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[2] From this provision of the act it is evi-, paid by the employer to the dependents of dent that it was the intention of the Legisla- the employee, under the Workmen's Comture to provide that the action between the employee and the third person, or that between the employer and the third person, in which the employee might join, is to be determined without any reference to the amount paid to the employee by the employer or the amount for which the latter might become liable for the injury sustained by the employee. Such an action is to be determined as if no settlement or award had been made as between the employee and the employer. Without evidence of the amount of the death benefit paid by the employer to the employee it would be impossible, in case the court or the jury found that the defendant was negligent and that the employer was guilty of contributory negligence, to determine the amount of the damages which would be barred by the contributory negligence of the employer, and the amount, if any, to which the employee would be entitled over and above the amount paid to him by the employer. The consequences, therefore, of complying with this provision of the act would be to make the defendant in such an action, if liable at all, liable for the full amount of the damages sustained by the employee. To hold that in such an action the defendant is liable for the full amount of the damages sustained by the employee, irrespective of the contributory negligence of the employer, is casting no burden upon the negligent third person greater than that borne by him prior to the enactment of the statute. Before the passage of any workmen's compensation acts a negligent third person was responsible for all damages sustained through his negligence to one in the employ of another, and the fact that the employer was liable for such injury jointly with a third person was no defense to such an action in whole or in part, nor could it be made the basis of any proceeding against the employer for contribution towards payment of the judgment recovered by the employee against the third person.

pensation Act of the state of Nebraska, that the contributory negligence of the employer was no defense in such an action. This case was followed by the Supreme Court of Iowa in the action of the Fidelity & Casualty Company v. Cedar Valley Electric Co., 187 Iowa, 1014, 174 N. W. 709. These cases were decided upon the ground that the employer, upon making payment to the employee, or his dependents, by the express terms of the statute became subrogated to the rights of the employee, and therefore the employer, in his action against the negligent third per- . son, stood in the shoes, so to speak, of the employee, and no defense would be available in such an action that could not be pleaded against the employee in case the action was being prosecuted by the latter. Defendant seeks to avoid the effect of these decisions by calling our attention to the fact that the statute of 1917, as amended in 1919, contains no provision whereby the employer became subrogated to the rights of the employee. Under the Workmen's Compensation Act of 1913 (St. 1913, p. 279) of this state it was expressly provided that the employer became subrogated to the rights of the employee upon the former making payment to the latter. This provision was omitted in the latter statute upon the subject, but in the 1913 act, as well as in the subsequent acts upon the subject, the employer was given a right of action against the negligent third party, and in such action was authorized to recover the full amount of damages sustained by the employee by reason of the injury. If the employer was subrogated to the rights of the employee under the terms of the 1913 statute, as the language thereof clearly provided that he was, we do not think that his position as regards the negligent third person is any less favorable under the latter acts, notwithstanding the failure of the subsequent statutes to provide specifically that he shall be subrogated to the rights of the employee. By the terms of the act of 1917, as amended in 1919, upon paying to the employee compensation for the injury the employer is given the right to sue the negli gent third person for the full amount of damages sustained by the employee. was the same right given to the employer under the act of 1913. The practical effect of This precise question has never, to our the terms of each statute is to subrogate the knowledge, been before the appellate courts employer to the rights of the employee upon of this state, and we have been able to find the former paying to the latter the compenbut two cases in which a question at all sim-sation provided by the statute, at least to the ilar to the one herein involved has been be- amount of such payment. fore any of the courts of this country. In the case of Otis Elevator Co. v. Miller & Paine, 240 Fed. 376, 153 C. C. A. 302, the United States Circuit Court of Appeals held that in an action by the employer against a

We are therefore of the opinion that by the terms of the act of 1917, as amended in 1919, the defendant was precluded from interposing as a defense in this action the contributory negligence of the employer, and that it was not error on the part of the court to sustain the objection to the introduction of evidence in support of this defense.

This

On the other hand, counsel for the defendant has called to our attention the two cases of Corey & Son v. France, 1 K. B. 1911, p. 114, and Canadian P. R. Co. v. Alberta Clay Products, Ltd., 8 B. W. C. C. 645. The

(230 P.)

the Workmen's Compensation Act of Eng-24 inches. Accordingly, there was only about land, and the second under the Canadian 1 foot between the southerly edge of the statute. The latter statute was taken from pipe and the car as it passed along the track. the English act, and there is no essential The deceased and three others were at work difference in the two statutes upon the sub-wrapping the pipe with burlap, preparatory ject under consideration. Neither the English nor Canadian act contains any provision whereby the employer is subrogated to the rights of the employee, nor do either of said acts provide, as does that of our own state, that in an action instituted by the employee against the negligent third person the amount paid by the employer to the employee shall be inadmissible in evidence. As these statutes differ so materially from our own statute, the decisions of the English and Canadian courts construing them are but slight assistance to us in endeavoring to ascertain the true intent and purpose of the legislation of our own state.

[3] Second. It is further insisted by the defendant that the evidence shows as a matter of law that the deceased was guilty of contributory negligence which was the proximate cause of his death.

[4] Negligence as a rule is a question of fact for the jury, and it is only when but one conclusion can reasonably be reached from the evidence that it becomes a question of law for the court. Herbert v. S. P. Co., 121 Cal. 227, 53 P. 651.

"If one sensible and impartial man might decide that the plaintiff had exercised ordinary care, and another equally sensible and impartial man that he had not exercised such care, it must be left to the jury." Herbert v. S. P. Co., supra, 229 (53 P. 651).

to it being laid in the trench. It was therefore necessary for them to be in close proximity to defendant's car track. The evidence showed without contradiction that the deceased, at the time he was struck by the car, was facing the opposite direction from which the car was approaching. Being a workman whose duty required him to be on the street, he was not required to look continually for the approach of a car. 25 K. C. L. 1287; King v. Green, 7 Cal. App. 473, 94 P. 777. The car line being a single track, cars might come from either direction, and he could not look both ways at the same time. The evidence therefore not only fails to show that he saw the approaching car, but it fails. to show that he was negligent in not seeing it as it approached the place where he was at work. Neither is the evidence sufficiently strong to justify us in holding that the deceased was, as a matter of law, guilty of negligence in failing to hear the car, or, if he heard it, in failing to avoid being struck by it. It is true that a strong inference might be drawn from the testimony that one working at or near the car tracks, as was the deceased, would hear an approaching car traveling at the rate of 20 miles an hour, as it approached the place where the latter was at work, but, in view of the evidence in the case, we are not entirely convinced that a contrary inference could not also reasonaThe defendant concedes that it was neg- bly be drawn. Especially is this so when ligent in the operation of the car which we consider the testimony of the witness caused the death of Milosevich. This negli- Bowers. The evidence shows that this witgence consisted, as conceded by defendant, in ness was engaged in the same kind of emdriving the car at an excessive rate of speed, ployment as was the deceased, wrapping pipe in the failure of the motorman to ring his with burlap, and that with one exception bell when close to the men at work in the he was nearer the deceased at the time of street, and in his failure to observe the de- the collision than any of the other workmen. ceased at his work near the car tracks. But He testified that he did not hear the car defendant contends that "surely a car com- until he looked up from his work for the ing along this track at 20 miles an hour purpose of getting a new ball of burlap. He could have been seen and heard * * then saw the car "right close to us." Othif Milosevich had looked or listened," ander testimony in the case is to the effect that that failing to either look or listen was such negligence on his part as would bar any recovery. The evidence shows that the deceased, on the occasion of the injury, was working with a number of other men for the Los Angeles Gas & Electric Corporation. This corporation was engaged in laying a pipe line in the street over which defendant was operating a single-track electric car line. The trench in which the pipe was to be laid was parallel with the car track and about 4 feet from the north rail of said track. The line of pipe ran along the south erly edge of the trench and was 10 inches in diameter. This would leave about 3 feet between the north rail of track and the line of pipe. The street car "overhung" the rail

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the car was then about 15 feet from the deceased. It is true that Bowers was at this time some 60 feet further away from the car than was the deceased, but this difference in the distance that the two men were from the car, at the time Bowers first saw it but failed to hear it, would not wholly destroy the effect of Bowers' testimony as tending to prove that the car was traveling in such a manner that it was not heard by the deceased as it approached the place where he was at work. We are not able to say, therefore, that the evidence in this case is such that it shows that the deceased was guilty of contributory negligence as a matter of law.

Judgment affirmed.

CONREY, P. J. I concur in the judgment. I am not definitely satisfied that in an action of this kind, prosecuted by the dependent survivors of an employee as sole plaintiffs, against a person other than the employer (an action wherein, as the statute provides, the amount of compensation paid by the employer is not permitted to be shown), the employer will in every case be entitled to apply for and obtain an order establishing a lien in his favor for the amount of compensation paid by him. It will possibly be a defense to such application that the employer's contributory negligence was a concurring proximate cause of the damage suffered. But, if so, that will be a question between the plaintiffs and the employer. In order to make sure that the right of action in a case like this shall not be affected by any compensation claim against the employer, the statute has apparently excluded from the trial of the controversy between the plaintiffs and the defendant herein any consideration of the amount of compensation paid by the employer. The amount being thus excluded, the plea of contributory negligence of the employer could not affect the amount of the verdict, or be used at all unless to defeat the entire cause of action of the plaintiffs. But manifestly the Legislature did not intend that such cause of ac tion shall be thus destroyed.

I concur: HOUSER, J.

PEOPLE v. GALLI. (Cr. 799.) (District Court of Appeal. Third District, California. Sept. 17, 1924.)

1. Criminal law 507 (1)-Purchaser of morphine held not aider and abettor in defendant's prohibited possession.

Fact that purchaser of morphine from defendant had, after purchase, illegal possession, held not to make his possession identical with possession by defendant as to make him an accomplice, within Pen. Code, § 1111.

2. Criminal Law 780(2)-Evidence held not to require instruction on law of accomplices.

U. S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for the People. PLUMMER, J. [1] The defendant was tried and convicted upon an information charging him with the crime of unlawfully having in his possession, selling, furnishing, peddling, etc., a preparation of morphine, contrary to the provisions of the act of March 6, 1907, and the amendments thereto. From the order of the court denying his motion for a new trial and the judgment entered upon the verdict of guilty the defendant appeals to this court. Only one point is stressed by the appellant in support of his contention that the judgment and order herein referred to should be reversed. It is that the trial court erred in failing to instruct the jury on the law concerning the testimony of accomplices and the necessity for the testimony of an accomplice to be corroborated. The instructions which were proposed by the defendant covering these points are indorsed by the trial judge as "refused, substance given elsewhere." We have carefully read the instructions, and fail to find any instructions covering the points mentioned. The instructions were all asked in relation to the testimony of the witness G. B. McDonald. This testimony, however, is set out in the transcript and also in appellant's brief, and shows that the witness McDonald was simply a purchaser. His part in the transaction is testified to as follows:

"Q. Now, on the date, this last date in February, 1924, did you purchase anything from the defendant on that date? A. I did.

"Q. And what was it? A. Morphine.

"Q. Do you recall what time of day? A. Well, it was around about between 4 and 5 o'clock.

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"Q. And whom did you get that morphine from? A. The defendant.

"Q. And did he give it to you or did you purchase it from him? A. Purchased it. "Q. What did you pay him for it? A. Between $3 and $4, I forget just which."

Cross-examination by Martin I. Welsh:

"Q. You knew, of course, when you bought this morphine from the defendant that it was illegal to do that, didn't you? A. I did."

Upon this testimony it is contended that the witness McDonald was an accomplice within the terms of section 1111 of the PeIn this contention, however, the

In prosecution for selling morphine preparation, where there was no testimony justify-nal Code.

ror.

Appeal from Superior Court, Sacramento County; Charles O. Busick, Judge.

ing instruction on accomplices, within Pen. appellant is laboring under a misapprehension Code, § 1111, refusal so to instruct was not eror a confusion of ideas. That section defines an accomplice as one who is liable to prosecution for the identical offense charged against the defendant on trial in Joseph Galli was convicted of unlawfully accomplice is given." After the purchase of the cause in which the testimony of the possessing, selling, and peddling a prepara- the morphine, the witness was, of course, tion of morphine, and he appeals. Affirmed. in possession of the drug illegally, and could Martin I. Welsh, of Sacramento, for appel- have been prosecuted for the illegal posseslant. sion, but similarity of offenses is not the

(230 P.)

same as identity. The mere fact that the [2] Under the authorities just cited and witness, after his purchase, had illegal possession of morphine, though similar to the offense of possession by the defendant from whom the drug was purchased, does not make it identical. In other words, it is not the self-same offense, although it is of the same kind. The possession of each is separate and distinct from the possession of the other, and the offenses are likewise separate and distinct. We think the rule applied to the sale and purchase of intoxicating liquors is applicable here. The authorities are almost unanimous in holding that:

