For the foregoing reasons, the judgment of the lower court is right, and must be affirmed, and this proceeding dismissed. It is so ordered. ELLIS, C. J., and MOUNT and MORRIS, JJ., concur. CHADWICK, J., concurs in the result. state board, such act would be unconstitution- such powers to that board subject only to al because it would conflict with the provi- review by the courts in proper cases. sions of section 16, art. 1, of our Constitution, providing that the question of public use is purely a judicial one for the courts to determine. But these provisions of the Constitution do not in any way control or affect the power of the state to grant to any administrative department of the state the power to determine what is a public use of the state's own property. The state can attach any conditions that it chooses in regard to the control and use of its property. As between a LAUGHLIN v. PACIFIC COAST MOTOR private individual and a person or corporation to whom is delegated the power of eminent domain for public use under our law, the question of whether or not property is appropriated for a public use under our constitution must be, and has always been determined to be, a judicial one. But that does not apply to the appropriation of lands owned by the sovereign state itself. For the foregoing reasons we are convinced that the relator has no power to appropriate and condemn by eminent domain proceedings the right and privilege granted to the respondent Tilden by the state board of land commissioners under the controlling statutes. A further controlling reason why the relator would have no right to maintain this pro ceeding is that the undisputed evidence showed beyond controversy that the relator and respondents are seeking to devote the property to identically the same use. We know of no case where a subsequent appropriator of land or property for use alleged to be public has been permitted to acquire the identical rights of a prior appropriator of the same property to be devoted to the same alleged public use. Nicomen Boom Co. v. North Shore Boom & Driving Co., 40 Wash. 315, 82 Pac. 412; State ex rel. Harbor Boom Co. v. Superior Court, 65 Wash. 129, 117 Pac. 755; State ex rel. Union T. & S. Bank v. Superior Court, 84 Wash. 20, 145 Pac. 999, 149 Pac. 324. It is further contended by relator that it does not appear that respondent Tilden had in good faith acquired the right granted him, and that it does not appear that he has made any use, or will actually make any use, of the grant made to him by the state board of land commissioners, and that therefore his naked right should be allowed to be acquired by the condemnation proceedings. As we have said before, this is a matter entrusted to the discretion of the state board of land commissioners. So far as that board has acted, it has granted the right and privilege to Tilden. If Tilden should fail to exercise his powers under the privilege granted by proceeding to devote the grant to public use, upon a showing made to the state board the privilege granted him might be revoked. At any rate the Legislature has delegated all CAR CO. (L. A. 4070.) (Supreme Court of California. Dec. 28, 1917.) 13 (1) - COM Complaint in an action on a contract for the exchange of automobiles held not defective because it stated the purchase price to have been $2,300 instead of $2,200. 2. APPEAL AND ERROR 193(1)-RESERVATION OF EXCEPTIONS-DEMURRER. Defects in a complaint as to the manner and form of the statement of facts, being suswill not be considered on appeal, in the absence ceptible to objection only by special demurrer, of such a demurrer. 3. TRIAL CIENCY. 405(2) FINDINGS SUFFI in findings, such findings are not open to an Where the essential facts are incorporated objection that they do not sustain the judgment. 4. TRIAL 396(1)-FINDINGS-SUFFICIENCY. necessary to make a tender of an automobile, a Where, to establish a counterclaim, it was finding that no such tender was made is the only finding necessary in regard to the counterclaim. GROUNDS FOR APPEAL - 5. COSTS 263 Department 1. Appeal from Superior Court, Los Angeles County; Willis T. Morrison, Judge. Action by Homer Laughlin, Jr., against Pacific Coast Motor Car Company. Judgment for plaintiff, and defendant appeals. Affirmed. Stuart M. Salisbury, of Los Angeles, for appellant. E. E. Rogers, of Los Angeles, for respondent. SHAW, J. The defendant appeals from the judgment. The plaintiff and defendant made a contract whereby the defendant agreed to sell and deliver to the plaintiff, for a price stated, a Fiat automobile of a kind and style particularly described, and the plaintiff agreed to sell and deliver to the defendant a Mercer automobile at the price of $2,200, which was to be by the defendant credited upon the price of the said Fiat automobile sold by defendant to plaintiff. In pursuance trouble as myocarditis, of which he died, and that he had a few months before his application consulted another physician, which information would have probably prevented the issuance of the policy, he was guilty of fraud invalidating the policy. Department 2. Appeal from Superior Court, City and County of San Francisco; of this contract, the plaintiff delivered the Action by Anna St. John Whitney against the West Coast Life Insurance Company. From a judgment in favor of plaintiff and from an order denying its motion for a new trial, defendant appeals. Judgment and order reversed. [4] The answer, by way of counterclaim, alleged performance by defendant, and asked judgment for the balance of the price of the Fiat automobile. The counterclaim rested on the allegation that defendant had tendered to plaintiff a Fiat automobile of the kind and style it agreed to sell to him. The finding was that this was not true. No other finding regarding the defense was necessary, since, without such tender, the counterclaim could not have been established. Myrick & Deering, of San Francisco, (James Walter Scott, of San Francisco, of counsel), for appellant. Norman A. Eisner and T. C. Van Ness, Jr., both of San Francisco, for respondent. MELVIN, J. Defendant appeals from a judgment for $10,000 on a policy of life insurance and from an order denying a motion for a new trial. The defense was that Arthur L. Whitney, the assured, had made false representations in his application for the policy. The application was signed on the last day of the year 1913. By the terms of the policy all insurance thereunder was based upon the written and printed application therefor which by attached copy was made a part of the contract. Mr. Whitney died June 10, 1914, of acute myocarditis, a disease of the heart. By his answers to questions contained in the application for insurance Mr. Whitney made, among others, the following repre [5] These principles are well settled, and the appeal was without cause, unless for delay. It is a case for the imposition of dam-sentations: ages under section 957 of the Code of Civil Procedure, which are fixed at $50. It is therefore considered by the court that the judgment be affirmed, and that plaintiff recover of defendant the sum of $50 as damages. "Have you now or have you ever had asthma or shortness of breath? Answer: No. No. Disease or palpitation of the heart? * Give particulars of any injury or illness or attendance of physician that may have occurred during the past seven years. Burn of arm and chest. Date 1911. Duration, one week. Physician consulted, Dr. Chidester." The defendant introduced Dr. Cheney as a witness. He testified that Mr. Whitney had called upon him at his office about two years before the application for insurance was WHITNEY v. WEST COAST LIFE INS. CO. made. At the time of that visit Mr. Whit (S. F. 7553.) (Supreme Court of California. Dec. 28, 1917. Rehearing Denied Jan. 24, 1918.) 1. INSURANCE 646(3)— LIFE INSURANCE — INTENT TO DECEIVE-PRESUMPTION. - ney had complained of a pain in his chest when he walked rapidly. He had noticed such pain under like circumstances about two years before he visited the doctor, but it had been growing more severe so that on walking a short distance the distress would The patient said that the pain was always worse after eating. Dr. Cheney said, among other things: come on. A presumption of applicant's intent to deceive is only raised when his statements are made with knowledge of their falsity. 2. INSURANCE 292 - LIFE INSURANCE STATEMENTS IN APPLICATION-FRAUD. Where an applicant for life insurance an- "After this physical examination that I gave swered in the negative the questions as to wheth- Mr. Whitney and after his statement to me of er he had ever had shortness of breath or dis- his past history of his case, and of the symptoms, ease or palpitation of the heart, and stated that I came to the conclusion that he was suffering the only injury or illness or attendance of a phy- from myocarditis. That is weakness of the sician within the past seven years was occa- heart, degeneration of this muscle of the heart. sioned by a burn and named the physician con- I did tell that to Mr. Whitney at that time. I sulted, and withheld information that he had told him that he had, in my opinion, a weakconsulted a physician who had diagnosed hisness which we call myocarditis." The doctor was testifying largely from his notes made at the time of Mr. Whitney's visit. Regarding the patient's reception of the physician's diagnosis, he said: of breath when he exerted himself, and that he noticed this particularly if he had been eating a seemed full, and that by dieting-he had been large meal, and particularly that his stomach placed on a diet by Dr. Cheney-by dieting he was more or less able to avoid this distress that he had." "I cannot tell you from my notes what Mr. Whitney replied. From my memory he told me that he had suspected that, because of the pain running down his arm, he knew the meaning In view of this evidence appellant insists of that symptom. That is my recollection of the that, as matter of law, Mr. Whitney was conversation, although it is not so set down here. guilty of fraud in securing the policy of Other discussion upon this subject was simply insurance in that he concealed from Dr. the directions that followed for him to observe. I did give him directions. I advised him to cur- Hill, the defendant's medical examiner, the tail his diet, to curtail his tobacco, to exercise fact that he had consulted Drs. Cheney and moderately, and to avoid extremely hot and cold Hewlett and the results of their examinabaths, and I gave him a medicine to take con- tions as reported to him. Appellant insists taining digitalis, a heart stimulant. This was partly on the 22d and the 23d; I saw him two that in view of his false answers and the days in succeession. I saw him next on the fraud thereby perpetrated the jury should 25th. These interviews took place in my office have been instructed to find for the defendin the Shreve building. Mr. Whitney called there. I prescribed the digitalis for Mr. Whitney on the 25th. I next saw Mr. Whitney on February 9th, at my office. Mr. Whitney called there. He reported that he had had no appearance of his distress since. I made an examination of him on the 9th of February, 1912, merely to take his weight and to count his pulse. His pulse at that time was 76. His weight 159 pounds. I do not know what Mr. Whitney's height was; my notes do not show.' ant, citing Westphall v. Metropolitan Life Insurance Co., 27 Cal. App. 734, 151 Pac. 159; Madsen v. Maryland Casualty Co., 168 Cal. 204, 142 Pac. 51; Iverson v. Metropolitan Life Insurance Co., 151 Cal. 746, 91 Pac. 609, 13 L. R. A. (N. S.) 866; McEwen v. New York Life Insurance Co., 23 Cal. App. 694, 139 Pac. 242; and John Hancock Mutual Life Insurance Co. v. Houpt (C. C.) 113 Fed. 572. Dr. Cheney also testified: "That condition which I found in Mr. Whitney in January and February, and June, that dis- Respondent calls attention to the fact that integration of his heart, was of such a char- the applicant for insurance was a man of acter that it would be likely to continue up un-active habits and athletic accomplishments. til June, 1914, if the diagnosis was correct; He was a manufacturer of salt, having his it is an incurable condition; it would persist as long as he lived. If Mr. Whitney died of myocarditis on June 10, 1914, that would convince me of the correctness of my diagnosis of January, 1912, and that it had never been cured.' It was also shown that Mr. Whitney had consulted his nephew, Dr. A. W. Hewlett of Michigan, who was visiting in San Francisco. Dr. Hewlett testified, in part, as follows: "I told him that his physical condition, his general condition, was good, but nevertheless in my opinion he probably had weakness of his heart muscles. I gave him that as an opinion. Q. Did you explain to him the nature of any heart disorder that might not be visible by examination? A. No, I did not. Q. Did you say to him that his disorder was serious at all? Did you lay any serious stress upon it? A. I did not lay any serious stress, no. Q. Did you treat the matter lightly? A. I treated it quietly. I did not tell him there was nothing the matter with him, but I tried not to alarm him in any way, because I thought that would be bad for him. Q. Was he in any manner alarmed? A. He was not, no." Dr. Hewlett's examination of Mr. Whitney was either in August or September of 1913, three or four months before the latter made application for insurance. Describing his visit to Mr. Whitney's office, Dr. Hewlett said: factory and his home in San Mateo county and his office in San Francisco. Up to a time within a month of his death it was his habit to arise at 5 o'clock in the morning, to walk about a mile to the salt works, and after spending half an hour there to take the train for San Francisco, arriving at his office before half past 8. He exercised much and was especially fond of walking. Up to form of strenuous calisthenics known as ten days before his death he practiced that "setting up exercises." None of the people who had most abundant opportunities to observe him-his wife, his son, his stenographer, nor his closest friends-had ever observed any abnormal shortness of breath nor had heard him complain of any ailment. Mrs. Whitney had been spending half a year in Europe, and her husband crossed the continent to meet her. Reaching Chicago on the return journey on May 28, 1914, Mr. Whitney had an attack of acute dysentery which continued, from time to time, until his death on June 10, 1914. On reaching San Francisco he consulted Dr. Chidester regarding dysentery and tonsilitis. The cause of death, as given by Dr. Chidester's certificate, was acute myocarditis and acute dilations of the heart. The certificate gave the date of the first symptoms of the fatal disease as about June 3d. "He asked me to come down and look him over. At that time he said that he had been told, or had reason to think, that he might possibly have some trouble with his heart, and he Under these circumstances, according to reasked me to examine his heart. I don't remem- spondent's argument, the jurors were jusber any part of what was said in regard to what he had to state in regard to the reason for call-tified in concluding that any concealments ing me down, but on questioning him I found or omissions to disclose facts about his past on the part of the defendant, other than measles, cannot be considered an illness, and the mere to relieve such temporary indisposition, or the calling into a doctor's office for some medicine calling at the home of the insured by the doctor for the same purpose, cannot be considered an attendance by a physician nor a consultation of 3 and 7. 'Illness,' as used, means a disease or a physician, within the meaning of the questions ailment of such a character as to affect the general soundness and healthfulness of the system tion which does not tend to undermine and weakseriously, and not a mere temporary indisposien the constitution of the insured." Commenting on a similar question similarly answered, the Illinois Appellate Court, said, in Federal Life Association v. Smith, 86 Ill. App. 431: ed a physician or received treatment from one. tention and were devoid of fraud. The burden was upon the defendant, says respondent, to show not only error in the applicant's statement, but willful error. O'Connor v. Grand Lodge A. O. U. W., 146 Cal. 494, 80 Pac. 688. This burden, it is argued, was not met, and the evidence taken as a whole failed to show fraud on the part of the applicant for defendant's policy of insurance. Appellant bases its contentions largely upon the conclusion that Mr. Whitney was suffering from chronic myocarditis and that he knew it when he applied for insurance. It is true that Dr. Cheney diagnosed his case as one of chronic myocarditis, but it was in evidence that that disease is accompanied by sclerosis-hardening-of the arteries. Dr. Hill, who examined the applicant, found no sclerosis in the palpable arteries; nor had Dr. Cheney nor Dr. Hewlett discovered any. Dr. Charles Minor Cooper, the eminent specialist, who testified as an expert, said that it was very rare for one to have sclerosis of [1, 2] But, having in mind all of these libthe internal arteries without the diagnos-eral rules which properly favor the upholdtician being able to find some evidence of ing of verdicts of this sort, the fact remains sclerosis in the palpable arteries. But there that by the uncontradicted testimony of two was testimony that sclerosis may exist al- physicians of standing Mr. Whitney is shown together in the arteries inside the body. to have concealed facts about his condition and his consultations with medical men which could not have been unconsciously withheld. It is true that a presumption of intent to deceive, on the part of the applicant, is only raised when the statements are made with knowledge of their falsity. Etna Life Insurance Co. v. Rehlaender, 68 Neb. 284, 94 N. W. 129, 4 Ann. Cas. 251; Metropolitan Life Insurance Co. v. Larson, 85 Ill. App. 143; Dolan v. Mutual Reserve Fund Life Association, 173 Mass. 197, 53 N E. 398; Royal Neighbors of America v. Wal lace, 73 Neb. 409, 102 N. W. 1020. But there are cases where the knowledge suppressed is so important and obviously so well in the recollection of the applicant that merely withholding it clearly amounts to fraud, such as the failure to disclose deafness (Madsen v. Maryland Casualty Co., supra), or epilepsy (Westphall v. Metropolitan Life Insurance Co., supra), or a stroke of apoplexy (Iverson v. Metropolitan Life Insurance Co., supra), or a serious accident from the kick of an animal (McEwen v. New York Life Insurance Co., supra), or disease of the throat (John Hancock v. Mutual Life Insurance Co., supra). This is such a case. It is suggested that, as the question answered by the applicant for insurance was whether or not he had suffered from "asthma or shortness of breath," it would be a natural conclusion by a person to whom such an interrogatory was propounded that the questioner meant shortness of breath of an asthmatic nature. In an answer to such a question, says respondent, failure to recall and confess shortness of breath following violent exercise or overeating or excitement would by no means be a conclusive evidence of fraud (citing Rupert v. Supreme Court U. O. F., 94 Minn. 293, 102 N. W. 715). So with the question, "Have you ever had disease or palpitation of the heart?" the argument is that the applicant might well have construed the examiner's question to mean, "Have you ever had disease involving palpitation of the heart?" Respondent calls attention to the form of the question, which was, "Give particulars of any injury or illness or attendance of physician that may have occurred during the past seven years," and insists that there is a distinction, particularly to the understanding of a layman, between "consultation" and "attendance," that Mr. Whitney may well have apprehended the interrogatory as relating to those occasions when he had been confined to his home by illness or injury and had been there visited by a doctor or a surgeon. He had consulted Dr. Cheney at the physician's office, and his nephew had examined him at his own office in San Francisco. It is true that in Billings v. Metropolitan Life Insurance Co., 70 Vt. 482, 41 Atl. 517, the court said: "A mere temporary indisposition, not serious It is impossible that Mr. Whitney could have forgotten so important an occasion as that on which he consulted his kinsman, Dr. Hewlett, a few months before he applied for insurance. Nor may we with reason believe that he could have lost all memory of his talks with Dr. Cheney and the course of diet and the medicine prescribed by that physician. To say that he might have understood the questions regarding medical attendance as having reference to visits to his home is to doubt the intelligence of a business man ence. that he might have apprehended the interrogatory about "shortness of breath" as having relation to an asthmatic affection is to credit him with a guilelessness which is the possession of no man of his age and experiHe had been afflicted with a shortness of breath which seemed to him so alarming as to cause him to seek the advice of a physician. This had happened not more than four months prior to the time when he sought life insurance. One of his physicians had told him that he was suffering from "myocarditis," and, while this portentous polysyllable may mean nothing to the average person who sees it in print, it is safe to say that the doctor also told him in plain English that there was some sort of trouble with his heart. We are therefore forced to the conclusion that he consciously and intentionally withheld from the examining physician information which might have prevented, nay, probably would have prevented, the issuance to him of a policy of insurance. Of course, we cannot tell what new evidence may be forthcoming if the cause be retried; but, unless some very positive proof be available to overcome the necessary deductions arising from the conduct of the assured, it would be the duty of the trial court to decline to submit the question of fact to a jury. The judgment and order are reversed. We concur: HENSHAW, J.; SLOSS, J. HOLLAND v. KELLY. (S. F. 7571.) (Supreme Court of California. Dec. 24, 1917. Rehearing Denied Jan. 21, 1918.) 1. JURY 14(9),—TRIAL ~374(2)—Right To TRIAL BY JURY-ACTION TO QUIET TITLE INVOLVING ISSUES OF FRAUD. In an action to set aside a deed declared to be fraudulent and to quiet plaintiff's title to the property, defendant was not entitled of right to a trial by jury, and the court was not bound by the jury's verdict. 2. APPEAL AND ERROR 219(2)-RESERVA Department 2. Appeal from Superior Court, City and County of San Francisco; Geo. A. Sturtevant, Judge. Action by Patrick Holland against William A. Kelly, as executor of the last will and testament of Julia McCarthy, deceased. From a judgment for defendant's testate, plaintiff appeals. Judgment reversed. See, also, 158 Pac. 1045; 171 Pac. W. E. Cashman, of San Francisco, for appellant. William A. Kelly, of San Francisco, for respondent. MELVIN, J. Plaintiff appeals from a judgment in favor of Julia McCarthy, defendant's testate. The suit was brought to obtain a judgment declaring a certain deed null and void, and decreeing that it be canceled. Plaintiff also asked that the court should make a decree declaring him to be the owner of the property described in the deed, quieting his title as against Julia McCarthy, and enjoining the latter from asserting any estate, right, or title to the land. There was also a prayer for general relief. The deed in question was made by Mary Anne Holland, Patrick Holland's intestate, to Julia McCarthy, respondent herein. The complaint attacked this deed under four counts, declaring that it was void: (1) Because of the incompetency of the grantor; (2) because the deed was without consideration and not signed by the grantor; (3) because of the alleged nondelivery of the instrument; and (4) because of the asserted undue influence exerted by Julia McCarthy over the mind and volition of Mary Anne Holland, producing the execution of the alleged deed. Julia McCarthy answered denying the allegations of the complaint, and averring her own title to the property by virtue of the deed from Mrs. Holland. The cause was tried and submitted upon all of the alleged causes of action except the third. As to that count the court ordered a nonsuit. By their verdict the jury found a verdict TION OF GROUNDS FOR REVIEW-ESTOPPEL "in favor of defendant and against the plain- tiff upon counts 1, 2, and 4," and "in favor In an action to set aside a deed declared to be fraudulent, and to quiet plaintiff's title, though defendant made no special objection to the form of the jury's verdict, he was not estopped to raise the points, that there were no findings, and that no special issues were pre-diction; that in such an action the verdict sented. 3. TRIAL 388(2)-EQUITY CASE-NECESSITY FOR FINDINGS. Unless waived, findings must be made in an equity case, whether tried with the aid of a jury or not, and whether or not either party specifically demands findings. Appellant contends that this is a suit of which a court of equity has exclusive juris of the jury is merely advisory and intended 4. TRIAL 388(2)-FAILURE TO FIND ON Is- |