a divided vote made the award assailed in | v. McNeil, 91 N. J. Law, 528, 103 Atl. 184, this proceeding. The only question present- | L. R. A. 1918E, 494; De Fillippis v. Falkened for our consideration is as to whether berg, 170 App. Div. 153, 155 N. Y. Supp. the said applicant was entitled to such award 761; Tarpper v. Weston, etc., Co., 200 Mich. as for an injury arising out of his employ- 275, 166 N. W. 857, L. R. A. 1918E, 507. ment.

The recent case of Kimbol v. Industrial Accident Commission, 173 Cal. 351, 160 Pac. 150, L. R. A. 1917B, 595, Ann. Cas. 1917E, 312, to which our attention has been directed, arose out of quite a different state of facts; and, if there is anything contained in the opinion therein touching this case, it must be taken as supporting rather than opposing the views above advanced.

It follows that the award of the commission must be held to have been in excess of its jurisdiction, and must therefore be annulled. It is so ordered.

We concur: WASTE, P. J.; KERRIGAN, J.

While the authorities cited by the respective parties hereto from other jurisdictions are in conflict as to the right of employés to compensation in this class of cases, we are unable to distinguish in principle between this case and the cases of Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164, and Fishering v. Pillsbury, 172 Cal. 690, 158 Pac. 215. It is true that in each of these cases, as in this case, the applicant at the time of his injuries was in the course of his employment; in each of those cases the act of the fellow employé which was the immediate cause of the injuries was a playful or, at least, not a willfully intentional act arising out of ill will on the part of the person causing said injuries; but the reasoning of the Supreme Court in each of the above-cited cases, as well as the authorities given in support thereof, apply equally to a case where the injury was intentionally inflicted. In the case of Coronado Beach Co. v. Pillsbury, supra, the learned justice writing the opin- 1. MASTER AND SERVANT - 219(5)—Injuion, in his very full résumé of the authorities touching this question, calls attention to an exception to the general rule on non- The employé engaged in removing junk from burned premises assumes the risk of inliability of the employer for injuries result-jury from the falling of unsupported brick ing from either the playful acts or intended assaults of fellow employés, which exists where the fellow employé committing the in

(41 Cal. App. 100)

BROWN et al. v. BOARD OF TRUSTEES
OF LELAND STANFORD JUNIOR
UNIVERSITY et al. (Civ. 1967.)
District Court of Appeal, Third District, Cal-
ifornia. May 7, 1919.)

RIES TO SERVANTS-ASSUMPTION OF RISK-
FALLING WALLS.

wall.

2. MASTER AND SERVANT 155(1)-DUTY TO WARN SERVANTS.

PLACE TO WORK.

jury did so while in an intoxicated state An employer is under no duty to warn emof frenzy and passion, which was his habi-ployés of an obvious and apparent danger, such tude, and which rendered it unsafe for him as the danger that an unsupported brick wall to be permitted to work with his fellow left on burned premises will fall. employés, and which condition was known 3. MASTER and Servant 101, 102(2)—SAFE to his employer, who would thus be negligent in subjecting his peaceable servants to A master is compelled to provide for his such known risk. A second exception is servant a place in which to work not absolutealso noted in the cases cited which arises in ly safe but as safe as he can make it under the in cases where the injured employé was the circumstances, and having used usual or requisuperior in rank to the one causing his in-site precautions to that end his duty is perjuries, the assault arising out of an attempted exercise of discipline on the part of the superior employé. Neither of these exceptions can be given application to the case at bar.

The following authorities fully sustain our view that ordinarily and outside of the exceptions above noted injuries suffered by employés due to quarrels between themselves may not be made the basis of compensation under the Workmen's Compensation Acts: Jacquemin v. Turner, etc., Co, 92 Conn. 382, 103 Atl. 115, L. R. A. 1918E, 496; Stillwagon v. Callan Bros., 183 App. Div. 141, 170 N. Y. Supp. 677; Union S. M. Co. v. Davis (Ind. App.) 115 N. E. 676; Mountain Ice Co.

formed.

4. MASTER AND SERVANT 318(1) INDEPENDENT CONTRACTORS-REMOVAL OF JUNK FROM BURNED PREMISES.

Contractors to remove junk and débris from burned premises, of which they were given possession with exclusive control of the work, held independent contractors, so that the owners were not liable for contractors' negligence causing injury to an employé when an unsupported wall fell.

