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The same is true as to torts or wrongful acts not resting upon contract. Dillon, Municipal Corporations (5th Ed.) vol. 4, § 1649, p. 2871. One other general and uniform rule is that, in the absence of specific authority to the contrary from the lawmaking power, two municipal corporations cannot have jurisdiction and control at One time of the same subject-matter in the same territory. The case of Taake v. Seattle, 16 Wash. 90, 47 Pac. 220, is not in point. That case involved liability of a city for a defective street not owned but maintained by the city, the maintenance of streets and bighways being among the general powers of the city, and held out to the public as a public street and highway. Under all the authorities a city under such circumstances would be held S0 liable. As we read the opinion the court seeks to justify its judgment and conclusion by reference to certain statutes of 1901 and subsequent years and an interpretation of them which seems to us to be unwarranted. The decision rests in part on section 6516, Rem. Comp. Stat. (chapter 70, Laws 1901, as amended by Laws 1909), as follows:

"Any county within the state of Washington, by and through its county commissioners, and any city or town, by and through its legislative body (and the state of Washington), or any two of such bodies, be, and they are hereby authorized to join in paying for the construction of any bridge, trestle, or any structure which crosses any stream or body of water, when such bridge is a connection between any street or county road, or is a connection between any streets that form connections with county roads, when such stream or body of water is within or partly within such city or town. + 4 + "

That statute, in our opinion, has no application here other than to show that the Legislature recognized the general rule that it was necessary to confer power upon a county to join in paying for the construction of a bridge or structure across a stream or body of water lying within or partly within a city, in order that the county might have and exercise such power. Otherwise it is not helpful here because it has to do with the paying for a bridge, which is a very different thing from conferring power on a County to maintain, control, and operate a bridge or structure across any stream or body of water lying within or partly within a city. But it is argued that if that law were insufficient to confer the power to maintain and operate in such cases the matter Was set at rest in favor of that power by

chapter 56, Laws 1913. In our opinion that act has no application to this case. Section

1 of it may be quoted. It reads as follows:

“The state of Washington and all counties, cities or towns within the state are hereby authorfzed and empowered to join with each other

| or to aid the state of Washington, the federal

government, or any adjoining county, city or town in this state, or to jointly or separately join with any adjoining state, county, city or town in the purchase, construction, control, operation and maintenance of any bridge or bridges over or across any river, stream or body of water being within or constituting the boundary line of the state or of any county therein.”

That is a general law, which was passed primarily to authorize the bridging of the Columbia river at Vancouyer, but sufficient, of course, for all other interstate bridges, and to cover other situations where a stream or other body of water to be bridged constitutes a boundary line between counties whether all or only a part of the river, stream, or body of water is situate in one county. To make that section applicable to the situation at Kelso it would be necessary for the purpose of so construing it to add to the language of the section of the words “or being within the territorial limits of any city within this state.” Such words the Legislature studiously avoided using, in keeping with its prior uniform course of leaving maintenance and control of all bridges and highways within the limits of cities under the undivided control of city authorities, and in harmony with the subsequent act of 1915 (Rem. Comp. Stat. § 6413), upon the subject of levy by county commissioners of taxes for road and bridge purposes, subdivision (b) providing that the county treasurer of each county shall remit to the city or town treasurer of each incorporated city or town within the county 15 per cent. of all money collected, etc.

We are unable to see anything in section 6535, Rem. Comp. Stat., being section 11 of the act of 1913, that covers the situation at Kelso or that in any way broadens the scope of the act relative to places for the construction of bridges. That section simply provides, in detail, that in constructing a bridge —that is, a bridge to be located as already defined by the act—the city and county authorities shall agree as to the amount each shall contribute, enter into a contract for the construction of it, spend public funds thereon, and if necessary may bond the county and city, etc.

We think the judgment of the trial Court was correct, and that it should be affirmed. NELSON. v. DUTTON et al. (Civ. 4633.)

(District Court of Appeal, First District, Division 2, California. Sept. 30, 1923. Hearing Denied by Supreme Court Nov. 19, 1923.)

