person liable therefor. But the judg- Amendments 1873-74, p. 409. At the same ment, if any, obtained by the plaintiff in such session section 1187 was amended; but the personal action shall not be construed to impair opening sentence containing the clause or merge any lien held by said plaintiff under "claiming the benefit of this chapter" was this chapter; provided, only, that any money not changed, nor was any other material collected on said judgment shall be credited on the amount of such lien in any action brought to enforce the same, in accordance with the provisions of this chapter." The bond by its terms creates a direct obligation on the part of the surety to pay for materials used in the construction of the building, and the right of action on such bond is preserved by said section 1197 as well as by section 1183. It can no doubt be persuasively argued that the bond which must "be also conditioned for the payment in full of the claims of all persons performing labor upon or furnishing materials to be used in the work" relates to claims of lien filed within time. But it seems to us that this is a strained in terpretation. The mere use of the word "claim," which is as apt a description of the demand of the individual who has filed no claim of lien as it is of one who has filed such claim, is not persuasive. It is to be noted also that the portion of the section (and of the bond which follows its terms), by which the rights of materialmen are safeguarded, does not use the word "claims," but the bond is made to "inure to the benefit of any and all persons who furnish materials to be used in the work described" in the contract. But there is another and a very strong reason for rejecting the theory that section 1187, Code of Civil Procedure, restricts the terms of section 1183, Code of Civil Procedure, and makes them applicable only to those persons who have filed liens, and that reason is found in the history of the two sections and in the decisions of this court relating thereto. Section 1187 was first enacted in 1872. At that time its introductory part was as follows: "Every original contractor, within sixty days after completion of his contract, and every person, save the original contractor, claiming the benefit of this chapter, must within thirty days after the completion of any building, improveMent, or structure, etc.," file his claim with the county recorder. amendment inserted. Section 1183 was again amended in 1880 so as to provide that the lien should not be affected by the fact that no money is due or to become due, on any contract made by the owner with a contractor. Code Amendments 1880, p. 63. In 1885 this court decided that this section was unconstitutional so far as it made the owner liable for more than the contract price. Thereupon in 1887 (Code Amendments 1887, p. 152), to obviate this difficulty as far as possible, the chapter was revised. Section 1183 was amended so as to provide for written contracts in all cases where the price exceeded $1,000, and such contracts were required to be filed before the beginning of the work. Section 1184 fixed the provisions of the contract so that one-fourth of the price should be payable 35 days after completion and three-fourths in installments at specified times after the beginning of the work. Up to this time the entire chapter had contained no remedy for a laborer or materialman, except by filing a claim of lien and foreclosing the same. It follows that the words "claiming the benefit of this chapter," in section 1187, had no other scope or effect than to require the person who claimed a lien, to file the same within a specified time as there provided. The benefits of the chapter consisted solely in the right to foreclose a lien. In the amendment of 1887, for the first time, an additional remedy was given. Section 1184 provided that a laborer or materialman could at any time give the "stop notice" which has now become familiar and thereby intercept a payment and make the same applicable to his claim. Notwithstanding this additional remedy, section 1187 was again re-enacted with some amendments; but the opening part thereof remained as before, that every person "claiming the benefit of this chapter" must within the specified time file his claim of lien. Had this provision been given its literal meaning, it would follow that no person could avail himself of the stop notice provided in section 1184 unless he also filed his claim of lien within the time specified in Section 1183 provided that persons fur-section 1187. nishing labor or materials for the construction of buildings, etc., should have liens upon the buildings for the same, "but the aggregate amount of such liens must not exceed the amount which the owner would be otherwise liable to pay." In 1874 this section was amended by striking out the passage just quoted, the result of which was that the owner was liable for the entire value of labor and materials furnished for his building, regardless of the contract price. Code [2] Thereafter, in 1891, the decision in Bates v. Santa Barbara, 90 Cal. 543, 27 Pac. 438, was rendered. It held, first, that no claim of lien could be filed or enforced against a public corporation such as a county or city. The claimants in that case had, however, given the stop notice as provided in section 1184, but, so far as appears in the opinion, had not filed any claims of lien against the county. If section 1187 had been given the effect now claimed for it, such (182 P.) In Bank. cal Rock Company, employer, and Ocean Accident & Guaranty Corporation, insurance carrier, to recover compensation for death of Silviano Lopez, employé. Award in favor of claimant, and the employer and insurance carrier apply for writ of review against the Industrial Accident Commission and claimant. Award affirmed. George H. Moore, of Los Angeles, for petitioners. A. E. Graupner, of San Francisco (Warren H. Pillsbury, of San Francisco, of counsel), for respondent Commission. Walter S. Claysor, of Corona, for respondent Dolores Rodriguez. claimants would have been entirely cut off from any rights under the notice by reason Proceeding under the Workmen's Compenof the fact that they had not filed any sation Act by Dolores Rodriguez, otherwise claims of lien for record. The court, how-known as Dolores Lopez, against the Temesever, declared that their stop notices were good, and that "the right of plaintiffs to recover does not depend upon their right to a lien." This decision was followed in a number of cases soon afterwards-First National Bank v. Perris, etc., Dist., 107 Cal. 55, 40 Pac. 45, Bianchi v. Hughes, 124 Cal. 24, 56 Pac. 610, and Newport v. Drew, 125 Cal. 589, 58 Pac. 187, in none of which was a claim of lien filed, all sustained the doctrine that the remedy under a stop notice does not depend upon the filing of a claim of lien and that the benefits of the chapter, so far as a stop notice is concerned, could be ob tained without such filing. To the same effect, see Long Beach School Dist. v. Lutge, 129 Cal. 413, 62 Pac. 36; Diamond Match Co. v. Silberstein, 165 Cal. 289, 131 Pac. 874; Miles v. Ryan, 172 Cal. 208, 157 Pac. 5; and Stettin v. Wilson, 175 Cal. 426, 166 Pac. 6. The phrase "claiming the benefits of this chapter" was thus given a meaning which confined its operation to the benefits of asserting a lien upon the property and did not extend it to include the benefits of any other remedy afforded by the chapter against the owner. According to familiar principles of statutory construction, this became the settled meaning of the phrase, and its subsequent continuation in future amendments of the same section should not be held to have changed its meaning in any particular. It follows that the superior court properly sustained the demurrer to the special defense averred in the answer. The judgment is affirmed. MELVIN, SHAW, OLNEY, WILBUR, and LAWLOR, JJ., concur. (180 Cal, 637) TEMESCAL ROCK CO. et al. v. INDUSTRI- (Supreme Court of California. June 24, 1919. A woman who in good faith lived with an [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Dependent.] SHAW, J. This is a proceeding to review a judgment of the Industrial Accident Commission awarding compensation to Dolores Rodriguez otherwise known as Dolores Lopez, on account of the death of one Silviano Lopez. The death was caused by accidental injuries to Silviano Lopez occurring on July 23, 1918, while he was in the employment of the Temescal Rock Company, which injuries arose out of said employment. The award was made against Ocean Accident & Guaranty Corporation, the insurance carrier of the rock company. It was made to Dolores Rodriguez on the ground that at the time of the accident she was wholly dependent for support upon said Lopez. The sole objection thereto is the claim that upon the evidence and the findings of the commission she was not dependent upon Lopez for support, within the meaning of section 14 of the Workmen's Compensation Act of 1917 (Stats. 1917, p. 844). It is conceded that she was, as a matter of fact, dependent upon him for support and was being supported by him at the time of the injury. The commission found these facts to The claim is that she cannot be be true. classed as a dependent and is not entitled to compensation for the death of Lopez, because she sustained no legal relation to him, either of blood or marriage, at the time, but that she and the decedent were then living and cohabiting together as husband and wife, notwithstanding the fact that they were never married. Upon this question the commission found, upon sufficient evidence, that she and Lopez were ignorant persons, unacquainted with our laws or with the legal requirements of marriage; that on June 5, 1918, they had agreed to intermarry, and in pursuance of such agreement procured from the county clerk of Riverside county a marriage license authorizing their marriage; that they in good faith then believed that said license was suflicient to constitute in itself a lawful mar For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes riage; that thereupon they assumed the relation of husband and wife and cohabited together in the same dwelling, holding themselves out as husband and wife, the husband providing for their support until the time of said accident; and that during all that time Dolores Rodriguez believed herself to be the lawful wife of Lopez and continued to be in good faith a member of his household and wholly dependent upon him for her support. The provisions of section 14, aforesaid, relating to this subject are as follows: "(a) The following shall be conclusively presumed to be wholly dependent for support upon a deceased employe: "(1) A wife upon a husband with whom she was living at the time of his death, or for whose support such husband was legally liable at the time of his death. "(2) [This clause specifies the children who are deemed to be dependent and is not important to the present case.] "(b) In all other cases, questions of entire or partial dependency and questions as to who constitute dependents and the extent of their dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury of the employé. "(c) No person shall be considered a dependent of any deceased employé unless in good faith a member of the family or household of such employé, or unless such person bears to such employé the relation of husband or wife, child, posthumous child, adopted child or stepchild, father or mother, father-in-law or mother-in-law, grandfather or grandmother, brother or sister, uncle or aunt, brother-in-law or sister-in-law, nephew or niece." Dolores Rodriguez does not come within the provisions of subdivision 1 of subsection (a). That part of the subsection includes only those who stand in the relation of husband and wife. Its language necessarily implies that the relation must be lawful, and therefore it excludes persons who, though not lawfully married, live together believing themselves to be husband and wife. Subsection (b), however, clearly empowers the commission to inquire into the actual conditions of dependency and to ascertain whether or not the applicant was in fact dependent upon the decedent for support at the time of the injury, and finding such dependency complete or partial, thereupon to award compensation accordingly. Standing alone, this clause would authorize compensation to any person, regardless of relationship or place of abode. But it is expressly qualified and limited in these particulars by the provisions of subsection (c). The latter attaches two conditions to the powers given by subsection (b). The first one is that the person claiming to be a dependent must be "in good faith a member of the family or household of such employé." The facts found bring Dolores Rodriguez within these conditions. Lopez had a dwelling house and a household, consisting of himself and said Dolores. She was a member of that household. Both the findings and evidence show that she was living there and was such member in the utmost good faith, believing that she was the lawful wife of Lopez. The conditions are fully met by the facts. The second limitation of subsection (c) applies to dependents of the employé who may not be members of his family, or household, but who are related to him by blood or marriage or by adoption in some one of the degrees there specified. The two classes of limitations are stated in the alternative, being connected by the disjunctive particle "or." The result is that the law does not require that the person found to be actually dependent under subsection (b) shall come within both classes of the limitations specified in subsection (c), but that such person may be awarded compensation if he or she comes within either class. If the applicant is a member of the family or household of such employé in good faith, compensation may be awarded although he or she may not bear any relation by adoption, blood, or marriage to the employé. But if it appears that the applicant bears either of the relations speci fed in the second part of subsection (c) although not a member of the family or of the household, compensation may be awarded according to the degree of dependency. It is not infrequently the case that a person bearing some one of such relations to another is living apart as a member of a different family or household. The second qualification in subsection (c) was intended to cover persons of this class. At The petitioners argue that to allow compensation to one whose only claim to dependency arises from an illegal cohabitation with the employé, ostensibly as his wife, would be a gross violation of morals and of the express policy of our law, and, furthermore, that one living in such forbidden and criminal relations with another cannot in law be deemed to be acting in good faith as a member of his household. We think there are satisfactory answers to this argument. common law Dolores Rodriguez, under the facts found, would have been the lawful wife of Lopez. There was a contract of marriage and assumption of the rights, duties, and obligations of the relation, and an actual consummation thereof. Graham v. Bennet, 2 Cal. 506; Sharon v. Sharon, 75 Cal. 1, 16 Pac. 345. It was not until after the amendment of 1895 to section 55 of the Civil Code that a solemnization became essential to the validity of a marriage. Norman v. Norman, 121 Cal. 620, 54 Pac. 143, 42 L. R. A. 343, 66 Am. St. Rep. 74. There was nothing essentially or inherently immoral or vicious in the conduct of the parties, if we judge them according to their own understanding and belief. The criminal character of their cohabitation does not come from the fact that they were (182 P.) and plaintiff testified that he had purchased it some months before for $345 and it was stipulated at the trial that it was worth $75 after it was burned, contention that amount of $225 allowed is without support in the evidence can not be sustained. 3. EVIDENCE 143-COLLATERAL ISSUES IMPORTANCE. Testimony involving collateral issues will not be permitted, where such inquiry in its proworth the time and necessary complication of bative bearing on the main issue will not be issues involved. Department 1. Appeal from Superior Court, Los Angeles County; Wm. D. Dehy, Judge. Action by John W. Sanders against A. E. Austin and others, doing business under firm name of Austin, Bryant & Carter, and others. Judgment for plaintiff, and defendants appeal. Affirmed. cohabiting together believing themselves to be husband and wife, although not so, but from the fact that the Legislature, by the statute of 1895, had required an additional ceremony to constitute a legal marriage. Of this statute they were ignorant, and the immorality of their conduct cannot be judged with reference to it except in a case where the validity of the marriage is the essential thing to be determined. It was competent for the Legislature, by a subsequent statute, to make that particular requirement to a valid marriage inapplicable in other cases, such, for instance, as the determination of the question of dependency necessary to authorize compensation to a person injured by the death of an employé. This it has done by the provisions of section 14, with respect to one who at the time of the injury was in good faith a member of the household of the employé. This statute completely takes away, for that purpose, the immorality of parties who in good faith were living together as Lopez and Dolores Rodriguez were living. It also declares a different public policy with reference to such cases and completely removes the objection that it is not sound policy to allow compensation in such a case. OLNEY, J. This is an action against the It is true that if the provision is loosely owners of an automobile supply station and administered it may give rise to great abuses. their employé in charge of such station, one Persons consciously living in illicit relations Lawrence, to recover damages for injuries may endeavor to take advantage of the situa- to person and property claimed to have been tion for their own gain. But for the proper suffered by the plaintiff through the negliadministration of the law in this respect the gence of Lawrence. The plaintiff had judgstate depends upon the Industrial Accidentment, and the defendants appeal. The facts Commission. It will, of course, exercise the of the matter are: greatest care to require strict proof of entire good faith in such cases. There is nothing in the evidence in the present case to indicate that there was any ground for a charge of bad faith in the conduct of the parties at and prior to the time of the accident. The award is affirmed. We concur: ANGELLOTTI, C. J.; WILBUR, J.; OLNEY, J.; MELVIN, J.; LAW. LOR, J (180 Cal. 664) QUIRED. In view of the danger of gasoline catching fire if poured out over an automobile, there was negligence of the employé in charge of a filling station to begin pumping gasoline until he was certain that plaintiff was ready to receive it. 2. DAMAGES 188(2) EVIDENCE OF AMOUNT-SUFFICIENCY. Where no question was raised at the trial as to the value of the automobile in question Salisbury & North, of Los Angeles, for appellants. Oscar E. Winburn, of Los Angeles, for respondent. [1] The plaintiff was the owner of a Ford automobile which he was operating as a jitney bus and ran the car alongside the gasoline pump of the supply station to obtain some gasoline. The gasoline tank on a Ford machine is beneath the front seat, and the plaintiff, standing in the car, was handed the free end of the hose from the pump in order to insert it into the tank. Before the hose was so inserted, and while the plaintiff was holding it with one hand and unscrewing the cap of the tank with the other, the defendant Lawrence started the pump, with the result that the gasoline poured out over the machine, caught fire either from the engine or the lights of the machine, and burned the plaintiff and the machine. There is no dispute as to the foregoing facts. There is a direct conflict in the testimony as to whether or not the plaintiff gave any signal to Lawrence to go ahead with the pumping, plaintiff testifying positively that he did not. It is evident, that, if this testimony is true (and in view of the conflict and the decision of the trial court it must be taken on appeal as true), there was undoubted negligence on the part of Lawrence. The danger of gasoline catching fire is so great that it was very clearly a lack of reasonable care on the part For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 182 P.