5. MASTER AND SERVANT 322-INDEPENDENT CONTRACTORS-LATENT DEFECTS-DUTY TO WARN.

Owners employing independent contractors to remove junk and débris from burned premises are under duty to warn the contractors or

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(182 P.)

6. MASTER AND SERVANT 330(1) INDEPENDENT CONTRACTORS-RES IPSA LOQUI

TUR.

their employés of the latent defects in unsup-] (except boilers), distillery, and carpenter shop ported brick wall left standing. and the scrap pointed out in the yard near the tool washerhouse and the scrap in the boneyard. * As part of the consideration I agree to clean up and remove all metal and iron of every kind and description from the ruins of the buildings described above without any expense whatever to you. I agree to remove this iron and metal before October 20, 1915. Sincerely yours, Daniel R. Buckley. "Accepted and receipt of $100.00 acknowledged. W. G. Stimmel. Sunt."

The maximum of res ipsa loquitur cannot be invoked against owners sued for injuries to an employé of independent contractors having exclusive control of the removal of junk and débris from burned premises on which unsupported brick walls were left standing one of which fell on the employé.

7. MASTER AND SERVANT 330(1) INDEPENDENT CONTractors-BurdEN OF PROOF. In an action against owners for the death of an employé of independent contractors to remove débris and junk from burned premises on which unsupported brick walls were left standing, the burden was on plaintiff to show the accident was due to the owners' negligence.

Appeal from Superior Court, Tehama County; John F. Ellison, Judge.

Action by Helena Brown and others against the Board of Trustees of the Leland Stanford Junior University and William G. Stimmel. From judgment of nonsuit, plaintiffs appeal. Affirmed.

J. M. Lee, of Red Bluff, and George R. Freeman and Frank Freeman, both of Willows, for appellants.

McCoy & Gans, of Red Bluff, and Wilson & Wilson, of San Francisco, for respondents.

The deceased, Alexander Brown, was employed by Buckley & Brownstone to assist in the work of removing the metal from said building, and on September 24th, while so employed, one of the walls of the building fell upon him and caused his death. No one was with him at the time, the nearest witnesses being from 200 to 300 feet distant.

The complaint alleged that after the fire the brick walls of the winery were left standing unsupported; that they were dangerous and menacing and were known to defendants so to be, but that they failed to guard against such danger; that defendants were careless and negligent in failing to take down such walls or to take measures to protect persons against danger. This negligence, together with the alleged fact that defendants did

not warn decedent of the defective and un

safe condition of the walls, "and in curelessly and negligently permitting said decedent în or near the vicinity of the said brick wall," are alleged to have resulted in the death of decedent; and it was further alleged that Buckley, Brownstone, and the decedent had no knowledge of the defective and unsafe condition of said walls.

HART, J. The action was brought by Helena Brown, the widow of Alexander Brown, and by ten children and grandchildren of the deceased, to recover damages for the death of said Alexander Brown, alleged Arthur R. Thorpe testified that Brown, to have been caused by the negligence of the at the time the wall fell on him, was engaged defendants. The corporation, defendant, was in removing hoop iron from the fermenting the owner of a tract of land in Tehama counroom. T. J. Frost testified that he heard the ty known as the "Stanford Vina Ranch," crash when the wall fell and ran to the and defendant Stimmel was the superintend-scene of the accident; that it was the south ent thereof. Upon the close of plaintiff's wall of the building that had fallen. The case the court granted a motion made by defendants for a nonsuit, judgment followed in their favor, and plaintiffs prosecute this appeal from said judgment.

The record discloses the following facts: On and prior to August 18, 1915, there was upon the Stanford Ranch a building known as the winery, which was constructed with brick walls and which contained a large amount of machinery. This building was destroyed by fire on said date, but the brick walls remained standing.

On September 15, 1915, Daniel R. Buckley, a member of the firm of Buckley & Brownstone, tendered to defendant Stimmel, as superintendent of the Stanford Vina Ranch, the following offer, in writing:

"I hereby offer you $700.00 for all the metal and iron in the fermenting house, engine room

defendant W. G. Stimmel, called as a witness by plaintiffs, testified to the same fact, and Mrs. Helena Brown testified as to the injuries received by her husband, his age, etc., and there was also testimony as to the amount decedent was earning as wages.

