Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] 27 Cal. 426 at 431.
Original Opinion of January 1865, Reported at: 27 Cal. 426.
JUDGES: Shafter, J., on petition for rehearing. Mr. Justice Currey expressed no opinion.
OPINION
SHAFTER, Judge
By the Court, Shafter, J., on petition for rehearing:
Petition for rehearing. The rehearing is asked for on the ground that " the attention of the court has been by some means diverted from the only point presented for consideration in appellant's brief," to wit, the charge of the court " that interest can be allowed against a common carrier only when it shall appear that there was fraud or gross misconduct in carrying the property or in the transaction." The brief referred to " invites the attention of the court to the errors numbered four, five, six and twelve," in the transcript. Number four is as follows: " Error of the court in refusing to allow the defendant to read in evidence the deposition of George W. Coffee, and refusing to allow defendant to show the good condition of their boilers and steam engine in mitigation of damages." Both of these questions are considered in the opinion, and both, on reasons given, were decided against the appellant, on the ground that the evidence offered was not admissible to mitigate the damages, nor for any purpose. Number five, to which our attention was also specially solicited, is as follows: " Error in the court in refusing to allow the defendant to prove by competent witnesses that all possible skill, care and prudence was used on the part of the agents and servants of the defendants." That question is also discussed in the opinion and determined against the appellant. It will be observed that the assignment does not bring the error alleged into relation with the point of damages; but we, nevertheless, after disposing of the error as related to the point of the defendant's liability, passed upon it as it stood connected with the question of damages, as is apparent on the face of the opinion.
Number six is as follows: " Error of the court in refusing to allow defendant to prove that the boilers of defendant were capable of sustaining twice the amount of steam contained therein at the time of the alleged explosion, and that the engineer, master and crew of defendant were entirely without fault or negligence." This point, also, is not brought expressly into relations with the question of damages, but the " means" by which we were induced idly to discuss and idly to pass upon it, though forgotten by counsel, have now become apparent.
As to the charge of the court upon the subject of allowing interest by way of damages, we did not discuss it, for two reasons, one of which was that its correctness was indisputable, and the other was that its correctness was not disputed by counsel; and, as already stated, we held, on discussion, that the general evidence which the defendant offered of " care," and " extraordinary care," and " of all possible care," and to the effect that the " boilers were in good condition," etc., was inadmissible, for the reason that the defendant did not undertake to controvert the specific fact of racing with a rival boat for the purpose of winning bets encouraged by the engineer--holding that the theory of mitigation upon which the rejected evidence was offered amounted to this--that if it could be shown that the luxury and recklessness of racing was indulged in with " good boilers," strained to bursting with " extraordinary care," that then, and in that event, the defendant should be let off from paying interest on the value of the stud, by way of damages. On these grounds we consider that, as matter of fact, no question was discussed in the opinion except such as our attention was specially called to by counsel, and that the question which counsel conceives was entirely overlooked, was, on the contrary, entirely exhausted.
Petition for rehearing denied.