to lot 9 is described. The southerly corner of First and Figueroa streets being established on the ground, and it being further established that First street is 68 feet wide, it follows of necessity that the southerly line of plaintiff's lot 10 begins 128 feet from the southerly line of First street. So the court found and decreed, upon evidence so complete and so satisfactory that the shufflings and evasions found in plaintiff's testimony cannot be said to raise even a conflict against it. The judgment and order appealed from are therefore affirmed, with damages awarded to respondent against appellant in the sum of $100 for the taking of a frivolous appeal. which the stock was sold were illegal and void, was insufficient, and the denial of the continuance was not an abuse of discretion. [Ed. Note.-For other cases, see Corporations, Dec. Dig. § 610.*] Department 2. Appeal from Superior Court, San Diego County; N. H. Conklin, Judge. In the matter of the dissolution of the College Hill Land Association of the City of San Diego. From a judgment of dissolution, Catherine B. Chase and another appeal. Affirmed. J. H. McCulloch and C. N. Andrews, for appellants. Sam Ferry Smith, for respondent. HENSHAW, J. The College Hill Land Association of the City of San Diego was a pri We concur: MELVIN, J.; LORIGAN, J. vate corporation, organized for profit. It had (157 Cal. 596) In re COLLEGE HILL LAND ASS'N OF OF REVIEW. Where an appeal is not perfected until more than 60 days after entry of judgment, Code Civ. Proc. § 939, prohibits a review of the evidence, or a consideration of the findings of fact objected to. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 356.*] 2. CORPORATIONS (§ 610*) DISSOLUTION STATUTES AMENDMENT. Under Const. art. 12, § 1, providing that all laws concerning corporations may be altered from time to time or repealed, stockholders of a corporation who became such prior to the amend ment in 1907 of Code Civ. Proc. § 1228 (St. 1907, c. 254), providing for a dissolution on a two-thirds vote of all stockholders, so as only to require a two-thirds vote of the subscribed capital stock, were not entitled to a dissolution vote in accordance with the law as it existed before amendment. a capital stock of $2,000,000, divided into 20,000 shares of the par value of $100 each. Eleven thousand and seven hundred and seventy of these shares were issued and outstanding. At a special meeting of the stockholders called for that purpose on February 1, 1908, at which there were present and represented 10,667 shares of the capital stock, it was unanimously decided to dissolve the corporation and distribute its assets. In conformity with this resolution the directors of the corporation, on the 24th day of February, 1908, filed a petition in due form in the superior court of the county of San Diego, seeking a decree of dissolution. The court set the hearing for Monday, the 6th day of April, and due notice thereof was given, as required by law. On the 7th day of April, Catherine B. Chase and C. W. Chase, appellants herein, claiming to be stockholders of the corporation and owners of about 340 shares of the stock, filed objections to the dissolution, and alleged grave corporate mismanagement on the part of the directors and others connected with the corporation. The hearing of the petition and the objections thereto were set for the 20th day of April, 1908. Upon that day the objectors asked for a continuance of 30 days in which to take their own depositions in New York. This request was denied by the court. The matter proceeded to a hearing, and, after evidence taken, a judg[Ed. Note. For other cases, see Constitution-ment of dissolution was rendered on that date. al Law, Cent. Dig. §§ 325, 366-369; Dec. Dig. The court found that the objectors, Catherine § 126.*] 4. CORPORATIONS (§ 610*)-DISSOLUTION-AP- B. Chase and C. W. Chase, were not stockholders of the corporation, and also found Where the stock of objectors to the dis- against them upon all other material allegasolution of a corporation had been long since tions. The court further found that all and sold for delinquent and unpaid assessments, an affidavit for a continuance of the dissolution singular the allegations and statements in the proceedings to afford time to take objectors' dep- application for dissolution were true. The ositions, to prove that they were the parties to judgment was rendered upon April 20, 1908, whom stock certificates alleged in their objections were issued, charging that they had paid and entered April 22, 1908. The appeal was all assessments on the stock on which they ever taken October 10, 1908, more than 60 days had or received any notice or knowledge, and after entry of judgment. It does not perthat their post office address had been at all mit a review of the evidence. Code Civ. times known to the secretary, but without any Proc. § 939; Ryland v. Heney, 130 Cal. 426, allegation that they had paid all the assessments levied, or that the assessments under 62 Pac. 616; Sather Banking Co. v. Briggs For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes [Ed. Note. For other cases, see Corporations, Dec. Dig. 8 610.