The motion for nonsuit was properly granted. The evidence shows that the fire which destroyed the distillery or winery building occurred several weeks prior to the date of the accident causing the death of the deceased. As the complaint alleges, the evidence shows that the walls of the building were of brick and that said walls remained standing from and after the fire until the date of the accident. There is no evidence that there was any hidden or concealed defect in the walls by reason of which they or either of them were more likely to fall than

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ress.

the danger, or, as the rule is also expressed, where he had all the means necessary for ascertaining the actual conditions, and there was no concealed danger which could not be discov

ered."

from the mere fact that they stood unsupported. In other words, there was, so far as the evidence shows, no other danger in the walls to persons working or employed about them, or who might for any reason have been near or about them, before the accident, [3] It is true that the rule is that the masthan such danger as was plainly obvious to any person of average intelligence and sense, ter is compelled to provide for his servant viz. that they stood unsupported. The evi- a place in which to work, not absolutely safe, dence does not directly show what caused which is often an impossibility, but as safe the wall to fall. As to that, the only evi- as he can make it under the circumstances, dence is the circumstance that the walls re- and when the master has used the usual or mained standing until the work of removing requisite precautions to that end, his duty the junk and débris from between them was to his servants in that respect has been performed. On the other hand, "the law debegun and that the falling of the south wall of the distillery which caused the accident mands that one who is working in a place where he is exposed to danger shall himself occurred while the said work was in progAt the time of the accident the de- exercise his faculties for his own protection, ceased had been engaged for several days in and does not permit a recovery for damages removing the junk from the burnt building. resulting from a neglect of this rule." Kenna [1] From the facts it is clear that the de- v. Central Pac. R. R. Co., 101 Cal. 29, 35 Pac. ceased, as readily as the defendants or any 333; Brett v. Frank & Co., 153 Cal. 272, 94 other person, by the exercise of his faculties Pac. 1051; Mugford v. Atl., Gulf & Pacif. Co., of sight and judgment in an ordinarily dili-7 Cal. App. 678, 95 Pac. 674. Labatt, vol. 1, gent manner, could have observed and known § 332, states the rule as follows: of the danger to life and limb attending employment in and about the unsupported walls of the burnt building, where, at the time of the accident, he was employed. Indeed, no one but a person entirely bereft of all common sense could fail to perceive, upon mere casual observation, the danger in large brick walls standing without any support whatever, and that it would be necessary for one employed about them as the deceased was to exercise proper care for his own safety as against the contingency of their falling or toppling over while he was so employed. It is therefore very plain that the deceased, in taking and entering upon the employment while in the prosecution of which he suffered injury, himself assumed the risk of the employment. The case was not one in which the defendants, if at all liable, were required

to instruct or warn the deceased of the danger of the employment to which he had been assigned.

"A servant is not in the exercise of ordinary care unless, at each stage of his work, he makes an effective use of his bodily and mental faculties, and observes as attentively as is reasonably possible under the circumstances the condition of the instrumentalities by which his safety may be affected, and the results of their operation by himself or others, in so far as that operation may tend to subject him to danger."

tained that relation towards the deceased.

[4] Thus far we have considered the case upon the theory that the defendants were the employers of the deceased or legally suswe are, however, clearly of the opinion that Buckley & Brownstone, by whom the deceased was employed, were independent contractors. By their contract with the defendants they agreed, among other things, to remove the junk and débris from the burnt premises. Under the contract, they not only were entitled to and were given possession of the premises pending the completion of the contract, but had full, unrestricted, and unqualified control over the manner in which or the means by which the work of removing the junk was to be done. The defendants had no authority to say or direct how the work should be performed or the mode of doing the work contracted for. "The chief consideration which determines one to be an independent contractor is the fact that the employer has no right of control as to the mode of doing the work contracted for." Green v. Soule, 145 Cal. 96, 99, 78 Pac. 337, 338; 16 Am. & Eng. Ency. of Law [2d Ed.] p. 187; Buckingham v. Commary-Peterson Co., 178 Pac. 318, 325. "An independent contractor is one who, in rendering services, exer"The failure to give instructions is not culpa-cises an independent employment or occupable when the servant might, by the exercise of tion, and represents his employer only as to ordinary care and attention, have known of the results of his work, and not as to the

[2] The law casts upon an employer the duty of warning or instructing his employés of the danger of the employment to which he assigns them only when such danger is concealed or hidden, or where inexperienced youths or persons are assigned to employment on, in, or about complicated and naturally dangerous machinery or mechanical contrivances. Where, as here, though, the danger attending the employment is obvious and apparent, no duty to warn or admonish employés of such danger is imposed upon the employer. See 20 Am. & Eng. Ency. of Law, p. 94, and cases cited. Labatt, in his work on Master & Servant, vol. 1, p. 522, states the rule as follows:

(182 P.)

means whereby it is to be accomplished." is shown to be under the management of deGreen v. Soule, supra.

ing the junk and débris from the premises. [ pellant left the state of Oklahoma during the But, however that may be, we are firmly of latter part of October, 1911, and arrived in the opinion that the evidence presented by the plaintiffs utterly failed to show that the defendants were in any sense or measure legally responsible for the unfortunate accident.

Los Angeles on or about November 1, 1911, and ever since that time has been within the state of California, except about three weeks in August, 1914 (which three weeks, therefore, were after the commencement of this action). The answer further pleads that the action is barred by the provisions of section CHIPMAN, P. J.; BUR-339 of the Code of Civil Procedure, it being

The judgment is affirmed.

We concur: NETT, J.

(41 Cal. App. 198)

an action to recover upon a contract founded upon an instrument in writing executed out of the state. The court found that appellant "has lived within the state of Cali

STATE NAT. BANK v. KERFOOT et al. fornia since November 2, 1911.”

(Civ. 2638.)

The complaint further alleged that by mutual agreement of the parties to the note

(District Court of Appeal, Second District, Di- the time of payment thereof was extended to vision 1, California. May 13, 1919.) LIMITATION OF ACTIONS 183(1)-CompuTATION OF PERIOD-ABSENCE FROM STATESUFFICIENCY OF PLEADINGS.

In an action on a note executed in another state, defeudant's plea setting up the two-year statute of limitation under Code Civ. Proc. 339, was insufficient, where it specifically admitted that defendant did not arrive within the state until a time less than two years before the commencement of the action; absence from the state being excepted in the computation of time under section 351.

fall due January 25, 1913. The defendant denied this allegation, but the court found, presumably upon sutucient evidence, that, by arrangement made between the plaintiff and executed to defendant their promissory note appellant's Joint co-obligors, said co-obligors for the unpaid balance of the principal note as collateral to said principal note, "in consideration that plaintiff extended the time of payment on the note sued upon herein to certain definite dates, which was done and executed."

We think that the questions argued by counsel concerning the extension of the time

Appeal from Superior Court, Los Angeles of the maturity of the note need not be disCounty; John W. Shenk, Judge.

cussed on the decision of this appeal, since at all events the note sued on was due when this action was commenced, and we are of the opinion that upon the facts admitted by appellant in his answer the statute of limitations had not run in his favor on the obliga

menced within less than two years after he

Morris M. Ferguson, of Los Angeles, for ap- tion in question. For the action was compellant. Bicksler, Smith & Parke, of Los Angeles, arrived within the state of California. If, for respondent.

when the cause of action accrues against a person, he is out of the state, the action may

statute, after his return to the state. Code Civ. Proc. § 351. In Dougall v. Schulenberg, 101 Cal. 154, 35 Pac. 635, the court said:

CONREY, P. J. Defendant Monroe's ap-be commenced within the term limited by the peal from the judgment is presented upon the judgment roll alone, which consists of an amended complaint, the answer thereto, the findings of fuct and conclusions of law, and the judgment. There was no demurrer to said amended complaint. The findings recite the fact that, as alleged by the defendant, the action was commenced on or about October 11, 1913.

The plaintiff is a corporation existing and having its place of business at Oklahoma City, in the state of Oklahoma.

The action was brought to recover the balance unpaid on a promissory note made July 3, 1911, at Oklahoma City, due 90 days after date and payable at plaintiff bank at Oklahoma City. The complaint alleged that appellant, since the note became due, has been absent from the state of California about 30 days. The answer alleged that ap

"The defense of the statute of limitations is good although it shows on its face that the must be specially pleaded, otherwise a complaint cause of action is barred. If therefore it was necessary for the plaintiff to allege that his case was within some exception to the statute of limitations, because it was presumably barred, it was only necessary for him to do so to prevent a demurrer on that ground. It was still necessary for the defendant to plead the statute to raise any issue upon that subject. plaintiff's action was not brought within two This plea is equivalent to saying that

*

years after the cause of action accrued; or, perhaps, in this case, to the statement that the defendant had been in this state for more than two years after the cause of action accrued and before the action was commenced."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes