Dean v. Ross

California Supreme Court Dec 26, 1894 No. No. 15647Published

Before: Fleet

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Holding. The trial court committed reversible error by instructing the jury that the defendant was a part owner of the vessel as a matter of law, thereby usurping the jury's role in determining a disputed question of fact. Additionally, the court erred in admitting hearsay declarations of a co-defendant against the appellant where no agency or joint liability was established.

Issues

Whether the trial court violated the state constitution by instructing the jury on a disputed question of fact regarding the defendant's ownership interest.
Whether the trial court erred in admitting declarations of a co-defendant against the appellant in the absence of evidence establishing a joint legal relationship.

Disposition. reversed

Quotations verified verbatim against the opinion

“We think it a very plain transgression of the line which separates the functions of the judge from those of the jury, and therein falls within the denunciation of the provision in question.”

“It is only where the fact is admitted, or there is no shadow of conflict of evidence with respect to it, that the court is justified in taking it from the consideration of the jury.”

“They were not joint defendant’s in any sense which would make his declarations binding upon appellant”

Synopsis

Instructions—Question of Fact.—An instruction to the jury, which assumes as undisputed a question of fact which ought to be submitted to the jury, is prejudicial error.

Id.—Withdrawing Question of Fact from the Jury.—It is only where a fact is admitted, or there is no shadow of conflict of evidence with respect to it, that the court is justified in taking the fact from the consideration of the jury.

Id.—Part Ownership of Vessel—Liability for Construction—Erro- . neous Charge to Jury.—In an action to recover a balance due on an account for lumber used in the construction of the vessel, in which one of the defendants is claimed to have been a part owner, at the time of the furnishing of the lumber, where the evidence of the defendant is such that a finding in favor of the contention that the defendant did not become a part owner of the vessel until after it was built, would be sustained, an instruction to the jury that there was no question of fact to be submitted to the jury as to the question of ownership, and that the defendant was liable for the lumber as part owner in the vessel, erroneously charges the jury upon a question of fact, contrary to section 19 of article VI of the constitution of this state.

Evidence—Declarations of Codefendant.—Evidence as to the declarations of one defendant are not admissible against a codefendant, where they are not joint defendants in a sense which would make the declarations of one binding upon the other.

Van Fleet, J. This is an action to recover a balance due on an account for lumber alleged to have been bought by defendants from plaintiffs with which to construct a schooner.

Defendants other than Henrietta G. Witzemann made default. The latter answered, and at the trial verdict and judgment were against her. She appeals from the judgment and an order denying her motion for new trial.

1. The contract for the lumber was made by the defendants, John and William M. Ross, at plaintiff's mill in Oregon, and the vessel was built at Coos bay, in that state, under the immediate supervision of the Rosses or one of them.

The appellant who lives in the city of San Francisco, in this state, had no direct dealings with the plaintiffs, and was not known to them in the transaction when they sold the lumber, but the theory on which the action proceeded against her was that she was a part owner in the vessel at the time the lumber was bought, and hence, jointly with the other defendants, liable therefor.

The only evidence tending to connect appellant with the transaction was that given by herself. She was called as a witness on behalf of plaintiffs, and testified: “ I have four shares in the schooner Maggie Ross; have had them since I bought them from Captain Ross five years ago, just at the time he started to build it; that is one-sixteenth. Captain Ross came to me and said he was going to build a vessel, and I told him I did n’t want any vessel built, but if he wanted to build a vessel he could do so, and I would take four shares. I did this at the time he was building the vessel. I do not own them now. I held the shares only a couple of years.....I took them when it was built, and Captain Ross built the vessel, and I paid him all my bills, and 1 got my receipts to show I paid it to Captain [229]Ross.” Called as a witness on her own behalf, she further testified: “ I never ordered any lumber from the plaintiffs in this action, or for any purpose mentioned in the complaint, and never agreed with any of the plaintiffs in this case to pay them for any lumber. I never authorized Captain Ross or any other person to buy lumber from them on my account, or to build a schooner for me, or any part of it for me.....Captain Ross came in with his bills, and I paid the bills to him at different times. He said he wanted to build a vessel. I told him all right, if he wanted to build one, why, after the vessel was built, I would take some shares from him.....When Captain Ross first told me he was going to build a vessel I told him he could build a ship, but not on my account; if he wanted to build one he had to build it himself.” The bills referred to by appellant as having been paid by her to Captain Ross were for her shares in the vessel, for which she paid in four installments. The receipt for the first installment was put in evidence, and reads:

Dean v. Ross

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