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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 was not all removed nor the fact that it was a massive structure alters its character in law.

(174 Cal. 679)

In re MATHEWS. ROUSE v. MATHEWS. (S. F. 7673.)

(Supreme Court of California.

1917.) GUARDIAN AND WARD 10-RIGHT of ParENT COMPETENT"-STATUTES.

for guardianship should have been granted and that of the mother denied. It becomes necessary then to set forth these findings, and it will be done as succinctly as possible.

Warren A. Rouse, the petitioner, is married, and is and for many years has been living with his wife, Carrie E. Rouse. To them and into their custody was given the minor when he was but 8 months of age. This was in October, 1906. The child is therefore now March 22, about 11 years of age. The father is and for many years has been dead. Ever since its reception into the home of the Rouses it has been treated by them in all respects as their child. There was no agreement entered into between the Rouses and the mother of the child at the time the former received it nor thereafter going to either its care or support, to the mother's contribution thereto, or to the duty of the Rouses to restore the child to the mother upon demand. But to the contrary, the mother has neither supported cor maintained the child during all of these years, nor has she provided for its support and maintenance, and she never has been "and is not now able to support and maintain her child." The Rouses have great affection for the child, and are in all respects fit, proper, and competent persons to have its care, custody, and control, and "it is for the best interest of said minor child, with

Code Civ. Proc. § 1751, declaring that the parent of a child under age of 14, if found competent to discharge the duties of guardianship, is entitled in preference to any other person to be appointed guardian, controls Civ. Code, 246, subd. 1, providing that in appointing a guardian the court is to be guided by what appears to be for the child's best interest in respect to its temporal, mental, and moral welfare, and if it is of age to form an intelligent preference, the court may consider that preference; so that the parent being "competent," that is, having the mental and moral qualifications, though lacking means, so that she may be compelled to seek state aid in the child's maintenance, must be appointed, irrespective of the child's intelligent preference, unless the parent has by abandonment, or act or omission enumerated in subdivision 4 forfeited right of guardianship.

[Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. §§ 23-33.

For other definitions, see Words and Phrases, respect to its temporal, mental, and moral First and Second Series, Competent.]

Department 2. Appeal from Superior Court, Alameda County; William S. Wells, Judge.

Application for appointment of a guardian of Gerald Mathews, a minor. From decree

welfare that he remain" in their custody. Upon examination the court finds: That the child is of sufficient age to form an intelligent preference in the matter of his custody, and that his preference is to remain in the care, custody, and control of the Rouses. During the time that they have had the child

denying petition of Warren A. Rouse, and ap- the mother has made small voluntary conpointing the minor's mother, petitioner ap-tributions toward its support, not exceeding

peals. Affirmed.

W. B. Rinehart, of Oakland (Charles M. Shortridge, of Oakland, of counsel), for appellant. James L. Nagle and Louis H. Ward, both of San Francisco (P. B. Nagle, of San Francisco, of counsel), for respondent.

in the aggregate the sum of $150. The mother "is not the proper person, in the judgment of this court, to have the care, custody, or control of said minor Gerald Mathews, but she is not incompetent, but is competent, to discharge the duties of guardianship." "That while said Annie Mathews, respondent, is not incompetent to discharge the duties of guardianship, yet considering her condition, her surroundings, and ability to care for said minor child, the court finds that the best interests of said minor child in respect to its temporal, mental, and moral welfare is that said child remain in the custody of the pe

HENSHAW, J. This is a second appeal in the matter of the guardianship of Gerald Mathews, a minor. The decision on the former appeal will be found reported in 169 Cal. at page 26, 145 Pac. 503. Upon that appeal this court, with the evidence before it, was called upon to review a finding of the trial court that the mother “is an unfit, in-[titioner; and the affections of said mir.or competent, and improper person to have the care, custody, or control of her minor child." The holding was that the evidence so presented did not support this finding. Upon this present appeal there are tendered for our consideration findings in many respects different from the single finding which was under review in the previous appeal. The No controlling law of the case was declarappellant rests his case upon these new find- ed upon the former appeal.

child and its relationship to the petitioner have become fixed to the extent that said minor child has come to regard the petitioner and said Carrie E. Rouse as his parents, and that said Annie Mathews, the respondent, to that extent is practically a stranger to him."

All that the

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 the holding of this court, after a review of the evidence, was that the finding was not sustained. Upon the second trial the court made its findings with elaboration, which findings covered numerous probative matters, and together present, as they are designed to present, a survey of the whole situation. Also it is quite apparent that`notwithstanding the influence and effect which the findings thus made may have upon the determination of the ultimate question of the competency of the mother, the court felt constrained by virtue of our former decision to find in terms that she was competent, while also finding that she was not the proper person to be appointed guardian.

application. Within the legitimate scope of its meaning as employed in the law, it embraces many attributes. Wealth alone does not establish competency any more than poverty alone establishes incompetency. Wealth and mental capacity together do not always establish competency, though, upon the other hand, lack of means and lack of mental capacity would clearly render a petitioner for guardianship letters incompetent. Wealth and ability may be found in a dissolute and even in a criminal life, and no court would award guardianship over a minor to such a dissolute or criminal person, even if he were found to be abundantly possessed of mental ability and financial means. Poverty alone of itself no more establishes incompetency than wealth alone establishes competency. No one would say that the state would or should deprive the natural parent of the custody of its child because dire poverty, which may strike any of us, had stricken that parent. To the contrary, the state, in recognition that poverty shall not be a ground for the severance of the relation of parent and child, has made provision itself to aid in the support of the children of the poor, the parents being expected to contribute only in accordance with their limited means. It is only when a parent has abandoned the child, or has been found disqualified for oth

our law the parental rights of guardianship are terminated and destroyed. Civ. Code, § 246, subd. 4.

We are now called upon, in the light of all of these other findings, to determine whether the denial of guardianship letters to the Rouses was made compulsory upon the court (as the court unquestionably deemed that it was made compulsory) by the finding of competency of the parent, coupled with the force of section 1751 of the Code of Civil Procedure, which declares that the father or the mother of a minor child under the age of 14 years, if found by the court "competent to discharge the duties of guardianship," is entitled to be appointed a guardian in preference to any other person. Elsewhere (Civ. | Code, § 246) the law declares that the prim- er reasons than poverty alone, that under ary consideration by which the court is to be guided in the appointment of a general guardian is "what appears to be for the best interests of the child in respect to its temporal and its mental and its moral welfare; and if the child is of sufficient age to form an intelligent preference, the court máy consider that preference in determining the question" (Civ. Code, § 246, subd. 1). If the language just quoted from section 1751 of the Code of Civil Procedure were not upon our books, it would leave as the controlling consideration the language from section 246 of the Civil Code just quoted, and as the findings distinctly and repeatedly declare not only that the best interests of the child demand its continued control under the Rouses, but as the child itself has expressed that preference, as furthermore the court has found that the mother, while competent, is not the proper person, while the Rouses are in all respects not only competent but fit and proper persons, no difficulty would be presented over the determination.

The difficulty arises from the declaration of section 1751 of the Code of Civil Procedure touching the parent's right, which declaration of necessity must be read and construed with the language of section 246 of the Civil Code.

In its last analysis, then, our question is. what is the meaning of the phrase "compe

The finding of competency in this case is a full finding of competency in all mental and moral respects. No question is presented of the unfitness of the mother for dissoluteness, immorality, unwillingness to labor, or for any other reason, saving as that competency so found is affected by her poverty. But touching this, as we have said, poverty itself, unless accompanied by an abandonment, or some other disqualification as above suggested, no one of which is here found, is not sufficient to justify the denial by a court of the preferential parental right declared in section 1751. Being competent, the mother is still entitled to the legal custody of this child which she has not abandoned, and to whose support she has contributed as her limited means would permit. Upon taking such custody she may still be compelled to seek state aid in its maintenance. But this is only a part of the cruel lot which too frequently falls on the very poor.

It is argued with great force that the trend of modern decisions is to regard as of primary importance the welfare of the minor himself. This is most true. The decisions to this effect are made either under the permission of the law, which contains no such restriction as that found in our section 1751,

or else are given under the command of the law which, in effect, declares that over and above all else the controlling consideration shall be the welfare of the child. If we were thus at liberty to act, it might well be that the custody of this child, under the findings of the court, would be given to the Rouses. This is the injunction declared in our own law by subdivision 1 of section 246 of the Civil Code. But, as we have pointed out, unless the parent has for some reason (and no such reason is here found) forfeited his preferential right to the guardianship of his offspring, all considerations of the welfare of the child must, under our law, be regarded as subordinate to that right.

The decree appealed from is therefore affirmed.

We concur: LORIGAN, J.; MELVIN, J.

(32 Cal. App. 767)

COLQUHOUN v. FURSMAN et al. (Civ. 1951.)

Appeal from Superior Court, City and County of San Francisco; James M. Troutt, Judge.

Action by W. W. Colquhoun against H. C. Fursman and others. Judgment for defendants, and order denying motion for new trial, and plaintiff appeals. Affirmed.

both of San Francisco, for appellant. ClayWalter Slack and Joseph K. Hutchinson, berg & Whitmore, of San Francisco, for respondents.

RICHARDS, J. This is an appeal from a judgment in favor of the defendants in an action, brought by the plaintiff as assignee of a certain firm, to recover the sum of $750 as the reasonable value of certain goods, wares, and merchandise alleged to have been sold and delivered by said firm to said defendants as a copartnership and individually, and for which they had refused to pay. The four defendants who were served with process and appeared herein denied that they 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.)

1. SALES 52(6)-ACTION FOR PRICE-PER-
SONS LIABLE-EVIDENCE-SUFFICIENCY.
Evidence held insufficient to show that goods
sold to
one individual were sold upon the
credit and authority of defendants, so as to
charge them with the purchase price.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 138.1

2. APPEAL AND ERROR 1011(1)-SCOPE OF REVIEW-FACT FINDINGS.

The discretion of the trial court in resolving conflicting evidence will not be reviewed on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988.] 3. JUDGMENT

BILITY.

951(2)-EVIDENCE-ADMISSI

In action for purchase price of goods against several individuals, where defendants pleaded that plaintiff had a prior judgment against other persons for the same goods, but did not set up such judgment as a bar, it was proper to admit evidence of such judgment, and on sufficient evidence to find the existence of such judgment, where the court did not find that it was a bar to the action.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1808, 1810.]

4. PRINCIPAL AND AGENT

-EVIDENCE-ADMISSIBILITY.

121—AUTHORITY

In action for purchase price of goods sold to one person who assumed to act for others, it was proper to exclude testimony of such peras to the extent of his authority for the others.

son

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 413-415.]

5. JUDGMENT 282-TRIAL 395(8)-SUBSEQUENT PROCEEDINGS SIGNING DEATH OF PARTY.

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Action of court in signing findings and judgment after the death of one defendant in whose favor judgment ran was not an irregularity prejudicial to plaintiff.

any wares or merchandise from plaintiff's assignor; and they also averred affirmatively that plaintiff had already recovered judgment against certain other persons on account of the sale to them of such goods. Upon the issues thus framed the cause went to trial, at the conclusion of which the trial court gave judgment in favor of the defendants. The court also denied the plaintiff's motion for a new trial on the ground of newly discovered evidence, and from such judgment and order the plaintiff appeals.

[1, 2] We find no merit in the first contention of the appellant that the evidence was insufficient to support the findings and judgment in defendant's favor. The evidence educed at the trial showed the following state of facts: In the month of October, 1910, one Henry E. Lee caused to be located 175 placer mining claims at Searles Lake in San Bernardino county. In so doing he used the names of the defendants in this action without their knowledge or authority. Subsequently, according to the testimony of said Lee, he procured from these defendants a ratification of his acts in using their names in making said locations, but upon the condition and understanding that none of said defendants should assume or be charged with any personal liability because of such locations, but that said Lee should care for the property, perfect the title, sell or work the said locations, and provide all funds necessary for such purposes without any personal liability on the part of the defendants. Subsequently, when certain assessment work was required to be done upon these locations, said Lee, in co-operation with Thomas W. Pack and T. O. Toland, proceeded to em

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 554-556; Trial, Cent. Dig. ploy men and incur expense in doing such 934.] work, and in so doing purchased the goods.

wares, and merchandise from the assignor of voluminous record in the case, and are of the plaintiff, for the value of which this suit was brought.

Upon the trial of the action Lee was called as a witness for the plaintiff, and testified circumstantially to the foregoing state of facts. The evidence further disclosed that the assignor of plaintiff had no direct connection or communication with any of these defendants in respect of such transaction; but, on the contrary, showed that the goods were purchased by said Thomas W. Pack and were charged to him on the sellers' books. This evidence, if believed by the trial court, was sufficient to overthrow whatever inference the plaintiff sought to have drawn from the acts and conduct of the defendants in ratifying the action of said Lee and the use of their names in the making of the locations, and also in continuing to recognize said Lee as their agent in the doing of later acts and things in respect to such lands. The utmost that may be said with regard to the testimony in the case and to the inferences to be drawn therefrom is that a substantial conflict exists, which the trial court was justified in resolving in defendants' favor. Its discretion in that regard will not be reviewed upon this appeal.

The appellant criticizes the conclusions of the trial court as based upon an alleged implied finding that Lee was not the agent of the defendants in procuring the assessment work to be done upon these locations in the course of which these goods were bought, and which implied finding the appellant claims to be contrary to the undisputed evidence in the case. But we see no room or need for any implied finding in the premises, since the court expressly finds that the goods in question were never sold and delivered to

the defendants herein. For the same reason a finding as to the reasonable value of the goods was unnecessary.

the opinion that there is no prejudicial error in any of these rulings; that the court did not err in excluding the evidence of Lee, a witness for plaintiff, as to the scope and details of his agency for the defendants some considerable time after the alleged purchases were made; nor in refusing to admit in evidence as a whole the record and papers in certain actions commenced by said Lee on behalf of the defendants long after the transaction in question, and which record and papers the defendants personally never saw, and of which much was irrelevant and immaterial matter; nor in its other rulings not deserving of special mention; nor do we think that the court erred in refusing to grant the continuance sought by the plaintiff in order to allow certain depositions to be taken, no abuse of its discretion in that regard having been shown; nor was the action of the court in signing its findings and judgment after the death of one of the defendants, said judgment being in his favor, an irregularity by which the plaintiff would be injured or of which he would have the right upon this appeal to complain. We are also of the opinion that there is no manifest abuse of the large discretion with which the trial court was invested in the granting or refusing a new trial on the ground of newly discovered evidence which is cumulative in its character and effect.

Judgment and order affirmed.

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

(33 Cal. App. 5) GIDEON v. HOWARD et al. (Civ. 2197.) (District Court of Appeal, Second District, California. Feb. 13, 1917. Rehearing Denied by Supreme Court April 12, 1917.) MASTER AND SERVANT 286(4)—INJURYDEFECTIVE APPARATUS-NEGLIGENCE-QUES

1.

TION.

cient to go to the jury on the question of negliEvidence in an action for injury held suffigence of the employer in furnishing a defective apparatus, a worn rope, for pulling away a board mold from around hardened concrete. Servant, Cent. Dig. § 1011.] [Ed. Note.-For other cases, see Master and

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2. PLEADING PREGNANT. That the employers furnished the rope by which the employé was injured is admitted by their answer, denying only that they negligently furnished it.

[3] The appellant further contends that the trial court erred in directing the judginent in favor of the defendants upon their affirmative plea that the plaintiff had recovered a prior judgment against said Pack and Lee. But the record does not show that the judgment of the court was based upon this plea as a plea in bar, but only discloses that the court found the fact of such prior judgment in response to the issue as to its existence raised by the pleadings. It was not, however, pleaded as a plea in bar, and was not found or declared to be such by the trial court. It thus appears that the court proper-3. ly admitted evidence in support of such issue, and that its finding was correct, and that its judgment in the defendants' favor was not predicated upon such finding as a bar to the present action.

[4, 5] As to the other alleged errors of the court upon the admission or rejection of evidence during the trial, we have examined the

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 261-263.]

MASTER AND SERVANT PROXIMATE CAUSE.

129(1)-INJURY

employer, precipitating against a stump an emThe breaking of a rope furnished by the ployé using it, and not the stump, was the proximate cause of his injury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 257.]

Appeal from the Superior Court, Los Angeles County; J. P. Wood, Judge.

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

Action by O. 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 aforeappeals. Reversed. said, which fact, however, was unknown to plaintiff until after the accident.

Miller & Miller and E. B. Drake, all of Los Angeles, for appellant. Flint, Gray & Barker, Gray, Barker & Bowen, and Wheaton A. Gray, all of Los Angeles, for respondents.

SHAW, J. In this action plaintiff sought to recover damages for personal injuries alleged to have resulted from the negligence of defendants as copartners. At the close of the evidence, defendants offering none, the court, at their request, instructed the jury to render a verdict for defendants, which being done, judgment followed in accordance therewith. The appeal is from an order of court denying plaintiff's motion for a new trial. The question presented is one of law as to whether or not there was any substantial evidence as to facts determinative of the case upon which the jury could have properly found for plaintiff.

[1-3] At the time in question a statute then in force (Stats. 1911, p. 796) provided that in actions by employés to recover for personal injuries based upon want of reasonable care of the employer, contributory negligence of the employé should not bar a recovery where such negligence was slight, and that of the employer, by comparison, gross; nor, as provided by the same statute, did the fact that the employé assumed the risk, or that the injury was due to the negligence of a coemployé, constitute a bar to his recovery. Since, therefore, negligence on the part of the plaintiff or that of a fellow servant is not involved, the sole question presented by the record is whether or not there was any substantial evidence introduced from which the jury might have found that defendants were guilty of negligence in furnishing a de

The

away the concrete mold. Not only did the evidence tend to show that the rope was supplied by defendants, but such fact is admitted by the answer, which denied only that they negligently furnished the same. proximate cause of the injury was the breaking of the rope used by plaintiff, which use was within the scope of his employment. It was the duty of defendants to exercise rea

here presented the rope was an appliance which the evidence tends to show was, with defendants' knowledge, worn and weakened to an extent that rendered it unsafe for the

purpose.

The evidence tends to establish the follow-fective rope for plaintiff's use in pulling ing facts: Plaintiff was an employé of defendants, who were contractors engaged in the erection of a bridge, in the construction of which wooden molds or forms were made, into which concrete was deposited, and after it set and hardened these molds or forms were detached therefrom. As such employé, plaintiff, with others, not only worked as a carpenter in making and installing these forms, but in detaching them from the hard-sonable care to provide their employés with ened concrete walls by various means, among work required of them, and under the facts safe appliances in the performance of the which was that of attaching thereto ropes provided by defendants and pulling them loose by hand. At the time in question, when plaintiff sustained the injuries of which he complains, two men had thus, for the purpose of removing one of the molds, attached a rope thereto, and, being unsuccessful in breaking it away, called upon plaintiff and another, who were at work on the bridge, to aid them in pulling it away. They responded, and their united strength applied in pulling upon the rope caused it to break, as a result of which plaintiff, with the others, all of whom were at the time on the ground, was precipitated backwards into a depression some 18 inches deep to a point 10 or 12 feet distant, where he fell upon a stump, the others falling upon him, and, in some way undisclosed by the record, was injured. The rope was five-eighths or three-fourths inch in size and about 45 feet in length. Some three or four days prior to the accident, plaintiff, while using this rope on a scaffold some 40 feet from the ground, discovered that it was badly worn, weakened and cut, for which reason he removed it from the swing he was working on, came down and informed Mr. Crump, the superintendent in charge of construction, of its condition, telling him that the rope was "not fit to work on," and threw it upon

There is no merit in respondents' contention that the stump upon which plaintiff fell, and not the breaking of the rope, was the proximate cause of the injury. It is reasonably certain that but for the breaking of the rope plaintiff would not have fallen backward upon the stump, and his coemployés would not have fallen upon him. But it may be that falling upon the stump contributed nothing toward his injuries; the record is silent upon that point. It might with equal logic be claimed that where a defective cable, used in hoisting one to the top of a building, breaks, precipitating him upon a pile of stone underneath, the pile of stone, and not the breaking of the cable, was the proximate cause of his injury.

It is further claimed that the circumstances were such that the defendants could not reasonably have anticipated an injury resulting from the breaking of the rope. This and the question as to whether or not the injury sustained by plaintiff was due to causes which men in defendants' position could in the ex

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