[1] Passing now to the only objection seriously urged by the appellant for a reversal of the judgment, it is that the plaintiff has apparently proceeded upon the theory that his remedy was an action in claim and delivery. In such an action it is essential that the specific personal property claimed should be described with a reasonable degree of certainty; and as a rule money is not the subject of such an action unless it be marked or designated in some manner so as to make it specific as regards its capability of identification. Eddings v. Boner, 1 Ind. T. 173, 38 S. W. 1110; Griffith v. Bogardus, 14 Cal. 410, 413; Sharon v. Nunan, 63 Cal. 235; Hawley v. Kocher, 123 Cal. 77, 55 Pac. 696. The description of the money in this case is not sufficient to entitle the plaintiff to its return is specie. for legal services rendered to it its promis- | charged or proven against the plaintiff, and sory note for $300 to its attorney, O. C. that no fiduciary relation existed between Pratt. Prior to its maturity the payee, for him and any of the parties to the transaca valuable consideration, transferred it to the tion. and that title to the note was vested in plaintiff. At its maturity it was unpaid. him. Subsequently H. J. Small became a judgment creditor of the company in the sum of $3,000. It also appears from the record that Mrs. H. A. Gillis was indebted to the company in the sum of $1,000 upon a stock subscription, the indebtedness being evidenced by her promissory note, given, however, with the understanding that the note was not to be negotiated. Contrary to this agreement it was negotiated; and Mr. Henley C. Booth, attorney for both H. J. Small and Mrs. H. A. Gillis, wishing to find out who had possession of the note, communicated with plaintiff by telephone, telling him that he represented Mrs. Gillis, and asking him if he knew where the note was. Plaintiff replied that he did not, but would try to find out and let Mr. Booth know. Later, having ascertained that the note was held by a Mr. W. W. Allen, plaintiff communicated with Booth, and negotiation ensued, resulting in Booth agreeing to pay plaintiff the sum of $730 for it. The latter then purchased the note from Allen, paying him therefor the sum of $550, hoping apparently through the completion of the transaction with Booth to recoup in part the loss he had sustained by his purchase of the note given by the company to Pratt, the company being now insolvent. Ac About this time, according to the argument of the respondent, Booth appears to have conceived the idea of acquiring for Mrs. Gillis her note, and that the price to be paid for it should go to his other client, Small. cordingly, he agreed with the plaintiff that the payment of the $750 for the note should be made in his (Booth's) office, at a certain time, harboring the intention, however, that at the moment of receiving the note from the plaintiff and tendering payment thereof the money should be seized in execution of Small's judgment. This plan was carried out, so that when the plaintiff's agent handed the note to Booth the latter placed $730 in currency on the desk in front of him, and be fore the messenger of the plaintiff could pick it up, a deputy of the defendant, who was waiting in the room for that purpose, seized the currency and levied upon it pursuant to an execution issued in favor of Small upon a judgment obtained by him against the Sequoia Motorcar Company. Plaintiff immediately demanded of the defendant the return of the money, and filed with him a claim for the same. Defendant refused to comply with his demand, whereupon plaintiff brought this action for its recovery. The record further shows that the plain [2] The complaint, however, irrespective of what the plaintiff has styled it, is sufficient to show him to be entitled to recover from the defendant the amount of money taken from him wrongfully under execution, upon the theory that he has, as required by the Code, stated the facts constituting his cause of action, or facts showing a cause of action, for money had and received. Under the circumstances of this case the judgment of the trial court must be sustained notwithstanding the contention of the appellant, as it is apparent from a decision of our own Supreme Court in Faulkner v. First National Bank, 130 Cal. 258, 62 Pac. 463, where it is said: "Courts and law writers have sometimes inadvertently spoken of the Code 'action of claim form of action called by that name just as there and delivery' as if there were really here a were forms of action at common law, such as 'debt,' 'covenant,' 'replevin,' 'trover,' etc. But we have here no forms of civil actions. We have only one form of action, which has no name; so that an action cannot be here defeated, as it could have been at common law, because not Code of Civil Procedure are preceded by the properly named. Sections 509 to 520 of the heading 'claim and delivery of personal property,', but the sections themselves show the meaning of this heading. They merely provide brings an action to recover personal property, an auxiliary remedy by which, when a party he may 'claim' that the property be immediately delivered to him at the commencement of the These sections merely give to a plaintiff suing to action and without waiting the trial. * * recover personal property an auxiliary remedy very similar to the auxiliary remedy of 'attachment' given to a plaintiff suing upon a contract for the direct payment of money, and to the auxiliary remedy under the head of 'arrest and bail' and injunction during litigation.' But it is no more proper to speak of an action 'of claim and delivery' than to speak of an action of attach ment.' The judgment is affirmed. tiff, prior to its maturity and without notice of the collateral agreement of the company not to transfer it, paid a valuable considera- We concur: LENNON, P. J.; RICH (32 Cal. App. 735) ance is placed upon the fact that at the date ROBINSON v. SMITH-BOOTH-USHER CO. of this accident, November 25, 1911, there was in force a statute relating to the liability (Civ. 2198.) (District Court of Appeal, Second District, Cal- of employers to their employés (Stats. 1911, ifornia. Feb. 7, 1917.) p. 796), wherein it was provided that in actions of this class: 1. TRIAL 296(4, 5)-INSTRUCTIONS-CURE OF ERROR. Where the judge erroneously instructed that servant could not recover for injuries if he was contributorily negligent in any degree, the error was cured by subsequent specific instruction repeated a second time that the servant's recovery if he was contributorily negligent should merely be diminished in the proportion that his negligence bore to that of his master. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 709.] 2. APPEAL AND ERROR 928(1)-PRESUMPTIONS-RECORD-SUFFICIENCY OF PRESENTATION OF QUESTIONS. In view of Code Civ. Proc. § 475, providing that there shall be no presumption that error is prejudicial, where complaint is made of instructions, but all the instructions are not included in the record, no error is shown. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3749, 3753.] Appeal from Superior Court, Los Angeles County; Frank F. Oster, Judge. Action by E. J. Robinson against the SmithBooth-Usher Company. From judgment for defendant and order denying motion for new trial, plaintiff appeals. Affirmed. Randall & Gaines and Shepard & Alm, all of Los Angeles, for appellant. Oscar Mueller, Gibson, Dunn & Crutcher, and Norman S. Sterry, all of Los Angeles, for respondent. CONREY, P. J. This is an action wherein the plaintiff seeks to recover damages for personal injuries sustained by him while employed by the defendant in its machine shop; it being alleged that these injuries were caused by the negligence of the defendant. The answer denied all negligence on the part of the defendant, and also pleaded contributory negligence on the part of the plaintif. The jury returned a verdict for the defendant, and judgment was entered accordingly. The plaintiff appeals from the judgment and from an order denying his motion for a new trial. Appellant first insists that the evidence proved negligence on the part of the defendant and failed to prove contributory negligence of the plaintiff. There was a substantial conflict in the evidence upon these questions, and the evidence favorable to the defendant, if believed by the jury (as it was), is sufficient to support the verdict. Appellant directs attention to certain instructions given by the court to the jury at the request of the defendant. It is claimed that by these instructions the jury was told that, if the plaintiff was guilty of a want of ordinary care in the slightest degree contributing directly to his injury, plaintiff could not recover, regardless of the negligence of the defendant or its servant. Reli "The fact that such employé may have heen guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employé." Section 1. In addition to the instructions complained of by appellant, the court gave to the jury an instruction requested by plaintiff, stating the doctrine of contributory negligence in accordance with said statute. [1] At the close of his reading of instructions to the jury, the judge suggested that there was an inconsistency in the instructions relating to that issue. He then specially directed the attention of the jury to the instruction which he had given at plaintiff's request and read it to them a second time, with the further direct statement that this was a correct statement of the law. In view of this action by the court, we deem it unnecessary to examine the instructions complained of. Assuming that they were erroneous, the instruction as finally given had the effect of withdrawing those erroneous instructions from the consideration of the jury. That a court may thus correct its own error seems too plain to leave room for argument. [2] Appellant also complains of defendant's instructions numbered 14 and 24 as given by the court. These instructions related to the question of negligence of the defendant, if from the evidence the jury believed certain stated facts. The criticism upon these instructions is that each of them purported to state a complete defense, but omitted certain facts concerning which evidence had been introduced pertaining to defendant's alleged negligence. Assuming that the omitted evidence should have been stated, the record is not in the condition necessary to enable us to determine that the error was prejudicial to the plaintiff. "There shall be no presumption that error is prejudicial, or that injury was done if error is shown." Code of Civ. Proc. § 475. The statement of the case, as set forth in the transcript, says that: The court, "on its own motion and at the request of the plaintiff, instructed the jury in part as follows.' After setting forth certain instructions thus given, it is further said: "That thereupon the court instructed the jury in part as follows, at the request of the defend ant. After setting forth those instructions, it is said