implication that they were so contradictory | had not come to a complete stop. Q. What is rather than the fact that they were. Thus, that? A. I did say that the car did not come to to illustrate, witness Shoaf for plaintiff hav- a complete standstill. Q. Did you tell him any thing about a 'standstill-it came to a standstill ing testified upon direct examination that, in that conversation? Mr. Young: Now, one while he could give no definite distance in moment. We object to that, not the proper fourfeet, the car proceeded about 300 feet after dation for contradiction. We can't go into ererything she told. The Court: That is true. the accident before it came to a stop, he is Objection sustained. Q. Now, after having read asked upon cross-examination whether he that paper, did you not state to Mr. Breitendid not make a statement to Mr. Breiten- bucher on the 26th day of August, 1912, you, he, bucher, and replied that he did, when the and Mr. Tretheway being present, and also the driver of the automobile, whether he was in following took place: the house or not I don't know, that the car was "Q. Did you not in that statement say, the in motion when she stepped off which was about car went about one-half a block after the acci- 20 feet north of the street crossing; after the dent? A. (Witness) I don't think you will find lady fell the car went about one-half a block that in that statement. Q. Sir? A. I don't after the accident? Did you tell that to him at think you will find that in that statement. Q.that time? A. I say the car came very near to You please read this language and see if I find it | a standstill. Q. I haven't asked you that there or not. Read it please. (Hands paper to A. I beg your pardon, I didn't understand the witness.) A. Yes; that says 'half a block.' question. Q. Asking if you made this statement Q. Read what it says there, the car,' start with just read to you to Mr. Breitenbucher at that that; what does it say? Mr. Young: Well, I time? A. Well, I don't know that I worded it submit that is not the way to testify, if your just that way. If I did, I didn't understand it honor please; if the counsel wants to introduce in that way, because I have always said that the anything that contradicts him, let him introduce car didn't come quite to a standstill. But the it. We submit it is incompetent for him to read car started up-my idea of it, my understanding from the statement. The Court: The objection of what he said, was when the car started to go may be sustained. (To which ruling counsel for on over across the street. Q. Did you tell bi defendant then and there duly excepted. Excep- anything in that conversation about the car ber tion No. 6.) Q. And you didn't say the car ing-in the conversation that you had with Mr. went about one-half a block after the accident, Breitenbucher on the 26th day of August, 1912, did you? A. That is what I said. Q. What did you tell him anything about the car having is that? A. About half a block. Q. That is come to almost a stop? Mr. Young: We object what you said in that statement on June 26th- to it as incompetent, irrelevant, and immaterial, the 26th of August, 1912, wasn't it? A. Yes, more particularly incompetent, to get out tes sir. Q. Now, is your memory any better to-day timony in that way." than it was on August 26, 1912? A. Not that I know of. Q. How do you testify to-day that car went 200 or 300 feet? A. Well, that is in the neighborhood of my judgment a half a block would be 200 or 300 feet, one er the other wouldn't make no difference to me; I didn't measure the ground; just simply' offered it as-" Here the witness affirmed and explained the matters contained in her written statement. She did not deny having said those things, but declared what she meant by them When Mr. Breitenbucher was placed upon the witness stand, appellant's efforts were It is apparent that there could be no im-directed not to legitimate impeachment, but peachment of the witness in this condition to an effort to show a valueless negative, of the record. He admits that he used the that the witness did not make these explanalanguage contained in his written statement tions at the time he took down her state ment. The court's rulings that this evi and quite clearly explains it when he says that he regarded half a block as the equiva- dence was not legitimate evidence in inpeachment were correct. lent of 200 or 300 feet. [14] Witness McCann, motorman of the de The same is true of a similar effort to impeach Mrs. Shoaf. She had testified con- fendant's car, had testified to his having re cerning the accident that the car had not ac- ceived the signal bell to stop his car at Eighth tually stopped, but "it did come to near-street and that he proceeded so to stop it, ly a stop, so near-it was not stopped; but slowing it down, and that he made no stop it came very near to it. It was not quite a until the car had partially crossed Eighth stop; no, sir." Then upon cross-examina-street, when he brought it to a standstill at tion she was asked concerning the statement its usual place of rest. Upon cross-examinawhich she admitted that she made to Mr. Breitenbucher. The record discloses the following: "Q. Did he not in that conversation ask you, "How fast was the car going when Mrs. Froeming got off of the car'? And did you not answer him, I cannot state how fast the car was going at the time, but will state that I would not want to jump off while it was going at the rate it was'? A. (Witness) No, sir. If I answered I misunderstood; he asked me if I understood him right, how far, or how fast was the car going after it started, after the lady fell off, and I said I would hate to get off at the rate it was traveling. If I remember right, that is it. If he asked me the other question, I didn't understand it that way. Q. Did you not tell him in that same conversation that the car was in motion when this lady fell off? A. I did say that the car tion the foundation of time, place, circumstances, and persons present being laid, be was asked if he did not testify at the cor oner's inquest in certain language, and what purported to be his testimony was then read to him. He declared that such was his te timony save in one or two minor particulars, as that there were four passengers upon the front of the car with him instead of three, and that the rear end of his car was not at the Eighth street crosswalk, but further into Eighth street. Under these explanations no effort was made to impeach the witness by proving what in fact his testimony was at the coroner's inquest. We are unable to per ceive and we have not been shown the error which appellant asserts was embodied in the ruling permitting plaintiff's attorney to ask the question concerning the testimony which the witness had given at the coroner's inquest. [15] The jury was ably and painstakingly instructed by the court. Instruction 2 is in the following language: "If you believe, from the evidence in this case, that Eva Froeming attempted to alight from the while said car was in motion, and by reason of car of Stockton Electric Railroad Company such attempt she received injuries which resulted in her death, then I instruct you that she, in such an attempt to alight from said car (if you so believe that she did attempt to alight from said car while the said car was in motion), was guilty of negligence, and the plaintiffs herein cannot recover any damages by reason of her death, and your verdict must be for the defend ant." [17] Instruction 3, which the court gave, is in the following language: "It is the duty of a street railway company to afford a reasonable time for its passengers to alight from its cars at the place where the car stops for that purpose, and if a passenger is injured without fault on his part, while on the steps of a car slowing down for the purpose of enabling passengers to alight, preparatory to "It is not contributory negligence as a matter alighting when the car has stopped, by reason of law for a passenger to start to leave a street of a sudden starting of the car, the burden is car before it comes to a full stop, but it is a thrown upon the company to show that the in- question of fact for the jury to determine whethjury was not the result of its own act of neg-er the act of the passenger in so doing constitutligence." ed negligence on his or her part." Appellant complains of this instruction as declaring to the jury “that a passenger has a right to be on the steps of a moving car." Unquestionably a passenger has the right to be on the steps of a moving car at times. He has that right when he has embarked on the car and the car starts forward before he can enter it. He has the right (in the sense that he is not guilty of negligence per se in so doing) to be upon the steps of the car preparatory to debarking therefrom. [16] Were this not so, then his mere presence upon the step would in every case be negligence per se which would bar a recovery. Such, however, is not the law, as the court further instructed the jury in instructions 8 and 9 of which complaint is also made, and which are to the following effect: Of this complaint is made that it is misWhatever uncertainty appellant leading. may think exists in this one sentence, detached from the other instructions, is certainly removed when the instructions are read as a whole. [18] Appellant further objects to an instruction which the court gave, and which declares a familiar rule of law that the burden of proving contributory negligence is cast upon defendant. He argues that the rule of law is that the defendant is relieved from this burden if the evidence of the plaintiff establishes this contributory negligence. This is quite true. But the jury could not have been misled, for it was repeatedly instructed that if "from the evidence," meaning thereby "When it is shown that the injury to the pas- necessarily and of course all of the evidence, senger was caused by the act of the carrier in it believed Eva Froeming to have been guilty operating the instrumentalities employed in its of contributory negligence the plaintiffs could business, there is a presumption of negligence not recover. Moreover, if appellant desired which throws upon the carrier the burden of showing that the injury was sustained without an instruction embodying this particular any negligence on its part. It is for you to de- modification of the general principle it should termine whether or not a passenger is guilty have proposed it. None of the other asserted of contributory negligence in going upon the platform of a car or the steps thereof preparaerrors, either in giving or refusing to give tory to alighting therefrom when the car stops. instructions, requires further detailed consid"Contributory negligence on the part of a pas-eration. The proposed instructions, the givsenger cannot be presumed from the mere fact of ing of which was refused, either were erinjury, but must be proved, and the burden of proving contributory negligence on the part of roneous in point of law, or were adequately the injured person is cast upon the defendant." covered by instructions which the court actually gave. That these instructions fairly embrace the law is fully established by Boone v. Oakland Transit Co., supra; Renfro v. Fresno City Ry. Co., supra; Valente v. Sierra Ry. Co., supra; Kline v. Santa Barbara Ry. Co., 150 Cal. 741, 90 Pac. 125; Dougherty v. Union Traction Co., 23 Cal. App. 17, 136 Pac. 722; Scott v. Bergen Traction Co., 63 N. J. Law, 407, 43 Atl. 1060. And, finally, to show the completeness with which the trial judge covered this phase of the law, the court further, at the request of appellant, gave the following instructions upon this matter: "If you believe, from the evidence in this case, that Eva Froeming stepped off of the car, or attempted to alight from the car of the defendant, while said car was in motion, and before the said car had stopped, then she was guilty of contributory negligence in this case, and the plaintiffs herein are bound by such contributory negligence, and they cannot recover in this case, and your verdict must be for the defendant. [19] We are asked to declare that the ver dict-a judgment in the sum of $18,000—is excessive. The deceased was devoted to her husband and children. Of the latter, three were girls of tender years, and all were minors under the age of 14 years. The deceased had a knowledge of accounts and computation and had been a bookkeeper in a bank, She aided her husband, who was a contrac tor, in the computations necessary for his bids in the matter of his contracts. At the time of her death she was working to help maintain her home. It cannot be said that the award of the jury was excessive. Valente v. Sierra Ry. Co., 158 Cal. 412, 111 Pac. 95. The judgment and order appealed from are therefore affirmed. We concur: MELVIN, J.; LORIGAN, J. (28 Cal. App. 646) by the defendant as the party to be charged. SPRECKELS v. GRACE DARLING HOS- The complaint further states that the plainPITAL ASS'N. (Civ. 1575.) tiff approved, ratified, and performed the (District Court of Appeal, First District, Cal- portion of said contract to be performed by ifornia. Oct. 22, 1915.) 1. PARTIES 76 SUING BY FICTITIOUS NAME-DEMURRER. Where plaintiff does business under a fictitious name, the question as to his want of legal capacity to sue, through having failed to comply with Civ. Code, §§ 2466, 2468, providing that every person transacting business under a fictitious name must file a certificate with the county clerk, and publish the same, and that such person shall not maintain an action upon any contract made under such fictitious name if he has not made such filing and publication, may be raised by special demurrer when the fact that he is doing business under a fictitious name within the meaning of the sections appears upon the face of the complaint. [Ed. Note. For other cases, see Parties, Cent. Dig. §§ 117-121; Dec. Dig. 76.] 2. NAMES 10-SUING UNDER FICTITIOUS NAME-STATUTE. Where plaintiff published a morning newspaper, "The San Francisco Call," through one C., the ostensible publisher thereof, and the paper, under a contract with defendant signed by "The San Francisco Call, C., Publisher," printed advertising for defendant, plaintiff could recover on the contract, though he had not complied with Civ. Code, §§ 2466, 2468, providing that every person doing business under a fictitious name must file a certificate with the county clerk, and that one failing to comply shall not maintain an action upon any contract made under such fictitious name, since, at most, plaintiff was the owner and proprietor of the newspaper and engaged in the business of publishing it under the name of its ostensible publisher, which was not fictitious. [Ed. Note.-For other cases, see Names, Cent. Dig. 7: Dec. Dig. 10.] Appeal from Superior Court, City and County of San Francisco; Marcel E. Cerf, Judge. Action by John D. Spreckels against the Grace Darling Hospital Association. From a judgment in favor of defendant on demurrer, plaintiff appeals. Reversed, with instructions. Arthur Crane, of San Francisco, for appellant. Jos. J. Webb, of San Francisco, for respondent. RICHARDS, J. This is an appeal from a judgment in favor of the defendant after an order sustaining its demurrer to the amended complaint; the plaintiff having refused to further amend. The action is one brought to recover for the agreed price of certain advertising published in "The San Francisco Call," in accordance with a contract in writing which is set forth in the complaint; the plaintiff alleging that he was at the date of the filing thereof the owner and proprietor of the "San Francisco Call," a morning newspaper, and that one W. W. Chapin was his agent in the publication thereof. The advertising contract shows upon its face that it was made with "The San Francisco Call, W. W. Chapin, Publisher," and is signed only him, by printing and publishing the advertisement of the defendant in said newspaper for the specified time. The same cause of action is also pleaded in a second count in the complaint in the form of the common count for services performed. is also special, upon the ground of uncertainThe defendant's demurrer is general, and ty, and also upon the ground that the plaintiff has not the legal capacity to sue. The point raised upon this special demurrer is that the complaint shows that the plaintiff is doing business under a fictitious name, and that it does not appear therefrom that he has complied with the provisions of sections 2466 and 2468 of the Civil Code. These are the sections of the Civil Code which provide that every person transacting business in this state under a fictitious name must file with the county clerk a certain certificate and publish the same for a specified length of time, and providing, further, that such person shall not maintain an action upon any contract made or transaction had under such fictitious name, unless such filing has been done and such publication made. [1] It is conceded by the respondent that by the special demurrer on the ground of uncertainty the question of the plaintiff's compliance with these sections of the Civil Code cannot be raised; but the respondent insists. and we think correctly, that the question as to the plaintiff's want of legal capacity to sue may be raised by special demurrer on that ground, when the fact that he is doing business under a fictitious name within the meaning of these sections of the Civil Code appears upon the face of the complaint. Sweeney v. Stanford, 67 Cal. 636, 8 Pac. 444. The trial court sustained the special demurrer of the defendant upon this latter ground; and from its judgment made in pursuance of the order sustaining such demurrer the plaintiff has appealed. [2] We are of the opinion that the court was in error in sustaining the defendant's demurrer upon this ground. This is not a case where, in our view, the fact that the plaintiff is engaged in business under a fictitious name appears on the face of his complaint. The complaint affirmatively shows that the business in which the plaintiff is engaged is that of publisher of a newspaper known as "The San Francisco Call." name of this newspaper is not fictitious, but is as real as the name of a hotel or a building or a steamship, or any other medium of business or article of commerce, which, for convenience or of necessity, should have a particular designation. The complaint further aflirmatively shows that the plaintiff is engaged in conducting the business of publish The LESS ERROR-ADMISSION OF EVIDENCE. On a trial for selling liquor in no-license territory, a witness volunteered the information that defendant had committed other similar offenses. Defendant moved to strike out this testimony, but the court, though stating that it was In his immaterial, refused to strike it out. closing argument the district attorney, in commenting on the relative credibility of defendant and the witnesses for the state, said that the state's witnesses told the details, and that in he met defendant and asked him for a little botthe statement of one of the witnesses he said tle, or something like that, and that he said, "Of course, I have bought plenty of them before," or "plenty of them there." Defendant's serted his right to comment on the testimony, counsel objected, and the district attorney asinasmuch as the court had permitted it to stand. The court remained silent, and the district attorney continued his argument, substanHeld that, in the light of this argument, the tially repeating the incompetent testimony. ing said newspaper under the name of his 3. CRIMINAL LAW 1168-APPEAL-HARMagent, W. W. Chapin, who is the ostensible publisher thereof. The particular contract upon which the contract is based and which is set forth in full in the complaint shows upon its face that W. W. Chapin is the publisher of said newspaper. It is not contended that the name of W. W. Chapin is fictitious; and, this being so, it seems to be clear that the utmost which the complaint discloses is that the plaintiff is the owner and proprietor of said newspaper, and is engaged in the business of publishing the same under the name of W. W. Chapin, its ostensible publisher, and of whom the plaintiff is the undisclosed principal in such publication. This state of facts does not bring the plaintiff within the terms of sections 2466 and 2468 of the Civil Code; and it therefore follows that he was not required to make any show-refusal to strike out the testimony was prejuing in his complaint as to whether or not he had complied with the terms of said sections of the Code. It follows that the court was in error in sustaining the defendant's special demurrer upon this ground. We also think the complaint good as against the special demurrer, on the ground of uncertainty, and as against a general demurrer, and that the ruling of the court in sustaining the same upon these grounds was also error. dicial, since, while the erroneous ruling might not have wholly controlled the verdict, it undoubtedly contributed to it. Law, Cent. Dig. §§ 3124, 3125, 3129-3136, 8144; [Ed. Note.-For other cases, see Criminal Dec. Dig. 1168.] Appeal from Superior Court, Fresno Coun ty; Geo. E. Church, Judge. Bob Clark was convicted of an offense. and he appeals. Reversed and remanded. Burns & Watkins, of Fresno, for appellant. U. S. Webb, Atty. Gen., for the Peo Judgment reversed, with instruction to the trial court to overrule the demurrer and require the defendant to answer within the ple. usual time. LENNON, P. J. The trial court rightly We concur: LENNON, P. J.; KERRI- refused to permit the defendant upon his GAN, J. (28 Cal. App. 670) PEOPLE v. CLARK. (Cr. 580.) (District Court of Appeal, First District, California. Oct. 27, 1915.) trial for selling alcoholic liquor in a "nolicense" territory to have in evidence cer· tain records of the board of supervisors ot Fresno county showing the boundaries of Sanger precinct No. 1 and Sanger precinct No. 2, of which precincts the "no-license" territory in question formed a part. [1] The purpose of the proffered proof was to show an alleged irregularity in the proceedings preceding and culminating in the formation of the "no-license" territory, which, it is asserted, was fatal to the territory's legal existence, and therefore rendered its purported formation ineffectual for any purpose. In other words, the defendant 1. INTOXICATING LIQUORS 36-LOCAL OPTION ELECTIONS-COLLATERAL ATTACK. Under the Wylie Local Option Law (St. 1911, p. 601) 8 10, providing that in prosecutions for violations thereof, the minutes of the governing body showing the number of votes cast at an election shall be prima facie evidence that the territory in which such election was had is no-license territory, providing the minutes do not show that at such election there was a majority vote in favor of license, a person prosecuted for selling liquor in no-license territory cannot collaterally challenge the validity by the proffered proof proposed to collatof such no-license territory by showing an alleged irregularity in the proceedings preceding and culminating in the formation of such territory, as the statute is merely intended to facilitate the presentation of the required proof. [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 43, 44; Dec. Dig. 36.] erally challenge the validity of the "no-li- The statute in question here does not con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes template, as counsel for defendant contends, that the invalidity of the "no-license" territory may be interposed and shown as a defense to the prosecution of a charge of having violated the statute. If it did, we would be constrained to pronounce the ruling complained of erroneous upon the authority of the following cases: Carnes v. State, 23 Tex. App. 449, 5 S. W. 133; Curry v. State, 28 Tex. App. 475, 13 S. W. 752; Henry v. State (Tex. App.) 16 S. W. 342; Gaines v. State, 37 Tex. Cr. R. 73, 38 S. W. 774; Chapman v. State, 37 Tex. Cr. R. 167, 39 S. W. 113; Bowman v. State, 38 Tex. Cr. R. 14, 40 S. W. 796, 41 S. W. 635; Keller v. State, 46 Tex. Cr. R. 588, 81 S. W. 1214; State v. Kline, 50 Or. 426, 93 Pac. 237. In our opinion, this clause of the statute under consideration was not enacted for the purpose of permitting, nor does it in terms nor by necessary implication permit, a collateral attack upon each and every step in the proceedings under which a "no-license" territory may be created, and, in the absence of express terms or a compelling implication to that effect, the statute should not be so construed, for, as was said in Barton v. State, 43 Fla. 477, 31 South. 361, quoting from State v. Cooper, 101 N. C. 684, 8 S. E. 134: "The law contemplates and intends, generally, that the result of an election, as determined be effective until it shall be regularly contested by the proper election officers, shall stand and and reversed or adjudged to be void by a tribunal having jurisdiction for that purpose. would lead to confusion and ridiculous absurdity to allow the be contested every time the result of it, as determined by the election officers, became collaterally in a litigation. It result of an election to able to prove facts showing that the election "In the present case the defendant might be mentioned was void for one cause or another; another defendant, charged with a like offense, might be less fortunate, and the state might indefinitely. The law does not provide for such show that it was regular and valid; and so on continual and repeated contests in every case that may arise. It intends that one contest, properly instituted for the purpose, shall establish the validity or invalidity of the election questioned. If the present defendant or others were dissatisfied with the conduct of the election, or the result of it as declared, they should might have done, to contest its validity and the have promptly brought their action, as they correctness of the ascertained result." The provision of our statute relating to the prima facie proof to be presented by the prosecution upon a charge of having violated the statute is, we think, different in its scope and effect from those provisions (re lating to the same subject) of the statutes which were under review in the cases last above cited. A consideration of those cases discloses that in each instance the statutes there under review provided that in prosecutions for a violation of the law either the order for a local option election or the order of the county clerk declaring the result of such an election should be prima facie evidence of the jurisdiction of the court to proceed in the premises and of the regularity of the proceedings employed in the formation of the local option district; in other words, the In our opinion, the legislative intent in statutes under review in the cases last re- the enactment of the provision of section 10 ferred to, in effect, provided that in a prose- of the Wylie Local Option Law was to facilicution under the statutes the order of the tate the presentation of the proof required governing body declaring the result of a local in a criminal prosecution for the violation of option election should be prima facie evidence the statute, and this construction of the statthat the local option district had been regu- ute is fully supported by the case of People larly initiated and legally created. Of v. Mueller, 168 Cal. 521, 143 Pac. 748, L. R. course, as the cases last cited hold, if such A. 1915B, 788, where, in holding that courts order was but prima facie evidence of the fact which it purported to prove, it was sub-may not take judicial notice of the fact that a local option election has been had or of the ject to rebuttal by competent proof which record of such an election, it said: tended to show a failure to conform to all or any one of the essential requirements of the statute providing for the formation of the local option district. Our statute (the Wylie Local Option Law) does not provide that in prosecutions for the violation of the law the original record of the formation of the local option district as evidenced by the minutes of the governing body shall be prima facie evidence of the legality of each step in the proceedings leading up to and culminating in the creation of a "no-license" territory. It declares merely that in such prosecution the minutes of the governing body showing the number of votes cast at an election shall be prima facie evidence that the territory in which such election was had is "no-license" territory, providing said minutes do not show "that at said election there was a majority vote in favor of license." "The last clause of section 10 provides that in any prosecution under the act the record of the governing body of the city, town, or district showing the number of votes cast at the election or a duly certified copy thereof shall be prima facie evidence that the territory in which the election was held is 'no-license' territory. If the court must take judicial notice of the fact, this provision would be wholly useless. The necessary inference is that the Legislature believed that proof would be required as of ordinary matters in pais, and that the provision was intended to facilitate such proof." This being the purpose of the provision in question, then, of course, it cannot be availed of to support a collateral attack upon the validity of a "no-license" territory, such as the defendant attempted to make in the present case. [2, 3] The trial court erred, however, in refusing to strike out on motion of counsel for defendant certain testimony volunteered |