caused by storm, flood, fire, inevitable accident, | improvements as he might require, also make or act of a stranger. * * There are dicta all necessary repairs and to keep the same in and perhaps one decision to the effect that the tenant is not bound to rebuild in case of such de- tenantable order at his own cost." There, struction by the act of God or of destruction by as here, the lessee abandoned the premises, the public enemy. Such a view can be support- claiming that the same had become untenanted only on the theory that the covenant to re-able because of the settling of the rear wall pair, in view of the circumstances under which it was made, is not in the particular case to be construed as extending to injuries so caused, and the authorities show that such a limited construction is not ordinarily placed upon the cove nant. The tenant is liable, under the covenant to repair, in case the premises are injured by third persons, or even if the premises fall on account of defects existing therein at the time of the lease."

To the same effect is Taylor on Landlord and Tenant (9th Ed.) § 364.

Our own Supreme Court, stating the effect of a general covenant to repair in the case of Polack v. Pioche, 35 Cal. 416, 422, 95 Am. Dec. 115, used the following language:

"If the tenant desires to relieve himself from [damages] resulting from any of the causes above enumerated, or from any other cause whatever, he must take care to except them from the operation of his covenant."

In a Texas case in many respects like the one at bar the lease contained the following

covenant:

"It is expressly agreed and understood that the said Martinez [the tenant] shall himself bear all the expenses of repairing or improving the premises hereby leased him during his occupancy of same."

owing to the original defective construction of the foundation. The court, sustaining the right of the landlord to recover the money expended by him in making certain repairs, held that:

"As the covenant was absolute to make all necessary repairs and keep the premises in tenantable order, and no fraud on the part of the landlord having been shown, defendant was bound to make the repairs irrespective of the cause of the defect, and defendant having abandoned the premises without making the repairs the landlord had a right to make them and recover the expenses." Lockrow v. Horgan, 58 N. Y. 635.

[2] Section 1932 of the Civil Code has no application to the facts of this case. That section provides:

*

ing before the end of the term agreed upon "The hirer of a thing may terminate the hirwhen the greater part of the thing hired, or that part which was and which the latter had at the time of the hiring reason to believe was the material inducement to the hirer to enter into the contract, perishes from any other cause than the want of ordinary care of the hirer."

That section is not applicable to a case where the lease itself expressly provides who shall make the repairs; and even if it could he held that this section does apply, the evidence wholly fails to show that the greater part of the thing hired, or that part which was the material inducement to the hirer, was destroyed. We think, therefore, that from no aspect of the case was the tenant relieved from the obligation to pay the agreed rent.

There also the only exception to the lessee's obligation was a covenant on the part of the lessor to make needed repairs to the roof. The building had been condemned by the municipal authorities of Dallas and ordered demolished. Subsequently a resolution was passed by the city council ordering the building to be repaired under the direction of the city engineer. The tenant refused to make the repairs, and they were made at the expense of the landlord, who brought suit to recover the amount expended by him. The court, holding that the landlord was entitled | ARDS, J. to recover the cost of the repairs, used the following language:

"The contract shows that defendant obligated himself to bear all expenses of repairing or improving the property during his occupancy. This would obligate him to bear the expenses of everything falling within the meaning of repairs or improvements necessary during the term, except as by the other provisions of the contract he may have been released from such liability. *

The judgment is reversed.

We concur:

LENNON, P. J.; RICH

(33 Cal. App. 23) PEOPLE v. GILBRETH. (Cr. 527.) (District Court of Appeal, Second District, California. Feb. 14, 1917.) CRIMINAL LAW 913(1)-TIME FOR ENTRY OF JUDGMENT-RIGHT TO NEW TRIAL-STATUTE.

The work which Thomp-viding that after a verdict of guilty the court As the provisions of Pen. Code, § 1191, proson caused to be done was for the purpose of restoring the house to a sound state or a safe con- 2 nor less than 5 days after verdict, and that must appoint a time for judgment not more than dition, and this was the repairing, the expense the court may extend the time not more than 20 of which the defendant promised to pay." Mardays, where the question of probation is continez v. Thompson, 80 Tex. 568, 16 S. W. 334. cerned, are mandatory, in view of section 1202, requiring judgment to be pronounced on day appointed or to which it is continued under section 1191, and if not rendered within the time fixed the defendant shall be entitled to a new trial, in a prosecution for embezzlement where, after verdict of guilty, plaintiff made oral application for release on probation, and the time for hearing this application and for pronouncing judgment was extended several times, until the court finally denied the application for probation, and en

To the same effect is Markham v. David Stevenson, etc., Co., 104 App. Div. 420, 93 N. Y. Supp. 684.

In the case in New York the obligation of the tenant was held to extend even to the repair of dilapidations caused by defects in the construction of the building. In that case the lessee covenanted "to make such

tered judgment 33 days after the date of conviction, defendant was entitled to a new trial.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2137-2139, 2141, 2142, 2145.]

Appeal from Superior Court, Los Angeles County; Gavin W. Craig, Judge.

George W. Gilbreth was convicted of embezzlement, and his motion for a new trial denied, and he appeals. Judgment and order reversed.

A. A. Sturges and Waldo, Root & Dysert, all of Los Angeles (G. E. Waldo, of Los Angeles, of counsel), for appellant. U. S. Webb, Atty. Gen., and Robert M. Clarke, Deputy Atty. Gen., for the People.

JAMES, J. The defendant, by verdict of the jury returned on the 14th day of September, 1916, was found guilty of the crime of embezzlement, a felony. He made oral application for release on probation, and the court, without request or consent of the defendant, fixed the time for hearing of this application and for pronouncing judgment at September 28, 1916. On September 28th, at the request of defendant, time was extended to October 5th. Another extension was made from October 5th to October 10th, at the request of defendant. On October 10th, however, without the request of defendant, time was extended to October 17th, which was 33 days after the date of conviction.

COMPLAINT ALLEGATION OF DAMAGE.
Complaint, alleging in general terms inju
ries suffered by employé while digging a trench
for the laying of sewer pipe, concluding with
the prayer for a specific amount of damages, was
not insufficient for failing to allege in the body
of the complaint the specific damage suffered.
[Ed. Note.-For other cases, see Damages,
Cent. Dig. §§ 422-425.]

2. APPEAL AND ERROR 930(2)-PRESUMP.
TION THAT JURY FOLLOWED INSTRUCTIONS.
Where court instructed jury in action for
servant's injury that expenses of care and nurs
ing "are subjects of direct proof and are to be
determined
on the evidence," it will
be assumed that the jury followed such instruc-
tions, and included no sum for any matter not
proved.

*

*

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3757.] 160-SERVANT'S INJURY3. DAMAGES PLEADING AND PROOF-RECOVERY FOR CARE. Complaint alleging that plaintiff "expended much for medicines and treatment and employment of physicians," in the absence of demurrer, was sufficient to justify proof of exact amount expended for care and nursing.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 439, 445, 448.]

Appeal from Superior Court, Los Angeles

The court at the latter time denied the appli-County; Curtis D. Wilbur, Judge.

cation for probation, and the defendant then made his motion for a new trial, the principal ground being that, under the provisions of sections 1191 and 1202 of the Penal Code, the court had no jurisdiction to pronounce judgment. Sentence being pronounced, this appeal was taken from the judgment and from the order denying the application for a new trial.

Action by M. P. Abalas against the Consolidated Construction Company. Defendant appeals from judgment for plaintiff, and from order denying new trial. Affirmed.

Jones & Weller, E. T. Sherer, and Emmet H. Wilson, all of Los Angeles, for appellant. Sam B. Dannis and Walter J. Horgan, both of Los Angeles, for respondent.

JAMES, J. Appeal from a judgment in favor of the plaintiff and from an order denying to defendant a new trial.

The requirement of the provisions of section 1191 of the Penal Code, which limit the time for the pronouncing of judgment after conviction, has been before this court and the [1] The plaintiff suffered personal injuries District Court of Appeal for the First Dis- while at work for the defendant in digging a trict heretofore. These provisions have been trench for the laying of sewer pipe. He alconstrued to be mandatory in effect and de- leged in his complaint that he was employed signed to produce speedy determination of by the defendant and earning $2.25 per day criminal proceedings in the trial court. We as a common laborer at the time he suffered refer to the cases of People v. Winner, 160 his injuries, and that he was at work in the Pac. 689, and People v. Boling, 161 Pac. 1169. performance of his duty at the bottom of the The views of this court as declared in the trench, which was about 55 feet deep, when decision first mentioned are in harmony with defendant's foreman negligently caused brick those which find place in the opinion in the to be placed near the opening and immediateBoling Case, which was decided in the Firstly above where the plaintiff was at work; District. In the Boling Case there was a petition for rehearing in the Supreme Court, which petition was denied, thereby giving the adjudication final approval. On the authority of the cases cited, defendant, the appellant here, is entitled to a new trial. The judgment and order are reversed.

We concur: CONREY, P. J.; SHAW, J.

that one of the brick being dislodged fell and struck the plaintiff on the head. This allegation followed:

"That by reason of the negligence and carelessness of defendant as hereinbefore set out plaintiff was hurt in his health, strength and activity, and received a profound shock to his nervous system, and received a fracture of the skull, and plaintiff is informed and believes and upon such information and belief states that the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

injury to his head is permanent, and that he amount expended or incurred on the several will never regain his former health, strength, accounts. However, assuming that there was and activity, and that plaintiff has lost much time and expended much for medicines and no evidence sufficient to authorize any allowtreatment and employment of physicians." ance on account of nursing or medical charg

No other errors are pointed to as supporting the case for appellant.

The judgment and order are affirmed.
We concur: CONREY, P. J.; SHAW, J.

(Civ. 2211.)

(32 Cal. App. 689)

The prayer attached to the complaint ask-es, still, as has been stated, it must be assumed that the jury gave heed to the instruced for judgment in the sum of $20.000. The tion of the court and included no allowance judgment as entered upon the verdict of the on any account not fully established by the jury was for the sum of $2,000. No demurevidence. rer was made to the complaint. But two points are presented as ground for the contention that the judgment and order should be reversed, to wit: (1) That the complaint did not state facts sufficient to constitute a cause of action. (2) That the court erred in instructing the jury on the matter of the amount of damages which might be assessed. It is contended that as the specific amount of LYNCH v. PACIFIC ELECTRIC RY. CO. damages suffered is not alleged in the body of the complaint, no cause of action was stat- (District Court of Appeal, Second District, Caled which would entitle plaintiff to any recovery. As already noted, the complaint did contain an allegation describing in general terms the injuries suffered (and there was no special demurrer interposed), and the complaint concluded with a prayer for a specific amount of damages. It has been held that a plaintiff in such a case need not allege particularly the amount of damage he has suffered, and that a complaint which contains statement of such amount in the prayer only sufficiently states a cause of action. Riser v. Walton, 78 Cal. 490, 21 Pac. 362; Tucker v. Cooper, 158 Pac. 181.

ifornia. Feb. 5, 1917.)

1. MASTER AND SERVANT 137(4)—INJURY TO RAILROAD EMPLOYÉ NEGLIGENCE. Defendant electric railway company's failure to furnish sufficient power to move a train, causing a car to back onto an employé, does not establish negligence, especially where employés knew the condition of the power supply. Servant, Cent. Dig. §§ 269, 270, 274, 277, 278.] 2. APPEAL AND ERROR 973-DISCRETION a OF LOWER COURT-WITHDRAWING CASE FROM JURY.

[2, 3] The court instructed the jury as to the measure of damages, and stated that the elements entering into damage were, first, "such sum as will compensate him for the expenses he has paid or incurred in caring for and nursing him during the period that he was disabled by the injury, not exceeding the amount alleged in the complaint." After enumerating other elements, such as the value of time and impaired power to earn money in the future and for pain suffered, the court advised the jury as follows:

[Ed. Note.-For other cases, see Master and

An order, directing a verdict for defendant after the entire case has been presented, will not be reversed, unless the court abused its discretion.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3846.]

3. NEGLIGENCE 136(31)-INJURY TO RAILROAD EMPLOYÉ-DIRECTED VERDICT.

The trial court did not abuse its discretion

in directing a verdict for defendant electric railway company, where an employé stepped between two cars of a train for some unknown reason and shortage of electricity caused one portion to back against him, although St. 1911, p. 796, allowed recovery where émployé's negligence was slight and employer's gross.

Appeal from Superior Court, Los Angeles

"The first two of these elements are the sub-County; Curtis D. Wilbur, Judge. jects of direct proof, and are to be determined by the jury on the evidence they have before them."

It is the contention of appellant that it was neither pleaded nor proved that there had been any expense paid or incurred for care and nursing. We must assume that the jury included in their computation no sum for any matter which had not been proved before them; the court expressly told them that the first two elements defined were the subjects of proof and to be determined upon the evidence before the jury. Had the defendant demurred specially to the complaint, plaintiff would have been required to partic- | ularize the amount expended for nursing; but in the absence of such a demurrer and under the authorities which are cited above, the complaint undoubtedly was sufficient to entitle plaintiff to introduce evidence to prove the

Action by Elizabeth Lynch, administratrix of William Edward Lynch, against the Pacific Electric Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

E. B. Drake, of Los Angeles, for appellant. Frank Karr, R. C. Gortner, and A. W. Ashburn, all of Los Angeles, for respondent.

CONREY, P. J. The plaintiff, as administratrix of the estate of her deceased husband, William Edward Lynch, prosecutes this action against the defendant to recover damages on account of the death of her husband, which she alleged was caused by negligence of the defendant employer of said Lynch. The charge is that, on the 29th day of April, 1913, "while the defendant was attempting to draw a gravel train of cars over its tracks on a steep upgrade, near Redondo Beach, Cal., the

defendant negligently failed to furnish suffi-
cient electricity, the motive power thereof, to
pull said train, *
* so that while the
said William Edward Lynch was in the act
of passing between two cars of said train,
the front part of said train slipped back
against him and caught him between said
two cars, crushing him so that he immediate-
ly died therefrom." The complaint also al-
leged negligent failure of the motorman to
put on brakes as a proximate cause of the
accident. After the evidence had been re-
ceived as offered by the respective parties,
the court, on motion of the defendant, in-
structed the jury to find for the defendant.
This the jury did, and judgment was render-
ed accordingly. From that judgment the
plaintiff has appealed.

Its

grade toward Clifton. After they started from the gravel pit the train was stopped two or three times on account of lack of power. When it arrived at a point 100 feet, more or less, from the top of the grade, the train stopped again and Lynch decided that it would be better to detach car No. 2, deliver car No. 1 on a siding at the top of the grade, and go back later for car No. 2. Lynch, while standing on top of car No. 2. set the hand brake and then climbed down and disconnected the air brake between cars Nos. 1 and 2. Next he gave a signal, in response to which the motorman slackened the pull on car No. 2 so that a coupling pin could be drawn. This was accomplished by Lynch by pulling a lever at the side of car No. 2. This he was able to do, and did do, without going between the cars. The signal was received by a man who stood by the side of the motorman and who transmitted the signal to the motorman, the latter not being in position where he could see Lynch's sig nals. Lynch then signaled for the motorcar and car No. 1 to move ahead, and this was done, car No. 2 remaining stationary on the track. When the two cars had moved about three feet the power went off, and the motorcar with its attached car No. 1 started back toward car No. 2. In the meantime, for some reason or impulse not explained, Lynch had moved into the space between the rails, immediately in front of car No. 2 and between the coupling apparatus of that car and car No. 1, and as the cars came together he was crushed between them. Hearing Lynch's cry of distress, the man opposite the motorman called to the motorman, who as quickly as possible sent his cars forward, the electric power having at that moment returned to the line. Lynch was thereby released, but he had received fatal injuries. There is no direct evidence showing why the power under which the train was moving was lost during the brief interval in which this

At the commencement of the trial, counsel for plaintiff abandoned his claim of negligence on the part of the motorman, and admitted that at the time in question the motorman did throw on the power as quickly as he could, but that before he could put on the power the car slipped back and caught Mr. Lynch between the two cars, whereby he was killed. The case was tried upon the charge that the defendant negligently failed to furnish power to make it sufficiently safe for him to work. The circumstances were as follows: The defendant was operating a line of electric cars from Los Angeles to and through Redondo and to a place called Clifton, a short distance south of Redondo. passenger cars did not run beyond Clifton. At a point a half mile or more beyond Clifton defendant had a gravel pit to which it had extended a track on which a motor and cars were operated for the transportation of gravel. This track ran on an upgrade from the gravel pit toward Clifton. Power was obtained through a trolley wire running over the track down to the gravel pit, which trolley wire was continuous with the wire used by the passenger cars running to Clifton, and carried the same supply of power. The re-accident occurred. It does appear, however, sult was that sometimes, when cars were actually running on what was called the Clifton section, their consumption of power reduced the supply of power available for the gravel cars, and there was not always sufficient power to bring the gravel cars upgrade. A cluster of electric lights on the motor car of the gravel train was utilized by the operatives of the gravel train to show them whether at any given time there was or was not power available for their purposes. On the day of the accident Lynch was the foreman in charge of the gravel train, and had under his direction the motorman and two other employés. The cars were started upgrade toward Clifton in the form of a train the parts of which were in the following order: The motorcar was at the north end (toward Clifton); car No. 1 was attached to the motorcar, and car No. 2 was attached to car No. 1, and the train was being pulled up

that the supply of power available for the use of the gravel train varied on account of the movements of the passenger cars; that the men of the gravel train were in the habit of timing their work according to their knowledge of the arriving and leaving time of the passenger cars on the Clifton section; and that as to whether they had electricity off or on, they judged by the lights on the motor car..

[1] The defendant by its answer denied that it had negligently failed to furnish sufficient electricity to pull the train. This was an admission that the amount of power was not entirely sufficient; the admission being coupled with the denial that such failure was negligent. The evidence showed that this insufficiency was known to Lynch who, for that reason, had caused car No. 2 to be detached. Under all of these circumstances it cannot be that defendant was guilty of neg

ligence causing the injury and death of Lynch, unless it can be maintained that it was the defendant's duty to furnish a supply of power at all times sufficient to move | So here, under like circumstances, the court's the train, and that it owed this duty to its employés, notwithstanding that they had full information concerning the actual condition of the power supply. This would be a more extreme rule than is necessary to meet the requirement that the employer shall use reasonable care to provide its employés with safe appliances with which to do their work. We have not been referred to any decisions enforcing such extreme rule.