that: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Other instructions were given by the court of its own motion and by request of plaintiff and defendant not here set forth." There is not even a statement that the instructions placed in the record include all of the instructions given with respect to the propositions covered by the instructions put into the record. "It is said in the transcript that the instruction complained of, among others,' was given. The others referred to are not contained in the transcript, and we have no means, therefore, of judging what bearing they may have had upon the one in question. If it should be conceded, therefore, that the instruction complained of should have been qualified or modified in some degree, it may be that the instructions omitted would have qualified or modified the one in question, and the rule is well settled that instructions are to be read and considered as a whole, and the fact that, when taken severally, some of them have failed to enunciate in precise terms and with legal accuracy propositions of law, does not render them erroneous.' Hanson v. Stinehoff, 139 Cal. 171, 173, 72 Pac. 913, 915. "Where numerous instructions are given [as in this case] it may well be that some particular instruction fails to contain a complete or accurate statement of the law. If, however, when the entire charge is examined the omissions or inaccuracies in a particular instruction appear to have been supplied, and the jury fairly and consistently instructed, generally, as to the law, this is sufficient to defeat any claim of error predicated on defects in particular instructions." Henderson v. Los Angeles Traction Co., 150 Cal. 689, 699, 89 Pac. 976, 980. The judgment and order are affirmed. We concur: JAMES, J.; SHAW, J. (32 Cal. App. 711) PEDREIRA v. PEDREIRA. (Civ. 1632.) (District Court of Appeal, Third District, California. Feb. 6, 1917. Rehearing Denied by Supreme Court, April 4, 1917.) 1. HUSBAND AND WIFE 296-ACTION FOR SEPARATE MAINTENANCE-EVIDENCE. In a wife's action for separate maintenance for cruel and inhuman treatment, where the pleadings contained no appropriate allegation with reference to defendant's acts before the marriage, plaintiff's evidence that defendant had had intercourse with her frequently for seven or eight years before their marriage, and at nearly every such occurrence had promised to marry her, was improperly admitted as without the issues, and calculated to prejudice defendant with the jury and court. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 1089.] 2. HUSBAND AND WIFE 296-ACTION FOR SEPARATE MAINTENANCE EVIDENCE PLEADING. In an action for separate maintenance on the ground of cruel and inhuman treatment, allegations of specific cruel treatment did not warrant admission of evidence of specific acts of cruelty other than those presented by the plead ings. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 1089.] 3. HUSBAND AND WIFE 298(1, 2)—ACTION FOR SEPARATE MAINTENANCE-INQUIRY INTO WIFE'S NECESSITIES. The Court should have permitted an inquiry into plaintiff's necessities and her manner of living in order that a suitable award might be made for her maintenance; the discretion of the trial court not being arbitrary, but to be exercised in view of the necessities of the parties, and defendant's financial condition and his earning capacity, together with plaintiff's possessions and her accustomed style of living, being proper elements to be regarded. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1093.] 4. WITNESSES 275(3) CROSS-EXAMINATION-ACTION FOR SEPARATE MAINTENANCE. Where plaintiff set up defendant's having had her committed to a hospital for the insane as an act of cruelty, and, on her direct examination, she testified to facts concerning the occurrence that would necessarily create the impression that she was sane at the time, defendant's inquiry on cross-examination, directed to the point that plaintiff did not know she was examined or committed, in other words, that her mind was a blank as to what happened, should have been permitted. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 969.] 5. HUSBAND AND WIFE 297-ACTION FOR SEPARATE MAINTENANCE PREPONDERANCE OF EVIDENCE. In a wife's action for separate maintenance on the ground of cruel and inhuman treatment, the law requires that the jury be convinced of cruelty by a preponderance of evidence to justify finding for plaintiff. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1090.] The court instructed that if the jury found plaintiff was sane at the time of the marriage, and there was evidence of cruelty, verdict would be for plaintiff in the amount the jury might determine to be adequate, etc., and that, if the jury believed from the testimony that plaintiff was treated in a cruel and inhuman manner, as alleged, and that the general treatment of plaintiff by defendant from the time of marriage to the date of commencement of trial was cruel and inhuman, verdict would be for plaintiff. Held, that the instruction was erroneous as ignoring the consideration of the weight and credibility of the evidence as to the cruelty and the jury's proper function in relation thereto, also in failing to state the elements that should enter into the determination of the amount to be awarded plaintiff. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 1091, 1092.] 7. HUSBAND AND WIFE 2981⁄2 FOR SEPARATE MAINTENANCE TIONS. ACTION INSTRUC 9. HUSBAND AND WIFE 2981⁄2 FOR SEPARATE MAINTENANCE TIONS. ACTION | Separate maintenance. By way of cross-comINSTRUC- plaint it was further averred that at the time of the marriage of plaintiff and defendant she was of unsound mind and not capable of contracting marital relations; that because of this insanity defendant prayed for an annulment of the marriage. In a wife's action for separate maintenance for cruel treatment, though the jury's verdict was simply advisory, it was nevertheless important that the jury should be clearly instructed, particularly in view of the usual inclination on the part of the judge to adopt its findings, and the fact that they were adopted. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 1091, 1092.] The action was tried with the assistance of a jury. The jury found that the plaintiff was not insane at the time of the marriage; that defendant had treated plaintiff in a cruel and inhuman manner subsequent to said marriage; that plaintiff had not agreed to accept the sum of $40 per month for her separate maintenance; and that $75 per month was a reasonable amount for such purpose. The court adopted said findings and rendered judgment accordingly, and in addition allowed plaintiff $400 for her attorney's fees. It is claimed by appellant that many prejudicial errors are disclosed by the record, Appeal from Superior Court, Merced Coun- and we proceed to notice some of the assignty; E. N. Rector, Judge. Action for separate maintenance without divorce by Mary Pedreira against A. F. Pedreira. From judgment for plaintiff, defendant appeals. Reversed. F. W. Henderson and Hugh K. Landram, both of Merced, for appellant. Jack Mahon, of Merced, for respondent. ments. Over objection, plaintiff was permitted to testify that the defendant had had intercourse with her frequently for seven or eight years prior to their marriage, and that at nearly every such occurrence he promised to marry her. The court declared "it would not be evidence that you could rely upon," but overruled the objection. [1] The evidence seems to have been entirely outside of the issues made by the pleadings and could hardly assist "in getting at the truth of the facts disputed." The natural effect of such testimony would be to excite sympathy for the plaintiff and hostility toward the defendant. It can be easily BURNETT, J. The action, brought under section 137 of the Civil Code and grounded upon cruel and inhuman treatment, was for separate maintenance without divorce. The specific instances of cruelty alleged were: (1) Defendant absented himself during the birth of a child to plaintiff; (2) defendant did not provide a doctor or nurse for plain-imagined how the jury, or the judge of the tiff during childbirth; (3) said neglect caused plaintiff great physical pain and mental anguish by reason of which the child was born dead; (4) that on April 14, 1914, defendant caused plaintiff to be moved to the Merced sanitarium, and thence to the Merced county jail, whence the plaintiff was committed to the state hospital at Stockton; (5) that, upon her release from said hospital in July 1914, defendant refused to take plaintiff to his home or to live with her as his wife. court, for that matter, would regard with indignation and contempt a man who, under repeated promises of marriage had seduced plaintiff and had actually been guilty of such illicit conduct while his first wife lay upon her deathbed. The prejudice thus aroused would hardly permit of a dispassionate and impartial consideration of the evidence relevant to the issues made by the pleadings. Respondent contends that: In the answer there was a specific denial of the allegations of cruelty, an admission that plaintiff was committed to said hospital, but an explanatory averment that defendant was advised by the medical attendants of plaintiff that it was necessary, for the protection of the plaintiff and those who might come in contact with her, that she be committed to said hospital because she was violently insane, and that she was regularly As to this we think plaintiff is in error. committed to the state hospital after a hear- If it had been supposed that it was imporing in the superior court of the county of tant to inquire into the acts of appellant beMerced. Defendant further alleged that fore the marriage, there should have been plaintiff had agreed to accept from defend- some appropriate allegation in reference ant the sum of $40 per month as and for her thereto. The fact is, said evidence refers to "The object of this testimony was, not to prejudice the defendant in the eyes of the jury, but to arrive at facts which would and did throw light on the issues involved. These acts of intercourse bore directly on the attitude of the defendant at the time he married plaintiff, and were the very acts upon which his subsequent treatment of plaintiff was based; they were facts necessary to be before the jury in order to obtain a fair understanding as to the relations of the parties." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes This view of the spirit of the law emphasizes the importance of confining the allowance to the necessary maintenance of the a time remote from anything referred to in the complaint and to conduct before marriage, whereas the cause of action is entirely based upon treatment of plaintiff by defend- | wife in comfort and decency according to her ant after the marriage took place. Of course, the general rule is as stated in Jones on Evidence, vol. 1, par. 140a, that: "Evidence of other acts of the parties, outside of the acts in record and unconnected with it, are not generally admitted in evidence." "The rule excludes," as stated in People v. Lane, 100 Cal. 379, 34 Pac. 856, "all evidence of collateral facts, or those which are incapable of affording a reasonable presumption or logical inference as to the principal fact or matter in dispute; and evidence of another offense cannot be given unless there is some clear connection between the two offenses by which it may be logically inferred that if guilty of the one the defendant is also guilty of the other." accustomed standard of living. [4] We think the cross-examination of plaintiff in reference to her commitment to the hospital for the insane was improperly curtailed. On her direct examination she had testified to facts concerning said occurrence that would necessarily create the impression that she was sane at the time. It would be argued from this that the husband had knowledge of her condition and was therefore chargeable with cruelty in having her committed. To rebut this unfavorable inference several questions were asked of the witness directed to the point that she did not mitted; in other words, that her mind was a blank as to what happened. The inquiry was addressed to the same matter involved in the direct examination and should have been permitted. It may be added that coun The statement was made in a criminal case, but the same principal would manifest-know even that she was examined or comly apply here. We can see no logical connection between said conduct before marriage and the acts after marriage which are set out in the complaint. [2] Objection was also made to evidence of sel for appellant, at the time of the direct other specific acts of cruelty than those pre-examination, sought to have respondent desented by the pleadings. If important enough clare whether she claimed to have been sane to be shown, they were certainly important at the time she was committed, and her counenough to be alleged. It may be permissible sel answered: "Yes, you bet she was." It is to show a general course of conduct as sup-true that a moment after he said: plementing specific acts of cruelty where only the specific acts are set out, but the rulings complained of could hardly be justified except upon the erroneous theory that it is not necessary to allege any specific act but that a general allegation of cruel treatment is sufficient. [3] We think, also, that the court should have permitted an inquiry into the necessities of the plaintiff and her manner of living in order that a suitable award might be made for her maintenance. Manifestly, much discretion in this matter must be confided to the trial court, but the discretion is not an arbitrary one and must be exercised in view of the circumstances of the parties. The financial condition of the defendant and his earning capacity,. together with the possessions of the plaintiff and her accustomed style of living, were proper elements to be regarded in the consideration. In Kusel v. Kusel, 147 Cal. 60, 81 Pac. 295, there is an interesting discussion of the difference between an allowance to the wife on divorce and the separate maintenance that is contemplated by the Code. Referring to the latter, it is said: "The action does not contemplate a divorce, but, on the contrary, that the parties shall continue to remain as they were before, husband and wife. The rights of the wife in the remaining property of the husband are not destroyed or affected in the least by the decree or judgment. The necessity for the separate maintenance may terminate at any time by reconciliation of the parties, or by the death of one of them. The law favors the reconciliation of the parties, and it should not be construed so as to afford a temptation for the wife to press an action for maintenance rather than to seek can draw their own conclusion. I don't claim "I don't claim she was railroaded. The jury that she was sane or insane." However, the effect of her testimony was as we have indicated, and appellant had the legal right to subject it to the test of crossexamination. The gravity of the inquiry is quite apparent, as it involved the most serious charge of cruelty in the case. After stating to the jury that they must first find whether plaintiff was sane or insane at the time of her marriage, the court, on request of plaintiff, gave this instruction: the time of the marriage and there is evidence of "If you find that the plaintiff was sane at cruelty, then your verdict will be for the plaintiff, in the amount that you may determine to be adequate, and for her attorney's fees and for her costs of suit. "I instruct you that if you believe from the testimony introduced in this case that the plaintiff was treated in a cruel and inhuman manner as alleged in the complaint, and you believe the defendant from the time of the marriage to that the general treatment of the plaintiff by the date of the commencement of this trial was cruel and inhuman, your verdict will be for the plaintiff." [5, 6] Probably the most serious objection to the instruction is that it authorized the jury to find for plaintiff if there was any evidence of cruelty. The law, of course required that they be convinced by a preponderance of the evidence in order to justify such finding. The instruction as given also ignored the consideration of the weight and credibility of such evidence and the proper function of the jury in relation thereto. It is subject, also, to criticism in failing to state |