1. Waters and water courses 3-5 158(2) — Dumping of few loads of dirt held not construction of dam for which payment was to be made. Under a contract to pay $3,500 in case of exercise of the privilege of constructing and maintaining a dam for reclamation and irrigation purposes, the dumping of a few loads of dirt into stream, with a view to constructing a dam, held not to impose liability as to construction of contracts, where the purpose to construct the dam was abandoned, in view of Civ. Code, §§ 1641, 1647, and Code Civ. Proc. § 1860.

2. Contracts 6-154–Will be construed in reasonable manner, if possible. Contracts will be construed in a reasonable manner, if possible.

3. Waters and water courses 6- 158(2)-Duty of court to construe contract giving right to build dam to carry out expressed purpose. Where a contract conferring privilege on defendants to construct and maintain a dam contained no particular description of the dam to be constructed, it was the duty of the trial court to construe it in such a way as to render it effectual to carry out the purpose of the parties as expressed in the contract.

4. Appeal and error 6- 1071 (5)—immaterial finding not in accord with evidence held not prejudicial. A finding that no dam of any kind was constructed by defendant, although not in accord with the evidence, held not prejudicial, where the rights of the parties were concluded by the supported finding that no such dam as was contemplated by the parties was constructed.

5. Waters and water courses 3-158 (2)—Contract conferring right to build dam held not to require payment of consideration before work commenced. Contract conferring right to construct a dam held not to obligate builder to pay consideration before work was started, and hence not to impose liability, where no such dam as was contemplated was ever constructed.

6. Contracts 6-154–Contracts susceptible of more equitable construction will not be construed to work hardship and injustice. Courts of justice will not construe a contract in a manner that will work hardship and injustice, where it is susceptible of a more equitable construction.

Appeal from Superior Court, City and County of San Francisco; T.I. Fitzpatrick, Judge.

Action by G. Nelson against J. Warren Dutton and another. Judgment for defendants, and plaintiff appeals. Affirmed.

W. S. Andrews and Hadsell, Sweet & In

galls, all of San Francisco, for appellant.

Gregory & Goodell, D. D. Sales, and Clarence Coonan, all of San Francsico, for respondents.

LANGDON, P. J. This is an appeal by the plaintiff from a judgment against him in an action brought to recover $3,500 from the defendants alleged to have been due under the terms of a written contract between defendants and plaintiff's assignors, F. N. Chaplin and Mittie M. Chaplin, his wife. Mr. and Mrs. Chaplin and the defendants were owners of real property bordering on “Roaring river,” a slough separating Hammond and Van Sickle Islands, Solano county, Cal. The testimony disclosed that this slough is located near the place where the Sacramento and San Joaquin rivers empty into Suisun bay, and is filled with fresh water when the water in the Sacramento and San Joaquin rivers is high and with salt water during the time that the water in said rivers is low. The original parties to the contract involved upon this appeal conceived the idea of creating a fresh water reservoir in said “Roaring river” by placing dams at either end thereof. To effect this purpose they executed a contract of which the following portions are significant upon this appeal: “That whereas the parties hereto (F. N. Chaplin and Mittie M. Chaplin, Bay Farms Co., Inc., and J. Warren Dutton) are owners and in possession of marshlands situated in the southerly portion of the county of Solano, in the state of California, in which it is desired for the benefit thereof to construct, erect and maintain certain works for reclamation and irrigation; and “Whereas there is a slough known as ‘Roaring river' between Van Sickle and Hammond Island, and another water course by the name of “Wreck slough' between Van Sickle Island and Wheeler Island, and it is desired for the purposes hereinbefore mentioned to construct such dams at or near the mouth or outer extremities of said sloughs. “Now therefore, for and in consideration of the sum of ten dollars ($10) in gold coin in hand paid to the said parties of the second part (Mr. and Mrs. Chaplin) by the party of the first part (Bay Farms Co., Inc.) and party of the third part (J. Warren Dutton), the receipt whereof is hereby acknowledged, and in further consideration of the covenants hereinafter set forth and the benefits which accrue to said respective lands, it is hereby stipulated and agreed as follows: “That such dam may be constructed and maintained by any or all of the parties hereto, within a period of three years from the date hereof, and that when so constructed, the parties of the second part shall have the right to use water from said Roaring river and Wreck slough in such quantities and at such times as they may desire, without charge therefor on the part of the party of the first part and party of the third part. “That no part of the construction, cost of maintenance shall be charged against said par

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ty of the second part by either the party of the first part or the party of the third part; “That before such dam in said Roaring river shall be constructed there shall be paid by or on behalf of the parties of the first and third part to the party of the second part, the further sum of three thousand five hundred dollars ($3,500) in gold coin of the United States.”