*] 3. CONSTITUTIONAL LAW (§ 126*)-CHARTERRESERVE POWER-STOCKHOLDERS' REPEAL CONTRACT. The reserved power of the state to alter or repeal the charter of a corporation is a part of the contract of every stockholder of a corporation. PLICATION. Co., 138 Cal. 724, 72 Pac. 352; Thomas v. | to appear that the sale of their stock had N. W. Mutual Life Ins. Co., 142 Cal. 79, 75 Pac. 665. The same reason forbids the consideration of other findings of fact objected to by appellants. been made many years ago, with ample time accorded to these appellants to have instituted a proper proceeding to set aside the sale upon the ground of its invalidity, if any such invalidity existed. Their failure so to have done exhibits a lack of diligence in itself, justifying the court in refusing the continuance. The judgment appealed from is therefore affirmed. We concur: LORIGAN, J.; MELVIN, J. (157 Cal. 599) CARY et al. v. LOS ANGELES RY. CO. (L. A. 2,417.) (Supreme Court of California. April 13, 1910.) 1. CARRIERS (§ 303*)-INJURY TO PASSENGER -STARTING CAR-SIGNAL BY ANOTHER PASSENGER. The objection to want of jurisdiction appearing upon the face of the petition is based upon appellants' contention that, at the time when they became stockholders, the law required a two-thirds vote of all the stockholders (Code Civ. Proc. § 1228), although in 1907 the law was amended to read that dissolution might be had upon a vote "of the holders of two-thirds of the subscribed capital stock." St. 1907, c. 254. The contention of appellants is that the law as it stood at the time when they purchased their stock conferred upon them a legal right of which they could not be deprived by any subsequent legislative enactment. There is no force in this contention. Admittedly the petition for dissolution was in the form prescribed by secThere was no negligence of a street car company in the starting of a car, throwing a tion 1228 as amended in 1907. Section 1, art. passenger who was alighting, the starting signal, 12, of our Constitution provides that "all laws two bells, having been given, without authority, now in force in this state concerning corpo- by another passenger, neither the motorman rations, and all laws that may be hereafter would be so given, the motorman believing it nor conductor having any reason to believe it passed pursuant to this section may be alwas given by the conductor, the conductor intered from time to time or repealed." And, stantly on hearing the signal calling to the indeed, it is well settled that this reserve pow- motorman not to start, and the motorman then endeavoring to prevent the starting; the comer to alter or repeal the charter of a corpora-pany, through its motorman and conductor, not tion becomes a part of the contract of every being required to anticipate and take precaustockholder of the corporation organized there- tions against such an unauthorized signal. under. Venner Co. v. U. S. Steel Corp. (C. C.) 116 Fed. 1012; Market St. Ry. Co. v. Hellman, 109 Cal. 571, 42 Pac. 225; McGowan v. McDonald, 111 Cal. 57, 43 Pac. 418, 52 Am. St. Rep. 149; Thompson on Corporations (2d Ed.) §§ 402, 408. The court did not abuse its discretion in refusing the motion for continuance. The application for a continuance was made upon the ground that it was necessary to take the depositions of the objectors to prove that they were the parties to whom certificates of stock set forth in the objections filed were issued by the company; that they had paid all the assessments upon the stock upon which they ever had or received any notice, or of which they had any knowledge, and that their post office address and their whereabouts have been at all times well known to the secretary and other officers of the corporation. It was shown at the hearing that these objectors were the persons to whom the certificates of stock had been issued. It was also shown that the stock had long since been sold for delinquent and unpaid assessments. The affidavit in support of the motion for a continuance does not state facts which would be a defense upon the merits. It asserts merely that the objectors paid all the assessments of which they had any knowledge, but it is nowhere asserted that they had paid all the assessments levied, or that the assessment under which their stock was sold was illegal or void. It was further made [Ed. Note. For other cases, see Carriers, Dec. Dig. § 303.*] 2. CARRIERS (§ 315*)-INJURY TO PASSENGER -NEGLIGENCE-PLEADING AND PROOF. The only allegation of negligence in an action for injury to a passenger on a street car being that, while he was alighting, the car was negligently started with a jerk, the fact that the car was crowded, and passengers were standing in the aisle, cannot be considered as a matter of negligence, but only as a part of the conditions existing at the time. [Ed. Note. For other cases, see Carriers, Dec. Dig. § 315.*] 3. NEGLIGENCE (§ 111*)-PLEADING. [Ed. Note.-For other cases, see Negligence, While violation of Civ. Code, §§ 2102, 2184, 2185, providing that a carrier of passengers must not overcrowd or overload his vehicle. must provide a sufficient number of vehicles to accommodate all passengers who can be reasonably expected to require carriage at the time, and must provide every passenger with a seat, will establish negligence, it will not authorize recovery for injury to a passenger, while alighting, from being thrown by the starting of the car, on the unauthorized signal of another passenger; it not being shown to have any direct and causal connection with the injury. [Ed. Note.--For other cases, see Carriers, Dec. Dig. § 305.*] 5. CARRIERS (§ 321*)-DUTY OF CONDUCTOB— INSTRUCTIONS. The collection of fares being part of the duty of the conductor of a street car, though it is equally his duty to look after the safety | car. That the motorman supposed it was of his passengers, it is not error to instruct given by the conductor, and at once started that he was in the performance of his duty the car. while collecting fares; it appearing that he was That instantly upon hearing the collecting fares when the car stopped, that be- two bells the conductor cried out, warning fore giving his starting signal he would have the motorman not to start, but to stop his gone to the platform to see whether all passengers so desiring had alighted, and that before he had done so a starting signal was given by a passenger, resulting in injury to another passenger, who was alighting. [Ed. Note. For other cases, see Carriers, Dec. Dig. § 321.*] 6. TRIAL (§ 141*)-DIRECTING ANSWERS BY JURY. It is not an invasion of the province of the jury to direct answers to questions not in dispute and established without contradiction. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. § 141.*] Department 2. Appeal from Superior Court, Los Angeles County; Chas. Monroe, Judge. Action by Sarah P. Cary and another against the Los Angeles Railway Company Judgment for defendant. Plaintiffs appeal. Affirmed. Hannon & McCormick, for appellants. Gibson, Trask, Dunn & Crutcher, for respondent. HENSHAW, J. This action was instituted by plaintiffs to recover damages alleged to have been sustained by plaintiff Sarah P. Cary while debarking from one of defendant's cars. The negligence, and the only negligence charged against defendant is found in the following allegation: "And as said Sarah P. Cary was in the act of leaving said electric car, while the same remained stopped, and while in the act of stepping off of said car, the said defendant, through its agents and servants, negligently and carelessly and wantonly caused the said car to start forward with a sudden jerk, and with great force, thereby throwing said Sarah P. Cary violently from said electric car and onto the ground, whereby the said plaintiff sustained serious bodily injuries." The answer denied negligence. The case was tried upon the issue of defendant's negligence, and on that issue the jury returned a general verdict in favor of the defendant, together with a special verdict, by which latter they found that two bells were a signal used by the conductor to the motorman to start the car, and that it was not the duty of the motorman, under the rules of the company, nor was it a custom of the motormen, upon receiving the signal of two bells, to ascertain whether passengers were alighting from the rear steps. That the car stopped at a street for the purpose of allowing plaintiff to alight therefrom. That the conductor was at that time at the front of the car collecting fares. That the signal of two bells was given by some passenger standing at the rear of the car. The motorman thereupon endeavored to prevent the starting of the car. That the car moved only from two to six feet. That neither the conductor nor the motorman had any reason to believe that any signal, by bell or otherwise, would be given by any other person than the conductor. That the proxi mate cause of the injury to plaintiff arose from the unauthorized act of the passenger in giving the signal to the motorman to start the car. The evidence abundantly supported the special verdict and findings of fact above set forth. The only question upon the ver dict is whether or not the facts themselves authorities against the proposition that the constitute a defense. Appellants present no facts found by the jury show an absence of negligence on the part of the defendant, and establish that the accident occurred by the unwarranted intervention of an unauthorized stranger, against whose unexpected act the company was not bound to take precautions. That such is the law governing the conduct of defendants in such cases is abundantly settled. Thus in Krone v. Southwest Mo. E. R. Co., 97 Mo. App. 609, 71 S. W. 712, the trial court refused to give an instruction which declared: "The court instructs the jury that, if they believe from the evidence that the conductor stopped the car at Elizabeth street to let Mrs. Kirksey and plaintiff get off said car, and that Mrs. Kirksey got off, and, before plaintiff could get off, some one, not an employé of the defendant, without the knowledge or authority of the conductor, rang the bell, and gave the motorman the signal to start, and in pursuance of said signal the motorman started the car, and plaintiff fell off, then there was no negligence on the part of defendant, and plaintiff cannot recover in this case, and their finding will be for defendant." The Supreme Court said: "We cannot see upon what theory the court refused said instruction, for if it was true that some person other than the conductor, and not in defendant's employ, gave the signal which started the car while plaintiff was attempting to get off, causing her fall and injury, it was not the result of any negligence on the part of defendant, but that of a careless or mischievous stranger, over whom the defendant had no control." To the same effect are McDonough v. Third Ave. R. Co., 95 App. Div. 311, 88 N. Y. Supp. 609; Fanshaw v. Norfolk & Portsmouth Tr. Co. (Va.) 61 S. E. 790; O'Neil v. Lynn & B. R. Co., 180 Mass. 576, 62 N. E. 983; Ellinger v. Philadelphia R. Co., 153 Pa. 213, 25 Atl. 1132, 34 Am. St. Rep. 697; Gulf, For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes No It was not error for the court to state, as it did, that the conductor was doing his duty, or was in the performance of his duty, while collecting fares. Unquestionably, and as matter of law, the collection of fares and the issuance of transfers is a part of the duty of the conductor of a street car. It is, of course, equally his duty to look after the safety of his passengers while on the car and embarking and debarking therefrom. In this case it appears that the conductor was actually engaged in taking fares at the time the car stopped, and before giving his starting signal would have proceeded to the platform to see whether all intending passengers had left the car. But before he had done so the starting signal was given. Answers to certain special questions which the court itself directed were upon matters not in dispute and established without contradiction. In this there was no invasion of the province of the jury. Baumann v. C. Reiss Coal Co., 118 Wis. 330, 95 N. W. 139. C. & S. R. Co. v. Phillips, 32 Tex. Civ. App. | mee Cotton Mills, 138 N. C. 169, 50 S. E. 561; 238, 74 S. W. 793. McVay v. Brooklyn, etc., R. Co., 113 App. It was admitted that at the time of the Div. 724, 99 N. Y. Supp. 266; Snyder v. Colaccident the car was crowded, and that pas-orado Springs R. Co., 36 Colo. 288, 85 Pac. sengers were standing in the aisle. Appel- 686. lants make complaint of the court's rulings and instructions upon this point, which were to the effect that the fact that the car was crowded with passengers would not entitle the plaintiffs to recover, and could not be considered by the jury, except as a part of the conditions existing at the time. The court's rulings and instructions in this regard were correct. The crowded state of the car was permitted to be shown as one of the conditions at the time of the accident. negligence was alleged by plaintiffs because of the crowded condition of the car, and no causal connection between the crowded condition of the car and the accident was in any way shown. While it is permissible to charge negligence in general terms, it is nevertheless necessary to specify the particular act or acts alleged to have been negligently done. Stevenson v. S. P. Co., 102 Cal. 144, 34 Pac. 618, 36 Pac. 407; Smith v. Buttner, 90 Cal. 95, 27 Pac. 29. If appellants had desired to predicate negligence upon the crowded condition of the car they should have done so by appropriate allegation. But in this case, if they had done so, it is apparent that no different result would have been reached, since the overcrowded condition of the car was in no way the proximate cause of the accident, and it is but a matter of speculation as to whether or not the conductor, at the time actually engaged in taking up fares, would have seen the unauthorized act of the passenger who rang the starting bell if the car had not been crowded. A violation of the provisions of the Civil Code (Civ. Code, §§ 2102, 2184, 2185) will establish negligence, and where injury results from such negligence a recovery may be had. But in every case the particular negligence to avail plaintiff must have some direct and causal connection with the injury complained of. For example, it is negligence if the whistle of a locomotive engine is not sounded and its bell rung at crossings, but if the train were derailed by a misplaced switch, an injured passenger could not base his recovery upon the showing that somewhere along the journey the whistle had not been blown or the bell sounded when these things should have been done. In such a case the employer will not be liable merely because his act constituted a violation of law, but only if it proximately caused the injury complained of. So, although the violation of such a statute is negligence per se, there must be a causal connection between the unlawful act and the injury, which must be shown in the pleading and by the proof, or the action fails. Nickey v. Steuder, 164 The court did not err in giving its instruction 4. The instruction, in hypothetical form, stated the uncontradicted facts of the accident, saying that: "If some passenger upon the rear of defendant's car, over whom the defendant had no control, gave the signal to start said car, and that the motorman in charge thereof responded to said signal and started his car," etc. It is argued against the instruction that it eliminates from the consideration of the jury the question as to whether the defendant, through its motorman and conductor, should have anticipated the unauthorized giving of the signal. But there is no word of testimony in support of this. The law is to the contrary of appel lants' contention. "A carrier of passengers is not obliged to proceed to provide against casualties which have not been