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plaintiff.-Rock V. Travelers' Ins. Co. of Hartford, 172 Cal. 462, L. R. A. 1916 E 1196. 156 Pac. 1029.
3. In an action to recover on an accident policy insuring "against bodily injuries effected directly and independently of all other causes through external, violent and accidental means," excepting suicide, where the answer sets up as a special defense that the insured committed suicide, the burden of proof rests upon the defendant to establish such issue.—Postler v. Travelers' Ins. Co., 173 Cal. 1, 158 Pac. 1022.
4. In an action to establish a vendor's lien and to have it declared paramount to a deed of trust made by the grantee the burden of proof is on the plaintiff to show that the trustee and beneficiary had notice of his lien at the time the trust deed was executed, where there is nothing of record to put them on inquiry as to the existence of the vendor's lien.-Hawke v. California Realty & Const. Co., 28 Cal. App. 377, 152 Pac. 959.
8. In an action to recover the purchase price of corporate stock which was sold under an oral agreement while in the possession of the buyer as pledgee, it is proper to refuse to instruct the jury that “mere words are not sufficient to prove a receipt or acceptance of the personal property to take an oral contract of sale of personal property for a price exceeding two hundred dollars out of the statute of frauds."—Wilson v. Hotchkiss, 171 Cal. 617, 154 Pac. 1.
9. Where it is pleaded and proven that the written memorandum of the contract relied on was signed by the defendant and that he received and accepted part of the goods, the right of the plaintiff to recover is not inhibited.-Merrill v. Kohlberg, 29 Cal. App. 382, 155 Pac. 824.
10. Where the purchaser of gloves signs a memorandum of an oral contract and accepts a part of the goods, he can not set up the statute of frauds as a defense to an action by the seller for breach of the contract of sale.-Merrill v. Kohlberg, 29 Cal. App. 382, 155 Pac. 824.
11. -Subdivision 6.-Written authority to an agent to lease real property must be given in language so clear, distinct and certain that there is no room for doubting the purpose and intention.-Salter V. Ives, 171 Cal. 790, 155 Pac. 84.
12. The services performed by the broker is a sufficient consideration to support the subsequent promise.-Carrington v. Smithers, 26 Cal. App. 460, 147 Pac. 225.
13. Subdivision 7.—This can have no application to a contract which was fully executed before this subsection was added.Rogers v. Schlotterback, 167 Cal. 35, 138 Pac. 728.
14. This is inapplicable to a contract to dispose of property in a particular way resting in parol where it was executed by the promisee prior to the enactment of this subdivision.--Monsen v. Monsen, 174 Cal. 97, 162 Pac. 90.
15, Statute must be specially pleaded.The statute of frauds can not be relied upon unless especially pleaded.-Healy v. Obear, 29 Cal. App. 696, 157 Pac. 569.
16. It is not essential that one seeking the protection of the statute of frauds must specially insist upon it in his pleadings further than to deny the execution of the contract.-Healy v. Obear, 29 Cal. App. 696, 157 Pac. 570.
1. Material and immaterial alterations.Where on a motion for change of venue, in the notice of motion and the affidavit of merits and other affidavits there were many interlineations and erasures the party is entitled to have them read and considered where the said erasures and interlineations are immaterial. But if the meaning of the language was changed or if they remedied a defective affidavit the change would be regarded as material and the affidavits could not be considered without a satisfactory explanation.-Cavitt v. Raje, 29 Cal. App. 659, 156 Pac. 519.
2. A material change or alteration of an instrument is one which causes it to speak a language different in legal effect from which it originally spoke.-Cavitt v. Raje, 29 Cal. App. 659, 156 Pac. 519.
3. Any change made in a document after its execution, which merely expresses what would otherwise be supplied by intendment, is immaterial, and the document is in effect unaltered by it.Cavitt v. Raje, 29 Cal. App. 659, 156 Pac. 519.
1. Burden of proof.-When the execution and delivery of a policy of accident insurance are admitted, the burden of proof is on the defendant to establish that warranties made by the insured were false.—McEwen v. Occidental Life Ins. Co., 172 Cal. 6, 155 Pac. 86.