The plaintiff set out in his complaint the contract between his assignors and the defendants, and alleged:

“That after the execution of said contract as aforesaid, the defendants built and constructed in the slough known as ‘Roaring river' * * * a dam such as was contemplated by the parties in the aforesaid agreement.”

It is also alleged that before and after said dam was built and constructed, the plaintiff's assignors made demand upon the defendants for the payment to them of the sum of $3,500 as provided in said agreement; that the defendant refused and still refuses to pay the same, etc.

The anwer denied that after the execution of the contract the defendants or either of them constructed a dam such as was contemplated by the parties in said agreement or any other dam.

[1, 2] Upon the trial the contested issue was whether or not the work done by the defendants resulted in the creation of a dam contemplated by the parties. The trial court found:

“That it is not true that after the execution of said contract the defendants or either of them built or constructed in the slough known as Roaring river a dam such as was contemplated by the parties * * * or any dam of any kind, character or description.”

The latter portion of this finding to the effect that no dam of any kind, character, or description was constructed by defendants is challenged by the appellant. In his position upon this question, appellant is undoubtedly correct. The evidence discloses, as tac. itly admitted by the respondents, that some sort of a dam was actually constructed and, later, almost entirely destroyed by the defendants. The error in this portion of the finding is not prejudicial to the appellant, however, if the position of respondents is well taken that the vital issue at the trial was whether or not a dam contemplated by the parties had been constructed, and that the evidence amply supports the finding that such a dam was not constructed. Let us discuss this contention of respondents.

In support of the finding that no dam contemplated by the parties was constructed, the record contains evidence to the effect that to accomplish the purposes of the contract, as stated therein and as expressed by Mr. Chaplin on the witness stand, it was necessary to erect a dam which would be permanent in character and which would contain floodgates. These gates were essential for

maintaining a “fresh water reservoir.” In Roaring river, the purpose of the parties in entering the contract as expressed by Mr. Chaplin. The record shows that the defendants deposited considerable dirt in the entrance to Roaring river, creating an obstacle which temporarily blocked the entrance to the slough; that they, thereupon, discontinued their operations to allow this dirt to settle and form a substantial and permanent base for the dam; that the dirt did settle considerably; and that it would have been necesSary to have added a large quantity of dirt to the structure after the settling process was completed and to have built floodgates before the dam could be effective for the purposes contemplated by the parties when they entered into their contract. However, before these things were done, for some reason, it became apparent to the defendants that the object contemplated could not be attained, and the defendant Dutton, thereupon, caused a cut to be made in the dirt which he had caused to be piled in the entrance to Roaring river and the tidewater gradually washed it away until, at the time of the trial, a very small amount thereof was to be seen and this was steadily being washed away, by the Water. Now the appellant contends that by the terms of the written contract the only specification for the dam “contemplated by the parties” was a dam erected at the entrance of Roaring river; that any obstruction in a stream is a dam ; that when it was shown that an obstruction was created by the defendants at the place mentioned in the contract, the inquiry should have ended and the finding should have been that a dam contemplated by the parties was constructed by the defendants, and a judgment should have been given for the plaintiff. The trial court took a different view of the situation and evidently concluded that as the contract contained no particular description of the dam to be constructed, its character should be determined by a consideration of the purpose to be served thereby as expressed in the contract. This view is in harmony with the rule of construction requiring contracts to be considered as a whole (section 1641, Civ. Code), and also in harmony with the rule that the circumstances. and situation of the parties and the subjectmatter of the contract at the time of the making thereof are admissible in evidence as throwing light upon the intention of the parties when any uncertainty exists regarding this matter (section 1647, Civ. Code: section 1860, Code Civ. Proc.). We think the view of the trial court was the proper one. It was the only reasonable view of the contract, and it is always a rule of construction that contracts will be construed in a reasonable manner if possible. 6 Cal. Jur. § 169. In the case of Stein v. Archibald, 151 Cal. 220, 90 Pac. 536, it was said:

“It is a well-settled principle applicable to the construction of contracts that where one construction would make the contract unreasonable, unfair, or unusual and extraordinary, and another construction, equally consistent with the language, would make it reasonable, fair, and just, that the latter construction is the one which must be adopted. It is also a principle of construction with respect to ambiguous contracts, that the circumstances surrounding and known to both the parties at the time of the execution of the contract may be taken into consideration in determining the meaning intended to be conveyed.”

[3] It would not have been reasonable to construe the contract as an obligation on the part of the defendants to pay $3,500 to the plaintiff's assignors if said defendants cast a few loads of dirt into the entrance to Roaring river, which in no way accomplished the objects of the parties nor benefited the defendants in any manner. It was the duty of the trial court to construe the contract in such a way as to render it effectual to carry out the purpose of the parties as expressed in the contract. Callahan v. Stanley, 57 Cal. 476, 479.

Not only was the view adopted by the trial court the most reasonable view of the Contract, but it was also the view adopted by the plaintiff in his pleading, where he expressly invited the issue regarding the character of the structure contemplated by the parties. In the case of Silvers v. Grossman, 183 Cal.

696, 192 Pac. 534, it was said:

“On the contrary inasmuch as the instrument is ambiguous and the construction put upon it by the averments of the answer is one of which the instrument is readily susceptible, the pleader is bound by the interpretation adopted by him.”

[4] In the light of the views above expressed, it is apparent that the finding that no dam of any kind was constructed, although not in accord with the evidence, is immaterial because the rights of the parties are concluded by the supported finding that no dam as contemplated by the parties was constructed. Therefore the erroneous finding is not prejudicial to appellant.

[5] One other point urged by the appellant requires mention. It is in his position that the character of the dam is immaterial in this action, as the defendants were required by the terms of the contract to pay $3,500 to plaintiff's assignors before starting upon the construction work. We think the contract presents some uncertainty upon this matter, and the trial court has taken a view opposed to appellant's contention, which view was doubtless greatly influenced by the fact that the breach alleged by plaintiff was in failing to pay the amount after the construction of a dam contemplated by the parties. Upon this phase of the contract the trial court has

also taken the most reasonable and equitable view. [6] We find no error in the proceedings in the trial court, and the judgment seems to attain substantial justice between the parties. It does not appear that the defendants received any benefit whatsoever from their temporary obstruction of the slough in an attempt to accomplish the avowed object of the contract, nor that the plaintiff's assignors suffered any actual detriment by reason of such unsuccessful attempt upon the part of the defendants, nor that the temporary structure erected by the defendants fulfilled the express purpose of the contract, “to construct, erect and maintain certain works for reclamation and irrigation.” It is obvious that a dam without floodgates and in the process of settling could not aid in the work of reclamation and irrigation under the circumstances presented in this case. It is not the policy of courts of justice to construe contracts in a manner that will work hardship and injustice where they are susceptible of a more equitable construction. The judgment is affirmed.

We concur: STURTEWANT, J.; NOURSE, J.

BROWN v. BECK et al. (Civ. 4599, S. F. 10439.)

(District Court of Appeal, First District, Division 1, California. Sept. 19, 1923. Hearing Denied by Supreme Court Nov. 17, 1923.)

1. Appeal and error & 1004(1)—Where no legal measure, assessment of damages for jury. Where the law furnishes no rule to measure damages, their assessment is peculiarly within the province of the jury, and the court will never interfere merely on the ground of excess, unless the damages are flagrantly outrageous and extravagant.

2. Death 3-599 (4)–$7,500 damages to widow held not excessive.

Where decedent was 59 years old at the time of the accident, with an expectancy of 16.1 years, and was temporarily employed at $18.75 per week, a verdict of $7,500 for his widow held not excessive under Code Civ. Proc. § 657, subd. 5.

3. Appeal and error & 999 (1)–0n all questions of fact submitted, jury's verdict conclusive. On all questions of fact submitted for determination, the jury's verdict is conclusive.

4. Death 3-76—Evidence held to show death from pneumonia resulted from accident.

Evidence that decedent, who was convalescing in a hospital from injuries resulting from being struck by a motor truck and from congestive pneumonia resulting from the inaction caused thereby, while demonstrating to his physician his ability to use crutches, fell and injured himself so that he was forced to lie entirely quiet, which, again resulted in congestive pneumonia, from which he died, held to warrant a finding that death was a proximate result of the original accident.

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5. Death & 17–Person causing injury must show death would have resulted without injury. A person causing injury resulting in death cannot escape full liability without showing that death must have resulted if the injury had not been done.

6. Death 3-49(1)–Complaint for death not showing there were other heirs held not demurrable.

In an action for death by one suing as widow and as “an heir,” a demurrer to the complaint on the ground that plaintiff did not have legal capacity to sue under Code Civ. Proc. § 377, giving heirs or personal representative of a person killed an action for damages, was properly overruled, where it did not appear on the face of the complaint that there were other heirs, especially as defendant was not harmed, since recovery by one heir bars a subsequent action on the same cause.

7. Appeal and error 6-216(2)—Objection that instruction incomplete held too late on appeal.

Objection that an instruction as to damages for death was incomplete was too late on appeal, where no request for any other instruction was made at trial.

8. Death 3-5 104 (6)–Instruction to award amount deceased would in “probability” have earned held not erroneous.

An instruction in an action for death, that the jury should estimate the amount decedent “would in all probability have earned,” was not erroneous because it omitted the word “reasonable” before the word “probability”; probability importing reasonable.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Probability.]

9. Death & 104(6)–Proposed modification of instruction relating to life expectancy held unnecessary.

An instruction, in an action for death, in relation to determining the probable length of decedent's life, that jury should “consider the mortality or expectancy tables as evidence bearing on the question,” held not objectionable because it did not add “and as tending to show the ordinary experience in like cases.”

10. Trial 6-296 (II)—Instruction as to consideration of mortality tables not erroneous in view of...another.

An instruction, in an action for death, relating to decedent's expectancy, was not objectionable as failing to exclude consideration of expectancy tables if death was not proximately caused by defendant's negligence, where the court had previously told the jury that instructions relating to damages for death should be considered only if decedent's death was proximately caused by defendant's negligence.

| 1. Trial & 296 (3)-Instruction that decedent had right to cross street held not objectionable as implying absolute right, in view of other instructions. An instruction, in an action for death, that decedent had the right to cross the street at the intersection where the accident occurred, Wheld not objectionable as implying an absolute right irrespective of the rights of others, in view of other instructions as to the rights of vehicles.

Appeal from Superior Court, City and County of San Francisco; Edward I. Butler, Judge.

Action by Minnie H. Brown against Sigmund Beck, doing business under the fictitious name of S. Beck & Co., and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Edgar C. Levey, of San Francisco, for appellants.

Burbank & Spence, A. J. Fritz, and Daniel W. Burbank, all of San Francisco, and Homer R. Spence, of Alameda, for respondent.

ST. SURE, J. Mathew D. Brown, while crossing Montgomery street, in San Francisco, was struck down by a motor truck negligently driven by an employee of the defendant. Mr. Brown sustained serious injuries which resulted in his death. Plaintiff brought this action as the widow and heir at law of her deceased husband. The cause was tried before a jury, which rendered a verdict in favor of plaintiff for the sum of $7,500. From the judgment entered on the verdict defendant appeals, urging as grounds for reversal: (1) That the verdict is excessive; (2) that the injuries were not the proximate cause of the death of decedent; (3) the plaintiff did not have legal capacity to sue; (4) certain instructions, given by the court to the jury, were erroneous.

Mr. Brown's right hip bone was broken. He was taken to a hospital almost immediately after the accident, where he remained until his death. During his enforced inactivity in the hospital, and in spite of attendants moving him as much as possible to counteract the tendency, he contracted congestive pneumonia, a common danger in cases necessitating a recumbent position and inaction. He rallied from this attack, the pneumonia seemingly disappearing. He improved to such a degree that for a month a nurse and an orderly had supported him in getting him out of bed and attempting to develop the use of his injured leg. From this he went to using crutches. While demonstrating to his physician in his hospital room his ability to move with their aid, he suddenly fell backward, striking the back of his neck on a window sill. He immediately stated to his physician that he was paralyzed;' his arms were numb and he was unable to use his legs. An

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