Page images
PDF
EPUB

3. Defendant was equally in default in sending its demand for an appraisement. Proof of loss was filed with defendant on November 19, 1913. On February 16, 1914, defendant mailed a letter at San Francisco, directed to plaintiff at Millville, Shasta County, notifying plaintiff that it demanded an appraisement of the loss. This notice was received by plaintiff on February 20, 1914, which the court found “was more than ninety days after the said preliminary proof of loss was received by said defendant.” The policy provided : "If for any reason not attributable to the insured or fo the appraiser appointed by him, an appraisement is not had and completed within ninety days after said preliminary proof of loss is received by this company, the insured is not to be prejudiced by the failure to make an appraisement and may prove the amount of his loss in an action brought without such appraisement." Not having received notice in time, plaintiff was not compelled to submit to an appraisement of the loss, and the case stands as though no appraisement was had. Defendant recognized the policy as still in force after the action was first commenced by demanding an appraisement, and we do not think plaintiff is now estopped from claiming that the demand for arbitration was not made in time.

Defendant admitted a liability of $290.91 in its letter of December 8, 1913, and also in its answer. The principal question of fact was as to the actual loss, defendant claiming that it did not exceed the above amount. Other questions are matters largely of technical law. The loss was total, and there was evidence sufficient to support the finding that “the actual cash of plaintiff's interest in said dwelling-house was at the time of said loss on the first day of October, 1913, more than the said sum of eight hundred dollars.''

The judgment is affirmed.

Hart, J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 27, 1916.

[Civ. No. 1935. First Appellate District.-October 2, 1916.] MAUDE E. HANDY, Respondent, v. ROZELVIN B.

HANDY, Appellant.

PRACTICE-TIME OF TRIAL INSUFFICIENT NOTICE-PRESENCE IN COURT

-REFUSAL OF CONTINUANCE--DISCRETION NOT ABUSED.-It is not an abuse of discretion to refuse a motion made by the defendant for a continuance of the trial of in action, based upon the fact that he had not received a full five days' notice of the time fixed for the trial, where he had filed his answer, was present in court when the case was called for trial, and filed no affidavit setting forth the reasons why he was unable to proceed, or why his witnesses were not present, or who they were, or what they would

testify to if present. ID.-NOTICE OF TBIALCONSTRUCTION OF SECTION 594, CODE OF CIVIL

PROCEDURE.-- The provision of section 594 of the Code of Civil Procedure, requiring as a condition to proceeding with a trial proof that the adverse party has had five days' notice of such trial, bas reference only to proceedings taken against a party in his absence, and has no application to cases in which both parties are represented and present when the case is called for trial.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Frank H. Dunne, Judge.

The facts are stated in the opinion of the court.

W. C. Cavitt, for Appellant.

F. A, Berlin, for Respondent.

1

KERRIGAN, J.—This is an appeal from a judgment in an action to foreclose a mortgage on real property given to secure a promissory note for four hundred dollars, the attack upon the judgment being based upon the fact that the trial court denied a motion of the appealing defendant to postpone the trial of the action.

At the time set for the trial of the action the appellant, by his counsel, appeared in court, and moved for a continuance of the trial, stating that he had not received the five days' notice prescribed by law; that he had not had time to find the appellant nor subpoena a witness who lived out of the

[ocr errors]

city and county of San Francisco, where the action was pending. No showing for a continuance was made under the provisions of section 595 of the Code of Civil Procedure; and it is clear that the motion was based entirely upon the fact that the appellant had not received a full five days' notice of the time fixed for the trial.

Section 594 of the Code of Civil Procedure provides : “Either party may bring an issue to trial or to a hearing, and, in the absence of the adverse party ... may proceed with his case, and take a dismissal of the action, or a verdict or judgment, as the case may require; provided, however, if the issue to be tried is an issue of fact, proof must first be made to the satisfaction of the court that the adverse party has had five days' notice of such trial.”

The supreme court, in the case of Sheldon v. Landwehr, 159 Cal. 778, (116 Pac. 44), construing that section, held that it had reference only to proceedings taken against a party in his absence, and that it had no application to a case like the one here, in which both parties were represented and present when the case was called for trial. “When,"

says the court, “the party has actually known that the case was set for a certain time, and appears at that time, he is not entitled to a continuance in the absence of a claim showing that he has not had such knowledge long enough to enable him to properly appear. It is in each case a question for the discretion of the trial court.'

In the present case the appellant had filed his answer; he was present in court when the case was called for trial, and he made no legal showing to the effect that the notice which he had received was insufficient to enable him to prepare for trial; in other words, he filed no affidavit setting forth the reasons why he was unable to proceed to trial, or why his witnesses were not present in court, or who they were, or what they would testify to if present. Moreover, with one possible exception the answer of the defendant raised no substantial issue and was frivolous. All the circumstances of the case cast a suspicion on the good faith of the application and induce the belief that it was intended only for delay. We think, therefore, that the defendant was not entitled to the postponement demanded.

The judgment is affirmed.

Lennon, P. J., and Richards, J., concurred.

[ocr errors]

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 1, 1916.

[Civ. No. 2008. Second Appellate District.-October 2, 1916.) FRANK MARTZ et al., Respondents, v. PACIFIC ELEC

TRIC RAILWAY COMPANY (a Corporation), Appellant.

NEGLIGENCE-ELECTRIC RAILWAY CROSSING-CAUTION IN APPROACHING.

The rule requiring a person upon approaching a railroad track with intent to cross it to exercise his faculties in order to ascertain whether a train is approaching, is applicable to electric railroads operated under conditions similar to the operation of steam rail

roads. ID.--DEATH OF AUTOMOBILE DRIVER-COLLISION WITH ELECTRIC RAIL

WAY-CAR AT CROSSING-- ABILITY TO SEE APPROACHING CAR-FINDING.--In an action for damages for the death of an automobile driver from a collision with a rapidly moving electric railway-car at a crossing, where the question presented to the jury was whether or not a person traveling, as was the deceased, and using reason. able care in observing, would have seen the approaching car, notwithstanding the obstruction of trees and brush along the highway, and notwithstanding the further obstruction made by poles erected at intervals between the railway tracks and carrying the power

wires, the conclusion of the jury must be accepted on appeal. ID.--APPROACHING RAILROAD CROSSING-FAILURE TO USE FACULTIES —

-INFERENCE FROM PHYSICAL FACTS-CONTRIBUTORY NEGLIGENCE.Where the physical facts shown by undisputed evidence raise the inevitable inference that the person approaching a railroad crossing did not look or listen, or that having looked and listened, he en. deavored to cross immediately in front of a rapidly approaching train, which was plainly open to view, he was, as matter of law, guilty of contributory negligence.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Wm. D. Dehy, Judge presiding.

The facts are stated in the opinion of the court.

J. W. McKinley, Frank Karr, and A. W. Ashburn, Jr., for Appellant.

Joseph Scott, A. G. Ritter, and J. B. Joujon-Roche, for Respondents.

CONREY, P. J.-This action was brought by the widow and three minor children of Frank Martz to recover damages on account of the death of Martz, alleged to have been caused by the negligence of the defendant company. The defendant denied the charges of negligence, and set up the defense of contributory negligence on the part of the deceased. The defendant appeals from the judgment and from the order denying its motion for a new trial.

At about 2 o'clock in the afternoon of the first day of February, 1912, Frank Martz was traveling in his automobile in a southerly direction on Santa Anita Avenue in the county of Los Angeles, and was approaching a point where that highway is crossed by the tracks of defendant company. At the crossing a collision took place between the automobile and a car of the defendant. Immediately east and west of Santa Anita Avenue the railroad occupies a private right of way. It is a double-track railroad which runs east and west across the avenue, but curves toward the south at a point beginning about one hundred yards west of the avenue. The curve is such as that at a distance of one thousand feet west of Santa Anita Avenue cars beyond that point are not visible from the avenue. Appellant claims that the evidence is such as to compel the conclusion that no negligence was established on the part of the defendant, and also very earnestly contends that contributory negligence on the part of the deceased was conclusively established. For these reasons it is claimed that the court erred in refusing to instruct the jury to render a verdict for the defendant.

At the same time when Mr. Martz coming from the north was approaching the railroad, an express car of the defendant was traveling in an easterly direction on defendant's southerly track. Santa Anita Avenue is constructed in two roadways separated by a row of eucalyptus trees down the center. On the westerly side of the west roadway of Santa Anita Avenue, and north of the defendant's right of way, there was at the time of the collision a small white building

81 Cal. App.--38

« PreviousContinue »