I asked Mrs. Case if she should tell Dr. In- 1. As to the answer given by Mrs. Schwartz to question 331, that she was not then pregnant and as to the point that she became pregnant before the benefit certificate was delivered to her, the evidence fully warranted the findings of the court. The first symptom of probable pregnancy occurred the last of April, 1906, and Dr. McMurtry testified that "it would be impossible for her to know definitely, her true condition by the 21st of May," when she received the certificate. evidence that Mrs. Schwartz was sick in her monthly period the latter part of April, I should then say that the fetus was about three months old. * If it should be a fact that in the latter part of April she was sick, it would be impossible for her to know, definitely, her true condition by the 21st of May." (This was the date she received her benefit certificate.) He testified that she died of convulsions, and "the miscarriage was caused by that also." It appeared from the testimony of Mrs. Schwartz' husband that she "had her last monthly sickness at the end of April the same year she died." The depositions of Mary Teichman and Rosa Teichman were received in evidence. These witnesses were next-door neighbors of Mrs. Schwartz and were present when the Deputy Supreme Oracle and Camp Physician of the society examined Mrs. Schwartz and took her application. Mary Teichman testified: "At that time I and Rosa Teichman were there, and Rosa's mother, who could not talk English, and also Mrs. Case and Miss Bond, representing the company. Mrs. Case wrote the answers to the questions in the application, and I heard everything she asked and the answers given. I heard Mrs. Case ask Mrs. Schwartz whether she had ever been sick or not, and what kind of sickness she had; how many times she was sick, and she said only once and she said she mis-operation, which seems not to have been of carried and got an operation. Mrs. Case says she don't have to tell doctor about it." On cross-examination she testified: "I do not speak English very well. When the people are talking I do not understand everything they say when they speak in English.planations, Mrs. Case, not Mrs. Schwartz, You know, Mrs. Schwartz she (Mrs. Case) asked her lots of times questions and she could not understand them very well. She asked her lots of times what mean that. Mrs. Schwartz was German and I am Ger man. Mrs. Case spoke to Mrs. Schwartz in English. Sometimes Mrs. Schwartz did not understand what she said. Then Mrs. Case would speak over. Mrs. Case asked Mrs. Schwartz if she was in a family way or not. She never was in family way at that time when Mrs. Case was there. All I know about it was what Mrs. Schwartz said. Mrs. Case told her she had to go to see doctor for it before she could get her final papers. I was in the room all the time Mrs. Case was there. Mrs. Case had a paper and wrote these things down. When she asked Mrs. Schwartz a question and Mrs. Schwartz answered it, Mrs. Case would write it down." Rosa Teichman testified substantially as did Mary Teichman. She testified: "Mrs. Schwartz at that time was not pregnant. She said, 'I ain't in a family way,' and that was all she said about it. She said she was not so very sick on this former occasion when she had the miscarriage, but that she had a doctor and an operation at that time. 2. Questions 18, 19, and 33n all relate to a single instance of previous sickness, pregnancy, and operation. The evidence is that Mrs. Schwartz made no concealment of the fact that in 1905 she had a miscarriage and an any seriousness, for Dr. McMurtry testified that he treated her and "she was up and about in three or four days." She did not make any concealment of the fact from Mrs. Case, but told her the truth, and, after ex wrote down the answers. There is no evidence that Mrs. Schwartz knew what answers were being recorded against her, except the presumption that might follow from having signed the paper. We cannot, from anything disclosed, impute to her any intention to deceive or that she was knowingly a party to any guilty deception. She was asked no questions, so far as appears, by Dr. Ingrim, the society's medical officer. Mrs. Case was the authorized agent of the society, and appears to have enjoyed the rather highsounding title of "Deputy Supreme Oracle and Camp Physician," and with her was Miss Bond, an officer of the society. Neither of these persons was called by defendant to explain their conduct or part in the taking of the application. Nor was Dr. Ingrim called to show what occurred when Mrs. Schwartz came to him. We cannot presume that either one of these officers was purposely committing a fraud upon the society which they represented, or was intentionally seeking to mislead it or Mrs. Schwartz. The reasonable, as well as the more charitable view of the transaction, is, that both Mrs. Case and Miss Bond, after hearing the facts about the single previous sickness of any kind which is in question, concluded that it was of little consequence and on their own initiative and through no wish of the applicant, made out the application. Mrs. Schwartz took this application to Dr. Ingrim bearing the recommendation of Lulu Case, who had conducted the examination, and we may well assume that he accepted it without further inquiry, believing that "the Deputy Supreme Oracle and Camp Physician" had sufficiently examined Mrs. Schwartz. Mrs. Schwartz was told that she need not speak of the miscarriage to Dr. Ingrim, but whether she did or not we do not know. Presumably she made no verbal misrepresentations to him or defendant would have shown it by Dr. Ingrim. The burden was on defendant to establish its defense which we think it failed to do. The findings of the court are supported by the evidence. 3. There was admitted in evidence a document signed by Susan McG. Snyder and three others, "Supreme Physicians, Royal Neighbors of America," setting forth certain rules to be observed by themselves in passing upon the application of a person "who has had a miscarriage." It does not appear to be a bylaw of the society, nor does it appear that "Camp Physician" Case or Mrs. Schwartz knew of its existence. It is addressed "To whom it may concern," but we cannot see that it concerns any one of the plaintiffs or has any relevancy to the case. 4. There was also admitted in evidence a section of the by-laws of the society which provides that no officer of the society or local camp officer "is authorized or permitted to waive any of the provisions of the laws of this society which relate to the contract for the payment of benefits between any member and the society." It is contended that the insured warranted her answers to be literally true, and neither Mrs. Case nor any other officer had the authority to waive truthful answers to the questions in her application. The question here seems to us not one of waiver so much as it is the acceptance of the answers as satisfactory by the society's agent. The answer as orally given was literally true, for Mrs. Schwartz said she had had a miscarriage, and, after explanation it was the agent and not Mrs. Schwartz who gave a meaning to the sickness and wrote down what was not strictly true. It was the society's agent and not the insured who did this and if the insured accepted it as her answer we may safely assume that she did so in acceptance of the construction put upon the matter by the agent. In North American Ins. Co. v. Throop, 22 Mich. 146, 7 Am. Rep. 638, 646, Mr. Justice Cooley said: "If the insurer himself, or his agent, drafts an answer to such interrogatory, in which he treats it as immaterial and does not observe strict accuracy in his statement of facts, the assured might well suppose he could be thought upon answers exactly correct, when the party seeking the information, and who, alone, was interested in it, was satisfied with statements less accurate, and which, with full knowledge of the facts, he had written out to suit himself." The assured here was a German woman with an imperfect understanding of the English language. Approached by an officer whose title implies one second in authority to the "Supreme Oracle," accompanied by Miss Bond, also an officer of the society, it was natural for her to be guided by these representatives of the society and place confidence in them. If there was a violation of the society's rules or failure of duty it was not on the part of the assured, and her beneficiaries should not suffer through the zeal or shortcomings of the society's agents. It may be observed that the representation related to a matter which in no wise affected the then present physical condition of the applicant. 5. Error is claimed in sustaining plaintiffs' objection to a question put to Dr. McMurtry by defendant: "Doctor, you have said that when Mrs. Schwartz consulted you some several weeks prior to her death, you knew she was pregnant; state whether she had told you before?" The witness had testified that Mrs. Schwartz went to see him "about two weeks before she was taken sick; that about a week before she had spoken to him about being pregnant." The witness had already testified to the fact sought to be elicited. Conceding that the question was proper the ruling was harmless. 6. The witness was permitted, over defendant's objection, to answer the question: “Did you think the first miscarriage had anything to do with the last one?" and answered, "I do not." We think the question was immaterial, inasmuch as the warranties ran to the answers given in the application. But we do not think the ruling prejudicial. 7. When the depositions of Mary and Rosa Teichman were offered, defendant objected. The record states: "It was admitted that the depositions were irregularly taken, and counsel for defendant objected to same on the ground that same and such evidence is incompetent, irrelevant, and immaterial; that under the by-laws of defendant no agent has any right to waive the rules of defendant, and that defendant is not bound by the acts of any agent in attempting to waive the rules." If there was such irregularity in the taking of the depositions as to have made them inadmissible, defendant should have so shown. They may have been “irregular” and still admissible. Error must be made to appear. We think it was admissible to show what took place at the time the application was made. The case is not entirely free from difficulty, but regarding the acts of the parties as free in conformity with the rules of the society, | (Nos. 2,300 and 2,301) 103 Pac. 918, 919, are we feel constrained to uphold the view taken by the learned trial judge. The judgment and order are affirmed. We concur: HART, J.; BURNETT, J. (12 Cal. A. 558) PECK v. BERNARD et al. (Civ. 745.) (Court of Appeal, Second District, California. Feb. 5, 1910. On Petition for Rehearing, March 7, 1910.) 1. MUNICIPAL CORPORATIONS (8 6512, New, vol. 9, Key No. Series)-NAME OF STREETSCHANGE OF NAME. Where the name of a street became the official name by resolution of the city council, the subsequent recording of a map of a subdivision giving the street a different name was inoperative to change the official name, without refer ence to the owners of the property on the street. 2 MUNICIPAL CORPORATIONS (§ 6512, New, vol. 9, Key No. Series)-NAME OF STREETS CHANGE OF NAME. Where a street was officially designated as O. street by resolution of the city council, and some persons called it D. street, an attempt of the city council to change D. street to S. street did not affect the official name. 3. MUNICIPAL CORPORATIONS (§ 294*)-STREET IMPROVEMENTS-NOTICE TO PROPERTY OWN ERS. Where the attempt of the city council to change the official name of a street did not affect the name, a street improvement proceeding taken under the changed name was not notice to the abutting property owners, and, where they had no actual knowledge of the improvement until after the commencement of a suit to foreclose an assessment lien, a judgment of foreclosure was erroneous. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. 88 776-788; Dec. Dig. § 294.*] not applicable to this case because the lot of appellant was identified by being named as lot 12 of Davin & Jullien's subdivision, and the street in question is called Davin on the plat of that subdivision introduced in evidence. We read the decisions mentioned as holding, in effect, that Otto street became the official name of the street in question in 1890 by a resolution of the common council of the city of Los Angeles, and that the recording of the map of the Davin & Jullien subdivision in 1894, giving the same street the name of Davin, did not operate to change the name to Davin. In the application of this rule it was not material who owned the property. There being no such official street as Davin, but the street called by some persons by that name being officially designated Otto street, the attempt of the city council to change Davin to Savannah street did not affect the official name of Otto street at all. Therefore, the property owners on Otto street received no constructive notice that any improvements were being made on that street by any proceeding taken with reference to Savannah street. The appellant, who is not contradicted, testified that she had no actual knowledge of the improvement until after the commencement of the suit, and that no demand was ever made upon her for the payment of any assessment, and that the lot has always been vacant and unoccupied. The claim of estoppel can never be sustained where there is no notice. The further point made by the petition that appellant is bound by any act of E. R. Fox, as her predecessor in title, is repugnant to the express statement in the bill of exceptions: "No evidence was offered by the plaintiff, or by any person, that E. R. Fox Appeal from Superior Court, Los Angeles ever owned lot 12 of said Davin & Jullien's County; George H. Hutton, Judge. Action by E. C. Peck against Pierre Bernard and others. From a judgment for plaintiff, defendant Jeannette Apion appeals. Reversed. Charles Lantz, for appellant. A. J. Sherer and Edward Winterer, for respondent. PER CURIAM. This appeal involves the validity of the same street assessment considered by the Supreme Court in the two cases Nos. 2,300 and 2,301 (103 Pac. 918, 919), and therein held to be void. For the reasons given in the opinion of department 2 of that court, filed August 24, 1909, in appeal No. 2,300 (103 Pac. 918), the judgment of the trial court directing a foreclosure of the lien based upon that assessment and directing a sale of the premises described is reversed. On Petition for Rehearing. Respondent petitions for a rehearing of this appeal on the ground that the decisions of the Supreme Court in Peck v. Stassforth subdivision, or any property fronting on said Otto street or Savannah street, in said city of Los Angeles." Petition for rehearing is denied. (12 Cal. A. 635) JOHANSON v. JOHANSON. (Civ. 742.) (Court of Appeal, Second District, California. Feb. 10, 1910.) 1. DIVORCE (§ 109*)—EVIDENCE OF ADULTERY -BURDEN OF PROOF. If, in a suit for divorce on the ground of adultery, it would be inferred, from evidence that defendant visited a brothel, that he committed adultery, the presumption would only cast upon him the burden of explaining the purpose of his visit. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 354-364; Dec. Dig. § 109.*] 2. DIVORCE (§ 115*)-EVIDENCE OF ADULTERY. Evidence that defendant visited a brothel some two months after the suit for divorce was brought is inadmissible. [Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 371-378; Dec. Dig. § 115.*] *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes In a suit for divorce for adultery, any error in the rejection of evidence that defendant visited a brothel some two months after the suit was brought is not prejudicial, where the finding that the overt acts of adultery charged were not committed is sustained by the evidence. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4190; Dec. Dig. § 1056.*] Appeal from Superior Court, Santa Barbara County; S. E. Crow, Judge. Bertha Johanson brought suit for divorce from Charles J. Johanson. Divorce denied, and plaintiff appeals. Affirmed. Charles F. Carrier and W. P. Butcher, for appellant. W. C. Gammill and H. C. Booth, for respondent. ALLEN, P. J. This is an appeal from a judgment upon a bill of exceptions to review errors of law in the exclusion of testimony. 3. APPEAL AND ERROR (§ 1056*)—HARMLESS ( brothel during the month of March, 1908, and ERROR-EXCLUSION OF EVIDENCE. she was asked by counsel for appellant whether at night after 11 o'clock, on one or more occasions during the month of March, defendant visited that house. The court sustained an objection to this question, and by reason of which error is claimed, and this upon the authority of Carpenter v. Carpenter, 56 Hun, 643, 9 N. Y. Supp. 583, wherein it is held that where adultery is charged in particular houses of ill fame evidence is admissible of visits to other houses of ill fame to show the habits and inclinations of the defendant, and as bearing upon the probability of the evidence in support of the specific charges. It will be observed that the evidence sought to be elicited by this question related to conduct long after the commencement of the action, and in no degree can the same be said, to establish the commission of the offenses alleged to have been committed before the filing of the complaint. Assuming, however, such question to be admissible as tending to show the intent with which the visit to the brothel was made at the time specified in the complaint, we do not regard the error in its rejection, if conceded to be such, as sufficiently prejudicial to warrant a reversal of the judgment. The court having found that the overt act was not committed, and the record not disclosing any circumstance or fact from which the court could have found otherwise, it is of little importance as to the intent of the visit. Had there been some evidence from which it might be reasonably inferred that his relations with the female inmate on that occasion had been of an adulterous character, the effect of the exclusion of the evidence might have been different; but in the absence of any testimony or circumstance other than the bare matter of a visit, and it being clearly shown that no offense was committed upon the occasion of such visit, it can scarcely be said that the error was prejudicial. Judgment affirmed. The action was one for divorce upon the ground of adultery. The complaint averred that defendant, on the 16th day of December, 1907, in the city of Santa Barbara, at a house numbered 820 Anacapa street, committed adultery with a woman named Violet; that on January 15, 1908, at No. 822 Anacapa street, in said city, defendant committed adultery with some female whose name is unknown to plaintiff; that defendant has committed adultery at various other times with the said female named Violet, at said house No. 820 Anacapa street, and with other females in said house and elsewhere, the particular dates of said acts of adultery being unknown to plaintiff. The complaint was filed on the 16th day of January, 1908. The evidence offered in support of plaintiff's complaint is entirely circumstantial, it being shown that on January 15, 1908, and at about 11 o'clock p. m. of such date, defendant in company with another man visited a brothel in the city of Santa Barbara; that at the time of such visit there was but one female inmate and the only conduct of defendant established in connection with the visit was that he was seen sitting in the reception room, wherein the inmate was playing the piano and the male companion was dancing. Were it even to be assumed that from a visit to a place of this character adultery is to be inferred, nevertheless the presumption attaching would only cast upon defendant the burden of explaining the object and purposes of his visit. This the defendant did to the entire satisfaction of the trial court, who found that no adultery was committed by defendant as charged in the complaint. The court finds, and there is ample evidence in its support, that defendant did not commit adultery with the woman named Violet at any time or place. Upon the trial, a witness was called who admitted that she had been an inmate of the We concur: SHAW, J.; TAGGART, J. (12 Cal. A. 582) MODERN LOAN CO. v. POLICE COURT OF CITY AND COUNTY OF SAN FRANCISCO et al. (Civ. 613.) (Court of Appeal, First District, California. Feb. 9, 1910.) 1. CONSTITUTIONAL LAW (§ 309*)-PERSONAL PROPERTY - POSSESSION DUE PROCESS OF LAW. One in possession of personal property under claim of right cannot be deprived thereof without due process of law, to satisfy which there must be notice of the time and place of hearing and opportunity to be heard. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 929, 930; Dec. Dig. § 309.