sought for indirect consequences which are not the natural and usual result of the wrong, as loss of service, particular damage caused by slander, etc. The liability of one who commits an assault and battery or other unlawful violence to the person of another is not to be measured by the physical strength of the party injured, or his capacity to endure suffering. One of weak physical structure, or small vitality, or in ill health, has as much right to protection from violence as a robust athlete; and in either case the physical injury, the bodily harm, which is actually caused by the violence, whether he be strong or weak, healthy or sickly, is the natural consequence of the wrong, and need not be specially averred. The law on this subject is correctly stated in Sedg. Dam. (8th Ed.) § 111, as follows: "For instance, an assault and battery may directly result in pain and bruises, and in the aggravation of a pre-existing disease. These are the direct results of the battery. It may also result in the loss of time, expense of medical attendance, and loss of a business situation. These are perhaps direct results of the illness caused by the battery, but they are the indirect results of the battery itself." The subject is fully discussed in Heirn v. McCaughan, 32 Miss. 17, and in the notes to that case in 66 Am. Dec. 588. In that case the court say: "The condition of the plaintiff's health is not alleged to be the special ground of the wrong, but it was proved on the trial as a circumstance of aggravation of the wrong, and to show how grievously the act, which was wrongful in itself, operated to the bodily distress of the plaintiff and his wife. This was entirely competent, under the pleadings. Sedg. Dam. 210." The same rule was substantially announced by this court in Sloane v. Railway Co., 111 Cal. 668, 44 Pac. 320, 32 L. R. A. 193. In that case a female passenger was wrongfully expelled from the cars, and the court held that "evidence is admissible to show her nervous condition, and that she was subject to insomnia and nervous shock and paroxysms if placed under great mental excitement, and that, by reason of the excitement connected with the humiliation of her expulsion from the car, there had been a recurrence of the insomnia and nervous paroxysms"; and further the court said: "It is immaterial whether the defendant or its agents knew of the susceptibility of the plaintiff to nervous disturbance, and it is not for the defendant to say that, because it did not or could not, in fact, anticipate such a result of its negligent act, it must be exonerated from liability for such consequences as ensued; and it must be taken to know and contemplate all the natural and proximate consequences not only that certainly would, but that probably might, flow from its wrongful act." We quote from the syllabus which correctly states the decision. The court did not abuse its discretion in refusing to grant a new trial upon the ground of newly discovered evidence. There are no other points made by appellant which are tenable or which need discussion. The order appealed from is affirmed. We concur: TEMPLE, J.; HENSHAW, J. (7 Cal. Unrep. 37) MORRISON v. MCAVOY et al. (S. F. 2,520.) (Supreme Court of California. Oct. 30, 1902.) MUNICIPAL CORPORATIONS-ORDINANCES STREETS-OBSTRUCTIONS-LANDLORD 1. A city ordinance provided that no person should obstruct any sidewalk so as to interfere with its convenient use, and that every one should keep around every flight of stairs descending from the sidewalk to the basement a fence or railing at least two feet high. Held, that where the owner of a building had made an opening in the sidewalk, with stairs running to the cellar, the opening being provided with iron doors that constituted part of the sidewalk when closed, a use by the tenant of the opening and doors so as to violate the ordinance, rendered only the tenant liable, and not the landlord. 2. An opening in a sidewalk with stairs leading to the cellar, the doors forming part of the sidewalk when closed, and the sides of the doors affording a protection when open, was not a violation of the ordinance. Commissioners' decision. Department 1. Appeal from superior court, Alameda county; F. B. Ogden, Judge. Action by Georgie Morrison against J. C. McAvoy and others. From a judgment for defendants, plaintiff appeals. Affirmed. Fred W. Fry and Edward A. Holman, for appellant. Fitzgerald & Abbott and Johnson & Shaw, for respondents. CHIPMAN, C. A demurrer was sustained to plaintiff's third amended complaint and, plaintiff declining to further amend, judgment passed for defendants, from which plaintiff appeals. The demurrer was by two of the defendants, but seems to have been treated by counsel and the court as filed in behalf of all the defendants, and we will so treat it. * * The complaint alleges that defendant Eletta Brown was the owner and the other defendants were tenants of the premises, situated in the city of Oakland, where the alleged injury occurred; that an ordinance of said city provided that "no person shall ** so occupy or obstruct any sidewalks as to interfere with the convenient use of the same by all passengers"; also that "every person shall keep around every ** flight of stairs descending from the sidewalk to the basement owned or occupied by him, a fence or railing at least three feet high." It is alleged that in 1892 said Brown leased the premises to one M. Beaudry, now deceased, and defendant G. Peladeau, for a term of six years; that at the time said Brown so leased said lot she "maintained without any license, * • underneath or * ** * * * ** the sidewalk which is in front of said premises, * an unauthorized and unprotected excavation, and also an unauthorized and unprotected opening thereto, with doors to said opening about sixteen inches in height when opened, and which are fitted to and usually cover said opening and form part of said sidewalk, and which opening has an unauthorized flight of stairs leading into said cellar underneath said premises, and which said doors, * when opened, and which said excavation and opening thereto and said flight of stairs, each and all constituted an impediment in, under, upon, and over said sidewalk," contrary to said ordinance; that "said cellar, doors, and opening and flight of stairs were used for ordinary business purposes"; that said "Brown never furnished any other means of access to said cellar, and never provided any guard, * or protection whatsoever against accidents, fence any or railing about said" opening, and said "opening, doors, and flight of stairs each and all constituted and caused at all times herein mentioned an unauthorized trap, obstruction, and nuisance upon, in, and under said sidewalk"; that when the said Brown so leased said premises she well knew the condition of the said opening, etc., as above described, and she received rent for said premises at all said times in their then condition; that defendant Hugh B. McAvoy was appointed administrator of the estate of said Beaudry, deceased, in 1895; that said defendants Hugh McAvoy, as administrator, and said Peladeau, wrongfully sublet a portion of the first floor of said premises and the said cellar with its said approaches, for the month of October, 1897, to their codefendant, J. C. McAvoy; that when said administrator and said Pelad au so rented said premises for the month of October, 1897, they knew the said condition of said cellar, door, and stairway, and knew that they constituted a nuisance, but did not furnish any fence, railing, or guard, or protection around said opening and stairs, or any other means of access to said cellar, and they received rental for the use thereof. It is then alleged that defendant J. C. McAvoy "maintained and used said unauthorized and unprotected flight of stairs, excavation, and opening with said doors, in the same condition in which they were so originally leased to him"; that on October 27, 1897, each and all said defendants "permitted the said doors to be opened and raised from the position in which they were kept while forming a part of said sidewalk, and carelessly and negligently suffered said doors to remain opened and raised, and said flight of stairs * * to remain uncovered without any guard, fence, railing, barricade, or protection whatever," and plaintiff, during the daytime of said day, while "carefully traveling along said sidewalk, * * * * and while wholly unaware of said in said sidewalk, fault or negligence on her part, * precipitated into * * said * openand down said flight of stairs and into said cellar," and was thereby injured. ing * The demurrer is on several grounds: (1) That Hugh McAvoy is improperly joined as a defendant, although it appears from the complaint that he individually was not a tenant, and the only interest he had was as administrator of Beaudry, deceased. (2) Misjoinder also as to J. C. McAvoy, although he was the surviving partner of Beaudry & McAvoy, and as such surviving partner was engaged in winding up the partnership business, and the accident happened after Beaudry's death. (3) That the complaint does not state facts sufficient to constitute a cause of action against any one or all of the defendants. (4) The complaint is uncertain in several particulars, and especially it does not appear how the doors could be open and the opening unguarded, and the doors constitute an obstruction over the sidewalk, or interfere with its safe use, or how the doors were in disregard of plaintiff's safety. It does not appear whether the doors or the opening constituted the impediment; nor does it appear whether plaintiff was injured by reason of the doors or the opening, "or whether she stumbled over the doors into the opening, or simply stepped into the opening without touching the doors." It does not appear how plaintiff, in the daytime, while carefully trayeling over the sidewalk, was unaware of said doors, or opening, or stairs, or whether she did not see them, or was unfamiliar with the premises. As to defendants Brown, Hugh McAvoy, and Peladeau, the complaint fails to show any liability. The iron doors appear not to have been an obstruction when closed, and no defect in the manner of their construction is alleged, and it is averred that they constituted part of the pavement when closed. Such doors, as means of ingress and egress to and from the basement of buildings in towns and cities, are not unusual, and do not constitute a nuisance per se, and are not forbidden by the ordinance pleaded. It is the failure to properly use the doors that introduces the element of danger, and for this improper use the tenant in possession alone is liable. If the complaint shows that the tenant, J. C. McAvoy, failed to protect the opening when the doors were open, he alone must answer the consequences. The principles governing such cases were fully discussed in Rider v. Clark, 132 Cal. 382, 64 Pac. 564. The first part of the ordinance above quoted was not infringed by the construction of the doors, for they formed part of the sidewalk, and were safe when closed, so far as is alleged. The second portion of the ordinance refers to open stairways as they are sometimes constructed next to the building, or next to the curb, and where the protection around the stairs is by a railing; in which case the protection or railing must be three feet high, and is permanent, and is the only protection required. The iron door openings in the present case are entirely different, and the usual protection to pedestrians are the sides of the door, as was the case of Rider v. Clark. The complaint seems to proceed upon the theory that the opening, with the doors, the stairs, and the cellar, were all unauthorized, and in violation of the ordinance, and together constituted a nuisance. There is nothing to show that the use of the basement by these means was unauthorized, except the ordinance, and this does not go so far. Indeed, it impliedly permits access to the basement of buildings from the sidewalk by means of stairs. When the accident occurred, the doors were open, and, as near as we can understand the complaint, the pleader left us ground to assume that he intended to allege that the doors were standing upright, and offered an impediment 16 inches high to protect and warn persons passing along the sidewalk. The complaint does not show how long these doors were, or how much space they occupied. If there had been a distinct allegation-which there is not-that the sides of the door were not high enough to offer reasonable protection to footmen in the daytime, or had alleged clearly that the doors were opened out and laid flat on the pavement, offering no protection, there would have been a different case presented. The complaint, as we have said, seems to rest on the assumption that the only right defendants had was to make an opening for a stairway and provide a fence or railing around such opening three feet high. The ordinance justifies no such position. Plaintiff might have presented the distinct issue, on which she would have the right to be heard, that the iron doors, when open and standing upright, was a negligent and dangerous use made of the opening to the basement, irrespective of the ordinance. She evaded this issue, and relied on the prohibitions of the ordinance, which, as we have seen, does not over her case. The judgment should be affirmed. We concur: GRAY, C.; HAYNES, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed. (137 Cal. 559) FINK v. FINK. (S. F. 2,432.) (Supreme Court of California. Nov. 7, 1902.) DIVORCE-FINDINGS-CONCLUSIONS OF LAW DESERTION-STATUTES-CONSTRUCTION. 1. A finding in divorce that plaintiff had been guilty of willful desertion is a conclusion of law, not a finding of fact. 2. Civ. Code, § 96, provides that persistent refusal to have reasonable matrimonial intercourse as husband or wife, when physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion. Held, that the qualifying clause, "when there is no just cause for such refusal," applies equally to the first refusal mentioned and to the latter. 3. In divorce the court found the allegations of the complaint as to extreme cruelty to be true, but that plaintiff had refused matrimonial intercourse and had been guilty of desertion, within Civ. Code, § 96, and denied divorce, without finding that there was "no just cause for such refusal." Held, that the finding was insufficient to justify the conclusion, nor could the court on appeal say that the finding as to cruelty was a finding of cause for plaintiff's conduct. Commissioners' decision. Department 1. Appeal from superior court, Alameda county; S. P. Hall, Judge. Suit by Mary E. Fink against Alonzo W. Fink. From a judgment for defendant, plaintiff appeals. Reversed. Henry McPike, for appellant. Reed & Nusbaumer and A. L. Frick, for respondent. SMITH, C. This is a suit for divorce by the wife on the ground of extreme cruelty. The answer, by way of recrimination, alleges extreme cruelty on the part of the wife, and also desertion, as defined in section 96 of the Civil Code. The court finds all the allegations of the complaint to be true, and that none of the allegations of the answer are true, "except as to" the defense of desertion, as to which it is found, in effect, that for more than one year immediately preceding the suit the plaintiff refused to have matrimonial intercourse with the defendant, and that the refusal was not on account of health or physical condition of either party, nor was it reasonably necessary on such account; and as conclusion of law the court finds "that the plaintiff has been guilty of willful desertion of the defendant." Judgment was accordingly entered denying the plaintiff a divorce, and the plaintiff appeals from the judgment. One of the grounds urged for reversal is the insufficiency of the evidence to justify the finding of "willful desertion"; but we do not perceive there is any such finding. The supposed finding is merely a legal conclusion from the specific facts found, as to which there is no specification. The question involved is, therefore, as to the sufficiency of the specific facts found on the issue of desertion to justify the conclusion inferred from them by the court. With regard to this. we are of the opinion that the qualifying clause in section 96 of the Civil Code (reading, "when there is no just cause for such refusal") equally applies to either of the refusals therein specified. The language of the section is, indeed, in this respect ambiguous. or rather amphibolous; but the reason of the qualification applies equally to both of the cases provided for in the statute, and the maxim applies: "Idem ratio idem lex." The finding must, therefore, be regarded as insufficient. Nor can we say, as matter of law, that the finding of extreme cruelty can be regarded as in effect finding that there was just cause for the plaintiff's conduct. The court took a different view, and may have been justified in doing so. Extreme cruelty-or, indeed, conduct less reprehensible-would, doubtless, have been a sufficient justification to the plaintiff, had it been in fact the cause of her conduct. But in the absence of any finding on the point, and of the contrary conclusion reached by the court, we cannot assume that it was, in fact, the cause. The judgment should, therefore, be reversed for lack of a sufficient finding on the issue of desertion. We advise that the judgment be reversed, and the cause remanded for new trial. We concur: GRAY, C.; COOPER, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded for new trial. (137 Cal. 575) STEINHART v. SUPERIOR COURT OF MENDOCINO COUNTY. (S. F. 3.286.) (Supreme Court of California. Nov. 8, 1902.) CONDEMNATION OF RIGHT OF WAY-COMPENSATION-TEMPORARY POSSESSIONCONSTITUTIONAL LAW. 1. Code Civ. Proc. § 1254, provides that during condemnation proceedings the plaintiff may obtain an order to take possession of the property by paying into court sufficient money to compensate the defendant for the land if eventually condemned, or for damages if it is not condemned. Const. art. 1, § 14. provides that private property shall not be taken for public use without just compensation having first been made to or paid into court "for the owner." Held, that the statute is unconstitutional, since the money cannot be considered as "first" paid into court "for the owner" unless he can take it, and if the condemnation proceedings should fail, the money would be only a security for his damages, not available by him until judicially determined. 2. The second clause of Const. art. 1, § 14, providing that no right of way shall be appropriated for any private corporation until full compensation be first made and paid into court for the owner, is violated by Code Civ. Proc. § 1254, authorizing an order for a railway company to enter into possession of land during proceedings seeking to condemn it for a right of way. 3. The second clause of the article is not in conflict with Const. U. S. Amend. 14, since the limitations in regard to legislation granting the right to private corporations must apply as well to all other persons. In banc. Appeal from superior court, Mendocino county; J. M. Mannon, Judge. Application by Ignatz Steinhart for a writ of prohibition to prevent the superior court of 2. See Eminent Domain, vol. 18, Cent. Dig. § 202. Mendocino county from making a certain order in condemnation proceedings. Writ granted. Sullivan & Sullivan, E. A. Bridgford, and T. J. Roach, for appellant. Seawell & Pemberton and W. W. Cope, for respondent. TEMPLE, J. This is an application for a writ of prohibition to prevent the respondent from making an order in a condemnation suit for a right of way at the instance and for the Albion Southeastern Railway Company, a corporation, putting such corporation in possession of certain lands of petitioner during the pendency of the proceeding, and before the value of the land sought to be taken has been ascertained. The order is sought pursuant to section 1254 of the Code of Civil Procedure, and, waiving some question as to whether the land sought to be condemned is sufficiently described in the petition, it may be assumed that the Code provisions have been followed. The main question is whether the section authorizing the court to make an order that such plaintiff may "take possession of and use the land and premises sought to be condemned, during the pendency and until the final conclusion of the proceedings brought to condemn," is constitutional. To obtain such order, the plaintiff must pay into court, "or give security for the payment thereof, to be approved by the judge of such court," sufficient money to compensate the defendant in case the land is finally taken, or for damages if for any reason the land be not taken. The defendant may apply to the court for the money, but a payment is deemed an abandonment of all defenses except the claim for greater compensation. In the nature of things, this provision for payment cannot apply to the claim of a defendant for unliquidated damages for the value of the use of the land, and damages thereto, if the land be not finally taken. As to such claim, the money is not paid into court for the defendant, but as security only. It is further provided that the deposit shall be at the risk of plaintiff until the court finally awards the money to the defendant, and the clerk and his sureties shall be liable therefor. In the former constitution the entire provision upon this subject was in these words: "Nor shall private property be taken for public use without just compensation." In 1861 an act was passed which contained provisions somewhat similar to section 1254 of the Code of Civil Procedure. In 1865 the Western Pacific Railroad Company commenced proceedings under the statute to condemn lands for a right of way through lands owned by Bernard C. Fox. At the commencement of the proceeding the railroad company filed a bond, as required by the act, and obtained an order authorizing it to take possession, and to continue in possession pending the proceeding. It took possession, and made the usual excavations and fills upon the land. The pro ceeding was carried to a conclusion, and final judgment of condemnation entered. But before final judgment a suit was commenced against the