8. EXECUTORS AND ADMINISTRATORS 453(2) -ACTION-JUDGMENT-PAYMENT OUT OF As SETS. Judgment against an executrix on a demand against decedent should have been made payable out of the assets of the estate in due course of administration. Department 1. Appeal from Superior Court, Los Angeles County; Louis W. Myers, Judge. Action by Ella J. Reed against Ethel M. Reed, executrix of the estate of Henry A. Reed. From a judgment for plaintiff, and an order denying motion for new trial, defendant appeals. Judgment and order reversed. W. A. Alderson, of Los Angeles, for appellant. Dennison & Towner, of Los Angeles, for respondent. SHAW, J. The defendant appeals from a judgment and from an order denying her motion for a new trial. We think the appellant's claim that the complaint does not state sufficient facts to constitute a cause of action or to support the judgment of the court below is well taken. The action was against the defendant as the executrix of the estate of Henry A. Reed, deceased. It set forth that in the lifetime of decedent the plaintiff had given said decedent the sum of $2,250 as the purchase price of certain stock in a corporation known as the Southwestern Sugar Company, which said decedent agreed to transfer to the plaintiff for said sum of money. It further alleges that the corporation was insolvent, and that the stock was worthless; that the decedent represented to her that it was of great value and worth the price which she agreed to pay therefor, and by that means obtained from her the said sum of money and the agreement to purchase the stock, and that the decedent further represented that he would consider the money as a trust fund, and would guarantee plaintiff against any loss, and that if the stock should prove to be of no value, he would repay the money so paid by plaintiff. It is alleged that the rep resentations made by the decedent were false and untrue, and that the stock was in fact of no value. There is no allegation that the plaintiff ever offered to rescind the contract and return the stock, or that any claim for the money sued for against the decedent's estate was ever made or presented by the plaintiff, or that the defendant, as executrix, ever received the money paid by the plaintiff to the decedent. There is nothing in the complaint sufficient to state a cause of action to charge the executrix as trustee of any specific property belonging to the plaintiff. The judgment itself purports to be a personal judgment in favor of the plaintiff against the defendant Ethel M. Reed, executrix of the estate of Henry A. Reed, deceased, for $2,123.23 and costs. It is not made payable in due course of administration, nor charged against the estate of decedent. [1-3] It is well settled that a suit against an executrix to enforce a money demand upon contract cannot be maintained unless a claim therefor is presented to the executrix and is rejected prior to the beginning of the action. Code Civ. Proc. §§ 1493, 1500. The most that can be said of this complaint is that it states a cause of action for money upon an implied contract against the decedent. It is therefore insufficient because of the failure to allege the presentation of the claim. If the intention was to charge the defendant executrix as trustee of specific property, the complaint should have contained allegations showing that she had come into possession of such property, and that it was charged with a trust in favor of the plaintiff. No allegations tending to show such a case are contained in the complaint. Furthermore, there are no allegations to uphold a personal judgment against the executrix, and a judgment upon a demand against the decedent should have been made payable out of the assets of the estate in due course of administration. We find no ground upon which the judgment can be upheld. The judgment and order are reversed. We concur: SLOSS, J.; RICHARDS, Judge pro tem. (178 Cal. 195) BUTLER v. UNION TRUST CO. (L. A. 4235.) (Supreme Court of California. April 17, 1918.) 1. JOINT ADVENTURES (2) ACTION FOR ACCOUNTING-PLEADING-VARIANCE. Where in action to dissolve an alleged partnership and secure an accounting plaintiff alleged facts which he claimed created a partnership, which facts were found to be true and to show a joint adventure, the court did not err facts showed a joint adventure only, since a in refusing a nonsuit on the ground that the joint adventure is similar to a partnership, and the right to an accounting of profits in accordance with the agreement therefor and the obligations growing out of such agreement are governed by the same rules of law. 2. JOINT ADVENTURES 5(1)-RIGHT TO AC COUNTING. Whether plaintiff, who contributed his skill dence are conclusive on appeal. Department 2. Appeal from Superior Action by C. E. Butler, Guardian, etc., against the Union Trust Company, executor of the last will and testament of G. A. Wil