The record-union., 1891-02-21

ACT were OPINION.
1t is admitted that-a mere failure to
an aftirmance, for the Constitution re-
quires the concurrence of four Justices to
pronounce judgment; but it is claimed
that it then becomes the duty of the
justices who voted for q reversal to unite
with their associates in affirming the
Judgment. The reason given for this con-
tention is an argument a6 incoRCenieltt.
1t is said that If this rule is not followed
| the case might be continued for four years,
until change il the membership in the
court occurs: land, then again, the same
condition OF things might still continue,
and this would require further continu-
ance; and thus it might happen that the
case would never be decided"
Many English and American authori-
ties are cited in support OF the motion
and no cases to the contrary have been
found by respondent; but the decisions
must be read in the light of the circum-
stances under which they We're rendered.
Some of the cases referred to went off on
the authority of statutes providing that in
cases of equal division among the Judges
the judgment should be affirmed. others
upon rule following the practice of the
English courts and the others upon the
ground OF expediency. The case OF Ayers
VS.. Bensley (32 Cal. 632l is hardly in
point. There a judqnleilt had been rem
dered by constitutional quorum, and it
was only on petition for re-hearing that
division occurred. The rule has
always been with respect to petitions
for re-hearings that as many Justices as
are necessary to pronounce the judgment
must concur in granting q re-hearing or
the petition will be denied
In Jurisdictions presided over by
Judges holding for life or for terms so
great as TO make the probability of q
| change in the membership of the court
remote, the judgment of aifrmance fol-
lows division er 'lecesS5t0te rel. In such
case the decree does not import di-
vision as to the nature Of the Judgment,
but as to the questions of law and fact in
VolyeG in it. While the decree is q bar
10 any subsequent action for t9le same
cause, no matters of law are decided and
1t therefore possesses no dignity as ju-
dicla! precedent, but carries upon its face
badge which precludes any application
OF it in future under the doctrine OF stare
decisis. The Judges simply agree that it
is eXpedlent to finish the litigation. It is
a public expediency and is often eX-
pedient also with respect to the interests
of the parties. Supported by these con-
Siderations, and the presumption OF cor
rectneSS which always attaches to the
Judgment of the court below, il is proper
and right that the Judges who were in
favor OF Il reversal should waive any in
sistence of opinion and unite with their
associates IN an affirmance OF the iudg-
ment. This they do without in any way
rellnqulshlng their convictions upon the
questions of law or fact involved
in the case. But here there are
no such considerations as induced the de-
clsions III the cases referred to. At the
time the motion was made it was evident
that before the time for the next term OF
court at which the cause would be heard,
three, at least, including the Justice dis
qualified to act-and possibly four of the
Justices-wOuld be succeeded by others
on the bench. Within month after the
! motion was made, and before an opinion
was written, an election occurred which
resulted in the choice of three new Jus
tees, all of whom are qualified TO assist
in deciding the cause on its merits.
Under these circumstances we thought at
the time the motion was submitted, and
still think, that the cause should be pre-
sented'on its merits before the court as
now constituted.
The motion is therefore denied.
PATERSON, J.
We concur:
BEATTY, G. j.,
MCFARLAND, J.,
SHARPSTEIN, }.
Although we were not present at the
argument Of the motion, which was after
wards submitted on briefs, counsel for APP
pellant not being present at the
time the motion was made, we
have considered the point made
by respondent and concur in the
views expressed in the opinion of Justice
Paterson. HARRISON, j.,
DEHAvEN, j.,
GAROUTTE, J.
Filled February u, 1911
Appeal from Superior Court, Kern
County-R. E. Aricfl, Judge.
For appellant, Jarboe, Harrison d
Goodfell0W
For respondent, Haggin IL Van Ness.
DEPARTMENT TWO.
NJ. L. HARRoN,
Respondent,
CITY OF LONDON FIRE IN NO. lo,'o4.
SURANCE COMPANY,
Appellant.
This is an action to recover S., 900 upon
an alleged parol contract for the insurance
OF furniture, etc., in the Southern Hotel,
at,Bakerstield, in Kern County. The YER
dict and Judgment We're for plaintiff, and
defendant appeals.
The defendant is q corporation organ
lied under the laws of Great Britain. and.
does business in the Pacific States and
Territories under the management of w.
j. Callingham, and its head office under
his charge is in San Francisco 1t has
local agents III various cities and towns,
and on July 6, 1889, its agent at Bakers
field was, and for long time had been.
II. a. Blodget. On that date a small fire
occurred in the Southern Hotel, of which
plaintiff was lessee, and in which she
had large amount of furniture
and other personal property. The
hotel was conducted and managed
by her brother, w. Fl. Harron, who
was her general agent for that purpose.
Being alarmed at the occurrence Of the
fire her said agent Went TO said Blodget in
h n nnEf Tor, 80. Z! T. OLE
that he wanted an Insurance on said fur
nlture, etc, to take effect Immediately,
and that If he could not obtain it from
him he would go elsewhere: and it is
clear that the jury were warranted by the
evidence IN finding that contract of in
surance on said property for one year for
So 900 was then and there made by de-
fendant with plaintiff, to take effect inn
Inedlately, provided Blodget had the
authority to make such contract for de-
fendant. On the next day, July 7th. a
general conHagration. not originating in
said hotel, destroyed nearly the entire
town, including plaintiffs said property,
which was of a value exceeding IS. 900.
The real question in che case is: Was
the jury authorized by the evidence to
lind that Blodget had power TO bind the
defendant? (There are some minor
points made about certain rulings of the
court, but we do not think that in such
ted.)
Blodget had written commission from
defendant, which certifes that he is ap-
pointed agent of defendant with full
power to receive proposals for insurance
against loss or damage by fire in Bakers
ield-an vicinity, to fix rates of premium,
and TO receive mon eys on behalf of the
CITY of London Fire Insurance Company.
limited, of London, Eng, subject to the
rules and regulations Of said company,
and sHch Instructions as nadH be qiUen
from time to time by the general agents of
the western department of the United
States" (The foregd ing words in quota