"A purchaser of intoxicating liquors is not guilty of inciting, aiding, or abetting, counseling, or procuring the sale thereof to himself." 33 C. J. 617; 46 L. R. A. (N. S.) 409, and notes; Lott v. U. S., 205 F. 28, 123 C. C. A. 336, 46 L. R. A. (N. S.) 409; Wilson v. State, 130 Ark. 204, 196 S. W. 921; State v. Teahan, 50 Conn. 92; Wakeman v. Chambers, 69 Iowa, 169, 28 N. W. 498, 58 Am. Rep. 218; and State v. Cullins, 53 Kan. 100, 36 Pac. 56,

24 L. R. A. 212.

A number of other authorities might be cited, but these are sufficient to support the rule governing such cases. The reasoning in the case of State v. Teahan, supra, is that followed by most of the authorities cited. It is there said:

"It is insisted, however, that the statute * * * which provides that 'every person who shall assist, abet, counsel, cause, hire, or command another to commit any offense, may be prosecuted and punished as if he were the principal offender,' governs this case; it being contended that the person who purchases the liquor, induces the seller to commit the crime of selling it, and so aids and abets him in the

commission of the offense.

the amendment to section 1111 of the Penal Code which we have set forth, the defendant was not entitled to the instructions on the subject of accomplices, for the simple reason that there was no testimony in the case justifying such instructions, hence whether the trial court correctly or incorrectly stated the reasons of its refusal to instruct the jury along the proposed lines is wholly immaterial. There being nothing in the case justifying a reversal, the order and judgment appealed from are hereby affirmed.

We concur: FINCH, P. J.; HART, J.

PEOPLE v. MURPHY. (Cr. 788.)

(District Court of Appeal, Third District, California. Sept. 23, 1924.)

1. Criminal law

11661⁄2 (12)—Improper remarks of trial court during examination of juror, held not prejudicial error, where evidence of guilt conclusive.

Improper remarks of trial court during examination of juror on voir dire, and his dismissal of such juror, held not prejudicial error, where proper jury was obtained, and evidence of defendant's guilt was direct and conclusive.

2. Criminal law 11702 (5)-Cross-examination of defendant not within direct examination held not prejudicial error, where it related to immaterial matters.

ecuting attorney, though not within purview of Cross-examination of defendant by prosdirect examination, held not prejudicial error, where it related to immaterial matters, and evidence of defendant's guilt was conclusive.

Appeal from Superior Court, Sacramento County; Charles O. Busick, Judge.

"But we are satisfied that the purchaser is not an abettor of the offense within the meaning of the statute. The 'abetting' intended by it is a positive act in aid of the commission of the offense-a force, physical or moral, joined with that of the perpetrator in producing it. selling intoxicating liquors, and he appeals.

Jack Murphy was convicted of unlawfully

Affirmed.

Clifford A. Russell, of Sacramento, for appellant.

Jones, Deputy Atty. Gen., for the People.
U. S. Webb, Atty. Gen., and J. Charles

This is clear from the context, where abetting
is classed with 'assisting,' 'causing,' 'hiring,'
and 'commanding.' The abettor, within the
meaning of the statute, must stand in the same
relation to the crime as the criminal-approach
it from the same direction, touch it at the same
point. This is not the case with the purchaser
of liquor. His approach to the crime is from
the other side; he touches it at wholly another
point. It is somewhat like the case of a man
who provokes or challenges another to fight
with him. If the other knocks him down, he
has induced, but in no proper sense abetted,
this act of violence. He has not contributed
any force to its production. He touches the
offense wholly on the other side. The purchas-
er of liquor, by his offer to buy, induces the
seller of the liquor to make the sale; but he
cannot be said to 'assist' him in it. The whole
force, moral or physical, that went to the pro-
duction of the crime as such, was the seller's." ing took place:

PLUMMER, J. [1] The defendant was convicted of the unlawful sale of intoxicating liquors, and appeals to this court from the judgment based upon such conviction and the denial of his motion for a new trial. The principal assignment of error consists in the allegation that the trial court permitted such errors during the course of the examination on voir dire of one C. H. Chenoweth, as to preclude the defendant from having a fair and impartial trial. During the cross-examination of such juror the follow

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

(Cal.

"Q. Have you any bias or prejudice against | script shows that three witnesses went to the the enforcement of the Prohibition Law, Mr. place of business conducted by the defendant Chenoweth? A. Yes, sir.

ment of the Prohibition Law? A. Not the en

called Murphy's Inn, a roadhouse situated on the Stockton boulevard some two miles south of the city of Sacramento, and purchased two rounds of drinks consisting of whisky from the defendant. The testimony of the three witnesses is without equivocation, direct, clear, and convincing. The defendant went upon the witness stand, and in as few

"Q. And is your bias or prejudice against the enforcement of that law such that it would cause you to be unable to act fairly and impartially between the people of the state of California on the one side and this defendant on the other? A. No, sir; I don't think it would. As a juror, I would have to consider my oath, and weigh the testimony, and render a decision accordingly. "The Court: Q. But you said, Mr. Cheno-words as possible made formal denial. Irreweth, that you had a bias against the enforce-spective of what the trial court may have said upon the examination of the proposed forcement-I didn't understand it that way. juror as herein set forth, it is scarcely con** I misunderstood that question, or Iceivable that the jury would have brought said nothing against the Prohibition Law, and in any other verdict than the one which was I have no bias against the enforcement of any returned. Any other verdict under the testilaw of the country. been a clear miscarriage of justice. This bemony set out in the transcript would have ing the case, the remarks of the court and the dismissal of the juror Chenoweth from further service cannot be held to have been prejudicial to the rights of the defendant, though it may be admitted that such com

"Question by Mr. Henderson: Q. You believe in the enforcement, then, of the Prohibition Law, the same as any law that is upon the statute books, Mr. Chenoweth? A. Yes; I do. "Q. But you have a feeling of bias or prejudice against prohibition itself? A. I am against it; yes, sir."

Further questions along the same line and ments ought not to be made by a trial court. then the following:

"Q. Well, you have a right to not like a law; but when it becomes a law, it is your duty, as a citizen, to believe in the enforcement of the law. A. I do believe in the enforcement of the

law.

"Q. But you answered the question of the district attorney, when he first asked you, that you did not believe in the enforcement of it? A. Well, I got my tongue twisted. I believe in the enforcement of this law.

"The Court: You will be excused from jury duty. Any man that don't believe in the enforcement of the laws of the country is not qualified or fit to sit on the jury, and you will be excused from further duty. You will be excused from further duty.

"Mr. Russell: We desire to note exception to your honor's ruling as to the juror, your honor.

"The Court: Note your exception.

"Mr. Russell: Cite it as prejudicial error. "The Court: You don't want any man that don't believe in the enforcement of the laws? The court will not permit anybody to sit on the jury that will get up and say they don't believe in the enforcement of the laws of this country. "Mr. Russell: We also take exception to your honor's remarks, and assign them as prejudicial error, having been made in the presence of the jurors or prospective jurors."

[2] Upon cross-examination of the defendant, the district attorney was permitted to ask a number of questions, the objections to which should have been sustained as not being within the purview of direct examination, but those questions were mainly directed to immaterial matters, and, in view of the testimony to which we have referred, afford no ground for reversal herein. Being of the opinion that there has been no miscarriage of justice in this case, irrespective of the errors committed, the judgment and order of the trial court will be and the same are hereby affirmed.

We concur: FINCH, P. J.; HART, J.

PEOPLE v. BARNETT. (Cr. 774.) (District Court of Appeal, Third District, California. Sept. 15, 1924.)

Criminal law 1069 (5)-Appeal held too late.

Where motion was granted January 7 to strike two counts of information, and district While the testimony shows clearly that no January 21, appeal by district attorney on latattorney's motion to reconsider was denied legal reason existed for the summary dismis- ter date from order striking the two counts and sal of Mr. Chenoweth from further jury du-order refusing to reconsider the first order, ty, and also further shows that while he was held, under Pen. Code, § 1240, to confer no not in favor of prohibition, or, to put it an-jurisdiction on appellate court.

other way, of the principle of prohibition, nevertheless he was in favor of the enforce

Appeal from Superior Court, Yolo Coun

ment of the law, and that as a juror he ty; W. A. Anderson, Judge. would do his duty. Nevertheless the tran

Chester Barnett was charged with viola

script shows that a jury was finally accepted tion of the Wright Act. From an order strikwhich was free from any legal disqualifica- ing two counts of information, the Peopletions. The testimony set out in the tran-appeal. Appeal dismissed.

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