For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes liams, deceased. Judgment for plaintiff. | ing upon the theory that the arrangement From an order denying motion for new trial, had between the parties constituted a joint defendant appeals. Affirmed. adventure in which the rights of the parties to an accounting were of a similar nature to what they would be were it found that a partnership existed. Continuing the trial, the court found the facts substantially as alleged in the complaint, and further found that they did not constitute an agreement of VICTOR E. SHAW, Judge pro tem. The purpose of this action, brought by I. J. Gross-partnership, but did constitute a joint adman, for whom, as plaintiff, C. E. Butler, his venture between plaintiff and defendant; guardian, has been substituted, was to dis- that plaintiff complied with his part of the solve an alleged partnership, secure an ac- agreement in devoting all of his time, skill, counting of profits accruing therefrom, and and labor in fulfillment of the terms thereof, recover damages alleged to have been sus- and, save and except as prevented by defendtained by reason of the acts of G. A. Wil; ant, fully performed the same, until about liams, now deceased, and for whom, as such September 1, 1913, when, during the nightdefendant, the Union Trust Company, as ex-time, defendant, without just cause, knowlecutor of his estate, has been substituted, edge, or consent of plaintiff, entered the shop which prevented plaintiff from carrying out where the business was conducted and rethe terms of the partnership agreement. Judgment was rendered for plaintiff, and, the court denying defendant's motion for a new trial, he prosecutes this appeal from such order. As found by the court (reference being had to the original parties to the action), plaintiff was a skilled designer and manufacturing furrier, but without means to purchase material or conduct such business. In February, 1913, he and the defendant entered into an agreement whereby the former was to contribute his labor and skill, and defendant should advance the necessary money for the purchase of material and to pay the expenses of conducting the business of manufacturing fur garments in a shop therefor provided by defendant, and advance to plaintiff for his personal expenses the sum of $15 per week; the goods so manufactured to be sold by defendant at his storeroom, where he conducted another line of business. The conduct of the business was to continue until January 1, 1914, at which time the net profits, less such sums as defendant had advanced to plaintiff for personal expenses, were to be equally divided between the parties. Issue was joined upon the question as to the existence of the alleged partnership, and at the trial the court suggested that such issue be first determined before entering upon an inquiry as to the accounting prayed for. Thereupon evidence was introduced touching the issue, at the close of which the court indicated that the transaction between the parties did not constitute a copartnership. Thereupon defendant moved for a nonsuit upon the ground that the cause of action was based upon the theory that a partnership existed, out of which there arose the responsibility of one party to the other, and since, in the opinion of the court, the facts did not justify such theory, there was nothing on which to base an accounting. This motion was denied, the court holding that, while no partnership was created, facts were established which entitled plaintiff to an account moved therefrom all of the goods theretofore purchased by defendant pursuant to the agreement to be used by plaintiff in the manufacture of fur garments, including garments made up by plaintiff, and took the same to his storeroom, thus depriving plaintiff of the opportunity to continue the business, and appropriated to his own use and exclusive control the garments which plaintiff by his labor and skill had manufactured, as well as the raw material in stock. While there is a sharp conflict in the evidence, and proof of the allegations of the complaint is based largely upon the testimony of plaintiff, who, by reason of his lack of acquaintance with the English language, appears to have been somewhat vague and uncertain in expressing himself, it is nevertheless, when taken in connection with other testimony which tended to corroborate his story, sufficient to justify the findings made by the court. [1] This being true, we are brought to a consideration of the chief error upon which defendant bases his claim for a reversal namely: That the court erred in its refusal to grant the nonsuit upon indicating that the evidence failed to establish the existence of a copartnership. In our opinion, there is no merit in this contention. In his complaint plaintiff alleged facts which he claimed created a copartnership. These facts were found But the court also