of requiring peace officers to observe the ar- 572, 17 Atl. 188, 3 L. R. A. 44, 10 Am. St. bitrary speed limits fixed by the Motor Ve Rep. 614, involving a collision between a hicle Act when pursuing criminals, who may railway train at a railroad crossing and a be fleeing in high-power cars at twice the fire engine; Garrity v. Detroit Citizens' St. legal limit, to make manifest that the Legis- Ry. Co., 112 Mich. 369, 70 N. W. 1018, 37 lature did not have in view such a limita- L. R. A. 529, involving a consideration of the tion on peace officers. And it is equally duty of a driver of a fire truck having the clear that they did not contemplate retard-|right of way by ordinance in approaching ing the speed of fire apparatus in going to a and crossing a street car track, and Birmingfire.

The Court of Appeals of New York, in Farley v. Mayor, etc., 152 N. Y. 222, 46 N. E. 506, 57 Am. St. Rep. 511, held that the general language of section 1932 of the Consolidation Act (Laws 1882, c. 410, p. 470), prohibiting "any person" from driving any horse through any street "within the city of New York with greater speed than at the rate of five miles per hour" did not apply to fire apparatus going to a fire. The court merely observed that

"It is manifest that section 1932 of the Consolidation Act can have no application to the speed at which engines or hose carts connected with the fire department shall be driven when going to a fire. Section 1932 was intended to regulate the speed of horses traveling on the streets and using them for the ordinary purposes of travel, and from the nature of the exigency cannot apply to the speed of vehicles of the fire department on their way to fires."

ham Ry. & Elec. Co. v. Baker, 126 Ala. 135, 28 South. 87, to the same effect; also Indianapolis T. & T. Co. v. Hensley (Ind.) 105 N. E. 474, and Coles v. N. O. Ry. & Lt. Co., 133 La. 915, 63 South. 401, relating to right of way at crossings of street cars and street intersections.

[2] Raving concluded that the speed limit and rules as to turning at corners do not apply to. fire apparatus responding to an alarm, the next question is as to the effect of the statute and ordinance granting a right under our view, are inserted to direct and of way. It is evident that these provisions, control the operators of other vehicles upon the highway. At common law it is said no right of way was granted to fire apparatus (Knox v. N. J. St. Ry. Co., 70 N. J. Law, 347, 57 Atl. 423, 1 Ann. Cas. 164); hence the necessity of statutory rules requiring the yielding of such right of way, and such provisions are to be construed in the light of this situation.

Before further considering this subject, it should be stated that the trial court instructed the jury that the driver of the fire truck was required to exercise reasonable care. The instructions on this subject are quite as favorable as the defendant was entitled to. Instructions 23, 24, 25, and 29 were given at the request of the defendant, as follows:

See, also, Oklahoma Ry. Co. v. Thomas, 63 Okl. 219, 164 Pac. 120, L. R. A. 1917E, 405, In some cases it has been held that either an implied exception must be read into local ordinances regulating speed in favor of the fire department or that the ordinance must be declared to that extent unreasonable and void. State v. Sheppard, 64 Minn. 287, 67 N. W. 62, 36 L. R. A. 305; City of Kan-lic, required of those operating a fire truck on sas City v. McDonald, 60 Kan. 481, 57 Pac. 123, 45 L. R. A. 429. For the reasons above stated it is clear that the exception is implied, and that it is unnecessary to rely upon the doctrine that unreasonable ordinances are void, and that these cases, in so far as they so hold, support our conclusion as to the proper construction of our Motor Vehicle Act.

"(23) Due regard to the safety of the pubthe public streets, means the exercise of reasonable care by them for the public safety. If the truck be driven at a higher speed than is lawful, or in a manner that is unusual to vehicles, such as cutting the corner, or on the lefthand side of the street, such unusual conduct must be accompanied by a commensurate degree of care on the part of those engaged in propelling the truck so that at all times due usual or extraordinary care is thus reasonably regard may be had to the public safety. If unnecessary, it must be given; and the omission thereof will constitute negligence.

