GRAY, P. J. This is an action for perThis is an action for personal injuries to plaintiff, incurred in a collision between a locomotive of defendant and a span of horses and wagon driven by plaintiff at a street crossing in the town of Burbank in Los Angeles county. The verdict was for the defendant, and the defendant appeals from an order of the court granting plaintiff a new trial.

The testimony of the plaintiff as a witness in his own behalf was in effect as follows: Plaintiff and his father were driving into the town of Burbank in a two-horse wagon on Verdugo street. About 300 feet from defendant's track they discovered a horse fast in a wire fence. They stopped there, and both went to the relief of the horse. Finding it necessary to cut the wire, that the horse might be released, the plaintiff returned to the wagon and drove in a walk in the direction of the railroad track, intending to cross the same for the purpose of obtaining some wire nippers. When he reached the wagon he looked and listened to learn whether any trains were approaching. He could hear none and see none "on account of the boxcars that were along the side track between the main track and the section houses, and the shade trees around the section houses, and also the drying plant." As he proceeded toward the track he kept up a diligent looking and listening for trains. IIe had no view of the track untill he emerged from between two box cars standing on the side track only a few feet from the main track. IIe knew the next train due would be from the south, and accordingly, as soon as he could see the track he looked in that direction, and, seeing no train, looked the other way, discovering a "wild" locomotive approaching at a speed of some 35 miles an hour without giving any warning of its approach with bell or whistle. He was then very near the track, and, as he says, "I was terribly excited to find myself in such peril, and my first thought was to get across and get out of the way, and I jumped forward into the wagon and tried my best to get across, and come nearly getting across, and the engine got the back end of the wagon and hurled it into the air." He also says: "There was no time from the time I started across the railroad track when I was not looking and listening for that train." There was other evidence tending to show that the bell was sounded and warning duly given on approaching the crossing, and otherwise conflicting with the foregoing.

The new trial was granted because of an instruction given to the jury, which reads as follows: "If you find that the engine was running at the rate of 35 miles an hour, that fact does not establish negligence upon the part of defendant, because no duty rested upon it to run its train or engine at a less rate of speed at the point in question."

With reference to this instruction, we quote from the opinion of the trial court as follows: "Section 19 of article 6 of our state Constitution provides: 'Judges shall not charge juries with respect to matters of fact but may state the testimony and declare the law.' The rate of speed under the circumstances of the case was a question of fact and not a question of law. It was one of the ingredients of negligence charged against the defendant by the plaintiff. The court could not say, as a matter of law,under the circumstances of the case, that it was not negligent for the defendant to run its engine at so great a rate of speed." We think this is sound, and that the new trial was properly granted, for the reason given by the trial court.

It will be needless to discuss any other points raised in the briefs, for the reason that they may not arise upon a new trial of the case.

The order appealed from is affirmed.

We concur: ALLEN, J.; SMITH, J.

(4 Cal. App. 108) FREEMAN v. BROWN. (Court of Appeal, Second District, California. July 12, 1906.)

APPEAL ORDERS APPEALABLE - MOTION FOR NEW TRIAL-AMENDMENT OF STATEMENT. An order denying defendant's motion to amend his statement on motion for a new trial by inserting specifications therein, under Code Civ. Proc. $473, providing for the amendment of pleadings, is appealable.

Appeal from Superior Court, Los Angeles County; Walter Bordwell, Judge.

Action by J. W. Freeman against Robert A. Brown. From an order denying defendant's motion to amend his statement on motion for a new trial, he appeals. On motion to dismiss. Denied.

George L. Keefer and Walter L. Bowers, for appellant. II. M. Barstow and Barstow & Variel, for respondent.

PER CURIAM. This is an appeal from an order denying the defendant's motion to amend his statement on motion for a new trial by inserting specifications therein. The plaintiff moves to dismiss the appeal on the ground that the order is not appealable.

Appellant by his motion and application sought relief under section 473, Code Civ. Proc. The order denying such relief is appealable. Murphy v. Stelling, 138 Cal. 642, 72 Pac. 176; Kaltschmidt v. Weber, 136 Cal. 675, 69 Pac. 497.

Motion to dismiss is denied.

SMITII, J. I concur in the order denying the motion to dismiss the appeal in this case, and also in the opinion that the decision in Murphy v. Stelling, 138 Cal. 642, 72 Pac. 176, is directly in point. But I regard that case as

merely an application of the more general principle that all orders made in proceedings for a new trial which have the effect of finally disposing of the motion are special orders made after final judgment, and therefore appealable. Hayne on New Trial, § 146; Calderwood v. Peyser, 42 Cal. 115, and cases cited; McDonald v. McConkey, 57 Cal. 326; Clark v. Crane, 57 Cal. 633; Griess v. State Investment Co., 93 Cal. 411, 28 Pac. 1041; Stoneesifer v. Kilburn, 94 Cal. 42, 29 Pac. 332: Sutton v. Symons, 97 Cal. 476, 32 Pac. 588; Id., 100 Cal. 576, 35 Pac. 158; Symons v. Bunnell, 101 Cal. 223, 35 Pac. 770; Kaltschmidt v. Weber, 136 Cal. 675, 69 Pac. 497; Murphy v. Stelling, 138 Cal. 641, 72 Pac. 176. This, however, as said in the case last cited, will not apply to a mere refusal of the court to settle the statement in cases where the moving party is by law entitled to have it settled. In such a case there is no order, and therefore the only remedy is mandamus.

(4 Cal. App. 97)

SOULE v. SOULE.

(Court of Appeal. First District, California. July 12, 1906.)

1. DIVORCE-DECREE FOR ALIMONY-MODIFICATION-JURISDICTION.

Civ. Code, 139, provides that, where a divorce is granted for an offense of the husband, the court may compel him to make a suitable allowance to the wife for her support during her life or for a shorter period, and may from time to time modify its orders in such respect. Held that, where a divorce decree awarded plaintiff alimony at the rate of $75 per month, the court had statutory authority to modify the decree so as to relieve defendant from further payment of such alimony, though the decree contained no reservation for such modification. [Ed. Note. For cases in point, see vol. 17, Cent. Dig. Divorce, § 692.]

2. SAME-CONSENT DECREE-EVIDENCE.

In a proceeding by a husband to obtain a modification of a decree for alimony, evidence held insufficient to establish that the provision. for alimony was inserted pursuant to an agreement of the parties that the alimony should be paid during plaintiff's life.

3. SAME PERMANENT ALIMONY - MODIFICATION.

Permanent alimony, being distinguished from temporary alimony only in the sense that it is awarded on or after the determination of the suit, is subject to be increased or diminished, as authorized by Civ. Code. § 139.

tion for modification, the court found that defendant was entitled to an order modifying the decree and exempting him from payment of any allowance to plaintiff until further order of the court. An order was subsequently entered that the decree "be, and the same is, hereby modified by annulling" that portion thereof directing payment of such alimony. Held, that the portion of such decree annulling so much of the former decree as awarded alimony was erroneous and in excess of the court's jurisdiction.

[Ed. Note. For cases in point, see vol. 17, Cent. Dig. Divorce, $$ 92-95.]

Appeal from Superior Court, Alameda County; II. A. Melvin, Judge.

Suit by Ella Bacon Soule against Frank Soule. On petition of defendant for modification of a decree awarding plaintiff alimony. From an order granting such relief, plaintiff appeals. Modified and affirmed.

Lloyd & Wood and A. Heynemann, for appellant. Deamer & Stetson, for respondent.

HARRISON, P. J. A decree of divorce between the parties herein was rendered by the superior court of the county of Alameda December 19, 1896, of which the following is a portion: "It is further ordered, adjudged, and decreed by this court that the defendant shall pay to the plaintiff the sum of $75 per month in United States gold coin for her support, which said sum of $75 shall be payable on the 5th day of each and every month and shall be permanent alimony." In August, 1903, the defendant therein, in pursuance of previous notice thereof, moved the court for an order vacating and annulling the above portion of the judgment, and releasing him from the payment of any further sums under the provisions of the decree, stating generally as the grounds of his motion that the circumstances of the parties to the judgment had materially changed since its rendition; that he was unable further to continue said payments, and that the plaintiff had no need of support from him; that it was not necessary, just, or equitable that he be longer required to make any payment for her support; and in connection therewith presented an affidavit setting forth the facts relied upon by him in support of said motion. The plaintiff filed an objection to the court entertaining the motion, on the ground that, inasmuch as no appeal had been taken from

4. TRIAL-FINDINGS BY COURT-EFFECT.

On an application for a modification of permanent alimony, the failure of the court to find in accordance with plaintiff's averment that her transfers of property were male in consideration of an agreement on defendant's part to pay her $75 a month as alimony for the remainder of her life was, in legal effect, a finding that such conveyances were not made on that consideration.

