nying its motion for a new trial, defendant, hill above the curve going very fast, about appeals. Judgment and order affirmed. Read G. Dilworth, of Coronado, and Titus & Davin, of San Diego, for appellant. James E. O'Keefe and C. H. Van Winkle, both of San Diego, for respondent. 20 miles an hour. He had a package under his right arm, and was trying to get hold of the piece that runs down from the roof to the floor. The car made a terrible jerk at the curve and threw him off. The plaintiff also testified that he had been accustomed to ride on this car along this portion of its route, and knew that the hill and curve were there. There was other testimony support RICHARDS, Judge pro tem. This is an appeal from a judgment in plaintiff's favor and from an order denying the defendant's motion for a new trial, in an action for dam-ing plaintiff, to the effect that the car was ages for personal injuries sustained by the plaintiff through being thrown from a street car of the defendant while it was rounding a curve at the corner of First and Spruce streets in the city of San Diego. [1] The appellant assails the plaintiff's amended complaint as not stating a cause of action. The plaintiff in his said complaint, after averring that he was a passenger for hire upon the defendant's car, goes on to allege that the said car "proceeded in a northerly direction on its said street car line, and at that certain point on the corner of First and Spruce streets, while said car was rounding said curve, and while the same was traveling at a rate of speed of 20 miles per hour or thereabouts, plaintiff was thrown from said car and injured as hereinafter set forth." The plaintiff then proceeds to allege: "That the said defendant company was negligent in the premises, in this: (b) In rounding said curve at an excessive rate of speed, to wit, 20 miles per hour or thereabouts; (c) in its failure to provide straps or other facilities for passengers standing to hold on to. That by reason of the negligence aforesaid plaintiff was thrown from said car, as herein before alleged, and struck the ground with great force, and by reason thereof, and by reason of said negligence, received a severe injury," etc. At the trial the plaintiff further amended his complaint by alleging that as the car ran onto the curve "it gave a sudden and violent jerk, by reason of which and at which time plaintiff was thrown from said car and injured." We are of the opinion that the complaint as thus amended sufficiently stated a cause of action. [2] The appellant next contends that the evidence is insufficient to justify the verdict, usual as it approached the curve. 172 Pac. 603. [3] It is next contended by the appellant that the plaintiff was guilty of contributory negligence as a matter of law, in not taking proper precautions to guard himself from the danger of falling or being thrown from the car as it approached a curve, the existence of which he knew, and at a rate of speed of which he was aware. Appellant cites numerous cases from this and other jurisdictions which it claims supports this position. But upon this point also the most recent and approved decisions of this court are to the effect that under like circumstances to those disclosed in the case at bar the question of the plaintiff's contributory negligence is one which should properly be submitted to the jury. The most recent utterance of this court upon the subject, citing and sustaining earlier cases, is that of Graff v. United Railroads, supra. [4] The appellant further urges that the court erred in giving the following instructions: account, if you find that he, by reason of the in that it fails to show that the accident was the result of any negligence on the part of defendant company. The plaintiff himself testified in relation to the accident that he had boarded defendant's car at the corner of B and Third streets at some time after 11 o'clock on the night of his injury. It had been raining. The car was very crowded. Persons were standing on the front and rear platforms and on the steps of the car. He gained standing room on the rear platform, and, as some of the passengers got off, was able to step over to the door of the car, but It is the appellant's contention that these could not get inside because of its crowded instructions violate the rule laid down in the condition. He was standing leaning against case of Melone v. Sierra Railway Co., 151 jury to speculate upon the future pain and suffering of the plaintiff, and also as to his loss of time and ability to earn money, and do not confine these elements of damage to that detriment which would be certain to result from the plaintiff's injury. The difference between the instructions which were the subject of the court's criticism in the Melone Case and those above quoted is clear upon a comparison of the two sets of instructions. In