2. In an action to recover a policy of accident insurance, the burden of proving that the death of the insured was the result of "bodily injury effected through external, violent and accidental means" is upon the
1. Subpoena, who may Issue-Construction (subd. 3).—"Other officer" referred to in subdivision 3 of this section clearly means any one "authorized to administer oaths or take testimony in any matter under the laws of this state" and a notary public is such an officer.Scott v. Shields, 8 Cal. App. 12, 96 Pac. 385, cited in 1906-1913 Cumulative Supplement under name of Roussin v. Kerpatrick.
2. -By county clerk.Subpoena is properly issued by county clerk under order of court for the taking of depositions of wit. nesses before a notary public.-Scott V. Shields, 8 Cal. App. 12, 96 Pac, 385, cited in 1906-1913 Cumulative Supplement under name of Roussin v. Kerpatrick.
385, cited in 1906-1913 Cumulative Supplement under name of Roussin v. Kerpatrick.
1. Mandatory provision.—Where witness refuses to answer before a notary it is proper for him to report such refusal to the court making the order requiring the witness to appear before the notary, and the judge has no discretion but to exercise the power which the law has vested in him so far as necessary to secure the right to have the deposition of the witness taken. It is his clear duty to consider the report and determine whether the questions were proper and if so to direct the witness to answer, and in case of his refusal, to employ the punitive power of the court to compel obedience, and if the judge refuses to act in such case mandamus will lie to compel action by him. -Scott v. Shields, 8 Cal. App. 12, 96 Pac.
1996. 1. Order for examination-On whose motion.-The issuance of an order upon the trial of a criminal action for the attendance of a witness confined in the county jail is a matter addressed to the discretion of the court, and no abuse of discretion is shown in refusing to make the order, where no affidavit or statement is furnished suggesting any fact to which the witness would testify. but merely the assertion that the witness was "a material witness to the defense."-People v. Townsend, 28 Cal. App. 204, 151 Pac. 745.
MANNER OF TAKING DEPOSITIONS OUT OF THE STATE.
8 2024. How taken. Justices' court. To whom directed.
1. Deposition in state-Subpoena for witnesses. — Subpoena is properly issued by county clerk under order of court for the taking of depositions of witnesses before a notary public.-Scott v. Shields, 8 Cal. App. 12, 96 Pac. 385, cited in 1906-1913 Cumulative Supplement under the name of Roussin v. Kerpatrick.
2. Upon the taking of a deposition witness can not refuse to answer or raise the objection that the subpoena which brought him before the notary was issued by the clerk of the court under the order of the court and not by the notary.- Scott v. Shields, 8 Cal. App. 12, 96 Pac. 385, cited in 1906-1913 Cumulative Supplement under the name of Roussin v. Kerpatrick.
$ 2024. HOW TAKEN. JUSTICES' COURT. TO WHOM DIRECTED. The deposition of a witness out of this state may be taken upon a commission issued from the court under the seal of the court, upon an order of the court, or a judge or a justice thereof, on the application of either party, upon five days' previous notice to the other. If the court is a justices' court, the commission must have attached to it a certificate of the clerk of the superior court of the county in which such justices' court is held, under the seal of such superior court, to the effect that the person issuing the same was an acting justice of the peace at the date of the commission. If issued to any place within the United States, it may be directed to a person agreed upon by the parties, or if they do not agree, to any notary public, judge or justice of the peace or commissioner selected by the court or judge or justice issuing it. If issued to any country out of the United States, it may be directed to a minister, ambassador, consul, vice consul, or consular agent of the United States, or judge of a court of record in such country, or to any person agreed upon by the parties.
History: Enacted March 11, 1872, re-enactment of $ 433, Practice Act; amended March 24, 1874, Code Amdts. 1873-4, p. 389; April 16, 1880, Code Amdts. 1880 (C. C. P. pt.), p. 115; March 10, 1891, Stats. and Amdts. 1891, p. 51; by Code Commission, Act March 8, 1901, Stats. and Amdts. 1900-1, p. 253; Act held unconstitutional, see History, Kerr's Cyc. C. C., § 4; amended March 20, 1907, Stats, and Amdts. 1907, p. 732, Kerr's Stats. and Amdts. 1906-7, p. 517; April 16, 1909, Stats. and Amdts. 1909, p. 965; May 5, 1917, Stats, and Amdts. 1917, p. 280. in effect July 27, 1917.
