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X-ray showed a bone of the neck broken and the spinal cord injured. Within a few days thereafter, having been forced to lie entirely quiet in bed on account of the severe pain attendant on moving him, he again developed congestive pneumonia, and died. The autopsy surgeon of the coroner's office found death was caused by valvular disease of the heart, coupled with an acute congestion of the lungs. [1, 2] At the time of the accident, deceased was a man of 57 years of age; he had, according to his attending physicians, a leaking heart, which compensated; hardening of the arteries and signs of a chronic pleurisy; to all of which the physicians attached little importance as affecting his chances of recovery from the accident which necessitated his hospital care, or of living his alloted span. Counsel stipulated that by the American Experience Table of Mortality the expectancy of life of the average man of 57 years is 16.1 years. The defendant attacks the verdict of $7,500 upon the ground that it was excessive, the excess appearing to have been given under the influence of passion or prejudice. Code Civ. Proc. § 657, subd. 5. When injured, deceased was temporarily employed and receiving $18.75 per week. This evidence, as a criterion of his earning capacity, is all the Court allowed to be admitted. On this basis the verdict of the jury represented about one-half of what he would have earned had he continued working at the same salary for the period of his expectancy of life. But aside from this, where the law furnishes no rule for the measure of damages, their assessment is peculiarly the province of the jury, and the court will never interfere with the verdict merely on the ground of excess. The amount of the verdict is not suggestive of either passion, prejudice, or corruption. The damages must be flagrantly outrageous and extravagant or the court cannot undertake to draw the line. We are bound to confine our consideration to the record, and the record on its face does not show passion or prejudice. Anderson v. San Francisco-Oakland Terminal Railways (Cal. App.) 214 Pac. 289; Howland v. Oakland Ry. Co., 110 Cal. 513, 523, 42 Pac. 983; Redfield v. Oakland Ry. Co., 110 Cal. 277, 42 Pac. 822, 1063; Tedford v. Los Angeles Electric Co., 134 Cal. 76, 66 Pac. 76, 54 L. R. A. 85; Hale v. San Bernardino Traction Co., 156 Cal. 713, 106 Pac. 83; Evarts v. Santa Barbara Ry. Co., 3 Cal. App. 712, 86 Pac. 830; 13 Cyc. 123; Blackwell v. American Film Co. (Cal. Sup.) 209 Pac. 999. Defendant contends that the injuries were not the proximate cause of death. The study of the origin of the doctrine of proximate cause is alluring. Much of interest has been written upon the subject. Space, time, and requirement of the problem before

us merely permit hasty reference to its derivation and unfoldment. “He that does the first wrong shall answer for all consequential damages,” said Lord Holt in Roswell v. Prior (12 Mod. 639). In 1773 Chief Justice De Grey said: “Every one who does an unlawful act is considered the doer of all that follows.” Scott v. Shepherd, 2 W. Bl. 892, 899. Later the courts attempted to limit this responsibility. Lord Kenyon, in Ashley v. Harrison (1 Esp. 48 [1793]), pointed out that “the injury complained of was too remote.” In 1806 Lord Ellenborough, in Vicars v. Wilcocks (8 East, 1), said that “the damages must be the legal and natural consequences of the words spoken.” Sergeant Wild, in Ward v. Weeks (7 Bing. 211, 212 [1830), expressed this idea: “A man is liable only for the natural and proximate consequences resulting directly from some intermediate agent.” The principle was stated in America in 1848 by Greenleaf (2 Greenl. Ev. [1st Ed.] 258), as follows:

“The damages to be recovered must always be the natural and proximate consequence of the act complained of.”

In an early case in this state (Hawthorne v. Siegel, 88 Cal. 159, 25 Pac. 1114, 22 Am. St. Rep. 291), an action for damages for trespass, we find our Supreme Court making a broad application of the principle. The Supreme Court adopted the definition given by the United States Supreme Court in AEtna v. Boon, 95 U. S. 117, 130 (24 L. Ed. 395), as follows: “The proximate cause is the efficient cause, the one that necessarly sets the other causes in operation;” made the following quotation from Brady v. Northwestern Insurance Co., 11 Mich. 425: “That which is the actual cause of the loss, whether operating directly, or by putting intervening agencies, the operation of which could not be reasonably avoided, in motion, by which the loss is produced, is the cause to which such loss should be attributed;” approved the following language from Wood v. Currey, 57 Cal. 208, 210: “Damages which accrue subsequent to the tort, but of which it is the primary cause, are not separate causes of action, but “are parts of the tort itself for which the cause of action is given;''' and, after summing up the evidence in the case, said:

“The cause which set all the rest in motion was the trespass. The operation of the subsequent agencies of loss was the result of this wrongful injury. Hence they • * * resulted from that trespass. To the first cause, primarily, all the damages resulting are to be attributed, although each item of damage was produced by some separate cause, following the primary cause, and operating more im

mediately in producing the damages.”

The definition of “proximate cause” in modern text-books and recent reports vary much in expression and sometimes in idea. The most widely quoted definition is the following: “The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new [and independent] cause, produces that event, and without which that event would not have occurred." Bosqui v. Sutro Railroad Co., 131 Cal. 390, 397, 63 Pac. 682, 684; Shearman and Redfield on Negligence, $ 26.

(220 P.)

It was given by the court to the jury as an instruction in this case.

Illustrative of the application of the rule made by courts of other jurisdictions are the personal injury cases hereinafter mentioned.

Batton, Adm'r, v. Public Service Corporation of New Jersey, 75 N. J. Law, 857, 69 Atl. 164, 18 L. R. A. (N. S.) 640, 127 Am. St. Rep. 855. The facts show that defendant's negligent act had caused an injury from which the plaintiff was still suffering. An

act on the part of the plaintiff caused a fur

ther injury. The question was presented:

“Can it be said that, assuming that the plaintiff was free from contributory negligence, the original negligence was the proximate cause of the second injury?” .

The rule laid down by the court is that the original negligence continued and accomplished the final result and is to be deemed the proximate cause, notwithstanding the fact that some act of the plaintiff aggravates the injury, if that act is in the course of conduct of a reasonably prudent person under all the circumstances.

Hyvonen v. Hector Iron Co., 103 Minn. 331, 115 N. W. 167, 123 Am. St. Rep. 332, a case where, as the result of an accident, the plaintiff's leg was broken, and some weeks afterwards, while walking on crutches, he slipped and fell, breaking his leg in the same place as before. The court held that evidence of the second breaking was admissible in an action to recover damages on the ground that the accident was due to the defendant's negligence. It was further held that it was for the jury to say whether the second breaking was a direct result of the first,

At this juncture it seems pertinent to say that upon reading the instructions given by the court to the jury we note that stereotyped definitions were, given of negligence and contributory negligence; and, in this Connection, we further observe an instruction was given as follows:

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whether such intervening causes are dependent upon another cause which is the efficient cause.”

Hartnett v. Tripp, 231 Mass. 382, 384, 121 N. E. 17, 18, an action for damages for negligence. Quoting from the decision:

“As a result of the accident the plaintiff received a fracture of the femur of his right leg, and was taken to a hospital, where he remained in bed for about nine weeks; at the end of that time he was able to get up by the use of crutches and sit in a wheel chair; there was evidence that in getting out of the chair one of his crutches slipped and he fell back into the chair, breaking his leg at the place of the original fracture. The evidence relating to this second fracture was admitted by the presiding judge upon the question of damages, subject to the exception of the defendant. It is plain that the evidence was properly admitted. While a wrongdoer cannot be charged with liability for the result of a separate, independent and intervening act for which he is in no way responsible, he is liable for the direct and proximate result of the first injury. The second injury, caused by the slipping of the plaintiff's crutch, could have been found to have had a causal relation to the original injury for which the , defendant would be liable. It does not appear that the plaintiff acted carelessly or improperly; he had so far recovered from his first injury that he was permittéd to use crutches, although still being treated at the hospital. In attempting to get out of the chair with the aid of his crutches, he was performing a natural and necessary act, which it could not be ruled was negligent or so distinct from his original injury as to be a separate and independent act. The presiding judge clearly and accurately instructed the jury that flie plaintiff could not recover for the second frac. ture as an element of damages unless they were satisfied that it was a natural and proximate result of the original injury.”

Ehrgott v. Mayor, etc., 96 N. Y. 264, 48 Am. Rep. 622. The action was for damages. for negligence occasioned by reason of a defect in a street. The axle of plaintiff's carriage was broken and he was dragged over the dashboard. He procured another carriage and drove several hours, during which time he was exposed to the cold and rain. The plaintiff gave evidence tending to show that the diseases from which he was suffering were the results of the strain and shock caused by his being dragged over the dashboard; and the defendant's evidence was that the injuries resulted from the subsequent exposure. The jury found that they resulted from both. It was held that a recovery was justified whether the injuries proceeded from the strain and shock or from the subsequent exposure, or both.

In Smith v. Northern Pacific Ry. Co., 79. Wash. 448, 453, 140 Pac. 685, 687, this rule is enunciated:

“If a person receives an injury through the negligent act of another, and the injury is afterwards aggravated, and a recovery retarded, through some accident not the result of want of ordinary care on the part of the injured person, he may recover for the entire injury sustained, as the law regards the probability of such aggravation as a sequence and natural result likely to flow from the original injury"cited with approval in Ross et ux. v. Erickson Construction Co., 89 Wash. 634, 155 Pac. 153, 157, L. R. A. 1916F, 319; Stahl v. So. Michigan Railway Co., 211 Mich. 350, 178 N. W. 710, 711.

[3] In the instant case, by its verdict, the jury found that defendant was guilty of negligence which caused the original injury; that the decedent was free from fault; and also found against defendant upon the issue of the proximate cause of death. Upon all questions of fact submitted for determination the jury's verdict is conclusive. Sacchi v. Bayside Lumber Co., 13 Cal. App. 72, 83, 108 Pac. SS5. [4] To briefly recapitulate, the evidence shows that decedent was injured by being struck by defendant's motor truck. The use of crutches by decedent while convalescing was a necessity occasioned by the original injury caused by the defendants' negligence. Decedent, while in his room at the hospital, in the presence of his physician, demonstrating his ability to use his crutches, “tried to back up, lost his balance,” and fell. According to the testimony of physicians, patients using crutches while recovering from injuries frequently have falls, such being an ordinary hazard of convalescence. It was not shown, nor was there any evidence from which it might have been inferred by the jury, that decedent did not exercise ordinary care in using his Crutches. [5] Counsel for defendant concedes that decedent “might not have died (when he did) if he had not been injured and required to move about on crutches.” Put he endeavors to escape responsibility, arguing that “it was not likely, nor was it proved, that death would not have come had he not been injured by the fall and thereby confined to his bed.” Such position is untenable. The party causing the injury cannot escape full liability without showing death must have resulted if the injury had not been done. Beauchamp v. Saginaw Mining Co., 50 Mich. 163, 15 N. W. 65, 45 Am. Rep. 30. We have carefully examined the entire record in this case, and we are of the opinion that the evidence shows a complete case within the doctrine of proximate cause against the defendant, and the jury was fully warranted in so determining. [6] Defendant's next point is that plaintiff did not have the legal capacity to sue, the objection being made that she sued as the widow and “an heir,” or suing as “an” heir, did not join with her other heirs of deceased, either as plaintiffs or defendants, or did not sue for their benefit. Defendant’s demurrer was properly overruled on this

ground, because it does not appear on the face of the complaint that there are other heirs; and though he again pleaded the same defense in his answer, there was no evidence introduced respecting any other heirs. In Groom v. Bangs, 153 Cal. 456, 45S, 96 Pac. 503, 504, a husband sued merely as such for damages for the death of his wife, and the point was raised that he was not described as “heir,” nor were the other heirs joined in the suit. In passing upon this point Mr. Justice Shaw said:

“It was not necessary to expressly allege that he was her heir. It is alleged that she was his wife at the time of her death, and as surviving husband, he would, under any ordinary circumstances, be her heir. Knott v. McGilvray, 124 Cal. 129.”

Certainly, the allegation in that case was not as clear as here. Moreover, it has been held that recovery by one heir for death under the statute bars a subsequent action for the same cause. In the case of Salmon v. Rathjens, 152 Cal. 290, 92 Pac. 733, cited by defendant, the allegation in the complaint was that plaintiffs “are daughters of Moses Farmer, deceased.” Demurrer and answer were interposed similiar to those in this case. These excerpts are from the decision:

“* * * The complaint stated a cause of

action upon the theory that plaintiffs were the only heirs of deceased, just as completely as it would have done had it in terms alleged that plaintiffs were the only heirs. * * * We are staisfied that defendant could not be subjected to a second recovery in a subsequent action by some other heir or heirs of whose existence he had no knowledge at the time of this action. * * * Our law allows but a single action in such cases, and in that action the damage to all heirs is recoverable.”

The complaint before us also stated a cause of action on the theory that the wife was the only heir, and defendant is not harmed in any event.

[7] The last point made for reversal is that certain instructions given by the trial court were erroneous. The instructions given by the court are, in the main, stock instructions given to juries in the trial of damage cases for personal injuries. All of them are “ancient and honorable” and most of them supported by respectable authority. The assignments of error are hypercritical in the extreme, as illustrated by the first. The following instruction was given:

“If you find that the plaintiff is entitled to recover, you may award her such damages, within the amount claimed, as, in your opinion, will compensate her for the pecuniary damage proved to have been sustained by her and proximately caused by the wrong complained of. If you come to the conclusion that the plaintiff is entitled to a verdict for damages, then in estimating the amount of such damages, I instruct you that the measure of such damages is such sum as will equal the pecuniary loss

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The action is one under section 377, Code of Civil Procedure, and the instruction given is based thereon. The last clause of section 377 provides that in every action under it such damages may be given as under the circumstances of the case may be just. The statutory rule is the only measure of damages. It is the only rule to be applied in any action under the section. Bond v. United Railroads, 159 Cal. 270, at page 276, 113 Pac. 366, 48 L. R. A. (N. S.) 687, Ann. Cas. 1912C, 50. Complaint is made that the instruction is incomplete in that it fails to incorporate, in addition to the things which are noted in the last sentence as not to be included in the estimate of damage, the pain or anguish suffered by decedent. The instruction clearly stated the law and is supported by these authorities: Beeson v. Green, etc., Co., 57 Cal. 37; Munro v. Pacific, etc., Co., 84 Cal. 525, 24 Pac. 303, 18 Am. St. Rep. 248; Pepper v.

Southern Pacific Co., 105 Cal. 402, 38 Pac.

974; Harrison v. Sutter Co., 116 Cal. 169, 47 Pac. 1019; Dyas v. Southern Pacific Co., 140 Cal. 308, 73 Pac. 972; Quill v. Southern Pacific Co., 140 Cal. 273, 73 Pac. 991; Hale v. San Bernadino, etc., Co., 156 Cal. 713, 106 Pac. 83; Bond v. United Railroads, 159 Cal. 270, 113 Pac. 366, 48 L. R. A. (N.S.) 687, Ann. Cas. 1912C, 50. We do not think that the court committed error in failing to include a negative element in the instruction. Defendant had opportunity at the trial to request an instruction in accordance with the view he now expresses, and having failed to take advantage of that opportunity, he may not be heard to complain at this time.

[8] It is urged that the court erred in giving the following instruction, designated as number XXIX:

“You should estimate and determine the amount that the deceased would, in all probability, have earned in the years yet remaining to him, and, deducting from this the amount which he would reasonably require for his own personal use and maintenance, give a verdict which would pecuniarily compensate her.”

It is said that error was committed in omitting the word “reasonable” before the word “probability” in line two of the instruction. “Probability” means the state or character of being probable. Webster's and the Century dictionaries define “probable” as follows:

“Having more evidence for than against; supported by evidence which inclines the mind to belief but leaves some room for doubt; likely.”

This definition is accepted in numerous cases in which the word “probable” is construed. The Century, in referring to the definition, gives the word “reasonable” as cognate and synonymous therewith. As used in the instruction under examination, we think the word “probability” imports “reasonable.”

[9] Objection is made to instruction XXX. The court instructed the jury:

“In determining the probable length of life the decedent would have enjoyed, you are entitled to consider the mortality or expectancy tables as evidence bearing on that question.”

It is said that the court should have added the words “and as tending to show the ordinary experience in like cases.” We are unable to see how the clause suggested would have added anything to the instruction. It has been said that instructions must be construed in reference to the proof. Brumagim. v. Bradshaw, 39 Cal. 24. The record shows that the following took place during the course of the trial:

“Mr. Spence: It may be stipulated, may it, Mr. Lipman, that the average man who attains the age of 57 years has an expectancy of 16.1 years to live?

“Mr. Lipman: According to the American Experience Table of Mortality.

“Mr. Spence: Yes, according to the American Experience Table of Mortality.”

[10] Under the circumstances we think this assignment of error is without merit. The further objection is made to this instruction that the jury should have been told that the expectancy tables were to be considered only if decedent's death was found to be proximately caused by defendant's negligence. It seems necessary to reiterate: The instructions must be taken, considered, and construed as a whole. The instruction criticized is relevant to the measure of damages. The record shows that the court told the jury that the instructions relating to damages were only to be considered if the decedent's death was found to be proximately caused by defendant's negligence.

[11] The last objection is to instruction XXXV, as follows:

“You are further instructed that the deceased had the right to cross Montgomery street at its intersection with Sumner street.”

It is argued that this instruction as it stands implies an absolute right in the decedent to cross Montgomery street irrespective of the rights of others. This instruction, like other instructions criticized, should be read in conjunction with the whole charge of the court, and particularly should it be read in connection with the instruction which immediately precedes it, to wit, instruction XXXIV, which is as follows:

“A public highway is open in all its length and breadth to the reasonable common and equal use of the people on foot or in vehicles.

The owner of an automobile has the same right 'as the owner of other vehicles to use the highway, and he must exercise reasonable care and caution for the safety of others.

“A traveler on foot has the same use to the public highway as an automobile or other vehicle. In using such highway all persons are bound to use reasonable care to prevent accidents. Such care must be in proportion to the danger in each case. The persons having the management of the automobile and the travelers on foot are both required to use reasonable care, circumspection, prudence, and discretion as the circumstances require. Both are bound to the reasonable use of all their senses for the prevention of accident, and the exercise of all such reasonable caution as ordinary careful and prudent persons would exercise under like circumstances.”

It will readily be seen that this last assignment of error, like the others which have preceded it, is wholly without merit.

The judgment is affirmed.

We concur: TYLER, P. J.; RICHARDS, J.

Opinion of Supreme Court in Bank Denying Hearing.

PER CURIAM. In the petition for transfer to this court, petitioner does not complain of the giving of the instructions set out in the opinion of the District Court of Appeal, but contends that the verdict is excessive and that the death was not proximately caused by the injury.

These points are satisfactorily determined by the District Court of Appeal, and that court also correctly answers the objections made by petitioner to the instructions set out in that opinion.

We do not wish, however, to be understood as approving those instructions. The measure of damages for injuries to result in the future is well settled. See Section 3283, C. C.; also, Saylor v. Taylor, 42 Cal. App. 474, 183 Pac. 843; Melone v. Sierra Ry. Co., 151 Cal. 113, 91 Pac. 522; Walker v. Sou. Pac. Co., 162 Cal. 121, 121 Pac. 369; Wiley v. Young, 178 Cal. 681, 174 Pac. 316; Richman v. S. F., etc., Ry., 180 Cal. 454, 181 Pac. 769.

The petition is denied.

PEOPLE v. PORTER et al. (Cr. I 134.)

(District Court of Appeal, First District, Division 2, California. Oct. 1, 1923. Hearing Denied by Supreme Court Nov. 26, 1923.)

1. Criminal law &=517(4)–Corpus delicti held proved as basis for introduction of defendant's confession. In prosecution for burglary, evidence held sufficient to establish corpus delicti as basis for introduction of defendant’s confession.

2. Criminal law &531 (3) — Confession held voluntary. In prosecution for burglary, evidence held to show defendant's confession to have been voluntary.

3. Criminal law 3-3815 (9)-Instruction on possession of stolen property held not to exclude consideration of other evidence. In prosecution for burglary instruction that mere possession of stolen property recently after the theft is not presumptive evidence of guilt but a circumstance tending to prove it, and that, if defendants were in possession thereof, the attending circumstances should be considered, the proximity of the place where found to the place of burglary, the lapse of time, whether the property was concealed, and whether party having possession had admitted or denied it, their demeanor, etc., held not to advise that the jury was to consider solely and alone the possession of the stolen property.

4. Burglary 3-14–Instruction that return of property was not defense held not error. In prosecution for burglary, an instruction that, if any property was taken and recovered or returned, such was not to be considered as a defense, was not error.

5. Criminal law 3-741 (1), 742(1), I 159(2, 4) -Conflict in evidence, weight thereof, and credibility of witnesses for jury, and no interference on appeal save for abuse of discre, tion. Conflict in testimony, the weight of it, and the credibility of witnesses are matters which the jury determine, and, where no abuse of discretion is shown, the appellate court may not interfere.

6. Criminal law 3-695 (6) — Written confession of defendant's accomplices properly introduced in absence of objection. In prosecution for burglary, where a police officer testified to confessions of other defendants in writing and read before defendant, pursuant to Code Civ. Proc. § 1870, subd. 3, and to defendant's conduct in relation thereto, it was proper to receive such documents in evidence, in view of defendant's failure to mark irrelevant passages therein, and ask to have the reading confined to those matters within the issue at trial.

7. Burglary 3-41 (1)–Evidence held sufficient to justify conviction. In prosecution for burglary of an apartment, evidence, though circumstantial, held sufficient to justify conviction.

Appeal from Superior Court, City and County of San Francisco; Louis H. Ward, Judge.

Dillard Porter and another were convicted of burglary, and they appeal. Affirmed.

Ernest B. D. Spagnoli, of San Francisco, for appellant Porter.

Edward D. Mabson, of San Francisco, for appellant Young.

U. S. Webb, Atty. Gen., and John H. Riordan, Deputy Atty. Gen., for the People.

&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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