found that to be true. they did not constitute a partnership, but a It is sometimes a close joint adventure. question whether a transaction constitutes a Jackson partnership or a joint adventure. v. Hooper, 76 N. J. Eq. 185, 74 Atl. 130, and cases cited. A joint adventure, however, is similar to a partnership, and, being of a sim-. ilar nature, the right to an accounting of profits in accordance with the agreement therefor and the obligations growing out of such agreement between the parties are governed by the same rules of law. 23 Cyc. 453; Petrie v. Torrent, 88 Mich. 43, 49 N. W. 1076; QUESTION FOR JURY. Causten v. Barnette, 49 Wash. 659, 96 Pac. [ 3. CARRIERS 348(11)-CAUSE OF INJURY225; Claflin Co. v. Gross, 112 Fed. 386, 50 C. C. A. 300. [2] Whether the parties were technically partners or not, an accounting was necessary to determine their respective rights. Garr v. Redman, 6 Cal. 574. Clearly plaintiff by reason of contributing his labor and skill in the common venture was, under the agreement, entitled to his share of the net profits of the business the conduct of which, being terminated by defendant, could only be ascertained upon an examination and settlement of the accounts of the business, precisely the same as though a partnership had existed. Since the facts alleged and found entitled the plaintiff to an accounting for the purpose of determining what were the net profits of the venture, the fact that the agreement and transactions had between the parties did not, as found by the court, constitute a copartnership in the strict sense, is wholly immaterial. In no event, even were error conceded, could defendant be préjudiced by reason of the ruling. Whether the injury arose from the manner of operating electric car or from a passenger's carlessness in standing too near the edge of the platform held a question for the jury. 4. CARRIERS 347(7) - PERSONAL INJURY CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. [3] As a result of the accounting had and taken, the court also found that defendant was indebted to plaintiff in the sum of $343.-7. 55 for his share of the net profits of the business during the time it was conducted, and that plaintiff was damaged in the sum of $250 by reason of defendant's breach of the agreement in wrongfully taking possession of and removing from plaintiff's shop the stock of goods and manufactured fur garments on September 1, 1913, thus preventing a continuance of the business to January 1st in accordance with the agreement. These findings are based upon conflicting evidence as to which the determination of the trial court must be deemed conclusive. The order denying defendant's motion for a new trial is affirmed. (178 Cal. 171) GRAFF v. UNITED RAILROADS OF SAN FRANCISCO. (S. F. 7338.) (Supreme Court of California. April 16, 1918.) 1. CARRIERS 348(13) - PASSENGERS-PERSONAL INJURY MISLEADING INSTRUCTION. In an action for injury when thrown from the front platform of an electric car to the ground, an instruction that where an injured passenger is riding in an unusual position, which increases his danger, the doctrine of res ipsa loquitur does not apply, and no presumption arises that the resulting injury was due to the carrier's negligence, was misleading, in view of possible proof that the injury arose from the operation of the car. 2. CARRIERS 316(1) - PERSONAL INJURY — BURDEN OF PROOF. PERSONAL INJURY – In an action for personal injury when thrown from the front platform of an electric tion that if the passenger voluntarily and for car while rounding a curve, a requested instruchis own convenience was riding on the platform, exposed to greater danger than if he had remained in the car, and he could have entered the car a reasonable time before the accident, he assumed responsibility for the increased risks, and, if injured in consequence thereof, could not recover, was properly refused, as it charged the passenger with the assumption of all increased the motorman in the operation of the car. risks, including any misconduct on the part of CARRIERS 348(5) REFUSAL OF INSTRUCTION. In such case a requested instruction that, if plaintiff was thrown from the car by any swaying motion or sudden jerk ordinarily incident to the running of cars, under the circumstances of the case verdict should be for defendant was properly refused, as it made him assume the risk of such jerk, even if it arose from the motorman's reckless operation of the car with knowledge of plaintiff's presence on the platform. 8. CARRIERS 348(13) - PERSONAL INJURYINSTRUCTION CONTRIBUTORY NEGLIGENCE. An instruction that as matter of law, notwithstanding the passenger's place of added peril on the platform, a legal presumption of negligence arose against the carrier from the fact of his injury was erroneous. 