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[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 403-407; Dec. Dig. § 127.*]

Department 1. Appeal from Superior Court, Los Angeles County; Frederick W. Houser, Judge.

Action by Helen M. Borden against Gail Borden. There was a judgment for defend ant, and, from an order denying a new trial, plaintiff appeals. Affirmed.

Collier & Clark, of Los Angeles, for appellant. Chase, Overton & Lyman, of Los Angeles, for respondent.

after the separation by mutual consent, she she remarried, $500 per month for her supasked her husband to return to her, and that port and maintenance, and the further sum he refused to do so, and the testimony of the only corroborating witness was not a suffi- of $150 per month for the support, maintecient corroboration as required by Civ. Code, nance, and education of their minor daughter, § 130, a finding that no desertion was shown so long as such daughter elected to live with was warranted. the mother and until she became of age. It was expressly declared that the agreement was not intended as an agreement for separation or for divorce, and was to be binding whether the parties lived together or apart. home, telling plaintiff that he thought it On July 29, 1909, defendant left the family would be better that they separate entirely. The evidence shows that the parties had not been living happily together for many years prior to this separation. Plaintiff, in response to a question by the court as to how they came to separate at that time, said "because we could not get along together." She at no time claimed to have objected in any way to the proposed separation. there is ample support for a conclusion that [1] A review of the record satisfies us that the separation in July, 1909, was by mutual that such a consent should be expressed in consent of the parties. It is not necessary writing, or even expressed in words. It may be implied from circumstances which tend to show the plaintiff's consent, or that the sepaSee Mcration was not against her will. Mullin v. McMullin, 140 Cal. 115, 73 Pac. 808. "Separation by consent, with or without the understanding that one of the parties will apply for a divorce, is not desertion" (section 99, Civ. Code); a separation, proper in itself, becoming desertion only when the intent to desert is fixed during such separation (section 100, Civ. Code).

ANGELLOTTI, J. This is an action for divorce on the ground of desertion. Judgment was given decreeing that plaintiff is not entitled to a divorce. We have an appeal here by plaintiff from an order denying her motion

for a new trial.

Though defendant filed an answer denying the allegation of desertion, he in no way opposed the claim of plaintiff to a divorce on

that ground on the trial, and the findings of

the judge of the trial court show that he was of the opinion that there was a sufficient showing of both connivance and collusion to warrant him in denying a divorce. Civ. Code, §§ 111, 112, 114. It is not necessary to go into the question whether the learned judge was correct in this conclusion, for we are satisfied that the order denying a new

trial must be affirmed for another reason.

This action was commenced June 16, 1911. The allegations as to desertion were contain

ed in paragraph 2 of the complaint and were "that during the month of July, 1909, and without any cause or provocation whatsoever,

* the defendant willfully deserted and abandoned the plaintiff herein, and for more than one year last past has continued to willfully and without cause desert and abandon the said plaintiff." The trial court found "that each and all of the allegations contained in paragraph 2 of the complaint are untrue." If this finding has sufficient support in the record, it precludes a reversal, regardless of all questions of connivance and collusion.

The parties, who have been husband and wife ever since December 5, 1893, separated on July 29, 1909, and have never lived together since the last-named date. On June 8, 1909, they had entered into a most carefully prepared written agreement, to "operate as and be a complete adjustment and settlement and division of all property rights of the parties." By this agreement certain real and personal property of apparently considerable value was set apart to plaintiff, and defendant agreed to pay to plaintiff during her life, or until, in the event of a divorce,

[2] As said in the case last cited, "it is for the court trying the case to determine from all the facts and circumstances appearing in the case whether or not there was an absence of that consent to living separate and apart which is essential to constitute a desertion."

[3] We repeat that ample support is to be found in the record for the conclusion that the separation in July, 1909, was by mutual consent of the parties. Accepting this as a fact, as we must in view of the finding of the trial court, there was no desertion at that time (section 99, Civ. Code), and the separation could become desertion only by reason of something transpiring thereafter.

[4] The only thing capable of changing the character of the separation that is suggested by the evidence is a possible effort on the part of plaintiff for reconciliation and restoration. Section 101, Civil Code, provides that "consent to a separation is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion." It may be conceded that plaintiff was entitled to show such an effort for reconciliation and restoration notwithstanding the

The order denying a new trial is affirmed.

We concur: SLOSS, J.; SHAW, J.

LONG v. RYAN et al.
(Supreme Court of California.
1. DEEDS (§ 61*).
GRANTOR.

(166 Cal. 442) (L. A. 3433.)

Dec. 3. 1913.) DELIVERY ON DEATH OF

Where an owner of land executes a deed

absence of specific allegation in that behalf of the amount of credit to be given to the in the complaint; the ultimate fact of deser- witnesses was not solely one for the trial tion being alleged. Howard v. Howard, 134 court. Cal. 346, 66 Pac. 367. So conceding, however, there could be no desertion until the seeking of reconciliation and restoration, until the offer is made and refused or not accepted. "So long as the parties were living apart by agreement, there was no desertion. When, however, a reconciliation and restoration were, in good faith, sought by the plaintiff and refused by defendant, such refusal became desertion." Howard v. Howard, supra. The desertion does not begin until such offer and refusal. The section (section 101, Civ. Code) says "such refusal is desertion." As said in Sargent v. Sargent, 106 Cal. 544, 39 Pac. 932, the only effect of the section "is to put the recalcitrant spouse in default, and to give to the other a right which he did not have under the previously existing circumstances; a right which, if such refusal be persisted in for the statutory period, will ripen into a cause for divorce." It is provided by section 107, Civil Code, that willful desertion must continue for one year before it is a ground for divorce.

[5] While plaintiff testified that in December, 1909, she asked defendant to return to her, and that he then refused to do so, there is in the record ample warrant for a conclusion that there was no sufficient corroboration of her statements in that regard. She further testified that she again spoke to him about it in July, 1910, when he was in Los Angeles. This, however, was less than a year prior to the commencement of this action, and it is unnecessary to determine whether these statements were sufficiently corroborated. The testimony of the only witness called to corroborate plaintiff's testimony, viz., Louise Grijalva, is certainly not of such a nature as to warrant us in holding that it required the trial judge to conclude that it was a sufficient corroboration of plaintiff's testimony as to any offer of reconciliation and restoration made as much as a year prior to the commencement of this action. Section 130, Civil Code, in terms provides that "no divorce can be granted

upon the uncorroborat

and delivers it in escrow, directing the deposi-
tary to hold it during his lifetime and at his
death to deliver it to the grantee, such delivery
is effectual and takes effect upon the death of
the owner, where the delivery in escrow was
might regain control of the deed.
made without any condition by which the owner

[Ed. Note. For other cases, see Deeds, Cent.
Dig. §§ 140, 141; Dec. Dig. § 61.*]
2. DEEDS (§ 61*)-DELIVERY-ESCROW-AB-
SOLUTE DELIVERY.

Where an owner of land executed a deed and delivered it in escrow under written in

structions requiring the depositary to hold the
deed until 1910, at which time, if the owner
should be living, to return it to her, and, in
deliver it to the grantees, the owner retained
the event of her death during the interval, to
such control over the instrument that the de-
livery was ineffectual to pass title, notwith-
standing her death prior to 1910.

Dig. 88 140, 141; Dec. Dig. § 61.*]
[Ed. Note.-For other cases, see Deeds, Cent.

Department 1. Appeal from Superior Court,
Los Angeles County; Curtis D. Wilbur,
Judge.

Action by Stephen G. Long, administrator, against Mary N. Ryan and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Affirmed.

Edwin A. Meserve, of Los Angeles (Shirley E. Meserve and J. D. Taggart, both of Los Angeles, of counsel), for appellants. J. B. McLaughlin, of Los Angeles, for respondent.

SHAW, J. The defendants appeal from the judgment and from an order denying a new trial.

The action was brought to annul and cancel a deed purporting to have been executed ed statement, admission or testimony of the on July 22, 1905, by the decedent, Sarah M. parties." It thus appears that, regardless of Ryan, conveying certain parcels of land to the question whether the trial court was her two daughters, the defendants herein. bound to accept as true the testimony of On the day of its date the deed was deliverplaintiff and the witness called by her for ed in a sealed envelope by the grantor to the corroboration purposes, as is earnestly urged Title Insurance & Trust Company as custoby learned counsel for plaintiff, it cannot be dian, with directions for its delivery upon held that the conclusion of the trial court, certain contingencies to happen within a that no desertion constituting ground for di- fixed period. The contingencies did not vorce was shown, is without sufficient support happen within the time fixed, and there were in the record, in view of the rule requiring several extensions made by her. Finally, on corroboration of the plaintiff's testimony. July 16, 1907, the deed being in the possession Therefore we are not warranted in disturbing of the custodian, she indorsed upon the enthe finding, and, as said before, that finding velope instructions for delivery in substance precludes a reversal. Nothing said herein is as follows: This deed you will hold until July to be taken as an intimation that the question | 22, 1910, at which time, if I be then living, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

you will deliver the same to me, but if I should die in the meantime, you will thereupon immediately upon my death deliver said deed to my daughters Mary N. Ryan and S. Maude Ryan.

tary, reserving the right to recall it, yet if he dies without recalling it, and the deed is then delivered, such delivery is complete and entire and carries title. We are not disposed to indorse that doctrine." In Wittenbrock v.

On September 26, 1908, she died intestate, | Cass, referring to Bury v. Young, the court leaving surviving as her sole heirs the two daughters aforesaid and one son. Thereafter the custodian delivered the said deed to the daughters, who placed the same of record and now claim title thereunder.

The court found that the grantor did not at any time intend to part with her title to the property described in said deed, or with the dominion and control over the deed, during her lifetime, but intended to and did retain control over said deed and the title to said property during her lifetime, and that she intended that the deed should not be delivered, and that no title to the property should pass thereunder until after her death: Upon this the court concluded that the deed never was delivered and gave judgment that it be canceled.

[1] It has been many times declared by this court that where the owner of land signs a deed therefor to one person and thereafter delivers such deed to a third person, with directions to such third person to hold the same during the lifetime of such grantor and upon the grantor's death to deliver it to the grantee, intending at the time of such delivery to the custodian to part forever with all right or power thereafter to repossess, retake, or control the deed, such delivery is effectual and valid, and upon the death of the grantor the estate goes, by virtue thereof, to the grantee, who may then compel delivery, if necessary. Bury v. Young, 98 Cal. 446, 33 Pac. 338, 35 Am. St. Rep. 186; Wittenbrock v. Cass, 110 Cal. 1, 42 Pac. 300; Ruiz v. Dow, 113 Cal. 494, 45 Pac. 867; Kenney v. Parks, 125 Cal. 150, 57 Pac. 772; Schuur v. Rodenback, 133 Cal. 88, 65 Pac. 298; Howlin v. Castro, 136 Cal. 605, 69 Pac. 432; Canale v. Copello, 137 Cal. 24, 69 Pac. 698; Wilhoit v. Salmon, 146 Cal. 446, 80 Pac. 705; Keyes v. Meyers, 147 Cal. 704, 82 Pac. 304; Estate of Cornelius, 151 Cal. 550, 91 Pac. 329; Moore v. Trott, 156 Cal. 355, 104 Pac. 578, 134 Am. St. Rep. 131; Husheon v. Kelley, 162 Cal. 660, 124 Pac. 231.

But these decisions declare that it is essential to the validity of such delivery that it shall be made without any conditions whereby the grantor may again obtain control of the deed. In Bury v. Young the court says: "The essential requisite to the validity of a deed transferred under circumstances as indicated in this case is that, when it is placed in the hands of the third party, it has passed beyond the control of the grantor for all time." And again: "There are wellconsidered cases holding that, even though the grantor delivers the deed to the deposi

said: "It was further held that the essential requisite to the validity of a deed transferred under such circumstances is that, when placed in the hands of a third party, it has passed beyond the control of the grantor for all time." In Moore v. Trott the court, referring to the delivery to a third person, says that such delivery is valid, “provided always, and this is the essential condition of the validity of such transfers, that the delivery is absolute so that the deed is placed beyond the power of the grantor to recall it or control it in any event."

[2] The present case cannot be distinguished in principle from Kenney v. Parks, supra. There the husband signed and acknowledged a deed purporting to convey land to his wife and delivered it to a third person, with directions that, if his wife should survive him, the deed should be delivered to her, but with the intent that, if he survived his wife, the deed was not to pass the title and was to be returned to him. This intent was not expressed in the written directions, but the court held that it was necessarily implied, and, as a consequence, that the husband did not part absolutely and unconditionally with all control over the deed, and that it was not valid. In the present case the intent that the title should not pass upon the condition of the survival of the grantor until after July 22, 1910, was expressed in the writing itself. Her intent, therefore, must have been that upon that contingency there should be no delivery of the deed, and that it should be ineffectual to pass title, but that such title was to remain vested in the grantor. This sustains the finding of the court aforesaid and establishes the fact that there was no valid delivery of the deed within the rule established by the cited decisions. The contention that the finding aforesaid is not sustained by the evidence is based solely upon the theory that it was made upon an erroneous construction of the effect of the written directions given by the grantor to the custodian. We think the court could not have construed them otherwise and that this finding was correct.

The appellants in their reply brief urge that the court erred in its rulings upon the evidence during the trial. We do not find it necessary to consider these points. The alleged errors do not at all affect the facts upon which our conclusion is based and which necessarily control the decision of the case. The judgment and order are affirmed.

We concur: ANGELLOTTI, J.; SLOSS, J

(166 Cal. 457)

exercise the care that an ordinarily prudent TOUSLEY V. PACIFIC ELECTRIC RY. CO. person would use under similar circumstances.

(L. A. 3222.)

(Supreme Court of California.

Dec. 3, 1913.)
Rehearing Denied Jan. 2, 1914.)

1. RAILROADS (§ 347*) - INJURIES AT Cross-
INGS-NEGLIGENCE-QUESTION FOR JURY.

In an action against an interurban railway company for injuries to a traveler in a collision at a street crossing, evidence held to sustain a finding of actionable negligence in the operation of the train.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1124-1137; Dec. Dig. § 347.*] 2. RAILROADS (§ 350*) — INJURIES AT CROSSINGS-NEGLIGENCE QUESTION FOR JURY. Whether the speed of an interurban train at a crossing was so excessive as to be negligence depends on the particular circumstances, and where reasonable men may differ whether the speed showed a want of reasonable care, the question of negligence in maintaining the speed is for the jury.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. 88 1152-1192; Dec. Dig. § 350.* 3. APPEAL AND ERROR (§ 1005*)-VERDICT— CONCLUSIVENESS.

A verdict sustained by evidence and approved by the trial court is conclusive on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948-3950; Dec. Dig. § 1005.*]

4. NEGLIGENCE (§ 93*)-CONTRIBUTORY NEGLIGENCE-IMPUTED NEGLIGENCE.

The negligence of an owner in driving his automobile is not imputed to his guest, having no control over its operation.

[Ed. Note. For other cases, see Negligence, Cent. Dig. 88 147-150; Dec. Dig. § 93.*] 5. TRIAL (§ 337*)-INSTRUCTIONS-VERdict.

Though the jury should follow the instructions, a verdict contrary to an erroneous instruction is not against the law, and will not be disregarded.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 790; Dec. Dig. § 337.*]

6. RAILROADS (§ 351*)-INSTRUCTIONS-MISLEADING INSTRUCTIONS.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. 88 99, 100; Dec. Dig. § 72.*] 8. TRIAL (8 191*)-INSTRUCTIONS-INVADING PROVINCE OF JURY.

An instruction in part as to the facts, and on matters within the exclusive province of the jury, is properly refused.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 420-431, 435; Dec. Dig. § 191.*]

Department 1. Appeal from Superior Court, Los Angeles Junty; N. P. Conrey, Judge.

Action by D. Augusta Tousley against the Pacific Electric Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

J. W. McKinley, of Los Angeles (R. C. Gortner, of Los Angeles, and W. W. Webster, of Pasadena, of counsel), for appellant. E. B. Drake, of Los Angeles, for respondent.

ANGELLOTTI, J. Plaintiff obtained judgment against defendant for $2,500, in an action brought by her to recover damages for personal injuries alleged to have been received through the negligence of defendant. We have here an appeal by defendant from such judgment, and from an order denying its motion for a new trial.

The injuries suffered by plaintiff were received in a collision between an automobile in which she was riding as a guest of its owner and a two-car interurban train of defendant running from the city of Long Beach to the city of Los Angeles. The accident occurred about 2 o'clock p. m. on Sunday, May 7, 1911, at the crossing of Hill street over the double tracks of defendant at the northerly city limits of Long Beach. A Mr. Loftus, the owner of the automobile, was driving, and seated with him on the front seat was the grandson of plaintiff, while Mrs. Loftus and plaintiff occupied the rear seat. They had been proceeding northward from Long Beach to Los Angeles along American avenue, and on reaching Hill street it was necessary to turn into that street and go over the tracks of defendant, which there crossed Hill street. On approaching the crossing, Loftus reduced the speed of his machine, turned to make the crossing, and at a rate of speed from two to four miles an hour, ascended a slight grade of about 18 inches to the westerly track. According to his testimony, it was not until he had partially passed over that track that he became aware of the approach of defendant's train on the easterly track. The train was then only some 250 or 300 feet away, coming at a rate of speed variously estimated at from 35 to 50 miles an hour. The evidence was The conduct of plaintiff, on finding himself such as to fully warrant the conclusion that in sudden peril by the negligence of defendant, must be judged in view of the circumstances, it was traveling at the rate of as much as and, to avoid contributory negligence, he must 40 miles an hour, or nearly 60 feet a second. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

An instruction, in an action against an interurban electric railroad company for injuries to a traveler in an automobile in a collision with a car at a crossing, that if plaintiff was riding in the machine owned and driven by a third person, and had no control over it, the carelessness of the driver, contributing to the accident, could not be imputed to plaintiff, but to sustain the defense of contributory negligence, it must appear that it was his personal failure to exercise ordinary care that caused his injuries, and that if at the time of the accident he used ordinary care, he was not guilty of contributory negligence, when considered as a whole, correctly submitted the issue of contributory negligence of plaintiff personally, distinguished from that of the driver of the machine, and that to defeat a recovery, plaintiff must have been guilty of want of ordinary care contributing to his injuries, provided he had no control over the driver. [Ed. Note.-For other cases, see Railroads, Cent. Dig. 88 1193-1211, 1213-1215; Dec. Dig. § 351.*]

as

7. NEGLIGENCE (8 72*)-CONTRIBUTORY NEGLIGENCE-ACTS CONSTITUTING.

According to his testimony, Loftus put on | speed of the train, and that a rate of speed his emergency brake and disconnected his clutch, but the machine moved forward far enough to be struck by the train and to be thrown over 30 feet away.

of 35 or 40 miles an hour for an interurban train at and near the point where the accident occurred is not so excessive as to constitute negligence. As was said in Bilton [1, 2] It is earnestly contended by defend- v. Southern Pacific Co., 148 Cal. 443, 447, 83 ant that there is no foundation in the evi- Pac. 440, 442: "There can be no doubt that dence for any finding of negligence on its the question as to whether or not a rate part. Except where its tracks crossed of speed at a crossing is so dangerous or exstreets, defendant was operating its train cessive as to constitute negligence must deover its own private right of way. For pend upon the particular circumstances there certainly much more than 1,000 feet from existing, and if the circumstances are such Hill street southerly the tracks of defendant that reasonable and impartial men may well were straight and on level ground. There differ as to whether the speed maintained at was nothing at Hill street to interfere with the particular place showed a want of reathe vision of any one approaching the tracks sonable care, the question as to whether the on either side for that distance except the railroad company was guilty of negligence in trolley poles located in the 9-foot space be- | maintaining such speed is one for the jury" tween the two tracks, at intervals of about (citing authorities). It is true that in the 90 feet, and a little station building about Bilton Case the evidence was of such a 8x10 feet in size on one side of the west-nature as to show a more dangerous crosserly track, about 1,000 feet away. The trol- ing than that in the case at bar. But we do ley poles averaged about 12 inches in diam- not feel warranted in holding that the cireter. There was evidence indicating that cumstances appearing in this case were not to one standing near the westerly rail of the such that reasonable and impartial men might westerly track at the Hill street crossing, not well differ on the question of defendant's these poles presented a continuous obstruc- negligence. We have here a public street in tion to the vision from a point say 400 or a fairly populated neighborhood, the photo500 feet distant, so far as the easterly track graphs in evidence showing at least six was concerned, the poles so running togeth-houses fronting on American avenue within er as the distance from one so standing near the rail referred to increased as to present to his vision an impenetrable wall from a point 400 or 500 feet distant. Of course the further to the west from such rail that one stood, the further away would be the point at which the poles would so run together as to completely obstruct his view of the easterly track. There was evidence from which it might properly be concluded that the station or waiting room would, for a moment, prevent one approaching the west-ed, from a point a few hundred feet from erly track from seeing a car on the easterly track in its vicinity. As we have said, this accident occurred on a Sunday afternoon. The crossing was one much used by automobiles going to and from Long Beach, and naturally there was more of this on Sunday than on other days. Apparently there was no device at the crossing to warn those approaching it of the proximity of cars of the defendant. There was testimony of such a nature as to legally support a conclusion that no whistle was sounded or bell rung until the warning whistle was given when the approach of the automobile was discovered by the motorman on the train, which was apparently at or after the time that Loftus saw the train and was endeavoring to stop his machine. As we have said, the jury was warranted in concluding that the train was going at the rate of 40 miles an hour, or about 60 feet a second.

[3] We do not think that it can fairly be held, as matter of law, that the defendant was not guilty of negligence in view of the circumstances stated. It is said that the

1,000 feet, crossing the tracks of defendant; a crossing much used by automobiles and other vehicles, especially on Sundays; a crossing apparently without any device to warn those approaching it of the proximity of trains or cars of the defendant; a line of poles 12 inches in diameter at intervals of 90 feet between the two tracks, which necessarily must more or less obstruct the vision of one approaching the crossing, so far as the track on the other side is concern

the crossing; a small waiting room or station about 1,000 feet from the crossing which had the effect of shutting out, for a moment at least, from the view of one approaching the crossing from the westerly side anything on the easterly track of defendant just below such structure; the failure to sound a whistle or give other indication of the approach of the train until within 200 or 300 feet of the crossing. The evidence was such as to legally support a conclusion that all these circumstances existed. Assuming the situation to have been as described, as we must do, in view of the verdict, we are clearly of the opinion that it may not be held, as matter of law, that defendant was not guilty of negligence. And, if this be so, the findings of the jury, and the conclusion of the learned trial judge on motion for new trial, so far as this question is concerned, are conclusive upon us.

[4] It is claimed that the driver of the automobile and plaintiff were both guilty of contributory negligence. In response to a special interrogatory submitted, the jury

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