As to the several other grounds of error which are merely stated without argument or citation of authority, they have no such apparent merit as to justify their consideration or as to warrant a reversal of this case upon appeal. some evidence that even during the occasions thority in support of their contentions. of such use thereof by the defendant in connection with its mining operations, the waters after such use were returned to the ravine and flowed on down it, so that the amount of water at the plaintiffs' point of diversion was never apparently reduced. In this connection it is to be noted that the trial court in its findings and judgment only awarded to the plaintiffs the right to use "two miners' inches of water during the WILBUR, J.; LORIGAN, J.; RICHARDS, months of July, August, and September, and Judge pro tem. Judgment and order affirmed. We concur: SHAW, J.; MELVIN, J.; (179 Cal, 102) (L. A. 4616.) Oct. 2, 1918.) 1. QUIETING TITLE ~47(2)—PLEADING-DE (Supreme Court of California. SCRIPTIONS. three miner's inches of such waters during In action to quiet title, where defendants fendant later filed an individual amended crossfiled answer and cross-complaint, and one decomplaint, tendering no new material issue, and not intended as a substituted pleading, the variance in descriptions between petition and amended cross-complaint being unsubstantial, findings of fact as to amended cross-complaint were unnecessary. 2. PLEADING 406(5)—FAILURE to DemurFINDINGS ON CROSS-COMPLAINT. are necessary on cross-complaint in action to A contention that the rule that no findings quiet title, where there is a general finding for plaintiff, is inapplicable, when there is a variance in description between the complaint and cross-complaint, cannot be raised by defendant, where he did not demur to complaint and put all essential matters in issue by an answer in general terms. The The [5] It is urged that plaintiffs failed to make out a case of title by prescription for want of proof that they had, for the required period, paid all taxes levied and assessed upon the water right claimed by them. point is not available on this appeal. court found that plaintiffs were the owners of the right, and the statement on motion for new trial contains no such specification of insufficiency of evidence as would direct attention to the defect which is now, apparently for the first time, asserted. Department 2. Appeal from Superior Court, Los Angeles County; Fred H. Taft, Judge. Action by Giuseppe Sormano against Luther B. Wood and others. From the judgment rendered, defendant J. H. Smith appeals. Affirmed. Chas. S. McKelvey and Chas. S. Conner, both of Los Angeles, for appellant. George w. Crouch and E. W. Freeman, both of Los Angeles, for respondent. MELVIN, J. Plaintiff was successful in an action to quiet title to certain real property in the county of Los Angeles. One of the defendants, J. H. Smith, has appealed, bringing here the judgment roll alone. The complaint is in the usual form, and contains the allegation that plaintiff "is now and for many years last past has been the owner and in the possession of that certain real property," which is described in detail. Luther B. Wood and J. H. Smith (now appellant) answered, denying plaintiff's ownership in the property or any part thereof, and setting up their alleged ownership in fee to all of it. By way of cross-complaint they averred that they were tenants in common to the fee. Plaintiff answered their The foregoing discussion covers the several cross-complaint, again averring his claim of points upon this appeal to which the appel- interest in the property. Defendant Loop anlants have presented argument or cited au-swered the complaint and alleged his owner ship of the described property by virtue of Ann. Cas. 1917D, 670. It has even been held a certain tax deed. that an erroneous ruling of the court striking All of the pleadings above described were out such a cross-complaint is without prejufiled in March and April, 1912. In May, 1915, dice in a case in which, like the one at bar, J. H. Smith filed an amended answer and judgment is given in favor of plaintiff. Bulcross-complaint denying plaintiff's owner- wer Consolidated Mining Co. v. Standard ship or right to possession of the land de- Consolidated Mining Co., 83 Cal. 589, 23 Pac. scribed in the complaint. By way of cross- 1102; Miller v. Luco, 80 Cal. 257, 22 Pac. 195; complaint he averred that before the filing Hanson v. Goldsmith, 170 Cal. 512, 150 Pac. of the action he was, and at the time of the 364. Indeed, the question presented by this signing of his amended answer and cross- appeal is answered by Brooks v. White, 22 complaint still was, the owner and entitled Cal. App. 719, 136 Pac. 500, in which it is to the possession of the land in question. held that, where an answer denies plaintiff's The clerk entered Sormano's default for his and avers defendant's ownership and right failure to answer this cross-complaint. De to the possession of land, the omission of fendant Loop answered the amended cross-plaintiff to answer the cross-complaint does complaint of Smith setting up his own title, not authorize the clerk to enter a judgment acquired, as he alleged, by certain deeds by default. from the state and from one Hall. Thereafter the cause was tried, and the court found that all of the allegations of the complaint of Sormano were true, and all of the denials and allegations of the answer and cross-complaint of Wood and Smith were untrue, and that the allegations and averments of the answer of defendant E. E. Loop were untrue. There were other findings and appropriate conclusions of law, requiring plaintiff to pay into court for Smith's benefit a certain amount for taxes, penalties, and costs included in the sale of the land by the state in February, 1912. Judgment was entered against J. W. Hall by default. In the closing brief appellant tries to differentiate this case from Larkin v. Superior Court, supra, on the theory that in that case there was no variance (as he asserts there is in this) between the descriptions of the properties as set up in plaintiff's complaint and his own so-called amended cross-complaint. In the latter he asserts title to lots 7 and 8, First addition to Huntington Park, and to a lot 20 feet in width adjoining each lot on the south. In the complaint the property is described as lots 7 and 8 and the north 20 feet of Hogan street (vacated) adjoining lots 7 and 8 on the south, and lying between the east and west lines of the two said lots "extended south," in block 5 of the First addition to Huntington Park, etc. Appellant's counsel solemnly argue that their description contained in the so-called "amended cross-complaint" puts the strip 20 feet in width outside of block 5, while the description in the complaint would seem to put it inside of that block. There is absolutely no merit in this contention, which amounts at most to a very tenuous distinc tion. In both descriptions the strip 20 feet [1, 2] In the first place, there is no show-in width is referred to and located "south" ing, either by recital in the pleading itself or by any order set out in the transcript, that the court gave Smith permission to file his belated and so-called "amended" verified Although he admits that the findings dispose of all of the issues raised by the answer and cross-complaint of himself and Wood, and those raised by the answer of Loop, appellant argues that those raised by his later so-called "amended answer and cross-complaint" have not been the subject of any findings, and that therefore the cause must go back for retrial, because of the court's fail ure to find on material issues. of lots 7 and 8 and "adjoining" them, and for more graphic details rèference is made in each to the same recorded map. If the flimsy distinction upon which appellant's counsel rely really existed, still we would be bound to determine that the court, depending that the two descriptions were substantially upon the map and the testimony, decided identical and had application to the same Having failed to demur to the property. pleading, which seems to be in conflict with the earlier verified answer and cross-complaint of Smith and Wood. But, assuming that the later document was regularly filed, there was nothing to show that it was intended to be in lieu of the pleading which Smith and Wood had previously verified and used in the action. By that pleading all of complaint, and having answered its averthe essential issues were joined. The amendments in general terms, which placed all esed cross-complaint of Smith tendered no new sential matters of controversy at issue, apmaterial issue not involved in both of his pellant may not with propriety raise any answers. Although a defendant in an action such question at this late date, even if the to quiet title may properly aver in a cross-variance were one of a more substantial nacomplaint his own right to have his title ture. quieted, the principal function of the practice of cross-pleading is to prevent plaintiff from dismissing his action before trial without the consent of the defendant. Larkin v. No other of the contentions contained in the closing brief merits discussion. (179 Cal. 59) standing were part of the switching tracks SOUTHERN PAC. CO. v. INDUSTRIAL AC-in the freight yards essential to the moveCIDENT COMMISSION. (S. F. 8803.) (Supreme Court of California. Sept. 30, 1918.) COMMERCE 27(8)-FEDERAL EMPLOYERS' LIABILITY ACT-"INTERSTATE COMMERCE." A member of a repair gang employed by a railroad company to make light repairs upon cars side-tracked in a yard used for interstate and intrastate commerce, killed while passing from one car to the other, was engaged in "interstate commerce" within the federal Employers' Liability Act (U. S. Comp. St. 1916, 88 ment of interstate as well as the intrastate commerce. The system of light repairs inaugurated in the yards in question was for the purpose of facilitating the movement of trains to and from the yard and was distinct from the heavy repair jobs which required the cars to be cut out of the "cuts" or "drags" and placed on special side tracks arranged for such repair work. During the day the light repair men doing "light re8657-8665). [Ed. Note.-For other definitions, see Words pairs" would repair on an average 100 cars and Phrases, First and Second Series, Inter-Decedent's duties required him to pass from state Commerce.] one car to another and one track to another In Bank. Proceedings under the Workmen's | eking out the cars which were tagged by Compensation Act by the widow and children the inspectors as requiring light repairs and of James Morton, deceased, to obtain compen- finding them to make such repairs. Decesation for decedent's death, opposed by the dent and his assistant had released the air Southern Pacific Company, employer. Com- on a string of cars, some containing interpensation was awarded by the Industrial Ac-state and others intrastate freight, and, were cident Commission, and the employer applies proceeding across the yard for the purpose for a writ of review. Award annulled. Henley C. Booth, of San Francisco, for petitioner. Christopher M. Bradley, of San Francisco, for respondent. Frank J. Creede, of San Francisco, for the guardian. of making light repairs upon other cars. While the deceased was crossing one of the switches, he was killed by an empty freight car being suddenly moved upon him because struck by another car "kicked" upon the track by a switch engine. It is not known whether the next car to be repaired by deceased would be loaded with interstate or intrastate commerce, as that would depend entirely upon which sort of a car they happened to first discover tagged for light repairs. WILBUR, J. The petitioner seeks to review an award of the respondent Industrial Accident Commission in favor of the widow and children of James Morton, deceased, made under the terms of the Workmen's Compensation Act of California (St. 1913, p. 279). The only question here involved is Whether or not deceased was engaged in whether or not the respondent has juris- interstate commerce "depends upon whether diction to make an award, or whether the the series of acts that he had last performed liability of the petitioner is to be determined was properly to be regarded as a succession of by the courts in accordance with the provi- separate tasks or as a single and indivisible sions of the federal Employers' Liability Act task," as was said by the Supreme Court of (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 the United States in Erie R. Co. v. Welsh, [U. S. Comp. St. 1916, §§ 8657-8665]). This 242 U. S. 303, 37 Sup. Ct. 116, 61 L. Ed. 319, depends upon whether the deceased when in passing upon the case of a yard conductor killed was engaged in interstate commerce. injured while going to report to the yard The deceased was a member of the repair master for further orders. "The true test," gang employed by petitioner to make light it is there held, "is the nature of the work repairs upon cars side-tracked and detained being done at the time of the injury, and upon side tracks reserved respectively for in- the mere expectation that plaintiff would bound or outbound freight traffic in the Bay presently be called upon to perform a task Shore Freight Yards of petitioner. Such in interstate commerce is not sufficient to detention on said tracks was in part for the bring the case within the act." The deceaspurpose of inspecting the cars to ascertained and his assistant would work on 25 cars defects therein and to make such light re-daily, and in so doing move from place to pairs thereof as were thereby found neces- place in the yards. Some cars repaired were sary, in order that the cars might proceed to filled with interstate and others with intratheir destination. "Light repairs" were state freight. The character of employment made upon the cars without moving them from their positions in the "cuts" or "drags" on the side tracks, but "heavy repairs" were made by cutting out said cars and transferring them to tracks specially devoted to repair work. About 40 per cent. of the business of the yard at that time was interstate business, the balance intrastate. The tracks upon which the cars repaired by the deceased and his fellow laborers were in which decedent was engaged seems to ap- Such an tion purposes and for sale on commission at the Confiding jewelry with another for exhibiPanama-Pacific International Exposition was a bailment for the mutual benefit of both parties. 4. BAILMENT 14(1)-FOR MUTUAL BENEFIT-DEGREE OF CARE. Bailment being for the benefit of both parties, the bailee would be liable to the bailor for theft by a third person only if the theft was due to lack of ordinary care on the part of bailee. 5. BAILMENT 31(3) BAILEE-EVIDENCE-SUFFICIENCY. NEGLIGENCE OF In action for value of jewelry confided by plaintiff to care of defendant for exhibition purposes and sale on commission at Panama-Pasufficient to show that theft of jewelry was due cific International Exposition, evidence held into defendant's negligence. 6. BAILMENT 14(3)-For MUTUAL BENEFIT-DEGREE OF CARE. work, the deceased was but discharging a 13. BAILMENT 2-FOR MUTUAL BENEFITduty of his employment. See North Caro- EXHIBITION. lina R. Co. v. Zachary, 232 U. S. 248, 260 [34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 19140, 159]. Like his trip through the yard to his engine in the morning, it was a necessary incident of his day's work and partook of the character of that work as a whole, for it was no more an incident of one part than of another. His day's work was in both interstate and intrastate commerce, and so when he was leaving the yard at the time of the injury his employment was in both. That he was employed in interstate commerce is therefore plain, and that his employment also extended to intrastate commerce is for present purposes of no importance." Erie R. Co. v. Winfield, 244 U. S. 170, 173, 37 Sup. Ct. 556, 557, 61 L. Ed. 1057, Ann. Cas. 1918B, 662. By the same process of reasoning the decedent, whose general employment was to repair cars containing interstate and intrastate freight in the yards of the petitioner, was employed in interstate commerce while passing through the yard from one such car to another. In considering this question it is also proper to bear in mind the requirements of the federal Safety Appliance Acts (Act Cong. March 2, 1893, c. 196, 27 Stat. 531; Act Cong. March 2, 1903, c. 976, 32 Stat. 943; Act Cong. April 14, 1910, c. 160, 36 Stat. 298 [U. S. Comp. St. 1916, §§ 8605-8615, 8617-8619, 8621-8623]) | in regard to the inspection and the care of cars on railways engaged in interstate commerce. The inspection and repair service of the deceased was required by such statute and was therefore made an essential part of the movement of interstate commerce, and the decedent was engaged in performing this work upon cars brought to a standstill partly for that purpose. We conclude therefore that the deceased was engaged in interstate commerce when killed. Defendant, with whom plaintiff confided jewelry for exhibition purposes and for sale on commission at Panama-Pacific International Exposition, was not an insurer against theft. 7. BAILMENT 14(3)-FOR MUTUAL BENEFIT-DEGREE OF CARE. The limit of defendant's obligation to furnish protection for jewelry confided to him by plaintiff for exhibition and sale on commission at Panama-Pacific International Exposition was the exercise of ordinary care in protecting exhibits against theft. S. BAILMENT NEGLIGENCE BURDEN OF PROOF. 31(1) In action for value of jewelry confided by plaintiff to care of defendant for exhibition pur poses and for sale on commission at Panamathe burden of showing that theft was due to Pacific International Exposition, plaintiff had defendant's negligence. 9. BAILMENT 31(3) BAILEE-EVIDENCE. - NEGLIGENCE OF Evidence of facts and circumstances from whom plaintiff confided jewelry for exhibition which want of ordinary care of defendant, with and sale on commission at Panama-Pacific International Exposition, may be inferred, is sufficient to support conclusion of negligence. CUSTOMS PRO10. BAILMENT 31(2) TECTION AGAINST THEFT OF JEWELRY. In action for value of jewelry confided by plaintiff to care of defendant for exhibition purposes and for sale on commission at PanaMEL- ma-Pacific International Exposition, the court LORI-tify as to a custom with reference to protection did not err in refusing to allow jeweler to tesagainst theft of jewelry displayed for sale on exhibition. The award of the commission is annulled. We concur: ANGELLOTTI, C. J.; VIN, J.; SHAW, J.; SLOSS, J.; GAN, J.; RICHARDS, Judge pro tem. In Bank. Appeal from Superior Court, City and County of San Francisco; E. P. Shortall, Judge. Action by Edgar Perera against the Panama-Pacific International Exposition Company. Judgment that plaintiff take nothing, and he appeals. Affirmed. Ambrose Gherini, of San Francisco (J. for appellant. Brittain & Kuhl, of San FranEdwin Lyons, of Sacramento, of counsel), cisco, for respondent. ANGELLOTTI, C. J. This is an appeal by plaintiff from a judgment that he take nothing. At the close of the plaintiff's case, the trial court directed the jury to render a verdict for defendant, and upon the verdict so rendered the judgment was given. The principal question on this appeal is as to the correctness of the action of the trial court in so directing the jury. thereon, were furnished by plaintiff, through his own representative, one Gugliemetti; the defendant requiring only that the cases be uniform in color and design with the other cases in the same section. The section was in sole charge of defendant's employés; but plaintiff's representative, who visited the place occasionally, was cognizant of the manner in which the jewelry was placed and ex [1, 2] It is now settled that the right of a court to direct a verdict is, with regard to the condition of the evidence, absolutely the same as the right of a court to grant a non-hibited. On the evening, of June 19, 1915, suit; and also that a court may grant a nonsuit only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given. Estate of Caspar, 172 Cal. 147, 155 Pac. 631. [3, 4] The action was for the value of certain jewelry, worth, according to plaintiff's testimony, between $10,000 and $15,000, confided with other jewelry by plaintiff to the care of defendant for exhibition purposes and sale for him by defendant on commission, at the Panama-Pacific International Exposition, and which was never returned or accounted for. There was here a bailment for the mutual benefit of the parties. The evidence introduced on behalf of plaintiff showed that while so on exhibition the jewelry was stolen by some unknown third party. It is conceded by plaintiff that under the circumstances it was incumbent on him, in order to make out a case, to introduce evidence from which the jury might legitimately infer that the theft was due to lack of ordinary care on the part of defendant. See Colburn v. Washington State Art Ass'n., 80 Wash. 662, 141 Pac. 1153, L. R. A. 1915A, 594; 6 C. J. 1158, 1159, 1160. Defendant does not dispute that it was bound to the exercise of ordinary care in the matter of protecting the property of plaintiff from theft. about 7:10 p. m., just before the closing of the building for the night and while patrons were still therein, the two locked cases were pried open at about where the locks thereon were placed, and a large portion of plaintiff's exhibit abstracted by the thief. There was an attendant of the section on duty at the time, and he was engaged for the moment with a customer. There is no suggestion in the evidence that he was in any way negligent. The locks on the cases were not of the best type, and the indications were that it was a simple matter to pry the cases open. Defendant's representative had accepted the cases as delivered, and had never investigated the locks. The regular guard force of the defendant for the exposition, which comprised some 625 acres of ground, consisted of 300 trained men, who were assigned, as required, to particular places and buildings. Defendant had, in addition to this force, some Pinkerton private detective agents, whose duty it was to look out for suspicious characters in and about the buildings and grounds, and had also arranged with the city authorities for the presence on the grounds of “plain clothes men" of the police department for the same purpose. The force of regular exposition guards assigned to and on duty in the Varied Industries Building at the time of the theft consisted of three, two guards and a corporal; the duty of each guard being to patrol one-half thereof, and that of the corporal "to superwhole building." As we vise the have seen, there was an attendant on duty in the section at the time of the theft, and [5] Viewing the evidence in the light most there is no suggestion that this was not orfavorable to plaintiff's claim, as we must, dinarily the situation with regard to the the case made by plaintiff's witnesses, so far other sections in the building. In addition as material, was substantially as follows: to this, some of those having very valuable The jewelry was placed, according to the exhibits in the building had their own priagreement of the parties, in the arts and vate guards or watchmen. crafts section in the Palace of Varied In- burglar alarm system in any portion of the dustries. This building contained a floor building. Some nine or ten evenings before space of about 5 acres, and the arts and after the building was closed for the night this theft the place was entered (whether crafts section comprised about 5,000 square does not appear), and a case in this secfeet of this space in the northwesterly cor- tion opened and some jewelry stolen; but we ner of the building. This section contained have no evidence at all as to the circumsome other displays of valuable jewelry, as stances under which this theft occurred. well as displays of other articles. There We are unable to see in this evidence any were many other sections in the building, substantial support for a conclusion that the some containing valuable exhibits. The jew-theft was due to negligence on the part of elry of plaintiff was contained, as was the defendant. In view of the evidence, the deother jewelry exhibited in the section, in fendant was in no way responsible for the showcases. That of plaintiff was contained condition of the locks on the cases, or the There was no |