shown, the driver of plaintiff's automobile, as a reasonably prudent man and in the exercise of due care, was justified in turning his car to the left to avoid the collision threatened by the negligent act of defendant. Not only was there no error in the ruling of the court in denying the motion for nonsuit, but there is likewise no ground for appellant's contention that the evidence was insufficient to justify the verdict. Indeed, the testimony of plaintiff's witnesses is such that if the jury believed the truth of their statements, it could not have arrived at a different verdict.

[3] Error is predicated upon the ruling of the court in permitting the cross-examination of two witnesses called by defendant and questioned as to the damage suffered by defendant as a result of injuries to his car in the collision. Thereupon, on cross-examination, plaintiff questioned them as to the radius within which it was possible to turn a car of the make and manufacture of that driven by defer.dant. The ruling of the court in permitting these questions was erroneous. Nevertheless, it is apparent from the nature of the questions and the answers thereto that such error was absolutely harmless and without prejudice.

[4] Plaintiff sued by her guardian ad litem, alleging that on July 22, 1914, Edgar F. Saylor was by an order of court appointed in such capacity. In his answer defendant, upon information and belief, denied the allegation. No proof was offered thereon, for which reason he claims the judgment should be reversed. The order was made in the case, the records of which afforded defendant a ready means of ascertaining the truth of the allegation, and hence it was not an allegation as to which issue could be joined by a denial for want of information and belief. (Mulcahy v. Buckley, 100 Cal. 484, [35 Pac. 144]; Mullally v. Townsend, 119 Cal. 47 150 Pac. 1066].)

[5] The court instructed the jury that plaintiff's right to recover was not limited to such damages as may have occurred up to the time of the filing of her complaint in the action, and further said, "But in case you find from the evidence that plaintiff is liable to continual suffering, and is liable to future mental anguish and bodily pain, then your verdict should be commensurate to such subsequent suffering, mental anguish, and physical suffering, as by the evidence she may reasonably suffer in the future, as well as for that suf fered down to the time of the filing of her complaint, not

exceeding the amount claimed" therein. We agree with appellant that the giving of this instruction was error, since under section 3283 of the Civil Code, "damages may be awarded, in a judicial proceeding, for detriment resulting after the commencement thereof, or certain to result in the future." As used, the word "liable" must be construed, not as referring to a detriment certain to result, but to a future possible or probable happening which may not actually occur. (Home Ins. Co. v. Peoria & P. U. Ry. Co., 178 Ill. 64, [52 N. E. 862].) The jury, notwithstanding an instruction later given by the court in the language of section 3283, might have considered the first one applicable to the facts established and, as claimed by appellant, indulged in the realm of speculation and conjecture as to the liability of future suffering and detriment. That it was error and not cured by the subsequent instruction with which it was in conflict, see Martin v. Southern Pacific Co., 130 Cal. 285, [62 Pac. 515]; Melone v. Sierra Ry. Co., 151 Cal. 113, [91 Pac. 522], and Walker v. Southern Pacific Co., 162 Cal. 121, [121 Pac. 369].

[6] Nevertheless, and conceding the error, we are satisfied, upon an examination of the evidence, that it did not result in a miscarriage of justice, without which, as provided in section 41⁄2 of article VI of the constitution, this court should not set aside the judgment rendered. It appears without contradiction that plaintiff was seriously, if not permanently, injured; that in addition to both limbs and an artery being badly cut, necessitating a number of stitches being taken to close the wounds, a ligament of the kneecap was almost severed, which likewise had to be drawn together by stitches; in addition to all of which her nervous system was more or less impaired. It further appeared that at the time of the trial, about a year after the accident, plaintiff's condition, as a result of the injuries, was such that she could not stand upon the limb affected by the severed ligament without suffering pain. Hence, conceding the jury, as claimed by appellant, might have indulged in speculation and conjecture, it is apparent, when considering the amount of the verdict as compared with the serious injuries sustained by plaintiff, that if they did enter into the realm of speculation the voyage therein was of exceedingly short duration and not to an extent that affected the verdict.

An examination of other alleged errors predicated upon the giving and the refusing to give instructions discloses no merit in appellant's contentions based thereon.

The judgment is affirmed.

Conrey, P. J., and James, J., concurred.

[Civ. No. 2546. Second Appellate District, Division One.-July 29, 1919.].

CHARLES COE, Appellant, v. CITY OF LOS ANGELES et al., Respondents.

[1] MUNICIPAL CORPORATIONS ANNEXATION OF TERRITORY - LEGALITY OF PROCEEDINGS-QUO WARRANTO.—A citizen and taxpayer within the territory annexed to a municipal corporation pursuant to proceedings taken under the provisions of the Municipal Annexation Act of 1913 (Stats. 1913, p. 577) cannot attack the legality of the proceedings, even though illegal ballots were cast and counted at the annexation election without which the annexation would not have been effected. Any attack upon the exercise of the franchise as to the annexed territory must be by quo warranto proceedings at the instance of the state.

APPEAL from a judgment of the Superior Court of Los Angeles County. Leslie R. Hewitt, Judge. Affirmed.

The facts are stated in the opinion of the court.

Paul W. Schenck and Richard Kittrelle for Appellant.

Albert Lee Stephens, City Attorney, Charles Burnell, Assistant City Attorney, and C. D. Ballard for Respondents.

SHAW, J.-In this action plaintiff attacks the proceedings had and taken under the provisions of the Municipal Annexation Act of 1913 (Stats. 1913, p. 577), and amendments thereto, for the annexation of certain territory, known as the city of Sawtelle, to the city of Los Angeles.

To the complaint, which asks that the defendants be enjoined and restrained from further proceedings in the matter, that the election thereon be declared null and of no

effect, and that the action of the city of Los Angeles, purporting to have been had pursuant to the provisions of said municipal act, be declared void and ineffectual for the purpose intended, defendants interposed a demurrer upon both general and special grounds. The demurrer was sustained without leave to amend. Judgment of dismissal followed, from which plaintiff appeals.

In our opinion, the complaint failed to state a cause of action, for want of jurisdiction. It appears therefrom that plaintiff sues as a citizen and taxpayer of the city of Sawtelle; that a petition in due form and signed by the requisite number of electors of Sawtelle was presented to its board of trustees, in pursuance of which an ordinance was regularly adopted in due form calling an election for the determination of the question, followed by the due publication of the notice thereof as required by law, which election was thereafter held in accordance with such notice; that as a result of the election so held the proposition was by the proper officers of the city of Sawtelle declared carried, and the legislative body of the city of Los Angeles, as the final step necessary to effect the consolidation, adopted an ordinance pursuant to the provisions of the "act to provide for the consolidation of municipal corporations, as amended in 1917." (Stats. 1917, p. 30.) It is further alleged that by virtue of these proceedings the defendants assert and claim that said consolidation has been completed and fully consummated, and that the city of Sawtelle as an incorporated city has ceased to exist and is now a part of the city of Los Angeles. In other words, the city of Sawtelle as such has ceased to function and the city of Los Angeles, in the exercise of a franchise (People v. City of Oakland, 92 Cal. 611, [28 Pac. 807]), has by virtue of the proceedings assumed jurisdiction over its territory and inhabitants as a part of the city of Los Angeles, and is now exercising governmental control and municipal functions over the same. Upon this showing the city of Los Angeles, in the assumption of political functions over the annexed territory and its inhabitants, must be deemed at least a de facto corporation, the requisites of which, as stated in Tulare Irr. Dist. v. Shepard, 185 U. S. 1, [46 L. Ed. 773, 22 Sup. Ct. Rep. 531, see, also, Rose's U. S. Notes], are: "A charter or general law under which such a corporation as it purports to be might lawfully be or

ganized; an attempt to organize thereunder; and actual user of the corporate franchise." As we have seen, there is a general law pursuant to which the consolidation might be effected. There was an attempt to consolidate the two cities thereunder, the success of which, in accordance with the statutory provisions, was, notwithstanding appellant's claim. of irregularities in the election held, recognized and declared by the officers primarily charged with the duty of determining the result, and, upon the asserted claim and assumption that they have fully complied with all requirements of law, the city of Sawtelle has as an incorporated city ceased its functions, which, in the exercise of the franchise, the city of Los Angeles, as to such territory and its inhabitants, has assumed governmental control as a part of said last-named city. The question involved is one of a purely political nature (People v. City of Los Angeles, 154 Cal. 220, [97 Pac. 311]), and not affecting the private rights of plaintiff, in which capacity he may not challenge the asserted right to exercise jurisdiction in the matter. If such a case can be maintained by a private citizen, it may be brought at any time within the statutory limitation and must necessarily lead to uncertainty and interminable confusion. Many cases have arisen in this state involving the validity of proceedings for the organization of protective, reclamation, and irrigation districts, wherein, upon the ground that such organizations were at least de facto corporations, it was declared that inquiry into the validity of their organization was restricted to quo warranto at the suit of the state and not subject to attack by private individuals. (Keech v. Joplin, 157 Cal. 1, [106 Pac. 222]; Jaques v. Board of Supervisors, 24 Cal. App. 381, [141 Pac. 404]; Reclamation District No. 765 v. McPhee, 13 Cal. App. 383, [109 Pac. 1106]; Williams v. Board of Supervisors, 65 Cal. 160, [3 Pac. 667].) In the case of People ex rel. Warren v. York, 247 Ill. 591, [93 N. E. 400], it is said, quoting from the syllabus: "The legality of proceedings by which additional territory is added to a municipality cannot be questioned, except by direct proceeding by quo warranto, and will not be determined upon a bill in equity, or by objection to a tax." Numerous cases may be cited to the same effect.

[1] Our conclusion is that, conceding, as claimed by appellant, illegal ballots were cast and counted at the elec

42 Cal. App.--31