(203 P.)

All the errors complained of relate to the (that, while she would suffer some permanent right of the plaintiff to recover for the in- limitation of the functions of the left foot jury which she suffered, and, in view of the and ankle, such defects could be so far cured fact that she was invited to enter the eleva- by an operation that the total disability of tor and accepted the invitation to enter the left leg would be less than 10 per cent.— therein and was thereafter injured by the that is to say, she would ultimately recover negligent management of the elevator by the more than 90 per cent. of the function of the employee of the defendant, who knew that limb. On the other hand, the plaintiff's physhe was lying helplessly in a position which sician testified that the limb was permanentmust necessarily have resulted in her injury ly injured and it was impossible to tell how if the elevator was moved before she had an long it would be before she would be able to opportunity to withdraw her foot from a walk upon the limb, but that she might at position of danger, it is unnecessary to con- some time be able to walk with the aid of a sider in detail the points made by the de- cane. The jury were at liberty to accept the fendant, for it is clear that there has been testimony most favorable to the plaintiff, and no miscarriage of justice in holding the de- evidently did so. fendant liable for plaintiff's injuries. [3] It is claimed that the judgment is ex[2] The defendant claims that certain in- cessive. The rule on that subject on appeal structions given by the court to the jury is thus stated in Hale v. San Bernardino, withdrew the defense of contributory negli- etc., Co., 156 Cal. 713, 715, 106 Pac. 83, 84: gence from their consideration. Defendant had pleaded that the plaintiff was guilty of contributory negligence in that she entered the elevator while it was in motion. The only evidence in that regard is the evidence of the elevator man that he had stopped the elevator a short distance above the floor of the basement, and that just as she was stepping in he lowered the elevator and her foot caught under the floor of the elevator, so that she stumbled into the elevator. Assum ing that this evidence is true, neither her entry into the elevator while it was in motion, if it was, nor her fall, was the proximate cause of the injury. The injury was [4] It had been stipulated that both parcaused by plaintiff's leg coming in contact ties could have an hour in which to present with the floors of the building above the their case to the jury. After plaintiff had point where she stumbled, and resulted, not closed its opening argument, the defendant from the descent of the elevator at the time waived its argument, and the court permitshe stumbled, but the ascending of the ele- ted the plaintiff to further argue to the jury. vator after she was lying upon the floor of This is claimed to be error. The plaintiff the elevator. It can be said as a matter of had evidently planned to have Mr. Meldon law that the fall of the plaintiff into the open and Mr. Gett close the argument, each elevator was not the proximate cause of the to take one-half hour, and was undoubtedly injury. Therefore, even if the instructions surprised by the defendant waiving argucomplained of had the effect asserted by counsel of withdrawing the issue of contributory negligence from the jury, they were not

erroneous.

"The amount of damages in such cases is committed first to the sound discretion of the jury, and next to the discretion of the judge of the trial court, who, in ruling upon the motion for new trial, may consider the evidence anew, determine anew the facts, and set aside the verdict if it is not just. Upon appeal, the decision of the trial court and jury on the subject cannot be set aside unless the verdict is 'so plainly and outrageously excessive as to suggest, at the first blush, passion or prejudice or corruption on the part of the jury.''

We cannot say that the verdict is excessive as a matter of law.

ment. The plaintiff thereupon requested that William A. Gett be permitted to address the jury for one-half hour. The court thereupon stated that he would grant the The other questions raised by the appel- request, and offered to allow the defendant lant relate to the measure and amount of to withdraw its waiver of argument and to damages. proceed with its argument for one hour, in At the time of the trial, more than two accordance with the stipulation, if defendyears after the time of the accident, the ant desired to do so. After consultation, deplaintiff was still able to get about only by fendant's counsel declined to argue the case, the use of a wheel chair. She was unable contenting themselves with an objection to to bear her weight upon her left leg, and suf- the plaintiff's further argument. The court, fered some pain when she bore her weight over defendant's objection, thereupon perupon her right leg. The physicians who tes- mitted plaintiff's counsel to argue the case tified in the case agreed that for the time further to the jury. If, after stipulating being that her injuries were total, and were that each side should have an hour for arto some extent permanent. The witnesses gument before the jury, the defendant, withagreed that, in the absence of an operation out previous notice to the plaintiff, waives to correct the disability, she would not be argument, and thus takes the plaintiff by able to put her left heel to the floor. The surprise, the court, in the exercise of a sound physician called by the defendant testified discretion, should allow the plaintiff what

ever argument to the jury is necessary in the contract without knowing its contents is order to overcome the effect of the surprise. insufficient to show undue influence in obtaining And, similarly, should allow the defendant the wife's signature, especially since the charge whatever argument was necessary in order would rest against the husband, who was not to prevent any prejudicial result flowing being sued by the wife. from the fact that it waived argument before it knew that the court would permit further argument by plaintiff. This was done in this case. The ruling of the court was not erroneous, but proper.

[5] In the appellant's reply brief we are asked to take judicial notice that an elevator is fitted so closely into the shaft as to leave practically no space between the edge of the floor and the wall of the shaft, and that it was a physical impossibility to run the elevator to the top story and back again, as described by plaintiff, because there was barely room enough for clearance of the elevator itself. Appellant states:

"Plaintiff's recital of the accident was manifestly not only grossly exaggerated, but actually untrue, as it is clear that her injury must have occurred through her limb striking the ceiling of the basement. These embellishments were obviously added by her for the purpose of arousing the prejudice and sympathy of the jury.'

3. Fraud 44-Allegations of conspiracy add nothing to complaint for deceit.

In a complaint against defendants for deceit in the exchange of lands, allegations of conspiracy by the defendants do not add strength to the complaint, since a conspiracy gives no right of action, unless it results in damage to the plaintiff.

4. Fraud 20 — Complaint held not to show reliance on representations as to value.

A complaint, alleging that defendants misrepresented the value of the property which they conveyed to plaintiffs in exchange for plaintiffs' property, but which showed that one of the plaintiffs had examined the property before signing the contract, does not show reliance by plaintiffs on the alleged misrepresentations as to value, especially where the contract claimed an express provision that the parties had examined the respective properties, and that defendants were released from all responsibilities regarding valuation of the same and representations of any nature.

5. Evidence 10(6)-Court takes judicial notice of distance between two cities in different counties.

As no punitive damages were asked or allowed, the question of how many times the elevator was moved up and down is imma-tance between El Centro in Imperial county The court takes judicial notice that the disterial except as it indicates the amount of and Venice in Los Angeles county is short. suffering inflicted upon the plaintiff and the degree of negligence of the elevator man, and the truth or falsity of the plaintiff's testimony was to be determined by the jury We cannot take judicial notice that it was

false.

Judgment affirmed.

We concur: SHAW, C. J.; WASTE, J.; LENNON, J.; SLOANE, J.; SHURTLEFF, J.

(55 Cal. App. 502)

MILLER et ux. v. FERGUSON et al.

(Civ. 4047.)

6. Fraud 9-Contract by vendor disclosing want of title not fraudulent.

lands, which alleged that the defendant, who A complaint for deceit in the exchange of agreed to convey the property to plaintiff, did

not own it at the time, and that defendants represented the title was in another one of the defendants, does not show fraudulent misrepresentations, but rather a statement of the fact as to the title to avoid the charge of fraud.

Appeal from Superior Court, Imperial County; Franklin J. Cole, Judge.

Action by O. N. Miller and wife against J. M. Ferguson and others for damages for deceit. Judgment for the defendants on sus

(District Court of Appeal, First District, Di-taining demurrer to the complaint, and plainvision 2, California. Dec. 2, 1921.) tiffs appeal. Affirmed.

1. Fraud 44 Complaint by husband and wife for deceit held not to charge duress in procuring her signature.

In an action by a husband and wife for damages for deceit in an exchange of land, a complaint which does not allege that she was confined by anybody is insufficient to show that she signed the contract under duress as defined by Civ. Code, § 1569, subd. 3.

2. Fraud 44-Complaint held not to allege undue influence in procuring wife's signature. In an action by a husband and wife for deceit in the exchange of land, allegations that one of the defendants and the plaintiff husband annoyed and oppressed the wife until she signed

Robt. G. Hill, of El Centro, for appellants. Conkling & Brown, of El Centro, for respondents.

STURTEVANT, J. The plaintiffs commenced an action against the defendants to recover damages for alleged deceit. The defendants appeared and demurred, the demurrer was sustained, and the plaintiffs declining and neglecting to amend, judgment was entered in favor of the defendants. The plaintiffs have appealed under section 953a, Code of Civil Procedure.

[1-3] In their complaint the plaintiffs allege

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

(203 P.)

that O. N. Miller, the husband, signed an tract from the strength of the case made agreement to exchange lands, and they set on behalf of the appellant. In Bowman v. forth the agreement; that Margaret Miller, Wohlke, 166 Cal. 121, at page 124, 135 Pac. the wife, later signed a paper agreeing to the 37, 39 (Ann. Cas. 1915B, 1011), the court terms of the paper signed by her husband; quotes from an earlier California case as folthat the lands of the plaintiffs are located in lows: Imperial county, and that the other lands are located at Venice in Los Angeles county; that the defendants represented that the latter properties were worth $35,000; that said representations were false; that defendants represented that said lands were owned by J. E. Combs, and so read the written paper to O. N. Miller; that Margaret Miller learned that said lands were owned by Ira N. Combs; that O. N. Miller had had confidential relations with the defendants Delozier and Colvin, and therefore acted on their representations as to value; that Margaret Miller signed under the following circumstances:

"A simple conspiracy, however atrocious, unless it results in actual damage to the party, never was the subject of a civil action; and though such conspiracy is charged, the averment is immaterial and need not be proved. it may be necessary to prove previous combiWhere two or more are sued for a wrong done, nation in order to secure a joint recovery, but it is never necessary to allege it, and if alleged it is not to be considered as of the gist of the action. That lies in the wrongful and damaging act done."

[4, 5] The actionable fraud on which the appellants rely is that the defendants represented the value of the property at Venice to be $35,000, whereas its value was $16,000. The court will take judicial notice that the distance between El Centro in Imperial coun

"That the said Colvin and O. N. Miller, her husband, and coplaintiff herein, annoyed her, and persisted throughout the said day on her signing the same, and finally, under the influence of being harassed and oppressed, she sign-ty and Venice in Los Angeles county is short. ed the said writing, approving the said contract without ever having seen it or knowing the contents thereof, and that the same was signed under duress."

strument contains the following provision:

The appellants alleged that before signing the agreement in question, O. N. Miller went to Venice to examine the property which he was to receive in exchange. Under these cirThe plaintiffs further allege that at the into the controversy, the representation as to cumstances, without any other fact entering time the exchange agreement was executed value was the expression of an opinion which the defendant Ferguson did not own the prop the appellants did not rely on and it is not erty at Venice in Los Angeles county, and sufficient to support their cause of action. that the value of the property at Venice is Hackelman v. Lyman, 195 Pac. 263. Further$16,000, and no more; that before signing more, the agreement was signed by O. N. the agreement O. N. Miller went to the prop- Miller on May 15, 1919; it was signed by the erty at Venice to examine it; that plaintiffs defendant Ferguson on May 26, 1919. It is believed all of the representations of the de not alleged that Ferguson was present when fendants, and acted thereon. The appellants the alleged false representation was made. have filed a brief; the respondents have not It is consonant with appellants' pleading that filed a brief. As we understand the appel- the representation, if any, was made by the lants, they contend that their complaint other alleged conspirators during the existshows actual damages and exemplary dam-ence of the conspiracy and in this connection ages which they are entitled to recover; that it is important to note that the written infraud was practiced upon them, and they are entitled to rescind; that they are the victims of a fraudulent conspiracy; and that the wife signed acting under duress and undue influence. It is not necessary to discuss the contention regarding damages because, if the appellants are entitled to relief, it is not necessary to determine the amount thereof at this time. The complaint does not allege that Margaret Miller was confined by anybody, hence the complaint may not stand on the theory of duress as defined by subdivision 3 of section 1569 of the Civil Code. The averments regarding the inducement to obtain the signature of Margaret Miller do not show undue influence. In re Langford, 108 Cal. 608, 622, 623, 41 Pac. 701. Furthermore, even though it did, the charge would rest against O. N. Miller, but the wife is not suing her husband at this time. The allegations on the subject of conspiracy neither add to nor de

"It is presumed and understood that all principals to this agreement have investigated the respective properties and J. G. Delozier and B. E. Colvin is hereby released from all responsibility regarding valuation of same, and representations of any nature."

[6] The appellants rely in some way upon the fact that Ferguson did not own the property at Venice at the time that the agreement was executed. They allege, nevertheless, "that the defendants represented to the plaintiff O. N. Miller, before the signing of the said contract, that one J. Ellsworth Combs owned the said property to be exchanged for plaintiffs' property." If the last fact occurred as it is alleged, the very nature of the act seems to negative rather than to sustain anything in the nature of fraud. It is not alleged that O. N. Miller can neither read nor write; it is not alleged that he did not read the paper

mortgage sustained.

Evidence held to support a finding that a deed absolute on its face was a mortgage merely.

5. Insurance 328 (7)-Where right to reconveyance retained, there is no change of title.

before he signed it, nor is there an allegation | 4. Mortgages 38(1)—Finding that deed was to the effect that he signed it in the dark, nor that he was prevented by any one of the defendants from reading it. In the face of these facts appellants' complaint is not made any stronger by inserting "that the defendants prepared the said written contract and read it to the said Miller, in the name of the said Combs, and not in the name of the defendant J. M. Ferguson." Under these circumstances, we think the instant case is controlled by Brimmer v. Salisbury, 167 Cal. 522, 530, 140 Pac. 30, 34, where the court says:

Where the dealings between the parties are open-handed and where, as is the general rule, the vendee is charged with the duty of acquiring his own knowledge of the condition of the vendor's title, such contracts will be enforced upon the theory that the vendee contracted with his eyes open and contracted not in the belief that the vendor did have title, but in the expectation that he would be

able to make title."

An absolute deed was not a "change of title" avoiding insurance policy by the fact that the grantor authorized the grantee to sell and and on a prior mortgage, and, if there was pay the owner's indebtedness to the grantee any proceeds left, give it to the grantor's wife, since such authorization was not irrevocable before a sale by the grantee.

6. Insurance 282 (2) -Equitable title compliance with condition that insured must have sole and unconditional ownership.

An equitable title in the insured is a sufficient compliance with a condition of the policy avoiding it if insured's interest is other than sole and unconditional ownership.

7. Insurance 328 (7)-Deed constituting a mortgage merely held not to avoid policy.

In other words, under the facts as pleaded, the respondent Ferguson was agreeing to deliver to the appellants title to a certain piece of property for a certain price, at a certained time, but in advance he was stating to the appellants that he was not the then owner of the property. Instead of being a fraud, this act was in the nature of taking due precaution to prevent fraud being charged against the respondent.

The judgment is affirmed.

That insured has conveyed property coverby a fire policy under absolute deed does not avoid the policy on the ground that insured has relinquished sole and unconditional ownership, where the deed is a mortgage merely, and only creates a lien incident to the secured debt.

8. Insurance 558(2)—Failure to make proof of loss no bar to recovery where prevented by insurer.

Where insurer's agents prevented insured We concur: LANGDON, P. J.; NOURSE, J. from making proof of loss, failure to make

(55 Cal. App. 391)

LEE et al. v. UNITED STATES FIRE INS.

such proof did not bar a recovery under the policy.

9. Insurance 559(1)-Denial of liability on another ground held waiver of proof of loss. Denial by insurer of all liability under the policy because of alleged change of ownership, (District Court of Appeal, Third District, Cal- made prior to the expiration of time to make

CO. et al. (Civ. 2368.)

ifornia. Nov. 26, 1921.)

proof of loss, is a waiver of the policy condition requiring such proof.

1. Money lent l-Promise to repay implied.
The law implies a promise to repay bor-10.
rowed money.

2. Mortgages 298 (4)-Obligation to recon-
vey land deeded as security merely upon pay-
ment of debt.

Where land is conveyed as security for a loan, the law imposes an obligation to reconvey upon payment of the indebtedness secured in view of Civ. Code, § 2941.

3. Appeal and error 1011(1)

Mortgages 38 (2)-Deed must be clearly shown to be a mortgage; province of trial court to determine on conflicting evidence whether deed is shown to be mortgage.

Clear and convincing evidence is required to show that a deed is a mortgage, but where there is a substantial conflict it is primarily for the trial court to determine whether the evidence in favor of claim of mortgage is clear and convincing.

Insurance ~556(2)—Adjuster may waive proof of loss.

Notwithstanding policy provision that no representative of the company "shall have power to waive any provision or condition of this policy," an insurance adjuster had authority to waive proof of loss.

Appeal from Superior Court, Tulare County; J. A. Allen, Judge.

Action by J. F. Lee and others against the United States Fire Insurance Company and another to compel conveyance of real property. Judgment for plaintiffs, and defendants appeal. Affirmed.

Miller, Thornton, Miller & Watt, of San Francisco, for appellants.

Lamberson & Lamberson, of Visalia, for respondents.

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

(203 P.)

[5, 6] Appellants urge that, even if the in violation of the provisions of its policy, had parted with all dominion over the propdeed was intended as a mortgage, Carey