railroad company for damages. The defendant justified under the order permitting it to take and hold possession. On appeal an elaborate opinion was handed down by Sanderson, J., and another by Sawyer, J. Several previous cases are summarily disposed of in the opinion. For instance, in City of San Francisco v. Scott, 4 Cal. 114, the court held that compensation must be made before the citizen can be devested of his rights. "It is not sufficient that the law points out the mode by which damage may be ascertained, and provides the party with a remedy to enforce his right. No such obligation can be imposed upon him. He is entitled to the damages which he has sustained, without resorting to a legal tribunal to enforce payment." This, it is said, means only that the damages must be paid before title will pass. Of course, it will be convenient for the person, seeking to condemn to postpone that time indefinitely, if in the meantime he can have the use of the property. These propositions seem to be advanced and maintained in that case: (1) The constitution does not require payment before the taking, but only that it should be provided and made certain without unreasonable delay or expense to the property owner; (2) the court may, on the terms of the statute, authorize the party seeking to condemn to take immediate possession, and to use the property pending the proceeding, and such possession does not constitute a taking within the meaning of the constitution; and, conversely, title will not pass until payment is made. As far as the present inquiry is concerned, the most important proposition is that taking possession and using the property during the pendency of the proceeding is not a taking, within the meaning of the constitution. was much more plausibility in the contention that, as the constitution then was, compensation need not be actually paid in advance. The more important proposition was overruled in Davis v. Railroad Co., 47 Cal. 517. The court uses the following language: "The occupation of land by a corporation, for its own purposes, pending the proceedings for condemnation, is a taking of the property, within the meaning of the constitution; and, as the bond does not cover such taking, the section of the statute under consideration is void." A lengthy opinion was rendered by Mr. Justice Crockett, and the case of Fox v. Railroad Co., 31 Cal. 538, is referred to, and confessedly modified. The same doctrine was declared in Waterworks v. Sharpstein, 50 Cal. 284; Sanborn v. Belden, 51 Cal. 266; Vilhac v. Railroad Co., 53 Cal. 208. At the time the present constitution was adopted (in 1879), the law as declared by the supreme court was as follows: The possession and use in terms authorized by the statute, before compensation had been made and while the There proceeding was pending, is a taking, within the meaning of the constitution; but the requirement of the former constitution, which only provided that private property should not be taken for public use without just compensation, was satisfied by a provision which insured the payment on reasonable terms as to delay and difficulty in the enforcement of the right. Viewed in the light of these facts, the change made in the language by the new constitution becomes significant. The following italicized words were added, and no other change was made in the general provision: "Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner." The purpose of the amendment is perfectly obvious. If the preliminary possession during the pendency of the proceeding is a taking, within the meaning of the constitution, it cannot be authorized until the damage resulting therefrom has been judicially determined, and the amount has been paid or tendered to the owner. This matter was discussed in the case of Coburn v. Townsend, 103 Cal. 233, 37 Pac. 202, by Mr. Justice McFarland, who came to the conclusion here reached, but he secured only a limited concurrence. The case of Waterworks v. Drinkhouse, 95 Cal. 220, 30 Pac. 218, is relied upon as authority for the proposition that section 1254 of the Code of Civil Procedure is valid and in accordance with the constitution. That case really involved the use of the discretion of the court under section 957 of the Code of Civil Procedure. The remarks made, however, may be considered as favorable to respondent here. Perhaps there it is true the money was paid into court for the owner. The amount had been determined by a valid judgment, which had been fully executed by paying the money into court for the defendant, and plaintiff had been put into possession under the judgment. Afterwards it was reversed on appeal. I do not agree to the proposition that compensation is made to the owner by paying into court a sum of money before the damage has been judicially determined, and when the property owner cannot take the money. Surely, he is not compensated until he may take the money. It is not paid into court for him until he can take it. In the Spring Valley Case he might have taken. Here he could not, and therefore compensation in such a case is not first made. But this case comes within the purview of the second clause of section 14 of article 1 of the constitution. It is to condemn a right of way which cannot be appropriated until full compensation therefor be made in money, or ascertained and paid into court for the owner; and this compensation must be ascertained by a jury, unless a jury is waived as in other cases. These requirements have not been complied with, and could not be. To hold that possession of land may be given to |