the Melone Case the instructions as to the plaintiff's future injuries were phrased in the subjunctive, and it was in this that their vice consisted; while in the case at bar the court instructed the jury that, in estimating the compensation which the plaintiff could recover as a result of his injuries, it could take into account "what pain and suffering he will yet undergo, which can be traced and is the result of that injury"; and, as to the plaintiff's future loss of time and of ability to earn money, the court confined the jury to that "which can be traced by you to the result of this injury and due to the negligence of the defendant." These are, in effect, instructions to the jury that the plaintiff was to be limited in his right to recovery as to these elements of damage to such damages as it was reasonably certain he would suffer in the future, and they are thus within the rule declared to be the correct rule for the admeasurement of such elements of damage in the Melone Case, and to such as are permissible under section 3283 of the Civil Code. [5] The appellant finally contends that the court erred in its refusal to give certain instructions requested by the defendant and dealing with particular phases of the evidence in the case. It is not necessary to set forth in detail these instructions nor refer to the argument or authorities cited by the appellant in their support, for the reason that the court, after a careful examination of the whole body of instructions given by the trial court, is of the opinion that they sufficiently cover the points emphasized by the defendant in its suggested instructions, and that, upon the whole, the jury were fully and fairly instructed as to the rules of law by which they were to be governed in arriving at their verdict; and hence that there was no error committed in refusing to give the instructions requested by the deferdant. Judgment and order affirmed. We concur: SLOSS, J.; SHAW, J. (178 Cal. 145) LEVI v. CHESLEY. (L. A. 4178.) The Supreme Court will not disturb the findings of the trial court when the evidence is in substantial conflict. RICHARDS, Judge pro tem. This is an appeal by the plaintiff in the action to recover possession of personal property in which judgment went for the defendant, and a motion for a new trial was denied. The facts of the case were these: One Paul E. Lavoice, who was a tenant upon the ranch of the defendant Chesley, purchased from one Adolph Levi 30 cows, giving a mortgage to secure the purchase price of said cows upon them, and also upon some 43 other head of cows upon said ranch, and of which he was as such tenant of Chesley in possession, but which in fact belonged to the defendant. Not long after this transaction the defendant Chesley discovered that his tenant Lavoice was disposing of the cattle upon his ranch, and he accordingly ousted him from it, and obtained his conviction and incarceration in the state prison. Subsequently, upon foreclosure of the mortgage, the plaintiff, Edgar B. Levi, was appointed receiver, and as such commenced this action against the defendant. Chesley, for the alleged conversion of 21 of the 30 cows for the purchase price of which the said mortgage was given. The defendant denied having possession of or having converted said cattle, except that he admitted being in possession of one of said cows which he had offered to deliver to the plaintiff prior to the institution of the action and still stood ready to deliver. upon the trial of the cause the evidence was conflicting as to the identity of the cows, for the conversion of which the plaintiff sought to recover, with the exception of the one cow which the defendant conceded and the court awarded to the plaintiff, and with the exception also of one other cow which the plaintiff, we think, sufficiently showed to have been one of those included in the mortgage. [1, 2] The only points which the appellant presents upon appeal relate to the sufficiency of the evidence to sustain the findings of the court. Under the well-established rule, this court will not disturb the findings of the trial court when the evidence is in substantial conflict. This disposes of every question in the case except as to the right of plaintiff to the possession or value of the one red Durham cow, which, we think, the proofs sufficiently showed plaintiff to be also entitled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The judgment will therefore be modified so | junction had been issued upon the filing of as to award this additional cow to the appel- the complaint, and the court, also prior to lant, or its value, which the trial court de- rendering the judgment, made an order distermined to be the sum of $100; and, the re- solving such preliminary injunction. The spondent having in his brief suggested and plaintiff appeals from the judgment and from consented to such modification, the trial court the order denying the preliminary injunction. is hereby directed to modify its finding and It appears that Kelch recovered judgment judgment in accordance with the views ex- in the court of Sidney N. Reeve, then a juspressed in this opinion, each of the parties tice of the peace of Los Angeles township, to this appeal to pay his own costs. against the plaintiff Julia E. Rushton and It is so ordered. others; that Julia E. Rushton took an appeal from said judgment to the superior court of the county; that thereafter the superior court on motion of Kelch, the plaintiff in said judgment, dismissed said appeal, and ordered all the papers to be returned to the justice's court, and thereupon the justice proceeded to issue an execution upon said judgment. We concur: SLOSS, J.; SHAW, J. (178 Cal. 199) RUSHTON v. REEVE et al. (L. A. 4234.) (Supreme Court of California. April 17, 1918.) 1. JUSTICES OF THE PEACE 162(1)-JUDGMENT ENFORCEMENT PENDING APPEAL. Where an appeal is taken from a justice's judgment to the superior court on questions of law alone, and no stay bond is filed, it is competent for the justice, even before disposal of the appeal, to proceed to enforce the judgment by execution. 2. PLEADING 8(3)-CONCLUSION OF LAWCHARACTER OF APPEAL. [1, 2] The complaint does not state whether the appeal was taken on questions of law alone or on questions of law and fact. There are decisions of this court to the effect that when an appeal is taken on questions of law and fact, and before its final disposition in the superior court the judgment stands vaIn an action to enjoin defendants from en-cated, and that during that period no execuforcing a justice's judgment against plaintiff, tion upon such judgment can be allowed. the complaint, alleging that at time of issuance of the execution complained of the judgment of Bullard v. McArdle, 98 Cal. 359, 33 Pac. 193, the justice "had been fully vacated, voided, and 35 Am. St. Rep. 176. We have no decisions, set aside," plaintiff having taken an appeal however, which purport to declare that from the judgment to the superior court, which, where an appeal is taken upon questions of on motion, dismissed the appeal, and ordered all the papers returned to the justice, did not law alone and no stay bond is filed, it is not allege, as matter of fact, that the appeal was competent for the court below, even before taken on questions of law and fact, which would the disposal of the appeal, to proceed to enhave avoided the judgment, the allegation being force the judgment by execution, and unquestionably the court has power to do so. If the appellant contends that after the disposal of the appeal on questions of law and fact, and after upon a dismissal thereof in the superior court, the judgment of the jus a mere conclusion. 3. JUSTICES OF THE PEACE 135(4)-EXECUTION-INJUNCTION. Where the superior court had jurisdiction of an appeal from a justice's judgment, and had power to dismiss it and make the necessary orders to dispose of it on the ground that it had not been duly perfected, its judgment, dismiss-tice's court cannot be enforced by execution, ing the appeal, is conclusive in an action to enjoin enforcement of the justice's judgment on ground that dismissal was erroneous and execution could not be issued by the justice court. and that the same stands vacated, the complaint is fatally defective in not alleging that the appeal in controversy was taken on questions of law and fact. There is an allegation that at the time of the issuance of the Department 1. Appeal from Superior Court, Los Angeles County; Frank G. Fin-execution complained of the judgment of the layson, Judge. justice "had been fully vacated, avoided and Action by Julia E. Rushton against Sid- set aside." The context shows, however, that ney N. Reeve, Charles R. Thomas, E. R. this is a mere conclusion of law. It cannot Parmelee, and George H. Kelch. From judg-be taken as an allegation of fact, or as sufment for defendants, and from an order denying a preliminary injunction, plaintiff appeals. Judgment and order affirmed. Oliver O. Clark and George M. Pierson, both of Los Angeles, for appellant. George H. Kelch, of Los Angeles, for respondents. ficient to supply the omission to allege that the appeal was taken on questions of law and fact. This omission was sufficient to uphold the order sustaining the demurrer. [3] With respect to the dissolution of the restraining order the facts stated in the answer are proper for consideration. It is SHAW, J. The complaint in this case there shown that Kelch, the plaintiff in the purports to state a cause of action to enjoin justice's court, moved to dismiss the appeal the defendants from enforcing a judgment on the ground that it had not been perfected alleged to have been rendered in July, 1914, by the necessary proceedings on behalf of