* every floor below the floor or level where any Within Workmen's Compensation Act (St. one whose employment is "both" casual, "and 1913, p. 279) § 14, excluding from its benefits not" in the usual course of business of the employer, testimony that the keeper of a lodging house was in the habit of employing some one off and on to help out the chambermaid, by taking up carpets and matting and cleaning walls, transoms, windows, and curtains, held to warrant conclusion that employment of one of the employer; "course of business of employso engaged was in the usual course of business er" covering the normal operations which form part of the ordinary business carried on, and not including incidental and occasional operations having for their purpose the preservation of the premises or the appliances used in the business. and Phrases, First and Second Series, Course [Ed. Note.-For other definitions, see Words of Business.] In Bank. Application by Pearl P. Walker for writ of review against the Industrial Accident Commission. Award affirmed. Webster, Webster & Blewett, of Stockton, for petitioner. Christopher M. Bradley, of San Francisco (Warren H. Pillsbury, of Oakland, of counsel), for respondent. Max Grimm, of Stockton, for Louis J. Robinson. SLOSS, J. Certiorari to review an award [6, 7] As to the second proposition, the purpose of the statute was clearly to prevent just such injuries as that sustained by plaintiff, and which, presumably, had the planks been laid close together as required by the statute, would not have occurred, even though this plank 10 inches in width had broken. The act clearly contemplates that when, in the construction of a building, a floor level has been reached, and the joists and beams installed upon which a floor is to be laid, they shall be "covered with flooring laid close together," before a continuance of work above the level of such floor, to protect all workmen engaged in the building. "Where the intent is given expression in plain and unambiguous language, the courts cannot add to or subtract from the act unless forced to do so in order to obviate impractical or absurd results." Estate of McDonald, 118 Cal. 277, 50 Pac. 399. It would be absurd to hold that the law had reference to the floor, not upon which the employé was at work and through which he fell, but to that next below, Section 14 of the Workmen's Compensathus permitting him to fall the distance of tion Act excludes from the benefits of the one story. Hence in this action to recover law any person "whose employment is both damages due to the negligence of the employ- casual and not in the usual course of the er where the failure to comply with the pro- trade, business, profession or occupation of vision contributed proximately to the injury, his employer." The commission found that no defense could be based upon the employé's Robinson's employment was casual, but that contributory negligence for the reason that it was in the usual course of the business or under the Employers' Liability Act, as then occupation of the petitioner. It is contendexisting, such negligence afforded the employed, and this is the sole point made, that er no defense. Crabbe v. Mammoth Channel there was no evidence to support the latter G. Min. Co., 168 Cal. 504, 143 Pac. 714. The judgment is affirmed. of the Industrial Accident Commission. The petitioner, Pearl P. Walker, conducted at Stockton a lodging house containing 17 rooms. The applicant, Louis J. Robinson, was employed by Miss Walker to do certain work in cleaning the house, and while so occupied met with an accidental injury which destroyed the sight of one of his eyes. part of this finding. [1] Our authority, with respect to the commission's conclusions on questions of fact, We concur: ANGELLOTTI, C. J.; WIL- goes no further than to permit the annulBUR, J.; MELVIN, J. ment of an award where the commission's finding of a fact is without any evidence whatever to support it. Where there is a conflict in the testimony, or where opposing inferences may reasonably be drawn, the commission is the final arbiter. (177 Cal. 740) RAWLINGS v. FUSTER. (L. A. 4131.) (Supreme Court of California. 1918.) 2. APPEAL AND ERROR 1071(6)—HARMLESS ERROR-ABSENCE OF FINDING. 1. APPEAL AND ERROR 1011(1)-FINDINGS OF FACT-CONFLICTING EVIDENCE. [2] The evidence embodied in the record There being ample evidence to support findindicates that it was a necessary part of pe- ing that injury to rider of motorcycle in collititioner's business to keep the rooms and hall- sion with auto was caused by negligence in opways of her lodging house in a state of clean-eration of auto, it cannot be disturbed on apliness and good order. A chambermaid was peal, for conflicting evidence. employed continuously. The maid was, however, not able to do all the work, and her efforts had to be supplemented by a man called in from time to time. The work for which Robinson was engaged was the taking up of carpets or matting, and the cleaning of walls, transoms, windows, and curtains. Miss Walker herself testified that she was in the habit of employing some one to do that kind of work occasionally, and the chambermaid stated that ever since Robinson's in jury another man had been doing similar work off and on. This testimony warranted the conclusion that the employment of Robinson was in the "usual course of the business" of the petitioner. The case is not like those cited by petitioner, in which occasional repairs or overhauling were held not to be covered by this phrase. Various cases of this kind, involving a construction of the English act, were reviewed by us in London & Lancashire G. & A. Co., 173 Cal. 642, 161 Pac. 2, and we there said: "In cases arising under that act the expression ['course of business of the employer'] is held to cover the normal operations which form part of the ordinary business carried on, and not to include incidental and occasional operations having for their purpose the preservation of the premises or the appliances used in the business." Failure to find on the issue of plaintiff having paid out money for medical attendance, as alleged in complaint, there being no evidence in support thereof, could not prejudice defendant. 3. APPEAL AND ERROR 1050(1)-HARMLESS ERROR-ADMISSION OF EVIDENCE. Any error in admission, in the case of collision of motorcycle and auto in a city, of county traffic ordinances, was not prejudicial; their provisions being substantially the same as those of the motor vehicle act. Department 2. Appeal from Superior Court, Los Angeles County; Wm. D. Dehy, Judge. Action by Carroll Rawlings, a minor, by Mary Peck, his guardian ad litem, against Jos. Fuster. From adverse judgment and order, defendant appeals. Affirmed. J. L. Fleming and W. S. Knott, both of Los Angeles, for appellant. J. Walter Hanby, of Los Angeles, for respondent. VICTOR E. SHAW, Judge pro tem. Action to recover damages for personal injuries alleged to have been sustained by reason of defendant's negligence in operating an automobile with which plaintiff's motorcycle collided. Judgment went for plaintiff, from which, and an order denying his motion for a new trial, defendant appeals. [1] The appeal is wholly without merit. As It would not be questioned that the cham- usual in such cases, there is a sharp conflict bermaid, in doing the cleaning which fell of evidence. That of plaintiff, in accordance within her province, was engaged in normal | with which the court made its findings, clearoperations forming part of the employer's ly tends to show that the accident, in the ordinary business. There was no essential absence of any negligence on the part of difference in character between her work and that done by Robinson. One was as necessary in the conduct of the business as the other, and neither was incidental, in the sense in which that term was used in the passage just quoted. The only distinction is that the maid's work was done daily, while that of the man was called for at in tervals. But the intermittent character of the employment is not of itself sufficient to exclude it from the purview of the statute. Section 14 does not except employments that are casual simply, but those that are both casual, and not in the usual course of the business. The award is affirmed. We concur: ANGELLOTTI, C. J.; WILBUR, J.; MELVIN, J.; VICTOR E. SHAW, Judge pro tem.; RICHARDS, Judge pro tem. plaintiff, was due to defendant's act in negligently operating his car on the wrong side of the highway contrary to the provisions of the motor vehicle act. Since we cannot weigh conflicting evidence, it would be an idle task to review the same. Suffice it to say there is the injury was, as alleged in the complaint, ample testimony to support the finding that caused by defendant's negligence in operating his car, and that plaintiff was not chargeable with any negligent act contributing to his injury. The court fixed the damage sustained by plaintiff at the sum of $1,000. The injuries sustained by plaintiff appear to have been of a serious and permanent nature, and, other than the bare suggestion of appellant, there is nothing in the record to indicate that the sum so awarded is excessive. [2] While plaintiff alleged that he paid out $50 for medical attendance, no evidence was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes offered in support thereof; hence the failure The judgment and order are affirmed. We concur: WILBUR, J.; MELVIN, J. (177 Cal. 728) street, Los Angeles, up a 9 per cent. grade from Fremont street. A wagon loaded with 9,600 pounds of baled hay was coming down the hill on the left-hand side of the street. The brake of the wagon broke, the horses ran down hill, the wheel horse on the left-hand side fell, the wagon then swerved to the left toward the street car track upon which defendant's car was approaching, a collision occurred, and plaintiffs were thrown from the car and injured. As we held upon the former appeal, there was, under the circumstances, a prima facie presumption of negligence against the carrier. The findings state in great detail the evidentiary facts. It is argued that certain of these "findings" are not supported by the evidence; that if we consider what the court did find with refer HOUSEL V. PACIFIC ELECTRIC RY. CO. ence to certain of the evidentiary facts as THOMSON v. SAME. (L. A. 4147, 4148.) (Supreme Court of California. March 18, 1918.) APPEAL AND ERROR 1008(2)-REVIEWFINDINGS OF NEGLIGENCE. Whether the motorneer of a car, passengers in which were injured by its collision with a wagon, was negligent in proceeding, rather than standing still or retreating, when confronted with meeting a heavily loaded runaway team on a steep grade, was a question for the court trying the case without a jury; its finding on which cannot be disturbed, it being impossible to say it is not supported by substantial evidence. true, and hold, as appellant claims we should, that other findings of the trial court were erroneous because unsupported by the evidence, then the case must be reversed. The ultimate question in the case was as to whether or not the defendant was negligent. The court found that it was negligent. If specific findings made by the court were in conflict with that general finding, the question would be different from that presented here. The defendant's motorneer, nfronted with the fact that he was compelled to meet a runaway team with nearly five tons of hay, on a steep grade, could have done one of three things-go ahead, stand still, or retreat down hill. He decided to go ahead. The trial court held that if he had not gone Actions, one by Dora R. Housel, the other ahead, but had stood still, plaintiffs would by Lydia A. Thomson, against the Pacific have escaped injury, and therefore held that Electric Railway Company. From adverse he was negligent. Appellant claims that it judgments and orders, defendant appeals. can be mathematically demonstrated that Affirmed. Department 2. Appeals from Superior Court, Los Angeles County; Frank G. Finlayson, Judge. this is incorrect, and that if the car had Frank Karr, R. C. Gortner, A. W. Ash-stopped as soon as possible after the horse burn, and W. R. Millar, all of Los Angeles, for appellant. F. McD. Spencer, Thomson & Spencer, Hickcox & Crenshaw, and Foster C. Wright, all of Los Angeles, for respondents. WILBUR, J. The plaintiffs were injured in a collision between a runaway hay wagon and the street car of the defendant corporation, upon which they were riding as passengers. The cases were tried before the court without a jury; judgment was rendered for the plaintiff in each case, and the matter is before us on appeal from the judgments and orders denying motions for a new trial. These cases have been before this court on a previous appeal, and the facts are stated at some length in the opinion on that appeal. Housel v. Pacific Electric Ry. Co., 167 Cal. 245, 139 Pac. 73, 51 L. R. A. (N. S.) 1105, Ann. Cas. 1915C, 665. See, also, Thomson v. Pacific Electric Ry. Co., 167 Cal. 795, 139 Pac. 75. The car upon which the plaintiffs were riding was proceeding easterly along Temple fell and the wagon began to swing to the left, it would have been hit anyway, and that therefore the accident was inevitable. The question whether or not the motorneer was negligent in adopting the course that he did was for the trial court. We cannot say that its conclusion is not supported by substantial evidence. An analysis of the testimony would serve no useful purpose. The judgments and orders are affirmed. We concur: MELVIN, J.; VICTOR E. SHAW, Judge pro tem. (177 Cal. 699) BRANDON v. ANGLO-CALIFORNIA St. 1911 (Ex. Sess.) p. 8, under which the building and loan commissioner is empowered to act, after defining his duties as to an association | possession of the business and affairs of the deemed unsafe, and providing for a judgment building and loan association. approving or disapproving his action, provides The custodian claimed, and this is a suit that if the court shall approve and affirm his action, it shall operate as a permanent injunc- to recover, compensation for 93 days during tion against further prosecution of its business which he had controlled the property, at the followed by liquidation until completed, but that rate of $8 per day, which was the amount if his action be disapproved, he shall cause exfixed by the commissioner. This, after depenses incurred during his occupancy or possession, including a per diem compensation of the ducting a credit of $20 collected and retaincustodian, to be paid from such association's ed by the custodian, amounted to $724. The funds. Code Civ. Proc. § 1049, provides that an action shall be deemed pending until final deter-Court gave judgment for this sum, and it mination on appeal. Held, that the custodian's was further found that while the commis. cause of action for compensation did not accrue till a judgment of disapproval became final on determination of an appeal therefrom, and that action therefor pending appeal was prematurely commenced. sioner was in possession of the Continental Building & Loan Association he deposited with the Anglo-California Trust Company certain funds of the said Continental Building & Loan Association; that he gave an orDepartment 2. Appeal from Superior der in writing that said Anglo-California Court, City and County of San Francisco; Franklin A. Griffin, Judge. Trust Company pay to plaintiff from said funds the sum of $724, but that the trust company refused to comply with said order. Action by Amanda C. Brandon, administratrix of the estate of Franc J. Brandon, Both appellants contend that the judgment against the Anglo-California Trust Com- and order are erroneous because: (1) The pany and others. From a judgment for fees claimed cannot be due until the judgplaintiff, and from an order denying motion ment of the superior court disapproving the for new trial, the Trust Company and an-action of the commissioner has become final; other defendant appeal. Reversed. Gavin McNab and R. P. Henshall, both of U. S. Webb, and Robert W. Harrison, all of (2) because the act under which plaintiff's al in that it permits the taking of property predecessor was appointed is unconstitutionwithout due process of law, and in that it is a legislative exercise of judicial functions; and (3) because if any cause of action for the recovery of fees exist it is vested not in the custodian or in his representative, but MELVIN, J. Two of the defendants, Anglo-California Trust Company and Conti- in the commissioner. nental Building & Loan Association (corpora- The statute under which the building and tions), appeal from the judgment and an or-loan commissioner is empowered to act, after der denying their motion for a new trial. defining his duties subsequent to taking pos "If the court shall approve and confirm the confirmation shall operate as a permanent inaction of the commissioner, such approval and junction against the further prosecution of business by such association, corporation or society, and the commissioner shall proceed immediately to liquidate the business and affairs thereof, and so continue until such liquidation has been completed. If the action of the commissioner shall be disapproved by the court, the commissioner him during his occupancy or possession includshall cause all reasonable expenses incurred by ing not exceeding eight dollars per diem, for each business day, as the compensation of the custodian, to be paid from the funds of such association, corporation or society, and immediately restore the balance of the property and assets thereof to the possession of the proper officers." Stats. 1911 (Extra Sess.) p. 8. The facts, which are undisputed, are as session of the affairs of a building and loan follows: On the 8th day of August, 1912, association deemed unsafe, and after providfollowing a report made to him dealing withing that the judgment of a court shall be inthe status of the Continental Building & voked for the approval or disapproval of his Loan Association, the building and loan com-action, contains the following provisions: missioner of California made an examination of the affairs, business, and condition of that corporation, and found and determined that it was conducting its business and affairs in an unsafe manner, so as to render its further proceedings hazardous to the public and to those doing business with it and to those having funds in its custody. This determination was made under the authority of section 9 of an act of Legislature, found in the Statutes of 1911 at page 607, as amended, Extra Session 1911, p. 6. In further attempted compliance with the act the commissioner appointed Franc J. Brandon-who was the original plaintiff in this action, but who has since died and is here represented by the administratrix of his estate-custodian of all the property and assets of the building and loan association. Thereafter the Attorney General, pursuant to the statute, commenced and conducted a proceeding for approval and confirmation of the action of the commissioner. The result after trial was a judgment and decree disapproving of the action of the commissioner in taking When the action at bar was instituted an appeal from the judgment of disapproval had been taken and was and still is pending. Appellant insists that until a final judgment in that proceeding the respondent here has no standing, because in the event of a reversal of that judgment now on appeal any possible cause of action which plaintiff might otherwise have will be vitiated. The very basis of the claim of the custodian, say ap pellants, is a judgment of the court disap-lent transferee, until the ultimate decision of proving the action of the commissioner. the original case on appeal. Such action, Without such a judgment, they say, the com- they say, may be commenced immediately missioner has no power under the law to or upon the entry of the original judgment, citder payments for the custodian's services. ing Sewell v. Johnson, 165 Cal. 762, 134 Pac. 704, Ann. Cas. 1915B, 645, and Jenner v. Murphy, 6 Cal. App. 434, 92 Pac. 405. But those cases and other authorities along the same line are not in point. This is not an action by a party to enforce a judgment in his favor or to protect his rights as a creditor from spoliation by a fraudulent transfer of the debtor's property. Plaintiff here is su ing to enforce the order of the commissioner for the payment of money to him-an order which the commissioner had the power under the statute to make only in the event of a certain sort of judgment being entered in the proceeding provided by the act in question. If another sort of judgment should be entered the commissioner would be powerless to order the payment of any of the expenses of his management of the corporation's business except by approval of the court having supervision of the proceedings for liquidation. Until the judgment becomes final the powers of the commissioner are undefined. Section 1049 of the Code of Civil Procedure provides that an action shall be deemed pending until its final determination on appeal. Accordingly it has been held that a cause of action upon a judgment does not accrue until the judgment becomes final and admissible in evidence. Feeney v. Hinckley, 134 Cal. 467, 66 Pac. 580, 86 Am. St. Rep. 290. An action will not lie upon the bond of a guardian until the order settling his account becomes final either by lapse of time for appeal or determination of the appeal, if one be taken (Cook v. Ceas, 143 Cal. 221, 77 Pac. 65), nor upon the bond of an administrator prior to an order of the probate court determining his liability (Nickals v. Stanley 146 Cal. 724, 81 Pac. 117). It has even been held that a deposition de bene esse may be taken after trial and before determination of the appeal. San Francisco Gas & Electric Company v. Superior Court, 155 Cal. 30, 99 Pac. 359, 17 Ann. Cas. 933. The same principle is illustrated in such cases as Bruce v. Bruce, 160 Cal. 28, 116 Pac. 66, and Dunphy v. Dunphy, 161 Cal. 87, 118 Pac. 445. We can see no escape from the conclusion supported by the foregoing authorities and the cited section of the Code of Civil Procedure that the custodian would have no ripened cause of action until the judgment of disapproval should become final. As we are persuaded that the action has been prematurely commenced, it is not necessary for us to discuss the other points made by counsel in their briefs. The judgment and order are reversed. We concur: WILBUR, J.; VICTOR E. SHAW, Judge pro tem. (177 Cal. 690) (Cr. 2126.) Ex parte LEE. (Supreme Court of California. 1. CONSTITUTIONAL LAW 55- INDETERMI NATE SENTENCE-VALIDITY OF STATUTES. The clear purpose of the statute is to provide that if the action of the commissioner be approved by the court, he shall liquidate the affairs of the corporation. He is in effect the receiver acting in pursuance of the injunction against the further prosecution of business by the corporation, and after liqui- Pen. Code, § 1168, providing for indetermidation he must submit his report thereof for nate sentences in offenses punishable by impris final approval by the court. As an officer of onment in a reformatory or in a state prison, and giving the reformatory or prison authorthe court he acts in such case under the suities power to determine after expiration of the pervision of that tribunal, but if his action minimum term what length of time such prisonbe disapproved by the court he is given the er shall be confined, does not violate Const. art. right under certain restrictions contained in 3, § 1, providing for the division of the state into the executive, legislative, and judicial dethe act itself to compensate the custodian. partments, and prohibiting the exercise of the His powers respecting payment of that func- powers of one department by either of the othtionary are entirely different under a judgers; such act constituting neither a delegation ment approving and one disapproving of his assumption of control of the corporation's affairs. Hence it follows that his direction for payment of funds made without order of the court is only finally enforce able when there has been a final decision that his original exercise of authority was disapproved. of legislative nor judicial functions. 2. CONSTITUTIONAL LAW 203-CRIMINAL LAW 1206(3)—INDETERMINATE SENTENCES-EX POST FACTO LAWS. Such provision is ex post facto as to a person convicted for a crime committed prior to its enactment, since it substitutes the discretion of the board of prison directors for the statutory right formerly existing to credits for good be havior during imprisonment. 3. CRIMINAL LAW 1184 - INDETERMINATE SENTENCES-RESENTENCE. Respondents' counsel say that were it true that a judgment is effective for no purpose Pen. Code, § 1168, effective July 27, 1917, and inadmissible in evidence until it has provides for the imposition of indeterminate senbecome final, a judgment creditor would be tences. Sections 12 and 13 provide that the unable to recover by action the judgment term of imprisonment shall be fixed by the court. Section 1588 provides deductions from debtor's property in the hands of a fraudu- the terms so fixed of credits for good conduct |