GENERAL RULES OF EXAMINATION.
$ 2055. Examination of adverse party (new).
1. Reopening of case for evidence.-In an action to recover commissions due under such oral agreement, it is not an abuse of discretion to reopen the case and allow the plaintiff to offer additional evidence after a motion made for a nonsuit, where the purpose was to clear up any uncertainty as to whether the plaintiff had obtained the required contracts from the purchasers to whom he had sold lots on the instalment plan.—Hellings v. Wright, 29 Cal. App. 649, 156 Pac, 365.
notes taken at the preliminary hearing. People v. Ferrara, 31 Cal. App. 1, 159 Pac. 621.
2. -Effect of letters as evidence.--Letters admitted for the purpose of refreshing the memory of a witness may be treated as evidence by the other party but not by the party using it.—Estate of De Laveaga, 165 Cal. 607, 133 Pac. 307.
1. Control of examination by court.-The court's refusal to allow defendant's counsel to cross-examine one of the state's witnesses with respect to his testimony at the preliminary examination affected only the form of the questions, and did not go to the extent of denying the right to ask appropriate questions showing contradiction or inconsistency between the testimony of the witness at the trial and that given by him at the preliminary examination.—People Ecton, 29 Cal. App. 478, 156 Pac, 996.
2. Where it is evident to the trial court, after a full and exhaustive examination of a witness upon a subject concerning which particular information is desired, that nothing more can be accomplished by continuing the inquiry, it is the duty of the court to put an end to such examination.—People v. Lim Foon, 29 Cal. App. 270, 155 Pac. 477.
2048. 1. Cross-examination, restriction of.-In an action for personal injuries sustained from a collision between a street-car and an automobile in which plaintiffs were riding, it is improper to restrict the cross-examination of one of the plaintiffs upon points relating to the distance between the vehicles at the times in question, and with reference to the speed at which the car approached the automobile, notwithstanding the witness in the course of such cross-examination made conflicting statements as to distance and speed of the car.-Quackenbush v. Los Angeles R. Corp., 28 Cal. App. 173, 151 Pac. 755.
1. Leading questions. The matter of allowing leading questions is one almost entirely within the control of the trial court; and the discretion of the court is not abused where the testimony elicited is, in substance, no more than a mere repetition of matter stated by the witness both on direct and cross-examination. — People v. Kromphold, 172 Cal. 512, 157 Pac. 599.
2. In an action to recover on indorsed promissory notes, a question addressed to a witness as to whether at the time the notes were delivered to him the names were written on the back, is not objectionable upon the ground that it was leading and called for a conclusion of the witness.-Pacific Portland Cement Co. v. Reinecke, 30 Cal. App. 501, 158 Pac. 1041.
1. Impeachment of Own witness. — Where the plaintiff calls the president of the defendant corporation as a witness to establish his case, the witness being the principal stockholder, the plaintiff is not bound by the testimony and may impeach the witness.—Coos Bay Mfg. Co. v. California Selling Co., 29 Cal. App. 406, 155 Pac. 817.
2. Where in a homicide case the district attorney is taken by surprise by the testi. mony of a police officer called on behalf of the state, and such testimony is "against" the prosecution, it is not an abuse of discretion to permit the district attorney to cross-examine the witness for the purpose of showing that he had previously made statements inconsistent with his
present testimony.-People v. Mallicoat, 27 Cal. App. 355, 149 Pac. 1000.
1. Recalling in rebuttal.-It is not error to permit the people to recall in rebuttal the witness who has testified to some conversations had with the defendant, and allow him to testify as to the particular conversations which the defendant denied, by asking him whether certain quoted statements were made, instead of requiring the witness to state the conversation in his own language.--People v. Turco, 29 Cal. App. 607, 156 Pac. 1001.
8 2047. 1.
Refreshing memory from notes.-A phonographic reporter who acted at the preliminary hearing, may to enable him to answer questions, refresh his memory from his
IMPEACHMENT OF WITNESS. 1. As to generally. 2. Construction of section. 3. Impeachment of accused. 4. Laying foundation-Practice on objection
sustained. 1. As to generally. It is not permissible to impeach the credibility of a witness by asking her questions tending to impute to her illicit relations with the defendant.People v. Cuin, 27 Cal. App. 316, 149 Pac. 795.
2. Construction of section.—This section and section 2052 prescribe the method of impeaching witnesses, and they can be impeached in
other way than therein provided.-People v. Burrows, 27 Cal. App. 428, 150 Pac. 382.
3. Impeachment of accused.-When a defendant in a criminal case takes the stand as a witness in his own behalf, the district attorney may call and interrogate witnesses concerning the general reputation of the defendant for truth, honesty, and integrity.--People v. Rippe, 32 Cal. App. 514, 163 Pac. 506.
4. Laying foundation-Practice on objection sustained.—Where in the endeavor to lay a foundation for impeaching the credibility of a witness general questions are asked going merely to an inquiry as to whether a witness has had conversations with a third person, and objections are sustained thereto, the party against whom the adverse rulings are made should, either by an offer to show what he expects to prove or by a more comprehensive question, indicate wherein the matter expected to be elicited will be material.- People v. Rousse, 26 Cal. App. 100, 146 Pac, 65.
down by a notary public upon their being interviewed on behalf of the defendant, it is essential that the proper foundation for the questions be laid.-Froeming v. Stockton Electric R. R. Co., 171 Cal. 401, 153 Pac. 712.
2. Where a stenographer is testifying solely for purpose of impeachment as to a statement formerly made by the defendant to the district attorney, he should not be required to read his notes of the whole conversation if he has given the pertinent portions.—People v. Coutcure, 171 Cal. 44, 151 Pac. 659.
3. In case a stenographer is testifying, solely for purpose of impeachment, as to a statement made by the defendant in a homi. cide case, it can not be objected that the testimony should have been received as part of the main case of the prosecution.—People v. Coutcure, 171 Cal. 44, 151 Pac, 659.
4. Manner of impeachment.–Testimony of threats made by the accused in a homicide case against the deceased is admissible to impeach the defendant's testimony that he never had any trouble with the deceased. -People v. Coutcure, 171 Cal. 44, 151 Pac. 659.
5. If the statements of the witness be in writing it is highly proper that they should be shown him, but there can be no reason for requiring the writing to be exhibited to the witness where he has never had anything to do with the execution of it or has not even seen it before. The inspection by the
witness of a typewritten transcript, made by a stranger to him, and which he has never seen could not assist the witness in his recollection of oral statements which he may have made.-People v. Talman, 26 Cal. App. 348, 146 Pac. 1063.
6. Where in a prosecution for rape a witness testifies to certain circumstances which tend to discredit the complaining witness, it is proper to permit the state to show that such witness told certain people that he knew the defendant was guilty, but would not be "fool enough to swear to it in court." -People v. Converse, 28 Cal. App. 687, 153 Pac. 734.
IMPEACHING WITNESS. 1-3. Laying foundation for. 4-6. Manner of impeachment.
1. Laying foundation for.- Where it is sought to impeach the principal witnesses of the plaintiffs by written statements taken
8 2055. EXAMINATION OF ADVERSE PARTY. A party to the record
. of any civil action or proceeding or a person for whose immediate benefit such action or proceeding is prosecuted or defended, or the directors, officers, superintendent or managing agent of any corporation which is a party to the record, may be examined by the adverse party as it under cross-examination, subject to the rules applicable to the examination of other witnesses. The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination by other evidence. Such witness, when so called, may be examined by his own counsel, but only as to the matters testified to on such examination.
History: Enactment approved April 5, 1917, Stats. and Amdts. 1917, p. 58. In effect July 27, 1917.
8 2061. EFFECT OF EVIDENCE-INSTRUCTIONS.
1. Construction of section-In general.
5. Subdivision 7. 6–12. Weight and credibility of evidence. 13, 14. Witness false in part.
1. Construction of section-In general. While this section provides that the jury is to be instructed "on all proper occasions" the court may refuse a requested charge that "evidence of the oral admissions of the defendant ought to be viewed with caution” as being a mere commonplace.-People v. Raber, 168 Cal. 316, 143 Pac. 317.
2. -Subdivision 2.-This applies with equal force to instances where the case is tried by the court.-Bellus v. Peters, 165 Cal. 112, 130 Pac. 1186.
3. -Subdivision 3.—This is but a brief paraphrase of the maxim "Falsus in uno, falsus in omnibus." The code provision like the maxim is not a complete exposition of the law. Well understood by jurists it would be misleading to the non-professional mind.—Poor v. W. P. Fuller & Co., 30 Cal. App. 650, 159 Pac. 233.
4. -Subdivision 5.—By a "preponderance of evidence" is meant such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability is in favor of the party upon whom the burden rests.-People v. Miller, 171 Cal. 649, 154 Pac. 468.
5. -Subdivision 7.-Where it appears, in an action for personal injuries received by
mine foreman while being hoisted in a bucket, that he and another employee each gave some of the signals for hoisting, in testifying to the signals given, the foreman is giving evidence which is not in a legal sense “weaker" than that of any other eyewitness. Gibson V. Kennedy Extension Gold Min. Co., 172 Cal. 294, 156 Pac. 56. 6.
Weight and credibility of evidence.While the general rule is that the uncontradicted testimony of a witness can not be disregarded by a court, still this rule is subject to limitations. And where the testimony of a witness, though of a most positive character, is yet so improbable when tested by rules which govern men of ordinary capacity and intelligence in a given business transaction, a court may refuse to credit it.—California-Calaveras Min. Co. v. Walls, 170 Cal. 285, 149 Pac. 595.
7. The question of the weight of evidence is committed exclusively to the trial court. -Hitchcock v. Rooney, 171 Cal. 285, 152 Pac. 913.
8. The weight of evidence in a personal injury case is to be determined by the jury. If their verdict has the support of substantial evidence, the appellate court will not disturb it. Whether the court on appeal would have reached the same conclusion
that the jury did is not material.-Gibson v. Kennedy Extension Gold Min. Co., 172 Cal. 294, 156 Pac. 56.
9. Mere contradictions in the testimony of a witness will not, standing alone, suffice to utterly destroy the credibility of such witness, and in such a case it is still the province of the jury to pass upon the question of credibility.-People v. Raich, 26 Cal. App. 286, 146 Pac. 907.
10. It is the peculiar and exclusive province of the jury to decide upon the credibility of the witnesses, and in doing so it is their duty to reconcile, if possible, any apparent conflict in the evidence, whether such conflict is developed upon the whole case or in the testimony of an individual witness; and it is for the jury to determine whether or not a witness has been
impeached by proof of contradictory statements or otherwise, and to what extent they will believe or disbelieve the testimony of a witness thus assa iled.—People v. Raich, 26 Cal. App. 286, 146 Pac. 907.
11. The general rule that as against a proved fact, or a fact admitted, a disputable presumption has no weight, is subject to the exception that where an endeavor is made to establish a fact contrary to the presumption, the fact in dispute still remains to be determined upon a consideration of all of the evidence, including the presumption.--Pacific Portland Cement Co. v. Reinecke, 30 Cal. App. 501, 158 Pac. 1041.
12. A judge is not at liberty judicially to poise his personal impression against the solemn statement under oath of two reputable witnesses to the factum.-Estate of Mahoney, 6 Cof. Prob. Dec. 1.
13. Witness false in part.-An instruction that "if any witness examined before you has willfully sworn falsely in this case to any material matter it is your duty to distrust his entire evidence," is improper. People v. Vertrees, 169 Cal. 404, 146 Pac. 890. 14.
The giving or refusing to give this instruction, unless injury is shown, does not constitute prejudicial error.- Poor v. W. P. Fuller & Co., 30 Cal. App. 650, 159 Pac. 233.
1. Witness bound to answer.-Where in a criminal prosecution the defendant on crossexamination denies a former conviction of a felony, his examination to prove the fact, if it be a fact that he has been convicted, is exhausted and can be proved only by the record of the judgment, and it is error to permit the state to show by the record of a trial in which the defendant appeared as a witness that he had admitted a previous conviction.—People v. Vertrees, 169 Cal. 404, 146 Pac, 890.
1. offer equivalent to payment - Construction.—Neither this section nor section 2076 qualifies or repeals the provisions of sec