for the defendant Kelch against the plain- the said appellant, and that this motion was tiff. The court below sustained demurrers sustained by the superior court, and that an to the complaint, and thereupon gave judg-order was made therein that the said appeal ment for the defendants. A preliminary in- be dismissed, that the clerk of the superior court forthwith transmit the papers in the action to the justice of the peace, and that said justice proceed to enforce the collection thereof. The superior court had jurisdiction of the appeal, and had power to dismiss it and make the necessary orders to dispose of it on the ground that it had not been duly perfected. This judgment is conclusive upon collateral attack, and is sufficient to dispose of the application for the injunction. It justifies the order dissolving the preliminary injunction. The judgment and order appealed from are affirmed. ACKERMAN v. SCHULTZ et al. (L. A. 4214.) (Supreme Court of California. April 17, 1918.) 1. APPEAL AND ERROR 345(1) TIME FOR APPEAL STATUTE. Under Code Civ. Proc. § 939, before its amendment in 1915, providing appeal may be taken from any judgment or order of a superior court within 60 days from entry, where judgment was entered January 27, 1914, appeal therefrom, dated, served, and filed January 20, 1915, was taken too late; pendency of proceedings on motion for new trial not extending the time. 2. STIPULATIONS 18(3)-PRECLUSION FROM RAISING QUESTION. 6. APPEAL and Error 1151(2) Department 2. Appeal from Superior Cleveland Schultz, W. J. Hittson, and Bert T. Action by Charles M. Ackerman against against him on the cross-complaint of defenda judgment ant Demmitt, and from order denying his motion for new trial, defendant Schultz appeals. Judgment as modified affirmed, and order denying motion for new trial affirmed. Demmitt and others. From Cleveland Schultz, of Los Angeles, in pro. per. Andrew J. Copp, Jr., Charles Ackerman, Clyde E. Cate, and W. J. Hittson, all of Los Angeles, for respondents. MELVIN, J. Cleveland Schultz sought to appeal from a judgment against him on the cross-complaint of Bert T. Demmitt, and from an order denying his motion for a new trial. [1] Respondent says that the appeal from the judgment was taken too late. Judgment was entered January 27, 1914. Appeal therefrom was dated, served, and filed January 20, 1915. Under section 939, Code of Civil Procedure, before its amendment in 1915, this In a suit on claim and delivery, defendant, was too late, as the pendency of the proceedwho entered into a written stipulation with the ings on motion for new trial did not extend other parties whereby he acknowledged due the time for appeal from the judgment, We service upon him of the summons in the crosscomplaint, together with a copy, waived the are therefore limited to a consideration of the right to demur to the cross-complaint, and appeal from the order denying the motion of agreed that his answer to the amended com- appellant for a new trial, and that, too, upon plaint might be deemed an answer to the crossa record which does not contain a copy of the complaint, is precluded from raising the ques-original complaint of Ackerman. The judgtion whether a cross-complaint, in an action on claim and delivery, is improper. ment and findings upon the cross-complaint, however, refer to Ackerman's suit as one on claim and delivery, and appellant insists that there may be no cross-complaint in such an action. To support this contention certain authorities from other states are cited which refer to counterclaims and not to cross-complaints. One Californian case is referred to, and in the opinion in that case (Lovensohn v. Ward, 45 Cal. 8) it was merely held that the subject-matter of litigation in replevin being the property mentioned in the complaint, de-fendant may not in his answer allege that plaintiff has taken from him other property and ask for its return. In this case the crosscomplaint dealt with the very property in suit and appellant's conduct in relation to it. 5. REPLEVIN 84-FRAUD-AWARD FOR RE- This is in accordance with section 442, Code PAIRS. of Civil Procedure. Where, after transfer of possession, and before discovery of the fraud worked upon him, the buyer of an automobile expended or became indebted in a certain amount for repairs on the car, he was properly awarded judgment for the sum in an action of claim and delivery, wherein he was made defendant and cross-complained against his vendor. [2] In any view of the matter appellant is precluded from raising the question, because he entered into a written stipulation with the other parties to the litigation by which he acknowledged due service upon him of the summons in the cross-complaint, together For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes with a copy thereof, waived his right to de- is made up of the two amounts, $275 alleged