9. COURTS90 (1) FORMER DECISIONS SCOPE GENERAL APPROVAL OF INSTRUCTIONS. The Supreme Court's general approval of the instructions is not a specific approval of an instruction not criticized. In Bank. Appeal from Superior Court, City and County of San Francisco; Geo. A. Sturtevant, Judge. Action by Warren Graff against the United Railroads of San Francisco. Judgment for plaintiff, accepted by plaintiff as reduced, motion for a new trial denied, and from the order and judgment defendant appeals. Reversed. Wm. M. Abbott and Wm. M. Cannon, both of San Francisco (Kingsly Cannon, of San Francisco, of counsel), for appellant. Sullivan & Sullivan and Theo. J. Roche, of San Francisco, for respondent. SHAW, J. [1, 2] In the decision of this case in department the judgment was re Where personal injury to a passenger arises from carrier's operation of car, there is a prima facie case of negligence, and burden is on the carrier to show that the thing done by it causing the injury was not the result of its negli-versed because of the instruction which appears in the latter part of the opinion upon gence. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the subject of the presumption arising from an injury to a passenger while on board a railroad car. In commenting upon this instruction the opinion contained the following: "The rule of law is that where an injured passenger is riding in an unusual position, which position increases his danger, the doctrine of res ipsa loquitur does not apply, and no presumption arises that resulting injury was due to the negligence of the carrier." The rehearing was granted because it was considered that this statement might be misleading. The concluding sentence of the opinion is also misleading. It is obvious that the proof may show that the passenger was riding in an unusual position which increased his danger, and may also show that the injury arose from something done by the carrier in operating the car. In such a case a prima facie case of negligence is made, and the burden rests upon the carrier to show that the thing done by it which caused the injury was not the result of its negligence. The true rule on the subject is stated in the Steele Case, cited in the opinion, and in Wyatt v. Pacific, etc., Co., 156 Cal. 174, 103 Pac. 892. utory negligence beyond doubt, and that the court erred in refusing to instruct the jury to return its verdict in favor of defendant. Plaintiff, it appears, was familiar with the tracks over which he was traveling and with the curves thereon. He was on the front platform of the the car which permitted the ingress and egress car near an open door on the right-hand side of of passengers. He was in conversation with a friend. He turned his head slightly to speak to this friend, when the car took the curve and hurled him through the open door. He was standing next to another door opening into the body of the car, and so far as he remembered, though his memory was not good, he was not leaning against it nor holding to anything. He was accustomed to ride on electric cars and on the cars of that particular line, and was standing, balancing himself. The evidence was conflicting as to the speed with which the car took the curve. It will be assumed that the jury believed that it was at an undue speed, and that the motorman was guilty of negligence, in view of the fact that to his knowledge passengers were standing on the front platform. Though witnesses for the plaintiff testified that plaintiff was, or apparently was, holding on to the iron gate or a handrail of the car, and that he also was leaning with his back against the door, it is said that by virtue of plaintiff's own testimony this evidence is not sufficient to raise a conflict. We think, however, that it is, and that we are bound to assume that the jury concluded that the plaintiff was doing both of these things, and this is so because it is a part of common experience that a man who has received so tremendous a shock as that which this plaintiff sustained frequently comes through his itself or the events that occurred immediately antecedent thereto. This truth is one of common knowledge, and is universally recognized in the medical books. Plaintiff's own testimony in this regard is, 'At the present time, since this accident, my memory is pretty bad.' [3] It is true that this instruction has been approved in a number of cases decided by this court, but it will be found that in each case there was no dispute over the proposi-injuries with no clear memory of the accident tion that the injury arose from the manner of operating the car. When that is the case, the instruction, although it does not fully state the doctrine, is correct when applied to such a case, and the court would not reverse the judgment because of the failure to give the modifications which might be necessary if the evidence were of a different character. In the present case there was a dispute over the question whether the Jury arose from the manner of operating the car, or from the plaintiff's carelessness in standing too near the side thereof, and the question as to which was the cause of the injury should have been left to the jury instead of being taken from them by the absolute character of the instruction given. "It is said that it was plaintiff's duty, even if obliged to stand temporarily on the front platform, to enter the body of the car and thus make his position safe when opportunity presented itself so to do; that such opportunity did present itself, and plaintiff was guilty of conin-tributory negligence in not making use of the tion of the car, however, the evidence is in disopportunity. Upon the question of the condipute; that of the plaintiff going to show that in the body of the car every seat was occupied, that passengers were crowded in the aisle and six or seven more were standing on the platform where he was. Under these circumstances again, the determination of these disputed facts is for the jury. With this explanation of the concluding sentence, and the passage above quoted and the authorities cited in support of it eliminated, we adhere to the opinion rendered in department. It is as follows: ing that the mere presence of a passenger upon [5] "Authorities are cited by appellant declaran electric car on the platform when there is space for him within the body of the car is conclusive upon the contributory negligence of the plaintiff, and to this effect it is contended are Hodler v. Public Service Ry. Co., 85 N. J. Law, 346, 88 Atl. 1071, and Ward v. International R. Co., 206 N. Y. 83, 99 N. E. 262, Ann. Cas. 1914A, 1170, but whatever may be the rule in these jurisdictions, such is not the rule in this state, nor in the majority of states, nor yet do we conceive it to be the rule independently of statute in the state of New York, for it is said in Nolan v. Brooklyn City, etc., Ry., 87 N. Y. 63, 41 Am. Rep. 345: "The rule is settled that independent of the mandate of the statute * it is not, even in the case of steam cars, negligence per se for a passenger to stand on the front platform of a moving car.' Kelly v. Santa Barbara R. R. Co.. 171 Cal. 423, 153 Pac. 903, Ann. Cas. 1917C, 798; Pruitt v. Santa Barbara, etc., R. R. Co., 161 Cal. 29, [4] "Defendant's first contention is that 118 Pac. 223, 36 L. R. A. (N. S.) 331; Holplaintiff's own evidence establishes his contrib-loway v. Pasadena, etc., Ry. Co., 130 Cal. 177, "Plaintiff charged that while a passenger upon an electric car of the defendant and riding on the front platform thereof the motorman propelled the car around a curve at a greatly excessive speed, causing him, the plaintiff, to be thrown violently from the car to the ground, the car passing over both of his legs, necessitating amputation of both. Defendant answered by denial, and affirmatively charged that the injuries sustained by plaintiff were due to his own negligence. The jury rendered a verdict for plaintiff. On defendant's motion for a new trial the court reduced the verdict, and plaintiff accepted the reduction. The motion for a new trial was then denied, and defendant appeals from the judgment and order so doing. 申 62 Pac. 478; Babcock v. L. A. Traction Co., 128 Cal. 173, 60 Pac. 780; Seller v. Market St. Ry. Co., 139 Cal. 268, 72 Pac. 1006; Lynn v. Southern Pac. Co., 103 Cal. 7, 36 Pac. 1018, 24 L. R. A. 710; 6 Cyc. p. 653; 3 Thompson, Negligence, § 2954. [6, 7] The defendant proffered and the court refused to give the following instructions: (1) If the plaintiff voluntarily and for his own convenience was riding on the platform of the car at the time and place in question, and was thus exposed to dangers which he would not have encountered had he entered and remained within the car, and that he could have entered the car a reasonable time before the accident and remained therein until the time of the accident, I instruct you that the plaintiff assumed responsibility for the increased risks, if any, which he thus voluntarily exposed himself to, and if he was injured solely in consequence of such increased risk, I instruct you that he cannot recover, and your verdict must be in favor of the defendant. 64 Pac. 712, is relied on by respondent as authority for the giving of this instruction under these circumstances. It is true that this instruction was there given. It is also true that this court declared that the jury was ably and painstak ingly instructed, but no objection was made to the giving of this instruction, and under familiar principles the court's general approval of the instructions was not a specific approval of an instruction not criticized. The injury worked by this instruction is most apparent. It directed the jury in its deliberations by telling them that as matter of law, notwithstanding the place of added peril which the plaintiff had voluntarily assumed, a legal presumption of negligence arose against the defendant by virtue of the