*] 2. CONSTITUTIONAL LAW (§ 309*)-DUE PRO- | lice judge issued a search warrant, pursuant CESS OF LAW-OWNERSHIP OF PROPERTY- to which the said breastpin was taken from DETERMINATION-SEARCHES AND SEIZURES. Pen. Code, § 1524, subd. 1, authorizes the the possession of the respondent. Thereafter, seizure of stolen or embezzled property on a it appearing that said police judge was about search warrant, and section 1536 provides that to proceed and determine the ownership of when the property is delivered to the magistrate, said pin, the respondent, claiming a lien uphe must dispose of it as provided in sections 1408-1413. Sections 1408 and 1409 provide that on the same, and asserting that he was enon satisfactory proof of ownership the magis- titled as such lienholder to possession theretrate must order the property to be delivered to of, instituted these proceedings in the supethe owner. Held, that sections 1408 and 1409, rior court for a writ of prohibition. That in so far as they are applicable to search warrant proceedings, are unconstitutional for fail- court held that the provisions of the Penal ure to provide for notice of time of hearing to Code, which purport to authorize the police the person from whose possession the property judge to hear and determine "the ownership is taken under a search warrant, and an opportunity to be heard, as depriving such person of of" and "title to" personal property, were his property without due process of law, nor was unconstitutional, and that therefore such poit any answer to such objection that the magis- lice judge was without jurisdiction to protrate would probably see to it that notice and an ceed in the matter, and a peremptory writ of opportunity to be heard were given. [Ed. Note.-For other cases, see Constitution-prohibition issued as prayed for in the petial Law, Cent. Dig. §§ 929, 930; Dec. Dig. tion. From the judgment in favor of the 309.*] Modern Loan Company appellants prosecute this appeal. 3. CONSTITUTIONAL LAW (§ 309*)-DUE PROCESS OF LAW-NOTICE. The right to take jewelry, alleged to have been stolen or embezzled from the person in possession, by means of a search warrant issued out of a police court, and for such court to determine the ownership thereof in summary proceedings, without notice or opportunity to the possessor to be heard, as authorized by Pen. Code, §§ 1408, 1409, cannot be sustained by the rule authorizing the taking or destruction of property without notice when the public welfare demands summary action. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 929, 930; Dec. Dig. § 309.*] Appeal from Superior Court, City and County of San Francisco; J. M. Seawell, Judge. Prohibition on petition of the Modern Loan Company against the Police Court of the City and County of San Francisco and E. P. Shortall, judge thereof. From a judgment making the writ permanent, respondents appeal. Affirmed. Charles F. Hanlon, for appellants. Robt. W. Harrison, amicus curiæ. Chas. N. Douglass, for respondent. Campbell, Metson, Drew, Oatman & Mackenzie and W. H. Orrick, amici curiæ. KERRIGAN, J. This is an appeal from a judgment of the superior court making permanent a writ of prohibition. In August, 1908, one Bessie Seaman, presented to Hon. E. P. Shortall, judge of the police court of the city and county of San Francisco, an affidavit, properly subscribed and sworn to by her, in which she averred that in February, 1908, one E. R. Burke had willfully, unlawfully, and feloniously taken and carried away a certain diamond breastpin of the value of $250, the property of said Bessie Seaman, and that there was probable and reasonable cause to believe that said breastpin was concealed at the place of business of the Modern Loan Company, the above-named respondent, in San Francisco. Upon said affidavit the po Respondent claims that when personal property has been stolen or embezzled, and that fact is made to appear by affidavit, nevertheless a search warrant should not issue unless a complaint is filed charging the guilty person with the larceny or embezzlement of the property in question. See contra Haworth v. Newell, 102 Iowa, 541, 546, 547, 71 N. W. 404. He also claims that under section 1527. of the Penal Code the evidentiary, and not the ultimate, facts should be stated. Here the affidavit set forth the commission of the larceny, not upon information, but in positive terms; and, in view of the decisions in Ex parte Dimmig, 74 Cal. 164, 15 Pac. 619, this last contention would seem to have as The sections of the Penal Code which authorize the disposition and award of personal property seized under search warrants fail to provide for the giving of notice to interested parties, or to afford them an opportunity to be heard on such proceedings, and for this reason respondent contends that those sections are unconstitutional. When personal property has been stolen or embezzled, and, as the result of proceedings under a search warrant, has been seized and delivered to a magistrate, he must dispose of it as provided in sections 1408 and 1409 of the Penal Code. Subdivision 1, § 1524, of the same Code provides that a search warrant may issue "When the property was stolen or embezzled, in which case it may be taken on the warrant from any place in which it is concealed, or from the possession of the person by whom it was stolen or embezzled, or from any person in whose possession it may be." Section 1536 provides: "When the property is delivered to the magistrate he must, if it was For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |