safe rule in California

1951Plaintiff, not being party to the contract, cannot maintain this action on account of injuries resulting from any breach of duty defendant owed Pickle, arising purely out of the terms of the contract between them. ’ ’ ’ In the case of Kircher v. Hunier (1929), 101 Cal.App. 548 [ 281 P. 1047 ], it was held that there is no privity of contract between an owner and a subcontractor and, therefore, the former could not maintain an action against the latter for damages consisting of the cost of certain reconstruction work occasioned by defective construction in the laying of tile in two bathrooms.

1951Plaintiff, not being party to the contract, cannot maintain this action on account of injuries resulting from any breach of duty defendant owed Pickle, arising purely out of the terms of the contract between them. ’ ’ ’ In the case of Kircher v. Hunier (1929), 101 Cal.App. 548 [ 281 P. 1047 ], it was held that there is no privity of contract between an owner and a subcontractor and, therefore, the former could not maintain an action against the latter for damages consisting of the cost of certain reconstruction work occasioned by defective construction in the laying of tile in two bathrooms.

2025Mass. 1821) 26 F.Cas. 329, 330 [“It appears to me, therefore, to be a safe rule founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act”].) Our Supreme Court quoted U.S. v. Hoar for this rule in Mayrhofer v. Board of Education (1891) 89 Cal. 110, 112 , which the Court cited in Stone to support its holding that it “is deeply embedded in our state’s jurisprudence” that “absent express words to the contrary, governmental agencies are not i

2009(See, e.g., People v. Lepine, supra, 215 Cal.App.3d at p. 94; Downie, supra, 569 A.2d at p. 247 ; Brayman, supra, 751 P.2d at p. 300 .) Thus, if a driver’s breath test shows a converted blood-alcohol level of 0.08 percent or more, the measurement is generally accurate and may fairly be used to prove the driver was actually under the influence, as the generic DUI statute requires.

2009(See, e.g., People v. Lepine, supra, 215 Cal.App.3d at p. 94; Downie, supra, 569 A.2d at p. 247 ; Brayman, supra, 751 P.2d at p. 300 .) Thus, if a driver’s breath test shows a converted blood-alcohol level of 0.08 percent or more, the measurement is generally accurate and may fairly be used to prove the driver was actually under the influence, as the generic DUI statute requires.

1957The safe rule seems to be that only such issues have become res judicata as were properly adjudicated in the judgment. . . . [T]he judgment does not purport to settle any issue save alone the issue of injunction based upon the ground of the intervention of a public use.” In Hamilton v. Hamilton, 109 Cal.App.2d 145 [ 240 P.2d 14 ], the wife had filed a suit for divorce during the existence of which the parties had become reconciled, and she dismissed the action.

1957The safe rule seems to be that only such issues have become res judicata as were properly adjudicated in the judgment. . . . [T]he judgment does not purport to settle any issue save alone the issue of injunction based upon the ground of the intervention of a public use.” In Hamilton v. Hamilton, 109 Cal.App.2d 145 [ 240 P.2d 14 ], the wife had filed a suit for divorce during the existence of which the parties had become reconciled, and she dismissed the action.

1957“I will not go so far as to say that the testimony of the informer upon a hearing of this kind must be presented to establish the probable cause, but I am of the opinion that the only safe rule to adopt will be to require officers who presume to make search and seizures of automobiles on the public highway, without warrant, to disclose every element which goes to make up their case of probable cause, and that this rule reasonably includes the source of their information, so that the court may determine whether or not under all the circumstances a case of probable cause has been established, an

1957But what is of greater consequence is that an ill-intentioned person might give an officer information which would in many instances lead to humiliation and vexation of the innocent automobile driver upon the public highway, and yet, with the failure to disclose the name of his informant, the prohibition agent would be safely ensconced behind his blanket testimony that he was informed by a reliable person. ..." "I will not go so far as to say that the testimony of the informer upon a hearing of this kind must be presented to establish the probable cause, but I am of the opinion that the only s

1957“I will not go so far as to say that the testimony of the informer upon a hearing of this kind must be presented to establish the probable cause, but I am of the opinion that the only safe rule to adopt will be to require officers who presume to make search and seizures of automobiles on the public highway, without warrant, to disclose every element which goes to make up their case of probable cause, and that this rule reasonably includes the source of their information, so that the court may determine whether or not under all the circumstances a case of probable cause has been established, an

1957“I will not go so far as to say that the testimony of the informer upon a hearing of this kind must be presented to establish the probable cause, but I am of the opinion that the only safe rule to adopt will be to require officers who presume to make search and seizures of automobiles on the public highway, without warrant, to disclose every element which goes to make up their case of probable cause, and that this rule reasonably includes the source of their information, so that the court may determine whether or not under all the circumstances a case of probable cause has been established, an

1946It appears to me, therefore, to be a safe rule founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act. ...” (See, also, Estate of Miller, 5 Cal.2d 588 [55 P.2d 491]; Butterworth v. Boyd, 12 Cal.2d 140 [ 82 P.2d 434 , 126 A.L.R. 838 ]; Miles v. Ryan, 172 Cal. 205 [ 157 P. 5 ] ; Liebman v. Richmond, 103 Cal.App. 354 [ 284 P. 731 ].) Other cases are listed in 23 California Jurisprudence, pages 625 and 769, in support of the same rule.

1946It appears to me, therefore, to be a safe rule founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act. ...” (See, also, Estate of Miller, 5 Cal.2d 588 [55 P.2d 491]; Butterworth v. Boyd, 12 Cal.2d 140 [ 82 P.2d 434 , 126 A.L.R. 838 ]; Miles v. Ryan, 172 Cal. 205 [ 157 P. 5 ] ; Liebman v. Richmond, 103 Cal.App. 354 [ 284 P. 731 ].) Other cases are listed in 23 California Jurisprudence, pages 625 and 769, in support of the same rule.

1946It appears to me, therefore, to be a safe rule founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act. ...” (See, also, Estate of Miller, 5 Cal.2d 588 [55 P.2d 491]; Butterworth v. Boyd, 12 Cal.2d 140 [ 82 P.2d 434 , 126 A.L.R. 838 ]; Miles v. Ryan, 172 Cal. 205 [ 157 P. 5 ] ; Liebman v. Richmond, 103 Cal.App. 354 [ 284 P. 731 ].) Other cases are listed in 23 California Jurisprudence, pages 625 and 769, in support of the same rule.

1946It appears to me, therefore, to be a safe rule founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act. ...” (See, also, Estate of Miller, 5 Cal.2d 588 [55 P.2d 491]; Butterworth v. Boyd, 12 Cal.2d 140 [ 82 P.2d 434 , 126 A.L.R. 838 ]; Miles v. Ryan, 172 Cal. 205 [ 157 P. 5 ] ; Liebman v. Richmond, 103 Cal.App. 354 [ 284 P. 731 ].) Other cases are listed in 23 California Jurisprudence, pages 625 and 769, in support of the same rule.

1946It appears to me, therefore, to be a safe rule founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act. ...” (See, also, Estate of Miller, 5 Cal.2d 588 [55 P.2d 491]; Butterworth v. Boyd, 12 Cal.2d 140 [ 82 P.2d 434 , 126 A.L.R. 838 ]; Miles v. Ryan, 172 Cal. 205 [ 157 P. 5 ] ; Liebman v. Richmond, 103 Cal.App. 354 [ 284 P. 731 ].) Other cases are listed in 23 California Jurisprudence, pages 625 and 769, in support of the same rule.

1946It appears to me, therefore, to be a safe rule founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act. ...” (See, also, Estate of Miller, 5 Cal.2d 588 [55 P.2d 491]; Butterworth v. Boyd, 12 Cal.2d 140 [ 82 P.2d 434 , 126 A.L.R. 838 ]; Miles v. Ryan, 172 Cal. 205 [ 157 P. 5 ] ; Liebman v. Richmond, 103 Cal.App. 354 [ 284 P. 731 ].) Other cases are listed in 23 California Jurisprudence, pages 625 and 769, in support of the same rule.

1946It appears to me, therefore, to be a safe rule founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act. ...” (See, also, Estate of Miller, 5 Cal.2d 588 [55 P.2d 491]; Butterworth v. Boyd, 12 Cal.2d 140 [ 82 P.2d 434 , 126 A.L.R. 838 ]; Miles v. Ryan, 172 Cal. 205 [ 157 P. 5 ] ; Liebman v. Richmond, 103 Cal.App. 354 [ 284 P. 731 ].) Other cases are listed in 23 California Jurisprudence, pages 625 and 769, in support of the same rule.

1946It appears to me, therefore, to be a safe rule founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act. ...” (See, also, Estate of Miller, 5 Cal.2d 588 [55 P.2d 491]; Butterworth v. Boyd, 12 Cal.2d 140 [ 82 P.2d 434 , 126 A.L.R. 838 ]; Miles v. Ryan, 172 Cal. 205 [ 157 P. 5 ] ; Liebman v. Richmond, 103 Cal.App. 354 [ 284 P. 731 ].) Other cases are listed in 23 California Jurisprudence, pages 625 and 769, in support of the same rule.

1930In People v. Galloway, 202 Cal. 81 [ 259 Pac. 332, 336 ], in discussing the question of granting a new trial because of misconduct of a juror in untruthfully answering questions on voir dire, the court said: “In other words, a safe rule applicable to the situation would be that the court would not be warranted in setting aside a verdict on account of such misconduct unless from a review of the entire *68 case it can be seen that the accused has not only been diligent but has suffered an injustice by reason of the action of such juror.” In Kimic v. San Jose, Los Gatos etc. R.

1930In People v. Galloway, 202 Cal. 81 [ 259 Pac. 332, 336 ], in discussing the question of granting a new trial because of misconduct of a juror in untruthfully answering questions on voir dire, the court said: “In other words, a safe rule applicable to the situation would be that the court would not be warranted in setting aside a verdict on account of such misconduct unless from a review of the entire *68 case it can be seen that the accused has not only been diligent but has suffered an injustice by reason of the action of such juror.” In Kimic v. San Jose, Los Gatos etc. R.

1930Co., 156 Cal. 379 , the court said, at page 398 [ 104 Pac. 986, 994 ] : “However strictly the decisions may lay down the rule as to the effect of misconduct of the jury that may well have prejudiced the parties, it is settled in this state that a new trial will not be granted on that ground where the misconduct "was of such trifling nature that it could not in the nature of things have been prejudicial to the moving party, and that where it appears that the fairness of the trial has been in no way affected by such impropriety, the verdict will not be disturbed.” Also, in Siemsen v. Oakland, S.

1930Co., 156 Cal. 379 , the court said, at page 398 [ 104 Pac. 986, 994 ] : “However strictly the decisions may lay down the rule as to the effect of misconduct of the jury that may well have prejudiced the parties, it is settled in this state that a new trial will not be granted on that ground where the misconduct "was of such trifling nature that it could not in the nature of things have been prejudicial to the moving party, and that where it appears that the fairness of the trial has been in no way affected by such impropriety, the verdict will not be disturbed.” Also, in Siemsen v. Oakland, S.

1921Most recently in the case of Irillary v. City of San Diego, 186 Cal. 535 , [ 199 Pac. 1041 ], wherein it is held that a debt due from a municipality cannot be garnisheed in a suit by a private party, even though the debt was incurred by the city acting in its proprietary capacity; and in Engebretson v. City of San Diego, 185 Cal. 475 , [ 197 Pac. 651 ], following San Francisco etc. v. City and County of San Francisco, 131 Cal. 356 , [ 63 Pac. 665 ], holding that general provisions in regard to interest do not apply to municipalities, and in *307 Slayden v. O’Dea, 182 Cal. 500, 505 , [ 189 Pac.

1921Most recently in the case of Irillary v. City of San Diego, 186 Cal. 535 , [ 199 Pac. 1041 ], wherein it is held that a debt due from a municipality cannot be garnisheed in a suit by a private party, even though the debt was incurred by the city acting in its proprietary capacity; and in Engebretson v. City of San Diego, 185 Cal. 475 , [ 197 Pac. 651 ], following San Francisco etc. v. City and County of San Francisco, 131 Cal. 356 , [ 63 Pac. 665 ], holding that general provisions in regard to interest do not apply to municipalities, and in *307 Slayden v. O’Dea, 182 Cal. 500, 505 , [ 189 Pac.

1921Most recently in the case of Irillary v. City of San Diego, 186 Cal. 535 , [ 199 Pac. 1041 ], wherein it is held that a debt due from a municipality cannot be garnisheed in a suit by a private party, even though the debt was incurred by the city acting in its proprietary capacity; and in Engebretson v. City of San Diego, 185 Cal. 475 , [ 197 Pac. 651 ], following San Francisco etc. v. City and County of San Francisco, 131 Cal. 356 , [ 63 Pac. 665 ], holding that general provisions in regard to interest do not apply to municipalities, and in *307 Slayden v. O’Dea, 182 Cal. 500, 505 , [ 189 Pac.

1921Most recently in the case of Irillary v. City of San Diego, 186 Cal. 535 , [ 199 Pac. 1041 ], wherein it is held that a debt due from a municipality cannot be garnisheed in a suit by a private party, even though the debt was incurred by the city acting in its proprietary capacity; and in Engebretson v. City of San Diego, 185 Cal. 475 , [ 197 Pac. 651 ], following San Francisco etc. v. City and County of San Francisco, 131 Cal. 356 , [ 63 Pac. 665 ], holding that general provisions in regard to interest do not apply to municipalities, and in *307 Slayden v. O’Dea, 182 Cal. 500, 505 , [ 189 Pac.

1921Most recently in the case of Irillary v. City of San Diego, 186 Cal. 535 , [ 199 Pac. 1041 ], wherein it is held that a debt due from a municipality cannot be garnisheed in a suit by a private party, even though the debt was incurred by the city acting in its proprietary capacity; and in Engebretson v. City of San Diego, 185 Cal. 475 , [ 197 Pac. 651 ], following San Francisco etc. v. City and County of San Francisco, 131 Cal. 356 , [ 63 Pac. 665 ], holding that general provisions in regard to interest do not apply to municipalities, and in *307 Slayden v. O’Dea, 182 Cal. 500, 505 , [ 189 Pac.

1921Most recently in the case of Irillary v. City of San Diego, 186 Cal. 535 , [ 199 Pac. 1041 ], wherein it is held that a debt due from a municipality cannot be garnisheed in a suit by a private party, even though the debt was incurred by the city acting in its proprietary capacity; and in Engebretson v. City of San Diego, 185 Cal. 475 , [ 197 Pac. 651 ], following San Francisco etc. v. City and County of San Francisco, 131 Cal. 356 , [ 63 Pac. 665 ], holding that general provisions in regard to interest do not apply to municipalities, and in *307 Slayden v. O’Dea, 182 Cal. 500, 505 , [ 189 Pac.

1921Most recently in the case of Irillary v. City of San Diego, 186 Cal. 535 , [ 199 Pac. 1041 ], wherein it is held that a debt due from a municipality cannot be garnisheed in a suit by a private party, even though the debt was incurred by the city acting in its proprietary capacity; and in Engebretson v. City of San Diego, 185 Cal. 475 , [ 197 Pac. 651 ], following San Francisco etc. v. City and County of San Francisco, 131 Cal. 356 , [ 63 Pac. 665 ], holding that general provisions in regard to interest do not apply to municipalities, and in *307 Slayden v. O’Dea, 182 Cal. 500, 505 , [ 189 Pac.

1921Most recently in the case of Irillary v. City of San Diego, 186 Cal. 535 , [ 199 Pac. 1041 ], wherein it is held that a debt due from a municipality cannot be garnisheed in a suit by a private party, even though the debt was incurred by the city acting in its proprietary capacity; and in Engebretson v. City of San Diego, 185 Cal. 475 , [ 197 Pac. 651 ], following San Francisco etc. v. City and County of San Francisco, 131 Cal. 356 , [ 63 Pac. 665 ], holding that general provisions in regard to interest do not apply to municipalities, and in *307 Slayden v. O’Dea, 182 Cal. 500, 505 , [ 189 Pac.

1916I am therefore of opinion that the only safe rule to lay down is this: that each land owner for himself, or the commissioners acting for several land owners, may direct such defenses for the land under their care as the necessity of the case requires, leaving the others in like manner to protect themselves against the common enemy.” To the same effect is McDaniel v. Cummings, 83 Cal. 515 , [8 L.

1905C.), 57 Fed. 898 .) We do not think it would be a safe rule to grant a new trial on account of statements in public journals during the trial, which statements do not appear to have been read by the jurors, and to which the court’s attention was not called until the termination of the trial.

1897In considering this act, it was held in People v. Craycroft, 111 Cal. 544 , that its provisions requiring the sale of railroad franchises in the streets of cities to the highest bidder must be construed as applying only to cases of street railroads, and not to a steam railroad which seeks to extend its track through the streets of a city en route between its termini.

1891Dec. 33 ; Savings Bank v. United States, 19 Wall. 239 ; United States v. Davis, 3 McLean, 484 ; United States v. Williams, 5 McLean, 133 ; Commonwealth v. Johnson, 6 Pa. St. 136; Josselyn v. Stone, 28 Miss. 753 ; People v. Herkimer, 4 Cow. 345 ; 15 Am.

1891Dec. 33 ; Savings Bank v. United States, 19 Wall. 239 ; United States v. Davis, 3 McLean, 484 ; United States v. Williams, 5 McLean, 133 ; Commonwealth v. Johnson, 6 Pa. St. 136; Josselyn v. Stone, 28 Miss. 753 ; People v. Herkimer, 4 Cow. 345 ; 15 Am.