fact that he sustained injury." The judgment and order appealed from are reversed. We concur: ANGELLOTTI, C. J.; SLOSS, J.; WILBUR, J.; MELVIN, J.; RICHARDS, Judge pro tem. (2) If you find that the plaintiff was thrown from the car either by any swaying motion or any sudden jerk, and that such motion or jerk is ordinarily incident to the running of cars. under the circumstances of this case, you are in- GUMPEL v. SAN DIEGO ELECTRIC RY. structed that your verdict must be in favor of the defendant." "It was justified in so doing, for both of these instructions contain a declaration not warranted in law. By the first the jury would have been told that the plaintiff 'assumed responsibility for the increased risks' occasioned by his presence on the platform, and if he was injured solely in consequence of such increased risk,' he could not recover. Something of what has heretofore been said points out the error in law here declared. Specifically the vice of the instruction is that it charges the plaintiff with the assumption of all increased risks, whereas, the only increased risks which he assumed were those occasioned by his position and arising from the due operation of the car by the motorman who had knowledge of that position. He did not assume the increased risks of any misconduct upon the part of the motorman in such operation. The specific legal flaw of the second instruction justifying its refusal is that it charges the jury that plaintiff assumed the responsibility of injury from any 'sudden jerk ordinarily incident to the running of cars under the circumstances of this case,' and here again is the implication, if not the statement, that the plaintiff assumed the risk of such a jerk even if it arose from the reckless operation of the car by the motorman who had knowledge of his presence on the platform. Making reference to the discussion of this question in Kelly v. Santa Barbara R. R. Co., 171 Cal. 415, 153 Pac. 903, Ann. Cas. 1917, c. 67, nothing further need here be added. CO. (L. A. 4136.) (Supreme Court of California. 1918.) (178 Cal. 166) April 16, PERSONAL INJURY— 1. CARRIERS 314(1) An amended complaint, alleging that plaintiff was a passenger for hire on defendant's street car; that while it was rounding a curve, at a speed of 20 miles and more per hour, he was thrown from the car, and alleging negligence in respect to excessive speed and failure to provide straps for passengers; and that as the car ran on to the curve it gave a sudden and violent jerk by which he was thrown from the car and injured-stated a cause of action. 2. CARRIERS 320(19)-PERSONAL INJURY— CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. In such case held, on the evidence, that defendant's negligence was for the jury. 3. CARRIERS 347(7) — CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. In such case plaintiff's contributory negligence in not guarding himself from being thrown from car held, on the evidence, a question for the jury. 4. DAMAGES 216(8) PERSONAL INJURY-FUTURE SUFFERING AND LOSS OF EARNING POWER. In such case an instruction to consider the extent of plaintiff's injury, the pain and suffering he had undergone by reason of the injury resulting from defendant's negligence, and any future pain and suffering traceable to and resulting from the injury and to consider the loss of time and earning power resulting from the injury, and any future loss resulting from the injury, correctly stated the elements of damages and those permissible under Civ. Code, § 3283. TIONS GIVEN INSTRUCTIONS. [8, 9] "Finally, the court instructed the jury in the following language: 'Contributory negligence on the part of a passenger cannot be presumed from the mere fact of injury, but must be proved. On the other hand, the proof of an injury to a passenger on the car of a common carrier casts upon the common carrier the burden of proving that the injury was occasioned. TRIAL 260(1) — REFUSAL OF INSTRUCby inevitable casualty or some other cause which human care and foresight could not prevent, or by the contributory negligence of the passenger, unless the proof on the part of the passenger tends to show that the injury was occasioned by the contributory negligence of the passenger, or by inevitable casualty, or some other cause, which human care and foresight could not prevent. A consideration of Steele v. Pacific Elec. Ry. Co., 168 Cal. 375, 143 Pac. 718, will establish the inapplicability and the injury of this instruction. Froeming v. Stockton Elec. R. R. Co., 171 Cal. 401, 153 where the subject-matter was sufficiently coverThe refusal of instructions is not error, ed by the instructions given. Department 1. Appeal from Superior Court, San Diego County; C. N. Andrews, Judge. Action by Arnold Gumpel against the San Diego Electric Railway Company. From a judgment for plaintiff and from an order de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |