayor, et al. (Supreme Court of Oklahoma. Sept. 6, 1906.) 1. MUNICIPAL CORPORATIONS-ACTIONS-ExECUTION-PROPERTY SUBJECT.

In the absence of statutory inhibition, an ordinary execution may issue on a judgment against a city of the first class, and, while on the ground of public policy it cannot be levied on any of the general revenues of the city, either before or after they are collected, or upon any property either real or personal, which is reasonably necessary for government purposes, still, if any property can be found which is not reasonably necessary for the public welfare, and which is held by the city as private property for its beneft, it may be levied upon and sold to satisfy an execution. [Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 2211; vol. 21, Cent. Dig. Execution, § 133.]

2. JUDGMENT-DORMANCY.

Under section 4337 of the Statutes of Oklahoma of 1893, which provides that: "If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered, in any court of record in this territory, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor"-a judgment against a city of the first class becomes dormant after five years from the date of its rendition, unless the judgment creditor, within such time, causes execution to issue thereon. [Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, § 1567.]

3. MANDAMUS - COMPELLING PAYMENT OF JUDGMENT AGAINST CITY-DORMANT JUDGMENT NOT REVIVED.

Where a judgment creditor fails to have execution issued within five years on a judgment against a city of the first class, and also fails to revive such judgment within one year after it becomes dormant, it will be treated as barred by the statute of limitation, and the courts will deny the aid of mandamus to compel payment of the same.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Mandamus, § 231.]

4. JUDGMENT - DORMANCY AGREEMENT LACHES OF JUDGMENT CREDITOR.

An agreement between practically all of the judgment creditors of a city that such city shall pay such creditors in the order of priority of the date thereof, instead of paying such judgment creditors their pro rata shares, and a resolution of a city council which refers to such agreement and orders the city treasurer to pay such judgment according to such contract, do not change the legal status of the city toward any of such creditors; nor do they excuse any judgment creditor from suing out an execution within five years of the date his judgment was rendered, or from securing a revivor of his judgment within one year after it became dormant.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, § 1569.]

(Syllabus by the Court.)

Appeal from District Court, Noble County; before Justice Bayard T. Hainer.

Action by J. B. Beadles against A. E. Smyser, mayor of city of Perry, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

S. II. Harris and Dale & Bierer, for appellant. A. N. Whiteside, for appellees.

BURWELL, J. This is an action of mandamus commenced by the plaintiff to compel the officers of the city of Perry to take steps looking toward the payment of some 32 judg ments against that city, which amount in all to something over $16,000. All of these judgments were rendered more than six years prior to the commencement of this action, and are now owned by the plaintiff. No execution was ever issued on any of these judgments, nor have any of them been revived under the statute. The answer pleads the statute of limitation, and this is really the only question involved in the case.

It is contended by the defendant that, upder section 4337 of the Statutes of Oklahoma of 1893, the judgments involved in this action are dormant. It provides as follows: "If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered, in any court of record in this territory, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor." This court had occasion to construe this identical statute in the case of J. B. Beadles v. W. R. Fry, City Treasurer of the City of Perry, et al., 15 Okl. 28, 82 Pac. 1041, 2 L. R. A. (N. S.) 855, and it was therein held that this statute of limitation would run in favor of a city of the first class on a judgment against it, unless the judgment creditor sue out an execution within five years from the date of its rendition. It was also stated in that opinion that: "Where a judgment creditor fails to have execution issued within five years on a judgment against a city of the first class, and also fails to revive such judgment within one year after it becomes dormant, it will be treated as barred by the statute of limitation, and the courts will deny the aid of mandamus to compel payment of the same." In that case, as in this, the plaintiff contended that the city council had passed a resolution approving an agreement entered into by all of the judgment creditors of the city, to the effect that all judgments should be paid in the order of their rendition. It is insisted that this contract and resolution took the judgments in question out of the statute of limitation, even if such statute would run m favor of a city, which plaintiff denies. of these questions were decided against the contention of the plaintiff in the case referred to. These and other questions were fully dis cussed in that opinion.

All

The two cases involve exactly the same questions, and upon that authority the judgment of the lower court is hereby affirmed, at

the cost of the appellant. All of the Justices, concurring, except HAINER, J., who presided at the trial below, not sitting.