-29 of Lawrence to begin pumping until he was certain that the plaintiff was ready to receive the gasoline. [2, 3] The only other point in the case is the amount of damages. The court awarded plaintiff $450, $225 of which was allowed on account of injury to the machine. It was stipulated at the trial that the value of the machine, after it was burned, was $75; but defendants object that there is no evidence of its value before it was burned, and that therefore the amount of $225 allowed is without any support in the evidence. There was no direct testimony, as there should have been, as to the condition of the machine or what it was worth at the time it was burned. All that appears is that the plaintiff had some months before paid $345 for it secondhand, and that he was actually using it in his business, from which it must be inferred that it was at least in running condition. It may be that testimony as to what the plaintiff paid for the machine was not competent and that if it had been objected to the objection would have been good. Such objection would have been good, however, not because such testimony was of no probative value, but because, standing alone, it was of slight probative value only, and to make it more than this would involve an inquiry into a collateral question, namely, whether or not the plaintiff had paid too much for the car. The rule is that testimony involving a collateral issue will not be permitted where such inquiry, in its probative bearing on the main issues will not be worth the time and necessary complication of issues involved. But the testimony being in, it has sufficient probative value in the absence of any counter testimony whatever to sustain the finding of the court (Joost v. Sullivan, 111 Cal. 296, 43 Pac. 896; Booth v. Pendola, 88 Cal. 41, 23 Pac. 200, 25 Pac. 1101), particularly in view of the further circumstances that no question was raised at the trial as to the value of the automobile and it was apparently assumed that the price paid by the plaintiff was not out of the way. In this connection it should be noted that, in effect, the court found the machine, at the time it was burned, to be worth $300, or $45 less than the plaintiff had paid for it. It is also worthy of note that, in view of the fact that the machine could actually run at the time it was burned, an appraisement of $300 cannot possibly exceed its real value by an amount at all equal to the reasonable expense to the defendants of a new trial. For this reason alone we would be disinclined to grant a new trial merely because of error in fixing the amount of damages. Judgment affirmed. We concur: SHAW, J.; LAWLOR, J. (41 Cal. App. 175) RUNDELL v. McDONALD et al. (Civ. 2905.) (District Court of Appeal, Second District. Division 2, California. May 12, 1919. Rehearing Denied by Supreme Court July 10, 1919.) 1. WILLS 58(1)-CONTRACT TO DEVISEVALIDITY OF ENFORCEMENT. A contract to devise, when properly evidenced, is valid, and enforceable in equity, unless superior equities have intervened. 2. FRAUDS, STATUTE OF 148(2)—PLEADING CONTRACT-PRESUMPTION. Ac The law presumes, under the allegation of due execution of contract, that it was made in compliance with the statute of frauds. 3. WILLS 67-CONTRACT TO DEVISE TION TO DECREE TRUST-COMPLAINT. to deceased, his aunt and stepmother, of land, Complaint showing conveyance by plaintiff without other consideration than her agreement to return it to him by devise at her death, the making of will so devising it, her only property of value, and disposing of her other property, her subsequent marriage, revoking the will by operation of law, and praying that deto hold in trust for plaintiff, and that a conveyfendants, her husband and heirs, be declared ance thereof to him be decreed, held to state a cause of action. 4. EVIDENCE ~432, 444(4)—PAROL EVIDENCE -CONSIDERATION AND CONDITIONS Of Deed. Complainant could show that there was no valuable consideration for his deed to testator, the conditions governing the title under a coland parol evidence was admissible to establish lateral agreement between the parties. Appeal from Superior Court, Santa Barbara County; S. E. Crow, Judge. Action by Albert M. Rundell against Albert W. McDonald, personally and as administrator of Mary Ann McDonald, deceased. From adverse judgment, plaintiff appeals. Reversed. Benjamin F. Thomas, of Santa Barbara, for appellant. Fred H. Schauer and Francis Price, both of Santa Barbara, for respondent. SLOANE, J. This is an appeal from a judgment entered against plaintiff after general demurrer was sustained to his complaint, without leave to amend. The only question to consider is the sufficiency of the complaint to state a cause of action. The parties to the appeal are the plaintiff and the defendant McDonald as administrator and in person. On The complaint alleges the following: the 20th of February, 1912, plaintiff was the owner of a house and lot in Santa Barbara, Cal., of the value of $3,000; on or about that date he entered into an agreement with Mary Ann Rundell, his aunt-who was also his For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |