Civil No. 1759. Second Appellate District. August 5, 1915. F. D. KEATON, Plaintiff and Appellant, v. SOUTHERN CALIFOR NIA EDISON COMPANY, Defendant and Respondent. INJURIES-WIREMAN'S

[1] ACTION FOR DAMAGES-PERSONAL HELPER-NEGLIGENCE OF SUPERIOR EMPLOYEE-EVIDENCE-IMPROPER NONSUIT. A judgment of nonsuit in an action for damages against an electrical company for personal injuries sustained by a wireman's helper from the negligence of the employee of the defendant who controlled and directed plaintiff in the performance of his work, is improperly granted, where it is shown by the evidence that the plaintiff sustained such injuries by losing his balance and falling against some live uninsulated wires while bearing his weight on the top of a brace which was attached to a bit used in boring a hole through some woodwork, which bit the superior employee negligently jerked from the hole without notice or warning.

Appeal from the Superior Court of Santa Barbara County-S. E. Crow, Judge.

For Appellant-B. F. Thomas.

For Respondent-W. G. Griffith, Hamilton A. Beuer, Bernard Silverstein.

In this action, brought to recover damages for injuries sustained by the plaintiff as an employee of the defendant and because of the defendant's negligence, the trial court, at the conclusion of the plaintiff's case in chief, granted the motion of the defendant for judgment of nonsuit. An appeal has been taken from that judgment and is presented on a bill of exceptions.

There were two counts in the plaintiff's complaint, in the first of which it was alleged that on or about the 4th day of December, 1910, plaintiff was employed by the defendant to perform personal service as a wireman's helper; that on or about the 20th day of June, 1911, plaintiff was sent by the defendant to the city of Santa Barbara to assist in making certain changes in the wiring of the light and power house of Santa Barbara Gas & Electric Company; that in rendering said assistance as wireman's helper the plaintiff was placed by defendant under the control and direction of one O'Connel, an employee of the defendant; that the said O'Connel had the right to control and direct the plaintiff in the rendering of the service; that on the 31st day of August, 1911, plaintiff was engaged in assisting O'Connel to bore a hole through the floor of the power house for the purpose of passing wires through the same; that the plaintiff was directed by O'Connel to press down on the top of a brace used in the boring while O'Connel turned the same, and that while plaintiff was acting as directed O'Connel negligently jerked the bit from the hole and thereby caused plaintiff to lose his balance and fall against some live, uninsulated wires, by reason of which plaintiff was severely burned. A second count in the complaint presented a cause of action based upon the claim that the place where the plaintiff was directed and required to perform the service was not a reasonably safe place in which to work. As to the second alleged cause of action, the judgment of non-suit, in our opinion, was properly granted, because the evidence showed

that plaintiff as an experienced electrician was well aware of all of the dangers of the particular place in which he was employed at the time of the accident. Not so, however, as to the first alleged cause of action.

Respondent insists, first, that neither the complaint nor the evidence showed that at the time the plaintiff suffered the injuries he was employed by the defendant. The substance of the complaint which has been stated herein before sufficiently shows that the fact of the plaintiff's employment by the defendant, both at the commencement thereof and at the time plaintiff received his injuries, was alleged with sufficient clearness to leave no doubt as to the intent of the pleader in that respect. There was ample evidence to sustain the allegations as to the plaintiff being in the employ of the defendant when he was injured, as well as to show that he was completely under the authority and direction of O'Connel and that O'Connel was in superior authority over him. The application of the provisions of section 1970 of the Civil Code, upon the evidence submitted, seems to leave no doubt as to a prima facie case having been made out in favor of the plaintiff. Those portions of the section cited which have material bearing on the question are as follows: "An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the negligence of another person employed by the same employer in the same general business, ; provided, nevertheless, that the employer shall be liable for such injury when the same results from the wrongful act, neglect or default of any agent or officer of such employer, superior to the employee injured, or of a person employed by such employer having the right to control or direct the services of such employee injured, The evidence here showed that O'Connel, after instructing the plaintiff to bear on the top of the brace which was attached to a bit and which was being used to bore a hole through some woodwork, proceeded to turn the brace, it being one of a kind called a ratchet brace; at finding that the bit was not progressing through the wor was withdrawn and O'Connel looked into the hole to see wł a nail had been encountered; he remarked that it seem ight and the bit was replaced and a further attempt was to bore the hole. Again, the bit failed to work and Onnel became angered and jerked it out. The plaintiff testified that the place where they were at work was very close to live wires and that he was about to ask O'Connel not to jerk so hard and had uttered the word "don't", when O'Connel jerked the bit entirely from the hole, causing the plaintiff to lose his balance and fall and his body to make contact with live electrical points, resulting in the serious burning of his hand and arm. [1] There can be no question at all but that this act of O'Connel was a negligent one, and surely it may not be said that the plaintiff was to anticipate that the man under whose directic then working and who was his superior in authority guilty of negligence of that kind. The plaintiff, ac

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gest to his superior that he should act more carefully. O'Connel was also an experienced electrician and knew of the location of the dangerous agencies which surrounded the place where the two men were at work. As described by the plaintiff, his act was heedless and to the last degree negligent. Under such facts plaintiff is entitled to have his case go to the jury, or at any rate to require the defendant to make proof in defense of the cause of action first set out in the complaint.

The judgment is reversed.

We concur:

CONREY, P. J.

SHAW, J.

JAMES, J.

Civil No. 1757. Second Appellate District. August 4, 1915. MARY E. TEATS, Plaintiff and Appellant, v. GERTRUDE M. CALDWELL, Administratrix with Will Annexed of the Estate of Henry Palmer, Deceased, Defendant and Respondent.

[1] AGENCY-SECRET PROFIT.-An agent may not, as such, make a secret profit out of a transaction wherein he represents his principal.

[2] ID.-ID.-ACTION FOR RECOVERY OF SECRET PROFITS-ESTABLISHMENT OF RELATIONSHIP OF PRINCIPAL AND AGENT-EVIDENCERULE UPON REVIEW OF NONSUIT. In reviewing a judgment of nonsuit in an action to recover such a secret profit of an agent, all inferences fairly deducible from the evidence and tending to establish the relation of agent and principal, must be considered as facts proved in favor of the plaintiff.

[3] ID.-ID.-CASE AT BAR-RELATIONSHIP OF PRINCIPAL AND AGENT. It is held in this action to recover such an alleged secret profit made out of a real estate transaction that the evidence clearly tends to show the existence of such relationship.

[4] ID.-ID.-STATUTE OF LIMITATIONS-FRAUD NON-RESIDENCE IN STATE-ACTION NOT BARRED.-Such an action is not barred by the pradisions of subdivision 4 of section 338 of the Code of Civil Prose by reason of the fact that more than three years elapsed en the perpetration of the alleged fraud and the institution action, where it is alleged that the plaintiff had but recently ered the facts constituting the fraud, and that she was at ala es a non-resident of the state.

Appeal from the Superior Court of Los Angeles County.-George H. Hutton, Judge.

For Appellant-James H. Blanchard.

For Respondent-H. M. Barstow; Denio & Hart.

This is an appeal from a judgment of non-suit rendered against plaintiff at the close of her evidence, and from an order of court denying her motion for a new trial.

The action is to recover the sum of $650 and is based upon the alleged fact that defendant's intestate, Henry Palmer, was the agent of plaint him wow

who resided in the east, and as such agent intrusted he purchase for her of real estate in California; that in having in his possession upwards of $1650 of plaintiff's with said sum purchased for her a lot the price of which he represted to be $1650, whereas in truth and in fact the cost

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thereof was $1000 only. The answer denied the alleged agency, or that said Palmer held said money as such agent for the purpose of investment on plaintiff's account, and, in brief, denied all of the alleged fraudulent acts. The answer further alleged that the cause of action was barred by subdivision 4 of section 338, Code of Civil Procedure.

The evidence introduced tended to show that plaintiff, who lived in Chicago, met Palmer while on a visit to California in 1902, at which time he acted as her agent in the purchase of a lot which he thereafter sold for her at a profit, retaining in his possession the proceeds of such sale until plaintiff, at his suggestion and relying upon his good faith in so advising her, purchased through him another lot. A number of letters written by Palmer to plaintiff were received in evidence for the purpose of showing the alleged relation. In October, 1906, after the sale of the first lot purchased for plaintiff, Palmer sent her a statement of her account, showing moneys received and disbursements made on her behalf and the balance in his hands, and wherein he said: "I shall try to handle the money you left in my care so that I shall win nicely for you. Pray God, in your prayers, that we may do the right always; better for others than we shall ask that they shall do for us. God be with you till we meet again." In January, 1907, he made a further accounting by letter, showing further receipts of money collected on plaintiff's account, which left a total in his hands of $1685.87. In this letter he said: "I am watching for a good investment for you; and I want a very good one." In June, 1907, he wrote her, stating: "I have a dandy investment for you," in which letter, after describing the lot, magnificent scenery, surrounding improvements, etc., etc., he says: "It will cost you but $1650," and wherein he further stated: "This special venture which I have made for you on Lot E, Sunny Slope Tract, in the sum of $1650, I will back up and stand by for you, so your outlook is sure as to no loss." In his next letter, written June 20, 1907, he says: "As per my account, after you pay for the fine property I have secured for you, or rather after I have paid it for you, I shall owe you $35.87. Shall let you know what the taxes are, after I pay the same the coming fall." It was stipulated that at the time of the transaction one Cassee Adkinson had a contract for the purchase of the lot from the owners thereof, and that Palmer for $1000 procured an assignment of this contract and caused a conveyance of the lot to be made by the owners thereof direct to plaintiff, charging her $1650 therefor. That Palmer profited by the transaction to the extent of $650, clearly appears; [1] and that an agent may not, as such, make a secret profit out of a transaction wherein he represents his principal, is a rule universally recognized and has no exceptions. The question therefore is, does the evidence tend to establish the relation of agent and principal between plaintiff and Palmer? If it does, the granting of defendant's motion for a judgment of non-suit was error. [2] All inferences fairly deducible from the evidence and tending to establish the relation, must be considered as facts proved in favor of the plaintiff. (Estate of Arnold, 147 Cal. 586.) [3] In our opinion, the evidence clearly tends to show that for some

time prior to the transaction in question Palmer had been acting as the agent of plaintiff in the purchase and sale of property for her; that he had made collections on account of interest and sales so made, paid taxes, interest, commissions, and with plaintiff's approval retained in his hands for months the moneys so received, while "waiting for a good investment" for plaintiff. After holding upwards of $1600 in his hands for more than six months, he wrote her to the effect that he had a "dandy investment" for her, and refers to it as the "special venture which I have made for you", stating that he will let her know what the taxes are when he pays the same in the fall. That planitiff in intrusting her money to Palmer with which, in his discretion, he should make such purchases, regarded Palmer as a trusted agent upon whose advice she relied, admits of little doubt; and that in making the purchase he, without consulting plaintiff, assumed to act under the general authority conferred upon him to buy property for her as her agent, appears from his letters from which we have quoted. There is nothing in his communications calculated to acquaint her with the fact, as claimed by defendant, that she was dealing with him at arm's length, or that he was selling to her his own property. She assumed, and had a right to assume, that he was acting for her in the purchase of property from a third party. The fact, if it be a fact, that the service was rendered gratuitously in no wise relieved him from the exercise of good faith towards his principal. (Kevane v. Miller, 4 Cal. App. 598.) His use of plaintiff's money, however, for a considerable period of time might be deemed ample compensation for the service rendered.

[4] Section 338, Code of Civil Procedure, provides that an action for relief on the ground of fraud must be brought within three years, but also provides that such action shall not be deemed to have accrued until discovery by the aggrieved party of the facts constituting the fraud. It appears that more than three years elapsed between the perpetration of the alleged fraud and the institution of the action. For the purpose of bringing herself within subdivision 4 of said section, plaintiff alleged: "That Mary E. Teats has but recently, to-wit, within the month of July, 1911, discovered that the said representation so made to her by said Palmer was false, fraudulent and untrue, and she had not until within the said time discovered the fraud and deceit practiced upon her as aforesaid." Respondent attacks this allegation as being an insufficient averment of want of discovery of the facts constituting the fraud, and insists that it is tantamount to an admission by implication that the facts out of which it arose were within plaintiff's knowledge prior to July, 1911, but that she had not discovered that such facts constituted fraud. Aside from the fact that no demurrer was interposed to the complaint, we deem the contention without merit. The fraud consisted in the representation made by Palmer that the price of the lot was $1650, whereas in truth it was but $1000. This false representation was the fact constituting the fraud. Conceding, as claimed by respondent, that plaintiff in order to recover "must show that