(17 Okl. 97)

CHICAGO, R. I. & P. RY. CO. v. STIBBS. (Supreme Court of Oklahoma. Sept. 5, 1906.) 1. EVIDENCE-CONCLUSION OF WITNESSES.

It is not error for the court to strike from a deposition, or exclude from the testimony of a witness, any statement or answer which is merely a supposed inference or coclusion of the witness drawn from a given state of facts.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 2186.]

2. CARRIERS-INJURIES TO PASSENGERS-DILI

GENCE.

A common carrier of persons for hire or reward must use the utmost care and diligence for their safe carriage, and must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.

[Ed. Note. For cases in point. see vol. 9. Cent. Dig. Carriers, §§ 1087-1092.]

3. DAMAGES-PERSONAL INJURIES.

In an action for personal injuries which prevent the plaintiff from pursuing his usual occupation, his loss of earnings is a proper element of damages, and evidence of his average monthly earnings is admissible.

4. TRIAL-INSTRUCTIONS.

The instructions in this case with reference to the measure of damages do not assume the existence and proof of disputed facts, and thereby invade the province of the jury in determining the measure of damages, but fairly and correctly state the law.

(Syllabus by the Court.)

Error from District Court, Grant county; before Justice James K. Beauchamp.

Action by John Stibbs against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

This was an action for personal injuries brought in the district court of Grant county, by John Stibbs, defendant in error, against the Chicago, Rock Island & Pacific Railway Company, plaintiff in error. The facts, briefly stated, are that the plaintiff was a lawful passenger on the defendant's train, having purchased at Kansas City a ticket to Medford, Okl. That about the hour of three o'clock on the morning of March 14, 1903, at a point near Dwight, Kan.. the train collided with the eastbound train known as the "Golden State Limited." The plaintiff at the time was asleep in one of the coaches of the westbound train, and was thrown from the seat in which he was reclining at the time, against the furniture or seat of the car, whereby he claims he sustained serious injuries to his head and back, and that said injuries were occasioned by reason of the negligence of the defendant company. The defense was a general denial, and contributory negligence. There was little, if any, conflict in the evidence, except on the issue for the injuries that were sustained by

the plaintiff. The injuries sustained by the plaintiff were the principal ground of contention. The plaintiff claimed that he received serious injuries to his head and spine, on account of which he was wholly incapacitated to pursue his usual vocation. On the other hand, the railway company contended that the plaintiff received but slight injuries, if any, and that the injuries the plaintiff claimed to have sustained to his spine were merely feigned and a sham. A great deal of evidence was introduced on both sides, and the jury returned a verdict for the plaintiff, and assessed his damages at $6.500. At the request of the defendant, special findings of fact were submitted, which were answered by the jury. and returned with their general verdict. These answers are in harmony with the general verdict. Judgment having been entered by the court in accordance with the verdict. a motion for new trial was filed. and was considered and overruled by the court, and exception was saved, and the defendant brings the case here for review.

M. A. Low, Paul E. Walker, Blake, Blake & Low, and J. C. Robberts, for plaintiff in P. C. Simons and A. M. Mackey, for defendant in error.

HAINER. J. (after stating the facts). The first error assigned and argued is that the court erred in striking out certain portions of the affidavit of Paul E. Walker for continuance, and which was treated as the deposition of the absent witness, Bert Streets, under the provisions of section 329 of our Code of Civil Procedure (page 816, Statutes of 1893). The portions striken out were merely the opinion or conclusion of the witness, and not a statement of fact. It is not error for the court to strike from a deposition, or exclude from the evidence of a witness, any statement or answer which is merely an inference or conclusion of the witness drawn from a given state of facts. In Da Lee v. Blackburn, 11 Kan. 190, the rule is thus stated: "It is not error for the court to exclude statements of a witness when the statements are not statements of fact or conversation, but merely conclusions of the witness drawn from facts and conversations." In Shepard v. Pratt, 16 Kan, 209, it is said: "A witness should state the facts, and not his conclusions from the facts. So, where, in a deposition, a witness, after testifying that he heard a conversation between certain parties, proceeds as follows: From such conversation I learned,' and then gives, not his recollection of what the parties stated, but what he understood was the result of the conversation, held, there was no error in ruling out that portion of the deposition.”

Plaintiff in error contends that the court erred in giving instruction 5. which is as follows: "You are instructed that, under the law of this territory, a carrier of persons for reward must use the utmost care and dili

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