Gray v. Eschen

California Supreme Court Jun 7, 1899 No. S. F. No. 1021Published

Before: Cooper

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Holding. The court affirmed the judgment for defendants, holding that the challenged jury instructions were not erroneous and that the plaintiffs failed to properly preserve their exceptions to the instructions for appellate review.

Issues

Whether the trial court's jury instructions regarding the ownership of the land and the nature of the materials were erroneous.
Whether the plaintiffs sufficiently preserved their exceptions to the jury instructions for appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is presumed that the proceedings in the court below were regular, and where error is claimed it is incumbent upon appellants to show it affirmatively.”

“It certainly could not avail plaintiffs’ counsel to except to an instruction offered by himself.”

“This was nothing more than an exception taken to the whole charge of the court without bringing to its attention any special point where error was claimed to have been committed.”

Synopsis

Goods Sold and Delivered—Blasted Materials—Proof of Ownership—Lease—Title to Land Blasted.—In an action of assumpsit, for goods sold and delivered, which consisted of blasted materials, claimed by the .plaintiffs to have belonged to them, and to have been taken away by the defendants, when the ownership thereof by plaintiffs was denied, proof thereof devolved upon them; and where they introduced a lease to themselves of premises from which they claimed the materials were taken, the right of the plaintiffs to recover depends upon the ownership by their lessor of the land from which the materials were blasted, and they cannot claim that such ownership was not in issue.

Id.—Instructions—Ownership of Land—Blasting from Street.—Instructions in such action, based upon testimony that the blasting was done by plaintiffs’ lessor within the lines of a public street, to the effect that if the jury'find that plaintiffs’ lessor was not the owner of the land from which the materials were blasted, and had no interest therein, and that plaintiffs’ only right to the materials was derived from him, their verdict should be for the defendants, and that, if any of the materials were blasted out of the street without the consent of the city authorities, their verdict should be for the defendants as to all materials which came from the street, are correctly given.

Id.—Title of Defendants to “Waste” Materials.—Where it appeared that defendants had bought from plaintiffs’ lessor, and paid for all “waste” materials blasted by him on the premises subsequently leased by him to plaintiffs, the title of the defendants to such “waste” materials is superior to that of the plaintiffs; and plaintiffs only took from their lessor what had not before been sold to the defendants.

Exceptions to Instbtjctions—Presumption upon Appeal.—A general exception to the instructions without specifying any particular instruction, or part thereof, is insufficient; and where the court stated generally that every portion of the charge is deemed excepted to, it will be presumed upon appeal, against error not shown affirmatively, that all of the instructions were given at the request of appellant’s counsel, of which appellant cannot complain.

COOPER,C. Action to recover fifteen hundred and eighty dollars for goods, wares, and merchandise alleged to have been sold and delivered by plaintiffs to defendants. Verdict and judgment for defendants. Motion for new trial and order denying the same. This appeal is from the judgment and order.

The plaintiff's counsel in the bill of exceptions and statement specifies six errors of law occurring at the trial by reason of the court giving certain instructions to the jury, but in his brief argues only four, and we will examine only those urged in the brief.. The first instruction complained of reads as follows: “If you find and believe that John Kelso was not the owner of the land from which the said materials were blasted, and had no interest or estate in said land which gave to him the right to blast them out, and the only right to said materials derived to the plaintiffs was derived from John Kelso, your verdict will be for the defendants.”

It is not claimed but that the instruction is correct as an abstract proposition of law, but it is said there was no issue as to the ownership by John Kelso of the lands from which the said materials were blasted. The plaintiffs, under the issues made by the pleadings, had to prove that they were the owners of the “merchandise sold and delivered” to defendants. To prove such title they introduced what is called a lease from John Kelso to them, and the whole theory of the plaintiff is that the rocks were taken from the premises described in this lease. If Kelso did not own the land from which the materials were blasted, •the plaintiffs, as we understand the case, could not recover. There was testimony that all the blasting was .within the lines of Lombard street. If this is true, then the rock did not come from the lands described in the lease to plaintiffs and Kelso was not the owner of the-lands from which the materials were blasted. It is claimed that it was error for the court to use the words “said materials,” because the term is so indefinite that the jury may have considered that it meant rock as well as waste material. The court in other parts of its instruction referred to said materials as those taken by defendants and told the jury that they were to determine from all the facts and circumstances what materials were included within the term “waste.” Apply[4]ing {he rule that all the instructions are to be read together as supplementing and explaining each other, the instruction could not have been misleading.

The second instruction complained of reads as follows: “If you find and believe that the said materials, or any part thereof, was blasted out of Lombard street, without the license of the proper authorities of the city and county of San Francisco, then your verdict will be for the defendants, so far as all the mate-, rials which so came out of Lombard street, if any, are concerned, but not necessarily as to the other materials.”

Gray v. Eschen

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