expired, the court had no jurisdiction to make the order asked for. The court overruled this objection, and the plaintiff then filed her affidavit in reply to the application, traversing many of its averments, and averring that intermediate the commencement of the action and the rendition of the decree the defendant agreed with her that, if she would assign her interest in certain insurance policies and

5. DIVORCE ALIMONY - DECREE-MODIFICATION.

A divorce decree awarded plaintiff alimony in the sum of $75 per month. On an applica

tion of such assignment and transfer, pay to her the sum of $75 per month as alimony, and that said payment should continue for all time during the life of the plaintiff; that she

accepted said proposition and made said assignments; and that the court signed a decree in conformity with such agreement. At the hearing of the motion testimony was given by the respective parties, and by the attorneys by whom the action for divorce had been conducted, and upon its conclusion the court found, among other facts that the plaintiff is a wealthy woman; that her fortune has greatly increased since the making and entry of the decree, and is more than sufficient for her support and maintenance and the support and maintenance of her children; that the defendant is poor and in debt, and that his income has not increased since the making and entry of said decree, but his necessary expenses and the cost of living have increased; that the monthly payment of said sum of $75 to the plaintiff by him works a hardship on him, and is not necessary to the plaintiff for her support and maintenance, or for the support or maintenance of any one depending upon her; that said sum is necessary for the proper support of the defendant and his family. The court also found that prior to the entry of the decree the plaintiff quitclaimed to the attorneys for the defendant her interest in certain of his separate real property (of the value of about $1,500) and in certain community property (of the value of about $400) which he had previously conveyed to them as security for their fees, and transferred to her children, the issue of the marriage between her and the defendant, her interest in a certain paid-up policy of life insurance (her interest therein being contingent upon her surviving the defendant, and in case she did not survive him the policy being payable to the said children); that, as a part of the consideration for the said assignments, it was agreed between the plaintiff and the defendant that the decree in the action should contain the above-quoted provision. The court further found that the defendant did not agree to or with the plaintiff that he would pay the said sum of $75 per month or any sum during her life, or that any sum agreed by him to be paid to her as alimony or allowance was agreed by him to be paid for any period, and that he never agreed to pay to her or for her support any money or allowance for any fixed time, or for or during her lifetime, and never agreed or intended that said decree should be unchangeable in respect to the allowance to her. Upon the facts found by it the superior court held that "the defendant is entitled to an order of the court modifying said decree, and exempting him from the payment of any allowance to the plaintiff until the further order of the court," and directed that an order to that effect be entered. From the order entered thereon the present appeal has been taken.

1. The court had jurisdiction to entertain the application of the defendant notwithstanding his failure to appeal from the judgment. Section 139, Civil Code, declares:

"Where a divorce is granted for an offense of the husband the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support during her life or for a shorter period as the court may deem just, having regard to the circumstances of the parties respectively; and the court may from time to time modify its orders in these respects." This statutory provision enters into every decree in an action for divorce which provides for the payment by the husband of an allowance for the support of the wife, as fully as though it should be incorporated into the terms of the decree. The authority of the court to modify its decree in this respect does not depend upon a reservation therefor in the decree itself, but exists by virtue of the statute, and, being conferred upon it by the Legislature, it is beyond its power to divest itself of such authority. Campbell v. Campbell, 37 Wis. 206.

2. The objection that under its power to "modify" its decree the court is not authorized to grant the defendant a temporary exemption or release from the payment of any alimony must be overruled. The section of the Code places no limitation upon the extent to which it may make such modification, the principle upon which the authority is to be exercised being that which determines its original order, viz., that the allowance to be made by the order as modified shall be such as the court may deem just, "having regard to the circumstances of the case." Under this section it may modify its former order, either by increasing or reducing the amount of money to be paid at any one time, or enlarging or diminishing the frequency with which the payments are to be made. Neither is the authority to modify the decree limited by the section to a mere change in the amount of the allowance to be paid, but it includes a modification of the order in any respect which, under the circumstances of the particular case. may seem just to the court. Under such discretionary authority, it is within the power of the court, not only to change the amount of the allowance, but also to suspend any enforcement of the order until its further direction. That the circumstances of the present case justified the court in modifying the original decree appears from its finding that the monthly payment of $75 is not necessary to the plaintiff for her support or maintenance, but is necessary for the proper support of the defendant, and that the payment thereof works a hardship upon him. The sufficiency of the evidence to sustain this finding is not challenged by the appellant, and, indeed, the fact was itself practically admitted by her merely denying in her answer that her income is "far in excess" of the sum required or sufficient for her maintenance or support. The case of Howell v. Howell, 104 Cal. 45, 37 Pac. 770, 43 Am. St. Rep. 70, is not inconsistent with this rule. In that case there was noth

ing in either the complaint or the judgment about alimony. The right of the wife to an allowance for her support had not been established in the decree. It would have been competent for her in her action for divorce to ask for such allowance from the defendant, but by her choosing to waive such demand. she could not assert her claim for alimony after she had ceased to be his wife. The court held that section 139 clearly contemplates that the right to alimony "shall have been presented and litigated in the action for divorce and established by the judgment, and that when the right to alimony has been thus established the amount may be changed by a modification of the order." In the present case the right of the plaintiff to alimony was established by the decree in her action for divorce, and section 139 gives to the court the authority to modify it.

3. The chief ground urged in support of the appeal is that the provision for alimony in the decree was inserted therein by reason of an agreement between the parties that the defendant should pay to the plaintiff for her support the sum of $75 per month during her lifetime, and that the finding of the court that such agreement was not made is contrary to the evidence. The burden of establishing such agreement was upon the plaintiff, and in her affidavit in reply to the defendant's application, after stating his agreement to pay $75 per month for her support, she stated that he agreed that such payment "should continue for all time during the life of the plaintiff." She presented, however, no evidence in support of this averment. Upon her oral examination at the hearing she stated that she had nothing to do with the making of the agreement and did not personally deal with either the defendant or any attorney in his behalf. The defendant testified in direct terms that he never agreed to pay any amount of money to her during her life, or authorized any other person to make such agreement, and that he never heard or was informed that the plaintiff made such claim until her affidavit was read at the hearing of this motion. Mr. Lloyd, who was one of the attorneys for the plaintiff in the action for divorce, and who conducted the negotiations on her behalf on this subject, testified that in the only interview with him of which he had any recollection the defendant never made any statement that he would pay the allowance to the plaintiff during her life, and that the defendant never used that language; that his negotiations on the subject were with Mr. Whitney, the defendant's attorney, and with the plaintiff; that prior to the signing of the decree he had several discussions with Mr. Whitney; and that these conversations "led to the agreement in writing which is the decree itself." Mr. Whitney testified that he agreed only to what is in the decree, that he and Lloyd came to an understanding that the plaintiff was to have

$75 a month as permanent alimony, and that the decree embodied all that they agreed on. Mr. Lloyd also testified that on behalf of the plaintiff he demanded at the commencement of the negotiations an allowance of $150 per month, that Mr. Whitney protested against it and said that the defendant could not pay it, and that the plaintiff finally acquiesced in $75. He also testified that Mr. Whitney never said in substance or effect that the allowance should continue during her lifetime; that he said to Mr. Whitney: "If I reduce it down to $75, this is the end of the thing, and it remains that way to be put in here as permanent alimony, and I put it in the decree as permanent alimony, fixed and ended between them." He also stated that the decree, together with the quitclaims and the assignment of the insurance policy by the plaintiff, embody the whole agreement between her and the defendant. The decree was thereupon prepared by Mr. Lloyd, with the above provision for alimony therein, and submitted to Mr. Whitney, who said to him that it was satisfactory; and they thereafter went into court, and, upon stating that it had been agreed upon between them, it was signed by the judge. Before it was presented to the judge, it was submitted to the defendant by his attorney, and, upon his inquiring the meaning of the words "permanent alimony," Mr. Whitney stated to him that it was the same as any other alimony, and might be changed by the court, either by diminishing or abolishing or increasing the amount, to which the defendant replied, "On that understanding it is all right." The plaintiff, on the other hand, on asking her attorney the meaning of the same, was told that it meant for as long as she lived. It thus very clearly appears that there was no agreement between the parties, either by themselves or through their attorneys, that the defendant should pay alimony to the plaintiff throughout her lifetime; and it does not appear that there was any mutual understanding by the parties that by the use of the term "permanent alimony" such an agreement was implied, or that the term was inserted in the provision with any agreement or understanding between them that it should have any meaning other than its legal significance. As it does not appear that the attorneys, or either of them, at any time in their negotiations stated that the payment was to continue during her life, it cannot be contended that there was any oral stipulation between them of which the terms were so agreed upon that it can be enforced. See Smith v. Whittier, 95 Cal. 279, 30 Pac. 529. It is equally clear that no agreement of this nature on the part of either the parties or their attorneys was at any time brought to the notice or knowledge of the court, and it is not to be assumed that the court intended to incorporate an agreement into its order unless it is shown that the terms of that

agreement were made known to it before the decree was signed. The decree is the act of the court, and any agreement between the parties with reference to its provisions that was not made known to the court will have no weight in construing the intention of the court. Parkhurst v. Parkhurst, 118 Cal. 18, 50 Pac. 9, is inapplicable. In that case the parties had made and signed a written stipulation that the wife should be awarded the greater portion of the property, and be charged with the maintenance and education of the infant children at her own expense, and that she should not have any alimony or al lowance from her husband; and the decree was entered in accordance with the terms of this stipulation. The authority given the court by section 139 to modify its decree respecting alimony was not involved; the only question presented being the right of the wife under section 138 to its modification in respect to the maintenance and education of the children. The refusal by the superior court to grant the wife's application for a modification of this provision in the decree was affirmed by the Supreme Court, upon the ground that it was to be assumed that the property was awarded to her for the very purpose of maintaining and educating the children, and that it did not appear that they were not being properly maintained and educated. In Wilson v. Wilson, 45 Cal. 399, it was held that a prior or contemporaneous parol agreement between the parties, the effect of which would be to materially vary the terms of the decree and change the rights of the parties thereunder, could not be shown.

4. The decree of the court is therefore not to be construed as having been based upon any agreement, but is to be assumed as having been made upon its own consideration of the relative situation of the parties-the faculties of the husband and the needs of the wife; and its effect is to be determined in accordance with the legal significance of its language under the statutory power given to the court by section 139, and, in determining the extent of this power it is to be borne in mind that, if the decree had provided that the payment of alimony to the plaintiff should continue "during her life," its modification by the court is expressly authorized by that section. The term "permanent" is not the equivalent of "perpetual," or "unending." or "lifelong." or "unchangeable"; and in using the term "permanent alimony" in the decree the court simply designated the character of the alimony which it awarded, rather than the amount to be paid, or the time during which the payment should continue. Alimony which is awarded by a final decree of divorce is designated as "permanent," in distinction from that which is awarded during the pendency of the action, which is designated as "temporary." Bishop on M., D. & S. § 1386; 2 Am. & Eng. Cyc. of Law (2d Ed.)

Stew

92; Anderson's Law Dict. q. v.; Abbott, Law Dict.; Bouvier, Law Dict. "Permanent alimony is alimony awarded on or after the determination of the suit. It is permanent only as distinguished from temporary, for it may be increased or diminished." art in M. & D. § 360. That the designation of the amount of alimony awarded to the wife in a decree of divorce as "permanent" does not preclude the court from a subsequent modification of the provision has been many times declared by the Supreme Court. In Ex parte Spencer, 83 Cal. 460, 23 Pac. 395, 17 Am. St. Rep. 266, the court awarded the wife $50 per month "as permanent alimony," which was afterwards reduced to $25 per month. In discussing the subject the court said: "The court is to fix the measure of the compensation by 'having regard to the circumstances of the parties respectively'; these circumstances furnishing the best means for determining such amount. As these circumstances may differ at different times 'the court may from time to time modify its orders in that respect.'" In Wolff v. Wolff, 102 Cal. 433, 36 Pac. 767, 1037, where a certain amount had been awarded the wife as permanent alimony in the decree of divorce, the court said: "It will always be within the power and discretion of the court to modify the allowance of alimony in the future, if just cause appear for such modification." See, also, Ex parte Hart, 94 Cal. 254, 29 Pac. 774.

al

5. The failure of the court to find, in accordance with the averments of the plaintiff, that the transfers of property by her were made in consideration of an agreement on the part of the defendant that the payment by him to her of $75 per month as alimony should continue for all time during her life, was in legal effect a finding that they were not made upon that consideration (Thompson v. McKay, 41 Cal. 221; Lamb v. Wahlenmaier, 144 Cal. 91, 77 Pac. 765, 103 Am. St. Rep. 66); and its finding that a part of the consideration therefor was that the decree should contain the clause above quoted is in accordance with the testimony of witnesses that the only agreement between the parties was that the decree should provide that the plaintiff should have $75 per month as permanent alimony.

6. In its conclusion of law from the facts found by it the court found that "the defendant is entitled to the order of the court, modifying the said decree and exempting the defendant from the payment of any allowance to the plaintiff until the further order of the court." and directed that "a proper order be entered accordingly." In the order which was subsequently entered thereon it is ordered and adjudged that the decree 'be had and the same is hereby modified by annulling that portion of said decree which is in the words and figures following [reciting the above quoted provision], and it