The record-union., 1891-03-06

been, we see nothing in it misleading OF
conflicting with other instructions, which
last most clearly Kept before the jury the
idea that they were to give no damages
except such as were the proximate result
of the injury done: and this will appear
by glance at the other Instructions
given.
1t is further claimed that the court
erred in instructing the jury that in esti-
mating the damages done tine plaintiffs
they might consider the evidence con-
corning the expenses of the enforced re-
moval of the plaintiffs from the premises
to another place of business, and that re-
gardlng any damage which might result
from the deprival OF the use OF improve
ments abandoned by them.
The defendant contends that these ele-
ments OF damage We're not recoverable
The argument in this connection appears
to be that The plaintiffs could only recover
for the benefits which they might have
had L the defendants had permitted them
TO remain at their former place OF business
untrespassed upon.
But the plaintiffs We're not, according
to the tendency OF their evidence, permit
ted TO remain uDmoleSted. but were driven
away by the wrongful acts of the defend
ants, hence the former were entitled to
recover whatever their loss might be, OF
which the defendants wrongful acts were
the efficient cause.
The proXimate cause is the efficient
cause, the one that necessarily sets the
other causes in operation" Insurance
20. VS.. Boon, Otto, 95 q. s. 1907
That which is the actual cause of the
loss, Whether operating directly, or by put
tlng intervening agencies, the operation
OF winch could not be reasonably avoided
in motion, by which the loss is produced
is the cause to which such loss should be
attributed" BRADY VS.. Northwestern In
surance Co., ii Mich. 425.l
Here the evidence on behalf of the
plaintiffs tended to show that the trespass
OF the defendant and his acts in accom-
p!ishing it, resulted in the plaintiffs hav-
ing to leave their place of business, give
up their leasehoid interest, go to expense
IN moving their appurtenances, etc, lose
the privilege which they had of hot water
iof baths and barber-shop, and III their
having TO go to another place OF business
tesS favorable or profitable which en-
lai!ed loss in their established trade and
business, and having to lose the use of
abandoned permanent entimprovements.
lhe cause which set all the rest in mo-
tlon was the trespass the operation os the
subsequent agencies of loss, were the re-
suit OF this wrongful injury. Hence thew
proXlmately resulted from that trespass.
10 the hrst cause, primarily, all the dam
age resulting are to be attributed. al-
though each item Of damage was produced
py some separate cause, following the
primary cause, and operating more I'M
nlediately in producing the damages.
insurance co. VS.: Boon. supra, citing
insurance Co. vs. Tweed. Wall 441
Damages which accrue subseduent to
the tort, but OF which it is the primary
cause, are not separate causes of action.
put 'are parts of the tort itself for which
The cause OF action is given. (Wood VS..
Currey, 81 Cal. Il0.)
=, No error is perceived in the rulings of
the trial court as to the instructions lust
mentioned, or as to the evidence aG nlifted
on the points involved therein.
Further complaint is made because the
trial court allowed question to be put to
one the plaintiffs as follows: 'What is
that leasehold worth to your
Ii erroneous, because it did not seek for
the market value of that interest, it was
harmless in view of the answer of the
witness, which plainly indicated that the
value of which he testified was the mark et
value.
The appellant contends that the court
erred in allowing evidence to go TO the
jury as to the amount OF business done by
the plaintiffs before and after the allepeH
trespass. The complaint charged as one
of the clements OF damage resulting from
the treSpaSs, that the plaintiffs had lost
ness.
With view to show what that loss was,
We think the evidence was admissible
1.-The best considered cases agree that
where an established business is wrong-
fully injured or destroyed, the owner Of
the business can recover the damages s,s-
tanned thereby, and that upon this cnes-
ton evidence of the profits which he was
actually making is admissible" H.am-
bert VS.. Hask ELL so Cal 6l9)
The point is made that the defendant
should have been allowed to denur TO
the amended complaint, and to file an an
swer thereto. The ruling to which exceD-
tion is taken appears at folios 81, 9, 3.
While the trial was in PROGRESS tho
plaintiffs asked leave to amend the fiffb
paragraph of their complaint. The re-
quest was granted. The amendment was
made and copy of it served and
filed. A recess was then taken by the
court to allow the defendant to plead
thereto. Upon the reassemblinp Of the
court the defendant presented, filed and
read demurrer, which went to other.
matters besides the amendment filed by
the plaintiffs Previous to this the de-
fendant had demurred generally to the
complaint. before amendment, which was
overruled for want OF "presentation:n we
suppose this was intended to read prose-
cution.
The court refused to consider the de-
murrer to the amended complaint except
as directed to the amendment allowed fo
be made, and as to that overruled the de-
murrer. The defendant then asked leave
to flle an answer to the whole complaint
as amended. This the court refused to
allow upon the ground that the only por-
ton of the complaint which had been
amended was the fifth paragraph thereof.
and that the defendant might file an an
swer to that. Maintaining his right
to answer the whole complaint and
reserving his exception, the defendant
answered the fifth paragraph of the com.
plant.
1t is true that s'the amendment, to-
gether with the original amended com
paint, constituted new complaint which
superseded all other pleadings in the
case" (Thompson VS.. johnson, 60 Cal.
29o.) But no reason is shown why the
demurrer as filed should have been sus-
tanned on any of the grounds alleged
therein, nor do we perceive that the
amended complaint was obnoxious to
that demurrer. The defendant was in no
worse condition by the refusal of the
court to consider anything butt the de-
murrer as. applicable to the amendment
made to the complaint, than hes would
have been had the court considered and
overruled the demurrer as a whole.
AS to the action of the court in refusing
to allow the filing of an amended answer
except to that portion Of the complaint
which had not been already answered, it
does not appear that the answer proposed
to be filed differed in any essential re-
spect from the answer on file, except with
reference to that part answering the
amendment of the fifth paragraph of the
complaint, and that portion of the pro-
posed answer was filed and considered.
In the action of the court, therefore, as to
these matters there appears no abuse of
discretion.
Perceiving no prejudicial error we adj
wise that the judgment and order be