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affixed, except that it was set upon the floorings, and insists that under them his petition of the basement. Neither the fact that it for guardianship should have been granted was not all removed nor the fact that it was and that of the mother denied. It becomes a massive structure alters its character in necessary then to set forth these findings, law.

and it will be done as succinctly as possible.

Warren A. Rouse, the petitioner, is mar(174 Cal. 679)

ried, and is and for many years has been liv. In re MATHEWS.

ing with his wife, Carrie E. Rouse. To tliem ROUSE v. MATHEWS.

and into their custody was given the minor

when he was but 8 months of age. This was (S. F. 7673.)

in October, 1906. The child is therefore now (Supreme Court of California. March 22, about 11 years of age. The father is and 1917.)

for many years has been dead. Ever since GUARDIAN AND WARD Cw10_RIGHT OF PAR has been treated by them in all respects as

its reception into the home of the Rouses it ENT—"COMPETENT''-STATUTES.

Code Civ. Proc. $ 1751, declaring that the their child. There was no agreement entered parent of a child under age of 14, if found com- into between the Rouses and the mother of petent to discharge the duties of guardianship, the child at the time the former received it is entitled in preference to any other person to be appointed guardian, controls Civ. Code, 8 nor thereafter going to either its care or sup246, subd. 1, providing that in appointing a port, to the mother's contribution thereto, or guardian the court is to be guided by what ap- to the duty of the Rouses to restore the child pears to be for the child's best interest in respect to the mother upon demand. But to the conto its temporal, mental, and moral welfare, and if it is of age to form an intelligent preference, trary, the mother has neither supported cor the court may consider that preference ; so maintained the child during all of these that the parent being "competent,” that is, hav: years, nor has she provided for its support ing the mental and moral qualifications, though lacking means, so that she may be compelled to and maintenance, and she never has been seek state aid in the child's maintenance, must “and is not now able to support and mainbe appointed, irrespective of the child's intelli- tain her child." The Rouses have great afgent preference, unless the parent bas by aban. fection for the child, and are in all respects donment, or act or omission enumerated in subdivision 4 forfeited right of guardianship.

fit, proper, and competent persons to have [Ed. Note.-For other cases, see Guardian and its care, custody, and control, and “it is for Ward, Cent. Dig. $8 23–33.

the best interest of said minor child, with For other definitions, see Words and Phrases, respect to its temporal, mental, and moral First and Second Series, Competent.]

welfare that he remain" in their custody.

Upon examination the court finds: That tha Department 2. Appeal from Superior

child is of sufficient age to form an intelli. Court, Alameda County; William S. Wells,

gent preference in the matter of his custody, Judge.

and that his preference is to remain in the Application for appointment of a guardian of Gerald Mathews, a minor.

care, custody, and control of the Rouses.

From decree denying petition of Warren A. Rouse, and ap- the mother has made small voluntary con

During the time that they have had the child pointing the minor's mother, petitioner ap- tributions toward its support, not exceeding peals. Affirmed.

in the aggregate the sum of $150. The mothW. B. Rinehart, of Oakland (Charles M. er “is not the proper person, in the judgment Shortridge, of Oakland, of counsel), for ar- of this court, to have the care, custody, or pellant. James L. Nagle and Louis H. Ward, control of said minor Gerald Mathews, but both of San Francisco (P. B. Nagle, of San she is not incompetent, but is competent, to Francisco, of counsel), for respondent.

discharge the duties of guardianship.” “That

while said Annie Mathews, respondent, is not HENSHAW, J. This is a second appeal incompetent to discharge the duties of guardin the matter of the guardianship of Gerald ianship, yet considering her condition, her Mathews, a minor. The decision on the surroundings, and ability to care for said former appeal will be found reported in 169 minor child, the court finds that the best Cal. at page 26, 145 Pac. 503. Upon that ap- interests of said minor child in respect to its peal this court, with the evidence before it, temporal, mental, and moral welfare is that was called upon to review a finding of the said child remain in the custody of the petrial court that the mother “is an unfit, in-titioner; and the affections of said miror competent, and improper person to have the child and its relationship to the petitioner care, custody, or control of her minor child." | have become fixed to the extent that said

The holding was that the evidence so pre- minor child has come to regard the petitionsented did not support this finding. Upon er and said Carrie E. Rouse as his parents, this present appeal there are tendered for and that said Annie Mathews, the respondour consideration findings in many respects ent, to that extent is practically a stranger different from the single finding which was to him." under review in the previous appeal. The

No controlling law of the case was declar. appellant rests his case upon these new find.) ed upon the former appeal.

All that the

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

court was there called upon to do and did , tent to discharge the duties of guardianship" was to review the evidence addressed to the as that language is employed in section 1751? finding of the incompetency of the mother to "Competency” is a word of broad and varied discharge the duties of guardianship, and application. Within the legitimate scope of the holding of this court, after a review of its meaning as employed in the law, it the evidence, was that the finding was not embraces many attributes. Wealth alone sustained. Upon the second trial the court does not establish competency any more made its findings with elaboration, which than poverty alone establishes incompetency. findings covered numerous probative matters, Wealth and mental capacity together do not and together present, as they are designed to always establish competency, though, upon present, a survey of the whole situation. Al the other hand, lack of means and lack of so it is quite apparent that notwithstanding mental capacity would clearly render a pethe influence and effect which the findings titioner for guardianship letters incompetent. thus made may have upon the determination Wealth and ability may be found in a dissoof the ultimate question of the competency lute and even in a criminal life, and no court of the mother, the court felt constrained by would award guardianship over a minor to virtue of our former decision to find in terms such a dissolute or criminal person, even if that she was competent, while also finding he were found to be abundantly possessed of that she was not the proper person to be ap mental ability and financial means. Poverty pointed guardian.

alone of itself no more establishes incompeWe are now called upon, in the light of all tency than wealth alone establishes comof these other findings, to determine whether petency. No one would say that the state the denial of guardianship letters to the would or should deprive the natural parent Rouses was made compulsory upon the court of the custody of its child because dire pov(as the court unquestionably deemed that it erty, which may strike any of us, had strickwas made compulsory) by the finding of com en that parent. To the contrary, the state, petency of the parent, coupled with the force in recognition that poverty shall not be a of section 1751 of the Code of Civil Proce- ground for the severance of the relation of dure, which declares that the father or the parent and child, has made provision itself mother of a minor child under the age of 14 to aid in the support of the children of the years, if found by the court "competent to poor, the parents being expected to contribute discharge the duties of guardianship,” is en only in accordance with their limited means. titled to be appointed a guardian in prefer- It is only when a parent has abandoned the ence to any other person, Elsewhere (Civ.child, or has been found disqualified for othCode, $ 246) the law declares that the prim- er reasons than poverty alone, that under ary consideration by which the court is to our law the parental rights of guardianship be guided in the appointment of a general are terminated and destroyed. Civ. Code, s guardian is "what appears to be for the best 246, subd. 4. interests of the child in respect to its tem

The finding of competency in this case is a poral and its mental and its moral welfare; full finding of competency in all mental and and if the child is of sufficient age to form an moral respects. No question is presented of intelligent preference, the court máy consider the unfitness of the mother for dissoluteness, that preference in determining the question” immorality, unwillingness to labor, or for (Civ. Code, § 246, subd. 1). If the language any other reason, saving as that competency just quoted from section 1751 of the Code of so found is affected by her poverty. But Civil Procedure were not upon our books, it touching this, as we have said, poverty itself, would leave as the controlling consideration unless accompanied by an abandonment, or the language from section 246 of the Civil some other disqualification as above suggestCode just quoted, and as the findings dis-ed, no one of which is here found, is not suftinctly and repeatedly declare not only that ficient to justify the denial by a court of the the best interests of the child demand its preferential parental right declared in seccontinued control under the Rouses, but as tion 1751. Being competent, the mother is the child itself has expressed that preference, still entitled to the legal custody of this as furthermore the court has found that the child which she has not abandoned, and to mother, while competent, is not the proper whose support she has contributed as her person, while the Rouses are in all respects limited means would permit. Upon taking not only competent but fit and proper per- such custody she may still be compelled to sous, no difficulty would be presented over seek state aid in its maintenance. But this the determination.

is only a part of the cruel lot which too freThe difficulty arises from the declaration quently falls on the very poor. of section 1751 of the Code of Civil Proce It is argued with great force that the dure touching the parent's right, which dec-trend of modern decisions is to regard as of laration of necessity must be read and con- primary importance the welfare of the minor strued with the language of section 246 of himself. This is most true. The decisions the Civil Code.

to this effect are made either under the perIn its last analysis, then, our question is, mission of the law, which contains no such what is the meaning of the phrase "compe- restriction as that found in our section 1751,

or else are given under the command of the Appeal from Superior Court, City and law which, in effect, declares that over and County of San Francisco; James M. Troutt, above all else the controlling consideration Judge. shall be the welfare of the child. If we were Action by W. W. Colquhoun against H. C. thus at liberty to act, it might well be that Fursman and others. Judgment for defendthe custody of this child, under the findings ants, and order denying motion for new trial, of the court, would be given to the Rouses, and plaintiff appeals. Affirmed. This is the injunction declared in our own

Walter Slack and Joseph K. Hutchinson, law by subdivision 1 of section 246 of the both of San Francisco, for appellant. ClayCivil Code. But, as we have pointed out, berg & Whitmore, of San Francisco, for reunless the parent has for some reason (and spondents. no such reason is here found) forfeited his preferential right to the guardianship of his

RICHARDS, J. This is an appeal from a offspring, all considerations of the welfare of judgment in favor of the defendants in an the child must, under our law, be regarded as action, brought by the plaintiff as assignee subordinate to that right.

of a certain firm, to recover the sum of $750 The decree appealed from is therefore af- as the reasonable value of certain goods, firmed.

wares, and merchandise alleged to have been We concur: LORIGAN, J.; MELVIN, J.

sold and delivered by said firm to said defendants as a copartnership and individual

ly, and for which they had refused to pay. (32 Cal. App. 767)

The four defendants who were served with COLQUHOUN v. FURSMAN et al. process and appeared herein denied that they (Civ. 1951.)

were copartners, or that as such or individ(District Court of Appeal, First District, Cal- ually they or either of them had purchased ifornia. Feb. 10, 1917.)

any wares or merchandise from plaintiff's as

signor; and they also averred affirmatively 1. SALES Omw 52(6)-ACTION FOR PRICE-PER- that plaintiff had already recovered judg. SONS LIABLE-EVIDENCE-SUFFICIENCY.

Evidence held insufficient to show that goods ment against certain other persons on acsold to

one individual were sold upon the count of the sale to them of such goods. credit and authority of defendants, so as to Upon the issues thus framed the cause went charge them with the purchase price.

to trial, at the conclusion of which the trial [Ed. Note.–For other cases, see Sales, Cent. court gave judgment in favor of the defendDig. & 138.] 2. APPEAL AND ERROR Cw1011(1)—SCOPE OF motion for a new trial on the ground of new

ants. The court also denied the plaintiff's REVIEW-FACT FINDINGS.

The discretion of the trial court in re- ly discovered evidence, and from such judgsolving conflicting evidence will not be review- ment and order the plaintiff appeals. ed on appeal.

[1, 2] We find no merit in the first conten[Ed. Note. For other cases, see Appeal and tion of the appellant that the evidence was Error, Cent. Dig. $$ 3983–3988.] 3. JUDGMENT 951(2)—EVIDENCE-ADMISSI

insuflicient to support the findings and judgBILITY.

ment in defendant's favor. The evidence In action for purchase price of goods against educed at the trial showed the following several individuals, where defendants pleaded state of facts: In the month of October, that plaintiff had a prior judgment against other persons for the same goods, but did not set up 1910, one Henry E. Lee caused to be located such judgment as a bar, it was proper to admit 175 placer mining claims at Searles Lake in evidence of such judgment, and on sufficient evi- San Bernardino county. In so doing he used dence to find the existence of such judgment, the names of the defendants in this action where the court did not find that it was a bar to the action.

without their knowledge or authority. Sub[Ed. Note. For other cases, see Judgment, sequently, according to the testimony of said Cent. Dig. $$ 1808, 1810.)

Lee, he procured from these defendants a 4. PRINCIPAL AND AGENT Cm121-AUTHORITY ratification of his acts in using their names -EVIDENCE-ADMISSIBILITY.

in making said locations, but upon the conIn action for purchase price of goods sold dition and understanding that none of said to one person who assumed to act for others, defendants should assume or be charged with it was proper to exclude testimony of such person as to the extent of his authority for the any personal liability because of such locaothers.

tions, but that said Lee should care for the [Ed. Note.-For other cases, see Principal and property, perfect the title, sell or work the Agent, Cent. Dig. $$ 413-415.]

said locations, and provide all funds neces5. JUDGMENT C282–TRIAL OW395(8)—SUB- sary for such purposes without any personal SEQUENT PROCEEDINGS SIGNING - DEATH

liability on the part of the defendants. SubOF PARTY,

Action of court in signing findings and judg- sequently, when certain assessment work was ment after the death of one defendant in whose required to be done upon these locations, favor judgment ran was not an irregularity prej- said Lee, in co-operation with Thomas W. udicial to plaintiff.

Pack and T. 0. Toland, proceeded to em[Ed. Note.-For other cases, see Judgment,

ploy men and incur expense in doing such Cent. Dig. $8554-556; Trial, Cent. Dig. 934.]

work, and in so doing purchased the goods. Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

wares, and merchandise from the assignor of, voluminous record in the case, and are of the plaintiff, for the value of which this suit the opinion that there is no prejudicial erwas brought.

ror in any of these rulings; that the court Upon the trial of the action Lee was called did not err in excluding the evidence of Lee, as a witness for the plaintiff, and testified a witness for plaintiff, as to the scope and circumstantially to the foregoing state of details of his agency for the defendants some facts. The evidence further disclosed that considerable time after the alleged purchases the assignor of plaintiff had no direct con were made; nor in refusing to admit in evinection or communication with any of these dence as a whole the record and papers in defendants in respect of such transaction; certain actions commenced by said Lee on but, on the contrary, showed that the goods behalf of the defendants long after the transwere purchased by said Thomas W. Pack action in question, and which record and paand were charged to him on the sellers' pers the defendants personally never saw, books. This evidence, if believed by the trial and of which much was irrelevant and imcourt, was sufficient to overthrow whatever material matter; nor in its other rulings not inference the plaintiff sought to have drawn deserving of special mention; nor do we from the acts and conduct of the defendants think that the court erred in refusing to in ratifying the action of said Lee and the grant the continuance sought by the plaintiff use of their names in the making of the lo- in order to allow certain depositions to be cations, and also in continuing to recognize taken, no abuse of its discretion in that resaid Lee as their agent in the doing of later gard having been shown; nor was the action acts and things in respect to such lands. of the court in signing its findings and judgThe utmost that may be said with regard to ment after the death of one of the defendthe testimony in the case and to the inferences ants, said judgment being in his favor, an to be drawn therefrom is that a substantial irregularity by which the plaintiff would be conflict exists, which the trial court was jus. injured or of which he would have the right tified in resolving in defendants' favor. Its upon this appeal to complain. We are also discretion in that regard will not be reviewed of the opinion that there is no manifest upon this appeal.

abuse of the large discretion with which the The appellant criticizes the conclusions of trial court was invested in the granting or the trial court as based upon an alleged im- refusing a new trial on the ground of newly plied finding that Lee was not the agent of discovered evidence which is cumulative in the defendants in procuring the assessment its character and effect. work to be done upon these locations in the Judgment and order affirmed. course of which these goods were bought,

We concur: LENNON, P. J.; KERRIand which implied finding the appellant

GAN, J. claims to be contrary to the undisputed evidence in the case. But we see no room or

(33 Cal. App. 5) need for any implied finding in the premises,

GIDEON v. HOWARD et al. (Civ. 2197.) since the court expressly finds that the goods in question were never sold and delivered to (District Court of Appeal, Second District, Cal

ifornia. Feb. 13, 1917. Rehearing Dethe defendants herein. For the same reason nied by Supreme Court April 12, 1917.) a finding as to the reasonable value of the 1. MASTER AND SERVANT 286(4)—INJURYgoods was unnecessary.

DEFECTIVE APPARATUS-NEGLIGENCE-QUES13] The appellant further contends that the trial court erred in directing the judginent cient to go to the jury on the question of negli

Evidence in an action for injury held suffiin favor of the defendants upon their affirma-gence of the employer in furnishing a defective tive plea that the plaintiff had recovered a apparatus, a worn rope, for pulling away a prior judgment against said Pack and Lee. board mold from around hardened concrete. But the record does not show that the judg. Servant, Cent Dig. $ 1011.)

[Ed. Note.-For other cases, see Master and ment of the court was based upon this plea

2. PLEADING 126 - ANSWER NEGATIVE as a plea in bar, but only discloses that the

PREGNANT. court found the fact of such prior judgment That the employers furnished the rope by in response to the issue as to its existence which the employé was injured is admitted by

their answer, denying only that they negligently raised by the pleadings. It was not, how furnished it. ever, pleaded as a plea in bar, and was uot [Ed. Note.-For other cases, see Pleading, found or declared to be such by the trial Cent. Dig. $$ 261-263.] court. It thus appears that the court proper- 3. MASTER AND SERVANT Om 129(1)-INJURY

PROXIMATE CAUSE. ly admitted evidence in support of such issue, and that its finding was correct, and that its employer, precipitating against a stump an em

The breaking of a rope furnished by the judgment in the defendants' favor was not ployé using it, and not the stump, was the predicated upon such finding as a bar to the proximate cause of his injury. present action.

(Ed. Note.-For other cases, see Master and [4, 5] As to the other alleged errors of the Servant, Cent. Dig. $ 257.) court upon the admission or rejection of evi Appeal from the Superior Court, Los Angedence during the trial, we have examined the Iles County; J. P. Wood, Judge.

For other cases see same topic and KEY-NUMBER 10 all Key-Numbered Digests and Indexes

TION.

Action by 0. P. Gideon against P. A. How- , the ground under an abutment of the bridge, ard and another, partners as the Howard from which place his coemployé, when reBros. Construction Company. From an or- quiring a rope for use in detaching the mold, der denying motion for new trial, plaintiff | secured and used it for the purposes afore appeals. Reversed.

said, which fact, however, was unknown to Miller & Miller and E. B. Drake, all of Los plaintiff until after the accident. Angeles, for appellant. Flint, Gray & Barker,

[1-3] At the time in question a statute then Gray, Barker & Bowen, and Wheaton A. in force (Stats. 1911, p. 796) provided that in Gray, all of Los Angeles, for respondents.

actions by employés to recover for personal

injuries based upon want of reasonable care SHAW, J. In this action plaintiff sought of the employer, contributory negligence of to recover damages for personal injuries the employé should not bar a recovery where alleged to have resulted from the negligence such negligence was slight, and that of the of defendants as copartners. At the close employer, by comparison, gross; nor, as proof the evidence, defendants offering none, the vided by the same statute, did the fact that court, at their request, instructed the jury the employé assumed the risk, or that the to render a verdict for defendants, which injury was due to the negligence of a cobeing done, judgment followed in accordance employé, constitute a bar to his recovery. therewith. The appeal is from an order of Since, therefore, negligence on the part of court denying plaintiff's motion for a new the plaintiff or that of a fellow servant is trial. The question presented is one of law not involved, the sole question presented by as to whether or not there was any substan- the record is whether or not there was any tial evidence as to facts determinative of the substantial evidence introduced from which case upon which the jury could have proper- the jury might have found that defendants ly found for plaintiff.

were guilty of negligence in furnishing a deThe evidence tends to establish the follow- fective rope for plaintiff's use in pulling ing facts: Plaintiff was an employé of de- away the concrete mold. Not only did the fendants, who were contractors engaged in evidence tend to show that the rope was supthe erection of a bridge, in the construction plied by defendants, but such fact is ad. of which wooden molds or forms were made, mitted by the answer, which denied only that into which concrete was deposited, and after they negligently furnished the same. The it set and hardened these molds or forms proximate cause of the injury was the breakwere detached therefrom. As such employé, ing of the rope used by plaintiff, which use plaintiff, with others, not only worked as a

was within the scope of his employment. It carpenter in making and installing these

was the duty of defendants to exercise reaforms, but in detaching them from the hard- sonable care to provide their employés with ened concrete walls by various means, among

safe appliances in the performance of the which was that of attaching thereto ropes here presented the rope was an appliance

work required of them, and under the facts provided by defendants and pulling them loose by hand. At the time in question, when which the evidence tends to show was, with plaintiff sustained the injuries of which he defendants' knowledge, worn and weakened complains, two men had thus, for the purpose

to an extent that rendered it unsafe for the of removing one of the molds, attached a rope

purpose. thereto, and, being unsuccessful in breaking

There is no merit in respondents' contenit away, called upon plaintiff and another, tion that the stump upon which plaintiff fell, who were at work on the bridge, to aid them and not the breaking of the rope, was the in pulling it away. They responded, and proximate cause of the injury. It is reasontheir united strength applied in pulling upon ably certain that but for the breaking of the the rope caused it to break, as a result of rope plaintiff would not have fallen backward which plaintiff, with the others, all of whom upon the stump, and his coemployés would were at the time on the ground, was precipi- not have fallen upon him. But it may be that tated backwards into a depression some 18 falling upon the stump contributed nothing inches deep to a point 10 or 12 feet distant, toward his injuries; the record is silent upon where he fell upon a stump, the others fall

that point. It might with equal logic be ing upon him, and, in some way undisclosed claimed that where a defective cable, used in by the record, was injured. The rope was hoisting one to the top of a building, breaks, five-eighths or three-fourths inch in size and precipitating him upon a pile of stone underabout 45 feet in length. Some three or four neath, the pile of stone, and not the breaking days prior to the accident, plaintiff, while of the cable, was the proximate cause of his using this rope on a scaffold some 40 feet injury. from the ground, discovered that it was bad

It is further claimed that the circumstances ly worn, weakened and cut, for which reason were such that the defendants could not reahe removed it from the swing he was work- sonably have anticipated an injury resulting ing on, came down and informed Mr. Crump, from the breaking of the rope. This and the the superintendent in charge of construction, question as to whether or not the injury susof its condition, telling him that the rope tained by plaintiff was due to causes which was “not fit to work on," and threw it upon men in defendants' position could in the ex

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