known to occur before, and which may not reasonably be anticipated. That which never happened before, and which in its character is such as not naturally to occur to prudent men to guard against its happening at all, cannot, when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its happening and guarding against that remote contingency." Holt v. S. W. Mo. E. R. Co., 84 Mo. App. 443. Moreover, the jury specifical ly found that the motorman believed that the starting signal was given by the conductor. * * * No other points call for special attention. For the foregoing reasons, the judgment and order appealed from are affirmed. (157 Cal. 613) to the city. The inhabitants of the Ontario FRANKISH v. GOODRICH et al. (L A. school district, as thus constituted, voted to 2,308.) (Supreme Court of California. April 15, 1910.) 1. SCHOOLS AND SCHOOL DISTRICTS (§ 32*)BOUNDARIES INCLUSION IN CITY. Under Pol. Code, § 1576, providing that each city or incorporated town, unless subdivided by the legislative authority thereof, shall constitute a separate school district, outside territory belonging to a school district becomes, on inclusion within the boundaries of a city, establish, and in due course did establish and maintain, a high school therein, and thus the Ontario high school district, embracing the same territory as the Ontario school district, came into and continued in existIn 1906 the city of Upland was inence. corporated as a city of the sixth class. Its boundaries included a portion of the territory adjacent to the city of Ontario, which territory had formerly been a part of the Ontario school district. They likewise embraced territory which had belonged to still 2. SCHOOLS AND SCHOOL DISTRICTS (§ 42*)- a third school district and which had never HIGH SCHOOL DISTRICT-BOUNDARIES-IN- been a part of the Ontario district. By virCLUSION WITHIN CORPORATE LIMITS. part of the latter's school district. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 52; Dec. Dig. § 32.*1 Under Pol. Code, § 1670 (prior to its repeal in 1909), and other related sections, a high school district, so far as its territorial limits are concerned, is not a distinct entity from the school district, and, when the school district loses part of its territory by the inclusion thereof within the corporate limits of a city, the high school district also loses the same part of its territory. [Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. § 85; Dec. Dig. § 42.*] 3. SCHOOLS AND SCHOOL DISTRICTS (§ 102*)_ HIGH SCHOOL DISTRICTS-TAXATION. Territory of a school district, which, by inclusion within city limits, becomes part of a new high school district, is taxable in the latter district only. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 237; Dec. Dig. § 102.*] Department 2. Appeal from Superior Court, San Bernardino County; Frank F. Oster, Judge. B. Action by Charles Frankish against J. Goodrich and others. From the judgment, defendants appeal. Affirmed. tue of the incorporation of the city of Up- It is unquestioned that the outside territory formerly belonging to the Ontario school district, upon its inclusion within the boundByron Waters, for appellants. Good cell & aries of the city of Upland, became a part of Goodcell, for respondent. HENSHAW, J. This is in form an action by a resident taxpayer of the Ontario high school district, on behalf of himself and all other residents and taxpayers of the district, to restrain the school trustees of the Ontario school district and the trustees of the Upland school district, and the county superintendent of schools of the county, from acting as a union high school board of trustees, and from exercising or attempting to exercise any authority or control over the high school or property or the funds of the Ontario high school district; in effect, the action seeks to have defined the boundaries and status of the Ontario high school district, concerning which matters doubt has arisen, growing out of the following state of facts: The Ontario school district came into existence in 1901, and its territory comprised all of the lands of the city of Ontario, a municipal corporation of the sixth class, and certain additional outside territory adjacent the Upland school district. Pol. Code, § 1576; Hughes v. Ewing, 93 Cal. 414, 28 Pac. 1067; Bay View School District v. Linscott, 99 Cal. 26, 33 Pac. 781; Kramm v. Bogue, 127 Cal. 122, 59 Pac. 394. But while it is admitted that the outside territory formerly be longing to the Ontario school district ceased to be a part of that school district by its inclusion within the boundaries of the Upland school district and became a part of the Upland school district, nevertheless it is insisted that this territory is not severed from the Ontario high school district, as distinguished from the Ontario school district; that it still remains a part of the Ontario high school district, subject to its burdens and entitled to its rights; and that by virtue of this, through some method not defined in appellants' brief, it is declared that "by operation of law there was thus created the Union high school district composed of Upland school district and Ontario school district." But a reading of section 1670 of the Po For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |