We concur: ANGELLOTTI, C. J.; SLOSS, [is clear that on July 14, 1912, one of the deJ.; MELVIN, J.; SHAW, J.; LORIGAN, J.; RICHARDS, Judge pro tem. fendants, the dredging company, was constructing a platform adjacent to Long Wharf; that it employed the Southern Pacific Company to furnish its servants and appliances to PACIFIC TELEPHONE & TELEGRAPH CO. drive the piles at the time and spot designat Where dredging company acting through railroad company, both having notice of location of telegraph cable at bottom of bay, severed cable by driving piles, both dredging company and railroad, under Civ. Code, §§ 2338, 2343, subd. 3, were liable; former as having authorized act, latter because it was wrongful. Appeal from Superior Court, City and County of San Francisco; Daniel C. Deasy, Judge. Action by the Pacific Telephone & Telegraph Company against the Standard American Dredging Company and the Southern Pacific Company. From a judgment for plaintiff, defendants appeal. Affirmed. C. Irving Wright, F. E. Boland, and John Douglas Short, all of San Francisco, for appellant Standard American Dredging Co. A. A. Moore, and Stanley Moore, both of San Francisco, for appellant Southern Pacific Co. ed by the authorized agent of the dredging company; that it further appears that the act complained of was done pursuant to such engagement by the servants and agents of the respective defendants at the times and at the spots so designated. Under the facts found by the court and the uncontradicted testimony which we have cited, the act complained of was wrongful in its nature. The defendant the Southern Pacific Company was acting within the scope of its authority in doing what it did, and for its acts its principal is responsible, even though such act is wrongful. Civ. Code, § 2338; Shearman & Redfield on Negligence, §§ 150-175; Stewart v. California Imp. Co., 131 Cal. 125, 63 Pac. 177, 724, 52 L. R. A. 205; Trabing v. Cal. Navigation Co., 121 Cal. 137, 53 Pac. 644; Philadelphia Ry. Co. v. Mitchell, 107 Md. 600, 69 Atl. 422, 17 L. R. A. (N. S.) 974; Castroville Co. v. Col, 6 Cal. App. 533, 537, 92 Pac. 648. As the act complained of was wrongful in its nature, the agent, the Southern Pacific Company, was also liable to this plaintiff. Civ. Code, § 2343, subd. 3; Stewart v. California Imp. Co., supra; Shearman & Redfield on Negligence, § 175; Hodgson v. Plow Pillsbury, Madison & Sutro, of San Fran- Co., 78 Minn. 172, 80 N. W. 956, 50 L. R. A. cisco, for respondent. 644, and note. It follows that the judgment should be affirmed as against each defendant, and it is so ordered. We concur: LENNON, P. J.; BEASLY, KING v. PAPAZIAN et al. (Civ. 2458.) (District Court of Appeal, First District, California. Oct. 2, 1918.) 1. FRAUDULENT CONVEYANCES 74(3)-VOLUNTARY CONVEYANCE WITHOUT CONSIDERATION-INSOLVENCY OF GRANTOR. STURTEVANT, Judge pro tem. The plaintiff sued the defendants for damages caused by injury to its cable. The case was tried by the trial court without a jury, a jury having been expressly waived. The plaintiff had judgment. Both defendants appealed and have brought up the judgment roll and a bill of exceptions. Each defendant claims that the responsibility for the wrong complained of rests on the other defendant. The trial court made findings which included, among others, findings to the effect that, at the time of the injury complained of, the plaintiff was the owner of a certain telegraph and telephone cable resting on the bottom of San Francisco Bay, parallel with and along the north side of Long Wharf; that it had complied with the provisions of sections 536-540 of the Civil Code as to marking by monuments and giving notice of the locus of said cable; that the defendants at all times had knowledge and notice of the locus of said cable; that on July 14, 1912, the defendants negligently failing to take any precautions or take proper or any care to avoid striking or damaging said cable, drove certain piles upon said Appeal from Superior Court, Fresno Couneable, and thereby crushed, severed, and dam-ty; H. Z. Austin, Judge. Under Civ. Code, § 3442, a voluntary conveyance by an insolvent grantor without receiving a valuable consideration was void as to creditors. 2, APPEAL AND ERROR 1011(1)—REVIEWFINDING-CONFLICTING EVIDENCE. An appellate court will not disturb a finding which rests on conflicting evidence. 3. FRAUDULENT CONVEYANCES 156(1)—AcTION TO SET ASIDE CONVEYANCE BURDEN OF PROOF. In creditor's action to set aside alleged fraudulent conveyance, creditor need not show that grantee had knowledge of grantor's fraudu lent intent, where conveyance was without valuable consideration. aged the cable. From the bill of exceptions it Action by Elizabeth King against Peter For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 176 P.-4 Papazian and another. Judgment for plain-13. tiff, and defendants appeal. Affirmed. Ernest Klette, of Fresno, for appellants. J. P. Bernhard, of Fresno, for respondent. STURTEVANT, Judge pro tem. [1-3] This is an action in the nature of a creditor's bill. The plaintiff had judgment in the trial court, and the defendants have appealed from the judgment and the order denying a new trial. The record was brought up under section 953a, Code of Civil Procedure. The principal point made by the appellants is that certain findings are not supported by the evidence. The findings are general and special. The plaintiff alleged, and, by its general finding, the trial court found, that the transfer under attack was made voluntarily and without a valuable consideration at a time when the grantor was insolvent, and was therefore void. These findings alone fully support the judgment. 3442. The plaintiff alleged, and the trial court made a special finding, that the transfer in question was made with intent to defraud the creditors of the grantor and particularly this plaintiff and to prevent this plaintiff from collecting her judgment recovered in the basic suit. The record contains evidence to support each of said findings, and the most that can be said is that there were some conflicts in the evidence. MUNICIPAL CORPORATIONS 57-LEGISLATIVE POWERS-LOCATION OF CITY HALL. The selection of a location for a city hall is a legislative act clearly within the scope of the powers of a municipal corporation. 4. MUNICIPAL CORPORATIONS 228 - CONTRACTS BASED ON LEGISLATIVE ACTS-REFERENDUM. A person making an agreement with the city council concerning the location of a city hall does so in contemplation of the legislative charnot bound by the contract if rejected upon referacter of the act done, knowing that the city is endum. 5. CONSTITUTIONAL LAW 278(7)-DUE PRO ING THE OBLIGATION OF CONTRACTS. Where plaintiff's offer to furnish ground upon which to build a city hall was accepted by the council, the rejection of such legislative act by the voters upon referendum was not an imCiv. Code, pairment of the obligation of a contract. But an appellate court may not disturb a finding which rests on conflicting testimony. As the trial court found that the transfer was not given for a valuable consideration, this case does not come within the rule, stated in Hart v. Church, 126 Cal. 471, 58 Pac. 910, 59 Pac. 296, 77 Am. St. Rep. 195, that the plaintiff must show the grantee's knowledge of the fraudulent intent of the grantor. It follows that the judgment should be affirmed, and it is so ordered. 7. EMINENT DOMAIN 2(1)—TAKING OF PRI VATE PROPERTY-WHAT CONSTITUTES. One offering ground to city for the construction of a city hall must know that the city would not be bound by ordinance accepting the gift, if rejected by the electors upon referendum, and such rejection did not constitute a taking or damaging of private property for public use. Appeals from Superior Court, Contra Costa Denson, Cooley & Denson and W. H. H. D. J. Hall, of Richmond, and C. S. Hannum, W. T. Kearney and Titus, Creed, Jones & Dall, all of San Francisco, for respond ents. BEASLY, Judge pro tem. These cases between identical parties involve the same We concur: LENNON, P. J.; BEASLY, questions, and will be determined together. Judge pro tem. The purpose of the actions was to secure an injunction restraining the city of Richmond and its officers from removing the municipal offices from a certain building upon lands which the plaintiff claims were do nated to the city by it for use as a city hall, (District Court of Appeal, First District, Cali-erection of a city hall for the city of Richand from entering into a contract for the HARBOR CENTER LAND CO. v. COUNCIL OF CITY OF RICHMOND et al. (two cases). (Civ. 2421, 2501.) fornia. Sept. 30, 1918.) mond. 1. MUNICIPAL CORPORATIONS 108-LEGIS- So far as we can find the questions preLATIVE POWERS - REFERENDUM CHOICE OF SITE FOR CITY HALL. The city council's choice of a site for a city hall is a legislative act, subject to be set aside by the city voters upon referendum. 2. INJUNCTION 84- MUNICIPAL CORPORATIONS-LEGISLATIVE POWERS. In view of Code Civ. Proc. § 526, subd. 7, an injunction cannot be granted to prevent a legislative act by a municipal corporation within the scope of its powers. sented for decision are all settled in this state. Most of them were disposed of in the case of Hopping v. Council of the City of Richmond, 170 Cal. 605, 150 Pac. 977, and a case bearing the same titles and reported in 170 Cal. 618, 150 Pac. 982. In those cases the Supreme Court by mandate compelled the city of Richmond to submit to the electors of the city for approval or rejection up showed bad legal judgment. It had no binding contract, because the act of selecting the site-a prerequisite to making a contract for its acquisition-was legislative, and could be reviewed and set aside by the electors, and until so reviewed, or until the right of review by referendum was lost by lapse of time or otherwise, no contract based thereon was finally binding upon the city. The act of the electors in rejecting the offer of the plaintiff to furnish the ground for the city hall was, therefore, not violative of the provisions of the Constitution upon the subject either of due process of law, of the impairing of the obligation of contracts, or of protecting property or of taking or damaging private prop on a referendum petition the question of pro- [1] We think it unnecessary to discuss these contentions, for it was held in Hopping v. City of Richmond, supra, that the choice of a site for a city hall by the council was a legislative act; that the act of the council could be set aside upon referendum by the voters of the city, and it follows that the decision of the electors at such election held for said purpose was itself legislative and binding, therefore, upon the city council under our constitutional provisions establishing the referendum. The judgment in each case is affirmed. We concur: LENNON, P. J.; STURTEVANT, Judge pro tem. MICKEL v. ALTHOUSE et al. (Civ. 2581.) Burden was upon building contractors, in common-law suit against them by a carpenter for personal injuries, to plead in bar that they had elected to accept the provisions of the Employers' Liability Act, if such fact existed. 2. MASTER AND SERVANT 279(4)—INJURIES TO SERVANT-NEGLIGENCE-SUFFICIENCY OF EVIDENCE. FELLOW SERVANT. abolishing the fellow servant doctrine, a carIn view of the Employers' Liability Act, penter held not guilty of negligence in failing to see and know that a fellow workman, who constructed a scaffold, insecurely fastened a ledger thereon. 4. MASTER AND SERVANT 330(3) - INDEPENDENT CONTRACTOR-SUFFICIENCY OF EVIDENCE. [2-7] There seems to us to be a very simIn action against contractors for injuries to carpenter when scaffold fell, evidence held ple reason why this injunction was properly to justify finding that plaintiff's injuries were refused by the superior court. An injunc- caused by negligence of contractors, represented tion cannot be granted in this state to pre- by employé who constructed the scaffold, and vent à legislative act by a municipal corpo-der the Employers' Liability Act. for whose negligence the employer was liable unration within the scope of its powers. Code 3. MASTER AND SERVANT 235(4)—CONTRIBCiv. Proc. § 526, subd. 7; Glide v. Superior UTORY NEGLIGENCE-RELIANCE ON CARE OF Court, 147 Cal. 21, 81 Pac. 225. Of course, no act could be more clearly within the scope of the powers of this municipal corporation than the selection of a location for its city hall. The plaintiff must be taken to have made his so-called agreements with the governing body of the municipality with knowledge and in contemplation of the legislative character of any act done by that body in passing the resolution accepting the proposal made by it-which was to furnish the block of land for this purpose, and of the right of the electors of the city to take the matter out of the hands of the council by referendum, and to reject the agreement which the council proposed to make, and select another site if they saw fit to do so. If the plaintiff contracted obligations and spent money upon the faith of the council's action in passing the resolution accepting its proposal before the municipality had in due course acted directly through the referendum, it simply That owner of house under construction, whereon carpenter was injured, had right to say how work should be done, and apportioned payments to contractors to pay carpenters according to number of men on work, was insufficient, as against terms of written contract for carpentry, work, to prove injured carpenter was employé of owner. 5. MASTER AND SERVANT 318(1) - INDE PENDENT CONTRACTOR RIGHT TO SELECT AND CONTROL. When the right to select the servant and to control his work rests on one of two contracting parties to an independent contract, the party excluded from such selection and control is freed from liability for the negligence of the servant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes TERATIONS. 6. MASTER AND SERVANT 318(1) INDE- I were acting as contractors and not otherwise, PENDENT CONTRACTOR-RIGHT TO MAKE AL- and that any work done or services performThat an employer has the right to make al-ed by defendants Borden was done and perterations, deviations, additions, and omissions formed under contract with the owner, and from the contracted work does not change re- that the owner did not have the right to dilation of party contracting to do work from rect and control the services of the plaintiff. that of independent contractor to that of mere The defendants denied the allegations charging them with negligence, and alleged facts showing that the accident was due solely to the negligence of the plaintiff; such conduct being without the direction, knowledge, or consent of the defendants. servant. 7. CONTRACTS 176(1) QUESTION FOR COURT. CONSTRUCTION Where terms of a contract are clear and certain, its meaning and effect, and the relation of the parties to it thereby created, become a question of law for the court. 8. MASTER AND SERVANT 316(2) INDEPENDENT CONTRACTORS CONTRACTORS To FURNISH CARPENTER LABOR "SERVANT." Under Civ. Code, § 2009, defining a "servant," contractors to furnish all carpenter labor for roughing and finishing a house and garage, held not servants of the owner, who could not be termed their master, as they were doing their work in pursuit of an independent calling. OF [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Servant.] 9. EVIDENCE 511 OPINION TIME SIGNING CONTRACT. In action for injury, to carpenter employed by contractors to furnish carpenter labor on house, against contractors and owner, objection to question to handwriting expert, after his examination of contract to furnish carpenter labor, as to whether in his opinion signatures of owner and of contractors were made on same day, should have been sustained. Appeal from Superior Court, Los Angeles County; Paul J. McCormick, Judge. At the time when this accident occurred there was in force an act approved April 8, 1911, entitled: "An act relating to the liability of employers for injuries or death sustained by their employés, providing for compensation for the accidental injury of employés, establishing an Industrial Accident Board, making an appropriation therefor, defining its powers and providing for a review of its awards." According to the provisions of that act the Industrial Accident Board was not authorized to provide compensation for accidental injury to employés of private persons if, at or prior to the time of the accident to the employé, the employer had not, in the manner provided in the act, elected to become subject to the provisions thereof. In the absence of such election, any employé injured by reason of negligence of the employ er was entitled to maintain an action at law for damages; but it was provided that in such cases the liability of the employer would be subject to the provisions of sections 1 and 2 of said act. Section 1 of that Action by Charles C. Mickel against J. B. Althouse, W. Howard Borden, and Al. Borden. From judgment for plaintiff, and an order denying new trial, defendants appeal. Judgment and order against defendant Alt-act reads as follows: house reversed; judgment and order against the other defendants affirmed. Frank Bryant, of Los Angeles, for appellants. Frank A. McDonald, of Los Angeles, for respondent. CONREY, P. J. The plaintiff obtained judgment against the defendants on account of personal injuries alleged to have resulted from negligence of the defendants. The defendants appeal from the judgment, and from an order denying their motion for a new trial. a On the 20th day of February, 1913, the plaintiff was working as carpenter on house then being constructed for the defendant J. B. Althouse on land owned by Althouse in the city of Los Angeles. In his complaint the plaintiff alleged that he was working under the direction of the defendants Borden, who had supervision over the plaintiff and the right to direct and control his services, and that those defendants were at that time acting for and on behalf of the owner of the property. In their answer the defendants alleged that the defendants Borden were not acting as superintendents for the owner, but that, on the contrary, they "In any action to recover damages for a personal injury sustained within this state by an or the course of his employment as such, or for employé while engaged in the line of his duty death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary or reasonable care of the employer, or of any officer, agent or serv ant of the employer, the fact that such employé may have been guilty of contributory negligence shall not bar a recovery therein where his conemployer was gross, in comparison, but the damtributory negligence was slight and that of the ages may be diminished by the jury in proportion to the amount of negligence attributable to such employé, and it shall be conclusively presumed that such employé was not guilty of contributory negligence in any case where the violation of any statute enacted for the safety of employés contributed to such employé's injury; and it shall not be a defense: "(1) That the employé either expressly or impliedly assumed the risk of the hazard complained of. whole or in part by the want of ordinary or [1] Appellants demurred to the amended complaint upon the ground that it did not state facts sufficient to constitute a cause of action. They claim that the court erred in overruling that demurrer. Their contention is that the complaint was insufficient because it did not allege facts showing gross that was necessary in the building of the scaffold. When they first started to put up the scaffolding, plaintiff had started to notch the scab, and Borden said that it was not worth while to do so. For that reason the scab was not notched. From the evidence thus produced the jury was justified in finding that the plaintiff's injuries were caused by negligence of the defendants Borden, represented by their employé, Chapman, and that the plaintiff was not negligent in failing to see and know that Chapman had not securely fastened the scaffolding to the house. Under the provisions above quoted from the statute which was in force at that time, the fact that Chapman was a fellow servant of the plaintiff is not a defense to the action. negligence or willful personal misconduct and the men had the privilege of using all of the defendants. But we think that the demurrer was properly overruled. The complaint did not allege that the defendants, or either of them, had ever filed with the Industrial Accident Board a written statement to the effect that they accepted the provisions of the act. If such election had been made, the fact would be within the knowledge of the defendants, and we think that the burden was upon them to plead such fact in bar of the action, if the fact existed. The plaintiff was entitled to assume that his ordinary right of action continued to exist. Upon that assumption, the statement of facts showing want of ordinary care on the part of the employer was sufficient to enable the plaintiff to state a cause of action. [2, 3] Appellants contend that there is no evidence of negligence on the part of them, or of either of them. Appellant J. B. Althouse further contends that there is no evidence tending to prove that the plaintiff was acting as his employé at the time of the accident. The record leaves no doubt that the house on which the accident occurred was the property of the defendant Althouse, and that at the time when he received the injuries the plaintiff was engaged at, work as a carpenter in putting on the outside finish of that house. The plaintiff was working in company with another carpenter named Chapman. In order to do their work it was necessary for them to stand on a scaffold. That scaffold was constructed by them out of materials which were on the ground for that purpose. The staging of the scaffold gave way and let the plaintiff fall to the ground whereby he was seriously injured. [4, 5] It does not necessarily follow, however, that any liability has been established against the defendant Althouse. The plaintiff testified that he was working for Althouse; but the specific facts shown do not support that conclusion. The house was being constructed for Althouse and was his property. But there is no evidence that the plaintiff was hired by Althouse, or that Althouse ever at any time or in any way recognized the plaintiff as his employé. The defendants introduced in evidence a contract in writing in the following terms: "Los Angeles, Cal., Jan. 25, 1913. "We, the undersigned, agree to furnish all carpenter labor for roughing in and finishing house and garage No. 514 So. Manhattan Pl., for the sum of eleven hundred and twenty-five Borden Bros. dollars ($1,125.00). "G. H. Borden. "Accepted January 25, 1913. It further appears from the testimony in G. H. Borden testified that he signed that troduced on behalf of the plaintiff, that the contract, and that it was the contract under staging rested upon a crosspiece called a which he performed all the carpenter work "ledger." This ledger was at one end nailed in the construction of the house; that he to a part of the scaffold four feet away from wrote the contract on the day of its date, the house, and at the other end was nailed and that it was accepted by Althouse on the to a piece called a "scab," which in turn same day; that G. H. Borden had general was nailed to the side of the house. In- supervision over the carpenters and built acstead of notching the scab and resting the cording to the plans; that he made no changledger on the notch, as it should have been es from the plans, unless he had orders from in order to be safe, the ledger was nailed di- the owner; that Althouse furnished the rectly to the face of the scab. The scaf- plans and the materials, and had the right folding gave way at the end of the ledger to say how the work should be done; that that was fastened to the scab, because the Althouse paid him in weekly payments, acscab was not notched. The scab slipped off cording to the number of men that Borden from the house. There were several 2x4 had on the work: "Mr. Althouse gave me the studding in the house near that point. The money, and I used it in paying off the men." scab was nailed into the siding, and not into the studding. If the scab had been nailed to the studding and the scab notched, and the ledger properly placed on the scab and nailed to it, the accident would not have happened. Chapman built the scaffold, and the plaintiff handed the stuff up to him. Chapman nailed the scab to the house. The plaintiff did not know of the unsafe condition of the scaffold before he went upon it. There were plenty of materials upon the ground, [6] The facts that, according to the testimony of Borden, the owner had the right to say how the work should be done, and apportioned his installments of payments according to the number of men that Borden had on the work, are not sufficient, as against the terms of the written contract, to prove, and do not tend to prove, that the plaintiff was an employé of the owner. Borden Bros. were under contract to furnish the carpenter labor, and they had the uncontrolled right to em |