"(24) The law requires that any person op

There is nothing in the cases cited by appellant opposed to our view as to the proper construction of our statute. These cases are People v. Little, 86 Mich. 125, 48 N. W. 693, a case involving the right of way of a pri-erating or driving a motor vehicle (and this invate ambulance; Knox v. North Jersey St. Ry. Co., 70 N. J. Law, 347, 57 Atl. 423, 1 Ann. Cas. 164, involving the application of the common law to a collision with fire apparatus; Woods v. Public Service Co., 84 N. J. Law, 171, 85 Atl. 1016, involving the effect of a statute giving a right of way to fire apparatus; Morse v. Sweenie, 15 Ill. App. 486, involving the construction of an ordinance expressly applying to fire apparatus; Greenwood v. Phila., W. & Balt. R. R. Co., 124 Pa.

cludes a fire truck) on the public highways shall operate or drive same in a careful and prudent manner, and at a rate of speed not greater than is reasonable and proper, having regard to the traffic and use of the highway, and that no person shall operate or drive such motor vehicle on a public highway at such rate of speed as to endanger the life or limb of any person, or the safety of any property. A violation of this law would constitute negligence.

"(25) No right of way exists in case of fire patrols, fire engines, or fire apparatus while be

(202 P.)

ing operated as such, which is superior to due | thority of the state and city over the control regard for the safety of the public; their right of fire apparatus in the public streets of a of way in operation on public streets must be chartered city (Ex parte Daniels, 192 Pac. exercised with due regard to the public safety. 442), and hence we have not discussed that This means as much the safety of that portion question. of the public in street cars or electric cars as that portion of the public otherwise lawfully on or using the streets."

"(29) Defendant's motorman, in operating its car, was required to use only the care and caution which an ordinarily prudent and careful man would have exercised under similar circumstances, and if you find from the evidence that said motorman used such care and caution, then you cannot find defendant railway company negligent in respect to anything done by

the said motorman."

These instructions certainly made the plaintiffs' right of way dependent upon a "due regard to the safety of the public."

It is evident that the right of way of fire apparatus over other vehicles is dependent upon "due regard to the safety of the public" only in so far as such "due regard" affects the person required to yield the right of way. Notice to the person required to yield the right of way is essential, and a reasonable opportunity to stop or otherwise yield the right of way necessary in order to charge a person with the obligation fixed by law to give precedence to the fire apparatus. This seems to have been the view of the trial court, for it instructed the jury as follows:

“(5) If you believe from the evidence that the motorman of defendant's car failed, refused, and neglected to allow the right of way to apparatus of the fire department of the city of Pasadena, when said fire apparatus was going to a fire, and that such motorman knew, or in the exercise of ordinary prudence should have known of the approach of such fire apparatus, in time to have allowed said right of way, and that by reason of such failure, refusal, and neglect to allow said right of way and as a proximate result thereof one of the plaintiffs was struck, injured, or killed or suffered property damage without negligence on his or its part contributing to such injury, death, or damage, then you will find for that plaintiff." (Italics ours.)

to the amendment of the Motor Vehicle Act Appellant, in its reply brief, calls attention by the Legislature of 1919 (Stats. 1919, p. 218), whereby the Legislature declares that the right of way therein accorded shall not be "construed as permitting the violation by the operators of any such vehicles of any of the provisions of section twenty-two of this act," etc., and suggests that this points to the proper construction of the law in force in 1917. We cannot agree with this contention.

Under this view of the law and the facts, it is unnecessary to discuss appellant's points, based upon the claim that the defense of contributory negligence is available against the city, even if not so available against the injured persons. Judgment affirmed.

We concur: SLOANE, J,; LENNON, J.; LAWLOR, J.; SHAW, J.; SHURTLEFF, J.

(54 Cal. App. 491)

LEHNER v. MCLENNAN et al. (Civ. 3396.)

(District Court of Appeal, Second District, Division 2. California. Oct. 7, 1921.)

I. Pleading 35-Conclusions held surplusage to be disregarded.

Where plaintiff, seeking to recover for fumigation of defendant's orchard, pleaded under the common counts, a statement that defendant agreed to pay for the work and labor "upon a specific contract," if stating a conclusion as to the contract, was surplusage which might be disregarded.

2. Pleading 205(2)-Allegations as to indebtedness on contract held not subject to general demurrer as pleading conclusions.

gation of defendant's orchard, which pleaded the common counts with an allegation that defendant agreed to pay for plaintiff's work and

A complainant, seeking to recover for fumi

[3] The appellant complains that its instruction No. 35, defining the ordinary care required of the occupants of the fire truck, was modified by the court by adding the por-labor "upon a specific contract," was not subtion in italics as follows:

"Under all the circumstances of the case including the circumstances above mentioned and including also the circumstance that they were entitled by law to the right of way."

Appellant's point is that the right of way is contingent upon the exercise of due care on the part of the driver of the fire truck. This instruction, as modified, taken in connection with instruction 25, above quoted, is as favorable as defendant was entitled to. It should be stated that no question is raised in the briefs as to the relative au

ject to general demurrer as pleading a conclusion.

3. Appeal and error 1050(1)—Error in admitting evidence held harmless, in view of similar evidence admitted without objection.

In an action for fumigating defendant's orchard in which defendant claimed damages to to be asked whether as far as he observed the the orchard, any error in permitting a witness men were using care and doing the job efficiently was not prejudicial, where the same witness had been allowed, without objection, to answer whether in his judgment the work was done in a careful and prudent manner.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from Superior Court, San Diego common count, it is that the pleading states County; E. A. Luce, Judge. conclusions of law instead of setting forth the Action by Oscar Lehner against Sue A. Mc-ground of objection, therefore, is that the comfacts upon which the plaintiff relies. The real Lennan and another. From a judgment in plaint does not state facts sufficient to constiplaintiff's favor, defendants appeal. Af- tute a cause of action. But, as we have seen, firmed. this objection is not maintainable."

William H. Wylie and A. J. Morganstern, both of San Diego, for appellants.

See, also, Camp v. Boyd, 41 Cal. App. 83, 182 Pac. 60. The demurrer was correctly

L. N. Turrentine, of Escondido, for re- overruled. spondent.

WORKS, J. Plaintiff sued defendants upon a contract for the fumigation of their orchard. Defendants cross-complained for damages to their trees and fruit because of the alleged negligence of plaintiff in his performance of the agreement to fumigate. Judgment went for plaintiff upon both controversies, and defendants appeal.

Appellants' next point is that the evidence finding as to the amount due respondent; was insufficient to support the trial court's but, without reciting any considerable portion of it, we are satisfied that the evidence on the question was ample. It is enough to say that, in addition to the witnesses called for respondent, appellant Sue A. McLennan herself testified that the only reason she of the alleged injuries to her trees. failed to pay respondent's claim was because From this statement and from others made by her it is evident that there was no doubt in her mind as to the correctness of the amount of respondent's bill.

Under the claim for damages made in their cross-complaint appellants contend that re

Appellants' first contention is that the complaint is insufficient, as tested by the demurrer which was interposed to it and which was overruled. The text of the complaint is: "That within the two years last past, and on or about October 7, 1918, the defendant Sue A. McLennan became indebted to plaintiff in the sum of $316.50 for work and labor performed at her special instance and request, and mate-spondent was in exclusive control of the orrials furnished with said work and labor, and that said defendant Sue A. McLennan expressly agreed to pay said sum of $316.50 for said work and labor upon a specific contract to do said work and labor, at said agreed price."

The demurrer to this pleading was both general and special, the specific grounds being that the complaint is uncertain and ambiguous, in that the terms of the alleged

contract cannot be ascertained from it.

[1, 2] In making their point appellants direct attention to the allegation that defendant Sue A. McLennan agreed to pay for respondent's work and labor "upon a specific contract." They contend that this averment states but a conclusion of law, and that it makes the assailed pleading obnoxious to the demurrer. Up to the point where the language mentioned is used, the complaint is a fair example of pleading under the common counts, and the clause to which objection is taken may be regarded, very properly, as surplusage. Even, however, if it were not so viewed, it does not render the complaint demurrable on special grounds as stating a conclusion of law, for the common counts, as ordinarily couched, present in their entirety nothing more than a succession of conclusions. After stating the well-settled rule that a "common count" is not subject to general demurrer, the Supreme Court said, in Pike v. Zadig, 171 Cal. 273, 152 Pac. 923:

"There have been intimations in this court that such a pleading, although not obnoxious to general demurrer, might fall before a special demurrer on the ground of uncertainty. We think, however, that there is no force in this suggestion. If there be any objection to the

chard while the work of fumigation was going on, and that therefore the doctrine of res ipsa loquitur applies to the case. Respondent disputes this contention, but he insists, also, that if the controversy is to be governed by that rule he still is not liable to appellants. We find it necessary to concern ourselves only with this latter point. As defining the rule res ipsa loquitur appellants refer to Duran v. Yellow Aster Min. Co., 40 Cal. App. 633, 181 Pac. 395, and to Bourguignon v. Peninsular Ry. Co., 40 Cal. App. 689, 181 Pac. 669. In the opinion in the first of these

cases it is said that—

"When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendant that the accident arose from a want of care."

Taking this statement as our guide, and considering, as well, what is decided in the second case cited by appellant, we have no doubt that the evidence adduced by the crossdefendant was of such a character that the trial court might very well have concluded that the damage to appellants' trees, if there was any such damage, was sufficiently explained. The men who did the work testified as to the proper technique in the performance of such services, and as to the manner in which this particular job was done by them, as did also their manager. Several experts testified, too, that damages of the nature claimed by appellants to have been caused their orchard will often occur where

(202 P.)

a fumigating job is conducted in the best human document than by an exposition of possible manner, and that there is no satis- legal talent." We cannot aid appellant, symfactory way of accounting for damages re-pathize with her unfortunate situation as sulting in such cases. We are convinced that deeply as we may. A judgment of a trial the trial court was amply justified in finding court must stand as a finality unless it be that the damage to appellants' trees, if any, made to appear by the party prosecuting an was not occasioned by the negligence of re-appeal from it that some error has occurred spondent. in the proceedings leading to its rendition. Judgment affirmed.

[3] One of the expert witnesses was asked, "As far as you observed, were all these men using good care and doing the job in an efficient manner?" Upon objection the court ruled that the question was proper to be addressed to an expert, and it is contended that the ruling was erroneous. If it be admitted, which we do not decide, that the court was in error in this ruling, the action was not prejudicial. Before the question to which exception was taken was put to him, the same expert witness had been allowed, without objection, to answer this question: "In your judgment was it [the fumigation] done in a careful and prudent manner?" Judgment affirmed.

We concur: FINLAYSON, P. J.; CRAIG, J.

(54 Cal. App. 460)

PEOPLE v. GAYS. (Cr. 766.)

(District Court of Appeal, Second District, Division 2, California. Oct. 6, 1921.)

I. Homicide 296-Evidence warranting refusal of instruction that officers arresting defendant had no probable cause to believe he had committed felony.

On a trial for the murder of a deputy marshal, attempting to arrest defendant when

We concur: FINLAYSON, P. J.; CRAIG, J. found in an unlighted automobile shortly after

(54 Cal. App. 515)

MATTHIAS et al. v. RODGERS. (Clv. 3552.) (District Court of Appeal, Second District, Division 2, California. Oct. 10, 1921.)

Appeal and error 901-Appellant has burden of showing error notwithstanding inability to hire counsel.

Though appellant, claiming financial inability to employ counsel, presents her own case, the judgment must stand unless such appellant shows error.

a burglary had been committed, evidence held to warrant the court in refusing to charge that, as matter of law, the marshal had no probable cause to believe, nor reasonable ground for suspicion, that a felony had been committed by defendant, within Pen. Code, § 836, subd. 3, relative to arrests without warrant.

2. Homicide 296 Evidence of statements of deceased, received without objection, properly considered in passing on propriety of requested instruction.

On a trial for the murder of a deputy marshal attempting to arrest defendant, where the marshal's statements to his superior officer and a constable, while in the immediate discharge of his duty as an officer in the investigation of a burglary and search for an automobile

Appeal from Superior Court, Los Angeles which had been seen on the street without County; John W. Shenk, Judge.

Action by Richard Matthias and another against Frances Rodgers. From a judgment for plaintiffs, defendant appeals. Affirmed. Frances C. Rodgers, in pro. per.

Haas & Dunnigan, of Los Angeles, for respondents.

WORKS, J. This is an action to quiet title. Defendant appeals from a judgment for plaintiffs.

Appellant, appearing in her own behalf, presents a brief which, although most excellent in the language employed in its composition, makes no point raising even a momentary doubt whether the judgment should be affirmed. In fact, after stating that she "has not sufficient funds to bear the expense of employment of skilled counsel"-a situation which naturally enlists our great sympathyappellant says that "this brief must therefore make its appeal more in the nature of a

lights, were admitted without objection, the court could consider them in passing on a requested instruction that, as matter of law, the officers had no reasonable ground to believe, etc., that defendant had committed a felony. 3. Criminal law 475-Opinion of surgeon as to position of deceased and defendant when shot fired properly excluded because jury could determine such question.

Where the county autopsy surgeon, besides testifying concerning the course of a bullet, in technical language, illustrated its course, and there was much other evidence from which

the jury could have determined the relative positions of defendant and deceased when the shot was fired, the opinion of another surgeon as to their position in order to cause a wound of the character described by the autopsy surgeon was properly excluded.

Appeal from Superior Court, Los Angeles County; Frank R. Willis, Judge.

Dominico Gays, alias Dominico Gaiys, was convicted of murder in the first degree, and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

from the judgment and order denying a new the court to instruct the jury in accordance trial, he appeals. Affirmed.

Ernest M. Torchia, of Los Angeles, and Charles Matthews, for appellant.

U. S. Webb, Atty. Gen., Arthur Keetch, Deputy Atty. Gen., and John W. Maltman, of Los Angeles, for the People.

WORKS, J. Defendant appeals from a judgment of conviction of murder in the first degree, and from an order denying his motion for a new trial. The victim of appellant was a deputy marshal of Burbank. That officer informed his superior, the marshal, at about 12 o'clock at night, that he had seen a large automobile running through the streets of the little town without lights. This was at a time when the officers were on the lookout for the perpetrators of a burglary, a place of business in the town recently having been entered. The deceased, acting under instructions from his superior, enlisted the aid of a constable in his search for the car, and the two finally located it and came up to it. According to the graphic story of the constable, who was himself severely wounded in the affray which followed, some conversation took place between the officers and the occupants of the car, during which the latter were commanded to put up their hands; whereupon the deputy went toward appellant, who was seated in the rear of the car, remarking, "Here is the man I want, right here." He then stepped on the running board of the car, pulled down appellant's left hand, and handcuffed it. With his disengaged hand, and by means of a weapon taken from some hiding place in the car, appellant then shot the deputy marshal

to death.

[1, 2] Appellant contends that the trial court erred in refusing to instrust the Jury that

"The evidence shows as a matter of law that the officers had not probable cause to believe, nor reasonable ground for suspicion, that a felony had been committed by the defendant."

with defendant's request. Counsel contend that there is nothing in the record tending

to show that the officers had reasonable cause

to believe, nor reasonable ground for suspicion, that appellant had committed a felony, and that, perforce, the court was bound to give the requested instruction. But counsel's statement as to the condition of the record cannot be justified. The evidence shows that a burglary had been committed in Burbank shortly before the shooting of the deputy marshal, although the time elapsing between the two events does not appear; that at the time of the shooting the deputy and the constable were engaged in an endeavor to apprehend the burglars, the deputy having pursued that labor alone for some time previously; that the deputy had reported to the marshal and had told the constable that a car was being driven about the town without lights; that the car in which appellant was when the arrest was attempted had no lights when first seen by the constable, and that. in effect, that car answered the description of the car mentioned by the deputy in his report to his superior and in what he told the constable; that the deputy said to the constable that the men in the car had been following him for about three hours, and had been keeping track of him, and that he had once tried to stop the car, but that it had driven on; that, just before the car was finally overhauled and the arrest attempted, the constable saw appellant out of the car, standing at a street intersection, and that he started to run when he saw the constable approaching; that the constable then called out to the deputy, "Their watchman is on the next corner"; that before attempting to arrest appellant the deputy exclaimed, "Here is the man I want, right here;" that at the time of the attempted arrest, and probably during the entire period through which the car and its occupants were under observation by him, the deputy wore on the outside of his coat a gold-plated police badge, the identical object being exhibited to the trial court; that he carried a police billy in his hand, and that therefore the occupants of the car knew, while they were "keeping track of him," and when they refused to stop at his summons, that they were dealing with a peace officer; and that appellant's assault upon the deputy followed immediately upon the attempted arrest of the former; that it was relentless, bloodthirsty, and murderous, and of a character not likely to have been resorted to except under a fear of serious consequences to follow upon the arrest.

In presenting this instruction to the trial court we assume, although counsel do not quite say so in their brief, that it was the defendant's theory, having the alleged burglary in mind, that the officers had no right to arrest defendant without a warrant, unless they had reasonable cause for believing that he had committed a felony. Pen. Code, § 836, subd. 3. Following this premise counsel must also believe their brief, however, not disclosing such a view-that the degree of appellant's crime was lessened, or that he was altogether guiltless of crime, if the officers were engaged in an attempt, at the Under these circumstances we are contime of the shooting, to encompass his arrest vinced that the court was justified in refusunlawfully. Passing this latter point as being to give the requested instruction. It will ing unnecessary to decide we take up the be observed that, in the above statement of question whether the facts developed at the the evidence bearing on this question, we trial were such that it became the duty of have referred several times to matters which