Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

ceased went to the house of defendant, and that he, as a physician, received her there, and did all he could to relieve her sufferings and save her life. To sustain his theory, defendant called as a witness Dr. R. D. Johnson, who was a licensed physician, and was willing to testify. No objection to his testifying was interposed by the prosecution, but the court said: "If what has come to him has come purely in a professional way, the declared policy of the law would exclude it here, whether it be objected to or not. It is my duty to exclude it, if that is so." Then, addressing the witness, the court asked: "Is it so that all you know has come to your knowledge in the course of your profession, as to the physical condition of the woman, and you are called upon to tell what you found out as her physician, is that all you know?" Answer: "Yes, sir." Again the court asked: "And whatever you know about the deceased woman, is it or not the fact that whatever you know was information you obtained in attending her as your patient?" Answer: "Yes, sir." Thereupon the court excluded the evidence of the witness, and said: "You cannot be examined, doctor. You can retire." Counsel for defendant then made the following offer: "We offer to prove by Dr. R. D. Johnson that this lady called upon him. We offer to prove what her condition was at that time by a personal examination which she requested him to make. We offer to prove that he made the examination. We offer to prove what he found; and then we offer to prove that he refused to attend her, and that he told her certain things. We offer to prove all this, and what her condition was at that time, and that it was prior to the time that this lady went to Dr. West's." The court: "Very well. I rule it out." An exception was reserved, and these rulings all assigned

as error.

Shortly after this case was tried, the case of People v. Lane, 101 Cal. 513, 36 Pac. 16, was before this court, and in the decision thereof it was said: "It is urged that the court erred in allowing the prosecution to cross-examine Dr. Danforth as to the nature of the complaint for which he treated the defendant. It is claimed that the testimony was irrelevant, immaterial, and incompetent, being a privileged communication between patient and physician. There is no merit in the contention. The rule as to privileged communications between patient and physician does not apply in criminal cases. The chapter on "Witnesses" in the Civil Procedure limits the rule to civil actions (section 1881, subsec. 4); and the Penal Code, which expressly preserves the rule as to husband and wife in the chapter determining who may be witnesses in criminal actions, makes no mention of physician and patient. Freel v. Railway Co., 97 Cal. 40, 31 Pac. 730. At common law the rule as to physicians was not observed in either civil or criminal cases.

3 Rice, Ev. § 209. The statutory privilege was not conferred to shield a person charged with the murder of another (People v. Harris, 136 N. Y. 448, 33 N. E. 65); and it certainly was not intended to be used as a weapon against one charged with crime." That decision was made in department 1 of the court, but a hearing in bank was afterwards asked for and denied. The decision is clearly applicable to this case, and decisive of the question in hand; and, on the authority of it, the judgment and order appealed from should be reversed, and the cause remanded for a new trial.

We concur: VANCLIEF, C.; SEARLS, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and cause remanded for a new trial.

BEATTY, C. J. I concur. Section 1321 of the Penal Code is as follows: "The rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and proceedings, except as otherwise provided in this Code." What, then, are the rules for determining the competency of witnesses in civil actions? The general rule is prescribed in section 1879, Code Civ. Proc., as follows: "All persons, without exception, otherwise than is specified in the next two sections, who having organs of sense, can perceive, and perceiving can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious belief; although in every case the credibility of the witness may be drawn in question, as provided in section eighteen hundred and forty-seven." This, then, is the rule: That all persons, without exception, otherwise than is specified in the next two sections, may be witnesses. And the only question is to determine what is otherwise specified in those sections which read as follows: Section 1880: "The following persons cannot be witnesses: (1) Those who are of unsound mind at the time of their production for examination; (2) children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly; (3) parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim, or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person." Section 1881: "There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore,

a person cannot be examined as a witness in the following cases: (1) A husband cannot be examined for or against his wife, without her consent, nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other, during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other. (2) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment. (3) A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs. (4) A licensed physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient. (5) A public officer cannot be examined as to any communications made to him in official confidence, when the public interests would suffer by the disclosure." Obviously, section 1880 has no bearing on the question of the admissibility of Dr. Johnson's testimony; and the only provision of the following section that bears directly upon it is that contained in subdivision 4, which by its express terms is limited to civil actions. Such, then, is the rule and such its limitation as to physicians and surgeons. Except in civil actions, they may be examined as to information acquired in attending a patient. The construction contended for by respondent would simply eliminate from the statute the words "in a civil action," which the legislature has ex industria made applicable to the privileges of a physician or surgeon, as is evident from the fact that they are omitted in the clauses relating to attorneys, clergymen or priests, public officers, and persons sustaining marital relations to the parties. This construction of the statute is not only sustained by the plainest rules of construction, but accords with the common law, and with the interests of truth and justice.

I concur: VAN FLEET, J.

NEWMAN v. BUCKMAN. (No. 15,536.) (Supreme Court of California. Feb. 13, 1895.) REVIEW ON APPEAL.

Where no error appears in the record, having no bill of exceptions, on appeal from a default judgment, the judgment will be affirmed. Department 1. Appeal from superior court, city and county of San Francisco.

v.39p.no.2-14

Action by one Newman against one Buckman. Plaintiff had judgment, and defendant appeals. Affirmed.

Ash & Mathews, for appellant. A. J. Clunie, for respondent.

PER CURIAM. The complaint is in the ordinary form for goods sold and delivered,

and the answer contains only specific denials of its allegations. The defendant failed to appear at the trial, and judgment was rendered in accordance with the prayer of the complaint. Findings were waived, and the appeal is direct from the judgment, without any bill of exceptions. We find no error in the record, and the judgment is affirmed.

(106 Cal. 56) (No.

BRADY v. TIMES-MIRROR CO. et al. 19,381.) (Supreme Court of California. Feb. 1, 1895.) ACTION AGAINST CORPORATION-JOINDER OF RESIDENT OF ANOTHER COUNTY-VENUE-MOTION FOR CHANGE-AMENDMENT OF COMPLAINT. 1. The right given by Const. art. 12, § 16, to sue a corporation in the county of its principal place of business, or where the liability arose, is waived by the joinder as defendant of a third person, who resides in another county; the latter having, under Code Civ. Proc. § 395, a right to have the action tried in the county of his residence.

2. In an action against a corporation and a third person, a motion by the latter for a change of venue to the county of his residence must be decided before plaintiff can be allowed to dismiss the action as to such third person.

In bank. Appeal from superior court, San Diego county; E. S. Torrance, Judge.

Action by Mary Brady against the TimesMirror Company and others. From an order denying a motion by defendants for a change of venue, they appeal. Reversed.

Henry T. Gage and Stephen M. White, for appellants. Z. Montgomery & Son, for respondent.

HARRISON, J. Appeal from an order denying a motion to change the place of trial. The plaintiff commenced this action in the county of San Diego to recover damages from the defendants for the publication of a libel against her in the Los Angeles Times, a newspaper which was circulated in the county of San Diego. The TimesMirror Company is a corporation having its principal place of business in the county of Los Angeles, and is the proprietor and publisher of the newspaper, and the defendant Otis is the chief editor and general manager thereof, and also resides in the county of Los Angeles. The summons in the action was served on these defendants on the 20th of July, 1893; but on the 8th of August, before any appearance by them, the plaintiff filed an amended complaint. August 18th the defendants demurred to the amended complaint, and at the same time filed an affidavit of merits, and made demand in

writing for a change of the place of trial to the county of Los Angeles. After the motion had been argued, and while it was under consideration, the plaintiff moved the court for leave to amend her complaint by dismissing the said action against the defendants Goodwin and Otis; and the court, after hearing counsel for defendants in opposition thereto, granted the motion, and the amendment was entered in the minutes of the court. Thereupon the court denied the motion of the defendants to change the place of trial. From this order they have appealed.

Section 395, Code Civ. Proc., gives to the defendant in any personal action other than those enumerated in the previous sections the right to have the action tried in the county of his residence; and the residence of a corporation is the county in which its principal place of business is located. Cohn v. Railroad Co., 71 Cal. 488, 12 Pac. 498; McSherry v. Mining Co., 97 Cal. 643, 32 Pac. 711. Section 16 of article 12 of the constitution provides that "a corporation or association may be sued in the county where the contract is made, or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial, as in other cases." Under the provisions of this section, if the action had been brought against the Times-Mirror Company alone, the plaintiff's right to have the action tried in San Diego would be undoubted (Lewis v. Railroad Co., 66 Cal. 209, 5 Pac. 79); but, by including in the action other defendants whose residence is outside of the county of San Diego, she waived the right given by this provision of the constitution, and the motion of the defendants must be determined by the provisions of the statute. The right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is exceptional, and, if the plaintiff would claim such right, he must bring himself within the terms of the exception. Section 392, Code Civ. Proc., provides that an action to recover a penalty imposed by statute shall be tried in the county where the cause of action arose; but it was held in Ah Fong v. Sternes, 79 Cal. 30, 21 Pac. 381, that if, in such an action, the complaint is so ambiguous that it might be held to include a claim for other damages, or as stating another cause of action, the defendant is entitled to have the place of trial changed to the county of his residence, the court saying: "It is the plaintiff's own doing if the complaint be so drawn. He cannot deprive the defendant of his right to a change of venue by the addition of something to his complaint. If this were not the rule, it would be very easy for a plaintiff to defeat the defendant's right in the matter. All that plaintiff would

[ocr errors]

have to do would be to add another cause of action to his complaint. It need not be a genuine cause of action, and it would not matter whether the two causes of action were properly united or not, for the defendant could not compel their separation by demurrer before moving for a change of venue, because he is required to take his proceedings for such change at the time of answering or demurring." In Smith v. Smith, 88 Cal. 576, 26 Pac. 356, it was held that if, in an action affecting the title to real estate, the plaintiff also included in his complaint a personal action against the defendant, the defendant was entitled to have the action tried in the county of his residence. In Sayward v. Houghton, 82 Cal. 628, 23 Pac. 120, it was held that the plaintiff could not deprive the defendant of this right by merely joining with him, as defendants in the action, residents of the county in which the action is brought, against whom no cause of action was stated, or from whom no relief was demanded. The same rule was laid down in Machine Co. v. Cole, 62 Cal. 318; McKenzie v. Barling, 101 Cal. 461, 36 Pac. 8; Bailey v. Cox, 102 Cal. 333, 36 Pac. 650.

In the original complaint herein one Frank A. Stevens was made a codefendant with the appellants, but the only allegation with reference to him in the complaint is that he "at all times was and is a San Diego correspondent of said newspaper, residing in said county of San Diego"; and it is recited in the bill of exceptions that the amended complaint is "in the same form as the original complaint, save and except that Leonard Goodwin was substituted as a defendant in said action in place of Frank A. Stevens." It appears from the affidavit of Otis that Goodwin resides in the state of Nebraska; but whether this is to be regarded as referring merely to the date of the affidavit, as claimed by the respondent, is immaterial, since the above allegation in the complaint in no respect connects him with the plaintiff's cause of action, any more than if it had been alleged that he was a subscriber to the paper; and, as Goodwin has never been served with the summons or appeared in the action, the motion of the defendants must be tested upon other grounds than that of his having been named as a party defendant. Sayward v. Houghton, supra; McKenzie v. Barling, supra. Upon the complaint as it stood by this amendment, the motion of the defendants should therefore have been granted.

It is claimed, however, by the respondent that inasmuch as, subsequent to the making of this motion, the complaint was further amended under an order of the court by which the corporation became the sole defendant, the plaintiff has the same right, by virtue of the foregoing section of the constitution, to have the cause tried in the county of San Diego as if the action had been originally brought against the corpora

tion alone. Whether the Times-Mirror Company would have been entitled to have the place of trial changed to Los Angeles county if the plaintiff, in amending her complaint as "of course," under section 472, Code Civ. Proc., had left out all the other defendants, need not be considered. See, however, Buell v. Dodge, 57 Cal. 645. In making that amendment, she retained both of the appellants in the case, and sought from the court an order granting leave to further amend the complaint by dismissing Otis and Gibson from the action after the appellants had made the present motion. This was a step in the proceedings which required judicial action to determine whether it should be permitted, and which could be taken only after the order of the court to that effect had been made. The motion therefor was made to the court, and, although resisted by the appellants, was granted by an order entered in its minutes. When the defendants made their motion to change the place of trial, it was the duty of the court to act upon that motion, and either grant or deny it before taking any other judicial action in the case. In Heald v. Hendy, 65 Cal. 331, 4 Pac. 27, it was held that the court could not postpone action upon the motion until after an answer was filed, and the plaintiff had an opportunity to make a cross motion for the convenience of witnesses. And in Hennessy v. Nicol (Cal.) 38 Pac. 649, where a motion for alimony had been made prior to the appearance of the defendant, and where upon his appearance a motion was made by him for a change of the place of trial, it was held that the plaintiff had no right to have the motion for alimony first heard, and that the court had no authority to postpone the hearing of the defendant's motion until after a compliance with its order for the payment of alimony. The statute requires the motion to be made "at the time" the defendant appears and answers or demurs. If he does not then make the motion, he is not entitled to make it at any subsequent stage of the proceedings, even though the condition of the case may be such that, if it could be then made, it would be granted. Machine Co. v. Cole, supra. This necessarily implies that the motion must be made and determined by the court before it can hear or determine any other motion in the case. If the defendants are entitled to have their motion granted, they are entitled to have every motion or proceeding in the case heard before the superior court of the county of their residence. After the motion for a change of the place of trial had been made, it was not competent for the court to entertain or make an order for the amendment of the complaint in the matter of parties, any more than in the matter of substantive averments. If, upon the case as it was then presented, the defendants were entitled to have their motion granted, they are entitled to have

all judicial action in the cause determined in the superior court of their own county. Whether the plaintiff is desirous to amend his complaint so as to obviate the objections that have been pointed out by demurrer, or in other respects that may render it impervi ous to attack, if such amendment can be made only upon the leave of the court, he must wait until after the case has been transferred, and make his application to that tribunal. This motion intercepted all judicial action in the case, and suspended the power of the court to act upon any other question until it had been determined. Ab Fong v. Sternes, supra.

The action of the plaintiff was not taken in accordance with section 581, Code Civ. Proc., as suggested in the brief in behalf of the respondent. Under the first subdivision of that section, an "action" may be dis missed by the plaintiff upon the "payment of costs," if it is made "by entry in the clerk's register"; but, until a judgment of dismis sal is entered, the action is still pending against the defendant. Page v. Page, 77 Cal. 83, 19 Pac. 183. None of the steps prescribed by this section were taken in the present case. Instead thereof, the court made an order directing the plaintiff to amend her complaint. The order is reversed.

We concur: MCFARLAND, J.; GA ROUTTE, J.; TEMPLE, J.; VAN FLEET, J.; HENSHAW, J.

(106 Cal. 43)

BANK OF ESCONDIDO v. SUPERIOR COURT OF SAN DIEGO. (No. 19,486.)

(Supreme Court of California. Jan. 31, 1895.) APPEAL BOND-JUSTIFICATION BY SUuretiesESTOPPEL TO OBJECT.

Where notice is given to the defendant that sureties on plaintiff's appeal bond will jus tify before a justice at a specified time, defendant, by not then appearing, waives the right t assert that there is no justification, though on of the sureties previously withdrew from the undertaking.

In bank.

Certiorari, upon relation of the Bank of Escondido, to review the superior court of San Diego's dismissal of an appeal, brought on the ground of its lack of jurisdiction. Dismissed.

D. L. Withington, for petitioner.

HENSHAW, J. One W. C. Smith, aggrieved at an adverse judgment of the justice's court in an action wherein he was plaintiff and the Bank of Escondido defendant, gave notice of appeal to the superior court, and in due time filed the requisite undertaking. Two days thereafter one of the sureties left with the justice a written notice of withdrawal from the appeal bond,

and the justice informed Smith's attorney | justification is thus established which may of the action of the surety. On February 5th, within the five days limited by law, the attorney of the bank excepted to the sufficiency of the sureties; on February 6th notice was given by Smith that the sureties would justify before the justice at 2 o'clock p. m. of February 7th. At the time appointed, Smith's attorney and the two sureties were present, as the respondent claims and as the justice seemingly understood, for the declared purpose of justifying. The Bank of Escondido was not represented. Its attorney failed to appear, and no continuance was sought. No examination of the sureties was held. The justice declared that they were satisfactory, and that he believed them sufficient. In his docket the record of the proceedings appears as follows: "Plaintiff, by his attorney, A. H. Clency, appeared at 2 p. m. Sureties present. Defendant did not appear. * The papers, together with transcript and bond as approved, transmitted to clerk of superior court." In the superior court the bank of Escondido moved to dismiss the appeal, upon the ground of the lack of jurisdiction of that court. The motion was denied, the court retained the action, and the bank sued out this writ of review.

Whether or not the surety Nightingale had the absolute right to withdraw from the undertaking, whether he was present in the justice's court for the purpose of justifying, as understood by the justice and claimed by the respondent, or merely because his office was in the court room of the justice, as testified to by the surety and contended by petitioner, are questions whose decision is unnecessary to this determination; for it clearly appears that petitioner, by his own laches, is estopped from asserting that there was no justification. The justification of sureties has its origin in the fear of the exceptant that the surety may not be financially able to respond upon a breach of the obligation, and its object, as was said in Stark v. Barrett, 15 Cal. 364, is to afford the adverse party an opportunity to test by personal examination the responsibility of the sureties. The justification itself is the proof by the surety of his adequate pecuniary ability. At common law, in the case of special bail, where exception was taken to the sureties, they appeared for justification either in person or by affidavit. If in person, and there was no opposition by counsel, they justified, as a matter of course, by swearing that they were housekeepers or householders, and respectively worth double the sum sworn to after all their debts and demands were paid. If by affidavit, as when they resided at a distance, their affidavits to like effect were read as their justification. 1 Tidd, Prac. (3d Ed.) p. 227. Under our practice, this showing is made before presentation of the bond by affidavit of the sureties (Code Civ. Proc. § 1057); and a prima facie

be overcome at the instance and by the ex-
amination of the exceptant. But, where no
counter showing is made against the suffi-
ciency of the sureties, justification will be
deemed complete. The prima facie showing
by affidavit, says Mr. Abbott, "serves as jus-
tification in case no exception is taken." 1
Abb. New Prac. & Forms, p. 482. The jus-
tification, then, is a right accorded to the ad-
verse party, which he may either waive ex-
pressly or be debarred from asserting, un-
der the well-settled rules of estoppel. Thus,
in Blair v. Hamilton, 32 Cal. 53, where the
justice refused to swear the sureties in justi-
fication, saying that both he and the ex-
ceptant knew them to be good, to which the
exceptant assented, saying that he only
served the notice because his attorney di-
rected him to do so, this court said: "That
the facts show a waiver on the part of the
defendant (exceptant) of a justification on
the part of the sureties does not admit of
argument. To hold otherwise would enable
the defendant to take advantage of his own
wrong. Nor does the capacity of the de-
fendant to make the waiver admit of de-
bate." But while the waiver may be ex-
press, as in Blair v. Hamilton, supra, it may
also arise through laches. The rule here is
thus laid down: "In case of nonappearance
on the part of the exceptant, the party giv-
ing the undertaking may either rest on the
default as a waiver of the exception, * *
or he may produce his sureties and take a
formal approval." 1 Abb. New Prac. &
Forms, 485. And in Ballard v. Ballard, 18
N. Y. 492, the court say: "The respondent
or his attorney must be in attendance be-
fore the judge when the bail appear, or he
must necessarily lose the benefit of his ex-
ception.
* The presumption of waiv-

er arises solely from the conduct of the re-
spondent in omitting to appear before the
judge."

Nor is petitioner's cause aided by his contention that the surety Nightingale had withdrawn from the undertaking, and that respondent's failure to procure a new surety rendered the appeal void. Nightingale was actually present at the time appointed for justification. Whether present for the purpose of justification or not was a fact presented to the superior court, and there determined upon conflicting evidence. That determination is not here subject to review. Buckley v. Superior Court, 96 Cal. 119, 31 Pac. 8; History Co. v. Light, 97 Cal. 56, 31 Pac. 627. Moreover, had petitioner performed his duty by attending at the time set, and making it appear that Nightingale would not or could not justify, respondent would have been entitled to provide another and sufficient surety in his place (Code Civ. Proc. 978); and thus is presented an additional reason for the application of the rule of waiver. Wherefore the relief prayed for is denied, and the writ dismissed.

« ΠροηγούμενηΣυνέχεια »