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matters. of fact. After saying that there was some evidence in the case tending to show that another railroad company had terminal grounds and other facilities for transacting business in the city and on the bay of San Diego, and that the defendants had offered evidence tending to show that a part of the proposed line of plaintiff's railroad might be so shifted as to pass over otherlands and make an equally good and convenient line of road, the learned judge below said: “The fact that some other company had ample terminal and depot grounds was no reason why the plaintiff should not condemn such lands described in the complaint as the jury should find to be necessary for the construction and operation of its roads; and the fact, if proved, that another equally desirable and convenient line could be had by changing it to another place and passing over other grounds, did not show that the land sought to be taken was not necessary for the use of plaintiff,” etc.
The instruction as to the non-effect of evidence of the possessions or property of another company was not erroneous. In the absence of a recital of the evidence, we must presume the evidence offered by the defendant, with regard to another line, tended to prove just what the judge said it tended to prove,—that another lino would be "equally good and convenient.” The code pro vides that where the land is required for public use, it must be located in a manner compatible with the greatest public good and the least private injury, and subject to the provisions of section 1247. (Code Civ. Proc., sec. 1242.) One of the two lines equally good and convenient for the railroad company may be of greater injury to the land-owner, or may not permit of a proper regulation of the place and manner of making connections and crossings. (Code Civ. Proc., sec. 1247.) there be two lines equally good and convenient, both for the property owner and railroad company, the fact of the existence of two such lines does not constitute a
reason why neither should be adopted. Even if it should be conceded that in such case the owner of the land over which both lines pass has a right to determine which of the two shall be adopted, there is no pleading or evidence in the transcript before us indicating the defendant's selection of one route rather than another.
It is, however, contended by appellants that there is no certain or sufficient description of the land sought to be taken from them for a way, in the complaint, findings, or judgment.
The Code of Civil Procedure, section 1242, provides that the agent of the state may survey and locate the land sought to be condemned, and that the complaint shall contain a description of each piece of land sought to be taken, and whether the same includes the whole or only a part of an entire parcel. (Sec. 1244.) The value of each piece taken is to be fixed by the court, as well as the amount of injury done to the remainder of a tract when a. part is taken. The judgment must be so far certain as that the parties, and any ministerial officer who may be called on to enforce the judgment, may know what land is to be taken and paid for.
The complaint herein avers that there is needed land for the right of way, "upon and over Atlantic Street, from the end of said wharf to Spring Avenue, curving easterly, and passing upon and across lots A, B, C, and D of block fifty (50) of said Gray and John's map; thence crossing Spring Street or Avenue, upon and across block 302, in Middletown, as delineated on the map filed herewith, and marked 'Exhibit A,' in the office of the clerk of this court, and more particularly known as the Gardner and Bleeker tract, taking a strip of one hundred feet wide, fifty feet on each side of the center line of said rail. road track, as shown on said exhibit A," etc. The findings and judgment refer to the complaint, and contain no further description.
The map brought here is certified by the clerk of the superior court to be a copy of the original on file in his office.
The following is a portion of the map accurately transferred:
STREET Note—The figures “752" appear on the map in red. No part of the map in the transcript is designated as "Middletown." No scale of measurements appears upon it; the points of the compass are not indicated; neither the width of the streets nor the size of the lots or blocks can be ascertained from it; and with respect to land sought to be taken from appellants, no certainty can be arrived at, by an examination of the map, as to its area, limits, or quantity. The complaint, independent of the map, contains no description of the land to be taken from appellants, out of block 302, and by reference to the map it is impossible to determine at what point on Spring or California Street the line of the railroad enters or leaves the block 302 as laid down thereon.
SEARLS, C. J., THORNTON, J., MCFARLAND, J., PatERSON, J., and SHARPSTEIN, J., concurred.
(No. 9929. Department One.-June 7, 1888.)
ALBERT F. WHEATON, RESPONDENT, V. NORTH
BRITISH AND MERCANTILE INSURANCE COMPANY, APPELLANT.
INSURANCE-APPLICATION MADE OUT BY AGENT OF INSURER-Mis
STATEMENTS—WARRANTIES.— Insurance companies who do business through the medium of agents are responsible for their acts within the general scope of the business intrusted to their care, and no limitations of their authority will be binding on parties with wliom they deal, which are not brought to their notice. Hence, when the agent undertakes to prepare the application for the insured, he will be regarded in doing so as the agent of the insurance company, and not of the insured, and any misstatements therein contained, of which the insured is ignorant, will not be fatal to the policy, although by the terms of the policy the statements contained
in the application are made warranties. ID.-STATEMENTS AS TO VALUATION-FRAUDULENT INTENT-QUESTION
of Fact.-A provision in the policy that the application shall be consid red a warranty, and if the property insured is over-valued in it tlie policy shall be void, applies only where the statements as to value are intentionally false; and the question of fraud is one of
fact. 10.-DISCREPANCY BETWEEN ACTUAL AND STATED VALUATION.—The fact
of a considerable discrepancy between the actual value of the property insured and the value as stated in the application, although unexplained by other evidence, is not conclusive that the application
was intentionally fraudulent. ID-STATEMENTS WHEN NOT WARRANTIES.-Even when the statements
in the application are declared to be warranties, they will not be regarded as such, if qualified by other stipulations which afford a
fair inference that the parties themselves did not so intend them. [0,--VALUATION APPLICATION-WILLFUL MISREPRESENTATIONS
CONSTRUCTION OF Policy.-A statement made in the application as to the value of the property will not be construed as a warranty, although by a general provision all statem nts therein are declared to be warranties, when the other stipulations of the policy show that it was the intention of the parties that only willful misrepresenta
tions should avoid the policy. [D.--WAIVER OF CONDITIONS-INSURER MAY WAIVE FORFEITURE--IN
STRUCTION ABSTRACTLY CORRECT NOT DEEMED MISLEADING.—The policy in question contained a provision to the effect that no condition thereof could be waived by an agent, except by a written indorsement on the policy. The court instructed the jury that under certain circumstances the insurance company might waive a forfeiture by parol, or by its acts or conduct. The record contained no specification of insufficiency of evidence to sustain the finding that a forfeiture was waived, nor did the defendant ask for any instruction indicating what
facts should appear to make the instruction appropriate. Held, that the instruction was correct as an abstract legal proposition, and
would not be deemed to have misled the jury. ID.—STIPULATIONS TO BE PERFORMED AFTER Loss-AGENT MAY WAIVE
WITHOUT WRITTEN INDORSEMENT.--A provision in the policy that no waiver of a condition can be made by an agent except by indorsements does not refer to those stipulations which are to be performed after a loss has occurred, such as giving notice and furnishing pre
liminary proof. ID.-WAIVER QUESTION OF FACT-INSTRUCTION-INFERENCE OF FACT.
The question whether or not the delay of the insured in making proof of loss had been waived is one of fact for the jury. But an instruction that the jury should infer a waiver, if certain acts of the agent were proved to their satisfaction, is without prejudice, when such acts conclusively establish a waiver, and the evidence thereof
is uncontroverted. ID.-ESTOPPEL TO CLAIM FORFEITURE-KNOWLEDGE OF OVER-VALUATION
-DEMAND AND RECEIPT OF PROOF OF LOS8.—The fact that the gen. eral agent of the insurer, with knowledge that the property insured bad been overvalued but without knowledge that such over-valuation was intentional, asked for and received proofs of loss from the insured, will not estop the insurer from claiming a forfeiture of the policy on account of the fraudulent representations of the insured as
to the value of the property. ID.-FINDINGS— TROUBLE AND EXPENSE OF MAKING PROOF- ABANDON
MENT OF CLAIM.—The mere fact that the general agent of the insurance company asked the insured to furnish preliminary proofs of loss, which by the terms of the policy he was required to furnish, will not authorize a finding that by reason thereof the insured was put to the trouble and expense of making such proof, or that had such request not been made, he would have abandoned all claim against the company.
APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
The action was brought on a policy of fire insurance to recover for a loss by fire.
The insured property consisted of certain furniture and fixtures in a bath-house and saloon, and were by the policy insured respectively for six hundred dollars, three hundred dollars, and two hundred dollars. The application for the insurance was made out by the local agent for the company, and stated that the property was respectively valued at nine hundred dollars, five hundred dollars, and four hundred dollars. The actual value of the property at the time of