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(68 Cal. 32)

BURKE v. Levy and others. (No. 8,567.)

Filed November 20, 1885. 1. FINDINGS-CONFLICTING EVIDENCE.

Findings will not be disturbed where there is a substantial conflict in the

evidence on which they are based. 2. COMPLAINT-CONTRADICTION OF, BY PLAINTIFF.

In an action for damages for abuse of process of the court, if the complaint alleges the fact of a judgment, not averring it to be void, the plaintiff cannot set up that such judgment was void because of defective service of summons, as such position would be inconsistent with the case made out in the complaint. Department 2. Appeal from superior court, county of San Mateo. Alfred A. Pardow and A. D. Splivalo, for appellant. Fox & Ross, for respondent.

MYRICK, J. The cause of action as stated in the complaint is, in substance, as follows: Defendants commenced an action against plaintiff, and had property attached. The plaintiffs sold and delivered the property to defendants in payment of the debt, and defendants agreed to dismiss that suit. Instead, however, of dismissing the suit, the defendants, contriving to oppress, cheat, and defraud plaintiff, procured a judgment to be entered in the action against him, and had his property seized and sold under execution; and this action was brought to recover the value of the property so seized, and damages, under section 3294, Civil Code. On the issues raised by the answer, the cause was tried, and the court found that the property attached was not transferred in payment, but as security, and that it was subsequently destroyed by fire, leaving the debt unpaid without security, and that the subsequent judgment, seizure, and sale were regular and proper; and judgment was thereupon rendered in favor of defendants.

The evidence given as to whether the transfer was a sale or as security was conflicting; therefore we do not disturb the findings. In this court, for the first time, the plaintiff raises the point that the judgment in the former suit was void by reason of defective service of the summons. That position is inconsistent with the case presented in his complaint. The complaint states the fact of the judgment, (not averring it to be void,) and counts on abuse of the process of the court. If the judgment had been deemed void by plaintiff, quite another form of action would have been brought. "The plaintiff must recover, if at all, upon the cause of action as set out in his complaint, and not upon some other which may be developed by the proofs.” Mondran v. Goux, 51 Cal. 151.

Judgment and order affirmed.

We concur: THORNTON, J.; MORRISON, C. J.

SUPREME COURT OF KANSAS.

(34 Kan. 289)

STATE v. CLARK,

Filed November 7, 1885. 1. INTOXICATING LIQUORS - VIOLATION OF PROHIBITORY LAW-EXAMINATION OF

WITNESSES-INFORMATION.

The county attorney, acting by virtue of the provisions of section 8, c. 149, Laws 1885, examined various witnesses, who gave their testimony before him, which was reduced to writing, and the persons so examined were sworn to the statements by them severally made, and these sworn statements were not only filed in the district court with the information, but were attached thereto. The defendant moved to have them stricken from the information, which motion the court overruled upon the ground that such statements were a part of the information. Held, that the court below erred in holding that such statements were a part of the information; but the refusal to strike them from the information could not of itself and alone prejudice materially any of the

substantial rights of the defendant, and was therefore not material error. 2. SAME_VERIFICATION BY COUNTY ATTORNEY ON INFORMATION AND BELIEF.

The information was amply sufficient in its statements of the offense charged against the defendant, and it was verified by the county attorney upon information and belief. The defendant moved to quash the same, and the court overruled the motion. Held, not error; and this, although the statements attached to the information may not have stated any offense, and although the information was verified by the county attorney only upon information and

belief. 3. SAME-STATEMENTS CONSIDERED BY JURY.

The foregoing statements were read and considered by the jury during their deliberations. Held, that this was error, for which a new trial should be

granted. 4. SAME-TESTIMONY OF JURORS.

The fact that the jurors read and considered the foregoing statements during their deliberations may be shown by the testimony of the jurors themselves, although the jurors could not be allowed to testify that their verdict was based upon such statements, or that the statements had any influence upon the jurors in forming their verdict. Appeal from Ellsworth county. S. B. Bradford, Atty. Gen., for appellee. Lloyd & Evans, for appellant.

VALENTINE, J. The defendant was convicted at the April term, 1885, of the district court of Ellsworth county, of the offense of sell. ing intoxicating liquor in violation of the prohibitory liquor law, and was sentenced to pay a fine of $100 and the costs of suit, and to be imprisoned in the county jail for 30 days, and until such sentence be complied with. He now appeals to this court.

The first ground for reversal urged by the defendant is the overruling by the court below of the defendant's motion to strike from the information certain affidavits filed therewith and attached thereto. It appears that the county attorney, acting by virtue of the provisions of section 8 of chapter 149 of the Laws of 1885, examined various witnesses, who gave their testimony before him, which was reduced to writing, and the persons so examined were sworn to the statements by them severally made, and these sworn statements were not only filed in the district court with the information, but were attached thereto; and these statements are the affidavits which the defendant moved to have stricken from the information. The information was also verified by the county attorney on information and belief. The court below held that the affidavits were a part of the information, and therefore were properly attached thereto; and for this reason the court below overruled the defendant's motion, We think the court below erred in holding that the affidavits were a part of the information; but we cannot see how the refusal of the court to strike them from the information materially prejudiced the substantial rights of the defendant. The statute requires that the affidavits shall be filed with the information, but it does not make them a part thereof, and we do not think that they are any part thereof; but the attaching of them to the information cannot of itself and alone prejudice materially any of the substantial rights of the defendant.

The next ground urged by the defendant for reversal is the overruling by the court below of the defendant's motion to quash the information. The court certainly did not commit error in this respect. The information is amply sufficient in its statements of the offenses charged against the defendant. It makes no difference whether the affidavits filed with the information show an offense or not, for they are no part of the information. And it makes no difference that the information was verified only upon the information and belief of the county attorney; for informations verified in that manner may be sufficient for every purpose except merely for the purpose of issuing a warrant for the arrest of the defendant. State v. Blackman, 32 Kan. 615; S. C. 5 Pac. Rep. 173.

The next ground urged by the defendant for a reversal is founded upon the alleged facts that the court below permitted the foregoing affidavits to be read and considered by the jury during their deliberations, and refused to permit the defendant to show by the testimony of two jurors that these affidavits were read and considered by the jury, and that the verdict of the jury, or at least of a portion of the jurors, was formed by reason solely of these affidavits. As to whether the court below permitted these affidavits to be taken by the jury, or to be received and acted upon by them, the record is silent. If the court did permit such a thing, of course it committed error, unless it was by the consent, expressly or tacitly, of the parties. Bish. Crim. Proc. $ 982a. It does not appear that any such consent was given. . We think, however, that for the purposes of this case we must assume that the jury did have these affidavits before them, and read them and considered them during their deliberations; for the defendant moved for a new trial upon that ground, among others, and then offered to show by the testimony of two of the jurors that such was the case; and the court refused to permit the testimony to be given. It is claimed, however, that the testimony of the jurors could not be received for such a purpose. We think, however, under the decis

v.8P,no.9-34

ions of this court, it could. Perry v. Bailey, 12 Kan. 539; Johnson v. Husband, 22 Kan. 278; Gottleib v. Jasper, 27 Kan. 770. If these affidavits were read and considered by the jury, without the authority of the court, then it was clearly such misconduct on the part of the jury as would authorize and require a new trial. State v. Lantz, 23 Kan. 728; Crim. Code, $ 275.

Upon any view that we may take of this question, the court below committed error. If the court permitted the affidavits to be taken and examined by the jury during their deliberations, then the court committed error in this respect; but if the court did not permit the same, but the jury in some other manner and without the permission of the court obtained the affidavits and read them, then the court committed error in refusing to hear proof of the same, and in not granting a new trial therefor. Any of the jurors are competent to testify whether the affidavits were before them during their deliberations or not, and whether any one of the jurors read them or not, for such facts do not constitute any part of their verdict; but none of the jurors could testify that their verdict was based upon the affidavits, or that the affidavits had any influence upon the jurors in forming their verdict, for such facts would constitute elements inhering in the verdict itself. The court below should have permitted the defendant to show by the testimony of the jurors or others that the affidavits were in the jury-room while the jurors were deliberating, and that the jurors read such affidavits.

The judgment of the court below will be reversed, and cause remanded for further proceedings.

(All the justices concurring.)

(34 Kan. 209)

ATCHISON, T. & S. F. R. Co. v. DAVIS.

Filed December 1, 1885. RAILROAD COMPANY-LIABILITY FOR NEGLIGENCE OF ANOTHER COMPANY WHOSE

BONDS A RAILROAD CORPORATION HAS GUARANTIED.

Where a great railroad company, operating a long line of road in the state, aids, as stockholder or bondholder, or as the guarantor of bonds, another railroad company in constructing its road, under the provisions of chapter 105, Laws 1873, such auxiliary company does not become, on account of such aid, the servant or agent of the parent company; and the parent company is not, on account of being such stockholder or bondholder, or guarantor of bonds, responsible for the negligence or other default of the auxiliary company in constructing its road in its own name. Error from Sedgwick county. Motion for rehearing. S. C. ante, 146.

James Hagerman and A. A. Hurd, for plaintiff in error.
W'. P. Campbell, for defendant in error.

HORTON, J. We have re-examined the instructions of the trial court, and are now convinced that the same may have operated to the injury of the railroad company. Among other things, the court charged the jury that “the mere fact that the same men were officers of the defendant company, and also of the Wichita & Western Railroad Company, is not sufficient evidence to justify a finding that the two companies were one and the same; and if the evidence shows that the Wichita & Western Railroad Company was a corporation duly created and organized under the laws of Kansas, and that the injuries to plaintiff were caused by the negligence of its servants in the management of its business, you cannot find defendant liable for such negligence. But the last instruction must be considered with this qualification: that what is true of individuals is also true of corporations, in this respect, that one may be the servant of the other,' and the servants of the one may be under the control and direction of the other." Within the terms of this instruction the jury were informed that the Wichita & Western Railroad Company, at the time of the injury complained of, might have been the servant or agent of the Atchison, Topeka & Sante Fe Railroad Company in the construction of its road. Upon the former hearing of this case, this matter was referred to in the brief, and upon reargument has been very forcibly pressed again upon our attention. It is true that under some circumstances one railroad may be the servant or agent of another. Thus, a railroad has the power as a common carrier to make a connecting railroad or carrier its servant or agent in the transportation of goods, and it may thereby become responsible for the negligence or other default of such servant or agent; but this principle is wholly foreign to this case. It was, however, injected into the case by the instruction of the court, when, under the facts and circumstances, it was wholly inapplicable. The Santa Fe Company had no authority in its own name to construct a railroad from Wichita to Kingman. To have done so would have been acting ultra vires. That corporation had the power to purchase and hold the stock and bonds of the Wichita & Western Railroad Company, or to guaranty the payment of the principal and interest of the bonds of that company, and thereby, as a stockholder or bondholder, or as a guarantor of the bonds, to aid that company to construct its road; but by so doing the Santa Fe Company did not make the Wichita & Western Company its servant or agent, and did not thereby make itself responsible for the negligence or other default of the Wichita & Western Company. Laws 1873, c. 105; State Const. § 2, art. 12; Comp. Laws 1579, S 32, c. 23. Even if the Wichita & Western Company was the special agent of the Santa Fe Company in the transportation of goods, the Santa Fe Company would not be liable for injuries to employes of the Wichita & Western Company caused by the negligence of that company in operating its road. In the nature of things, under the statute and the facts of this case, the Wichita & Western Company, as a company, could not be the general agent of the Santa Fe Company in the construction of its road, if such construction was carried on in its own name after the filing of its charter. We are not to assume, in the absence of proof, that the directors or other officers of

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