mur to the cross-complaint, and agreed that to have been paid cross-defendants for the auhis answer to the amended complaint of Ack-tomobile, and $299.99 expended by way of erman might be deemed an answer to the repairs. In the judgment as given the sum cross-complaint. [3] The court found Schultz guilty of fraud. Among the findings is one to the effect that he and his cross-defendants, as an inducement to the cross-complainant to purchase the automobile in which Schultz falsely claimed an interest, covenanted and agreed that if Demmitt would purchase the car, they would warrant and defend the title to said property. This finding is attacked upon the ground that the bill of sale given to respondent Demmitt was signed by Bruce Masse alone. But there was other testimony to the effect that Schultz said he was the owner of the property, and that the automobile was free and clear of all incumbrances. There were also other circumstances in proof tending to support the finding. It was thoroughly justified by the evidence. Appellant also objects to the finding that joins his name with that of Masse in making "a purported transfer of title" because the bill of sale was not signed by him. However, he did assert title in himself, and the mere fact that record title did not purport to come from him did not relieve him of responsibility for his instrumentality in aiding in the purported transfer of title. [4] Another finding was to the effect that the representations of appellant to respondent that the automobile was free and clear of all incumbrances were knowingly false, and were made with intent to deceive the respondent. The attack upon this finding is that Ackerman was not shown to have ever had possession of the chattel, and that therefore its purchase by him from one Van Tongel was fraudulent and void under section 3440 of the Civil Code. This contention is without merit. Van Tongel is not a party to this action, and appellant, not being one of his creditors, is not in a position to invoke that statute. Moreover, Ackerman testified that he did take possession of the property on the date of the execution of the bill of sale. This finding is also attacked on the ground that respondent employed an attorney to investigate the records to discover if any liens against the property existed, and that therefore he did not rely on the false representations. The obvious answer to this is that appellant's fraud, as found by the court, was not limited alone to false pretenses as to title. of $303 is awarded as the amount expended for repairs, making, when added to the $275, a total of $578. This should be reduced to agree with the allegations and prayer of the cross-complaint; and it is ordered that the judgment be modified to that extent. The judgment as modified must be affirmed; and it is so ordered. The order denying appellant's motion for a new trial is affirmed. We concur: WILBUR, J.; VICTOR E. SHAW, Judge pro tem. (36 Cal. App. 627) Ex parte HART. (Cr. 591.) (District Court of Appeal, Second District, California. March 29, 1918. Rehearing Denied by Supreme Court May 9, 1918.) LICENSES 7(6)-DISCRIMINATION-LICENSING BUSINESSES. Provisions of a city ordinance for the licensing of certain businesses, imposing a fee of $60 a year on every person selling or contracting to sell certain articles, but excepting persons the city, were void as an attempted protective having regularly licensed places of business in tariff for the benefit of businesses located in the city. Original application of George Hart for writ of habeas corpus. Petitioner discharged from custody. Hutton, Fogel & Coffin, of Los Angeles, for petitioner. Charles W. Lyon, City Atty., and Fredericks & Hanna, all of Los Angeles, for respondent. "For every person tracting to sell articles" of various kinds, including the commodities dealt in by the petitionon such lines of business, whether by sample or er, "to persons not regularly engaged in carrying otherwise, * not otherwise provided for herein, $60.00 per annum; provided that this shall not apply to persons having regularly licensed places of business, in the city of Venice, taking orders for or selling, goods handled by them in their respective business." [5] After transfer of possession and before discovery of the fraud the respondent, as the court found, expended or became indebted for a certain amount for repairs on the motorcar. The petitioner was arrested and imprisJudgment for this sum was properly awarded. oned for making sales within Venice, with[6] In the prayer of the cross-complaint out having taken out the license required by judgment is asked for punitive damages in a the section; it being conceded that his case named sum and $574.99, together with inter- is "not otherwise provided for" in the ordiest from December 28, 1912. This latter sum nance. It appears that persons whose places |