ures the extent to which any claim can be found. The effect, therefore, of these sections is not to impair any existing right of the owner, but, in effect, to confer a right not previously existing by which his liability may, under certain circumstances, be curtailed. The owner's liberty of action in relation to this property is not invaded by the statute. He need not employ an intermediary to erect his building; but, if he does the law ingrafts upon his act certain consequences. Henry v. Evans, 10 S. W. 872, 97 Mo. 47, 3 L. R. A. 332. There is no taking of property without due process of law. The contract by the owner is made voluntarily and with the Constitution and laws in mind, and they form part of such contract, and he must be taken to have consented to the effect of such enactments. That similar rights are not conferred by the sections upon those who make improvements of nominal value and under $1,000 is a matter of which respondent cannot complain. Ramish v. Hartwell, 126 Cal. 451, 58 Pac. 920. Nor can it be said that this statute can have the effect to increase the necessary cost of the structure simply because the contractor who bids thereon does so under provisions of the law which require reasonable restrictions as to the time and manner of his payment, for this same law insures to him a lien for his contract price which he otherwise would not have. Hence it would be unreasonable to say that because of such a statute a contractor is injured when the only effect thereof can be to afford him security, when he honestly discharges the obligations imposed upon him by its terms.

Judgment reversed, and cause remanded for further proceedings in accordance herewith.

We concur: SHAW, J.; TAGGART, J.

(5 Cal. App. 715)

CAYFORD v. METROPOLITAN LIFE INS. CO. (Civ. 272.)

(Court of Appeal, First District, California. June 13, 1907. Rehearing Denied by Supreme Court August 12, 1907.)

1. INSURANCE LIFE INSURANCE STIPULATIONS-PAYMENTS OF PREMIUMS IN ARREARS.

A stipulation in a life policy that no premiums in arrears shall be received, except by agreement in writing signed by either the president, vice president, secretary, or actuary of the insurer whose authority will not be delegated, is valid.

2. SAME-CONTRACT OF INSURANCE-KNOWL. EDGE OF INSURED.

An insured in a life policy is charged with knowledge of the stipulations therein. 3. SAME-NONPAYMENT OF PREMIUMS-WAIVER.

A life policy stipulated that no premiums in arrears should be received except by agreement signed by either of designated officers of the insurer. An agent with authority to colleet premiums called to collect the premium on a policy two days before it fell due. On being informed by the beneficiary that payment could

not be made, he stated that he would call on a date after the premium became due. On that day he again called, and the beneficiary, not having all the money, asked him to call later in the same day, when she expected to have it all; but he replied that he would call again four days later. Before he called again, the insured died. The agent had the insurer's premium receipt containing no limitation with respect to its validity if delivered after the due date. The beneficiary did not know that fact. No knowledge of the extensions of time to pay the premium was brought home to the insurer. ~Held, that the insurer did not waive a forfeiture of the policy for nonpayment of the premium when due.

4. SAME

AGENT AUTHORITY TO COLLECT PREMIUMS-AUTHORITY TO EXTEND TIME FOR PAYMENT OF PREMIUMS.

An agent of an insurer, with authority to collect premiums, has no authority to extend the time for the payment of premiums or to waive a forfeiture resulting from nonpayment.

Appeal from Superior Court, City and County of San Francisco; Thomas F. Graham, Judge.

Action by Hannah Cayford against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed.

Page, McCutchen & Knight, for appellant. L. A. Redman and Van Ness & Redman, for respondent.

KERRIGAN, J. This is an action brought to recover upon a policy of life insurance. The jury returned a verdict for the plaintiff, upon which judgment was entered. The defendant's motion for a new trial was denied, and from the judgment and order denying its motion for a new trial the defendant prosecutes this appeal.

This case has once been before the Supreme Court upon an appeal taken from an order sustaining a demurrer. 144 Cal. 763, 78 Pac. 258.

The policy in question was issued on the life of Richard N. Cayford, plaintiff's husband, payable to plaintiff as beneficiary. It was issued March 20, 1902, and called for the payment of a semiannual premium on the 20th of March and September in each year. The policy provided that the failure to pay any premium when due would render the policy void. The second semiannual premium fell due September 20, 1902, and was not paid. On October 5, 1902, the insured died. The testimony disclosed that J. N. Pittman had solicited the insurance, and had collected the first premium. On the 18th of September, two days before the second premium fell due, he called to collect this premium. Mrs. Cayford told him that they were not prepared to pay it. Pittman said that that would be all right; that he would call again on October 4th. On that day he accordingly called and saw Mrs. Cayford.

She said she did not then have all the money, and asked him to call later in the afternoon, when she expected to have it; but he replied that he would call again on the 8th of the month. On the 5th of October the in

sured died. Pittman had with him on his visits of September 18th and October 4th the company's premium receipt for the second annual premium, executed as therein required by both the secretary of the company and its superintendent. One of the provisions of the policy declares: "The contract between the parties hereto is completely set forth in this policy and the application therefor taken together, and none of its terms can be varied or modified, nor any forfeiture waived or premiums in arrears received except by agreement in writing signed by either the president, vice-president, secretary or actuary, whose authority for this purpose will not be delegated; no other person has or will be given any authority."

Respondent claims that the events just narrated bring this case within the doctrine laid down in the case of Knarston v. Manhattan Life Ins. Co., 124 Cal. 74, 56 Pac. 773, and Id., 140 Cal. 57, 73 Pac. 740. In that case a certain premium became due November 15, 1895. On that day and the next day the general manager of the company sent its collector to the insured to collect the premium. It was not paid. Through the efforts of one Gilmore, representing Knarston, the insured, two extensions of time within which to make payment were granted by the general manager. Within the extended time Knarston was killed in a railroad accident. The policy contained the usual forfeiture clause. The Supreme Court, in the two appeals in that case, held that an attempt by the company to collect a premium after default is a waiver of the forfeiture which might have otherwise been claimed; that, where the insured died while the company was still trying to collect the premium, the policy would be treated as still in force. The decision turned expressly on the fact that the waiver was the act of a general agent of the insurance company, and that the insured had no notice of any limitation on his authority.

There is no doubt that this case, as claimed by the respondent, would be within the doctrine of the Knarston Case if the acts of Pittman were the acts of the company. Counsel for the respondent argues that the possession of the receipt after its due date by Pittman, the collector of the company, implied the power to deliver it after that date; that there appeared on the face of the receipt no limitation of its validity if delivered after the due date of the premium; that accordingly, if it had been in fact delivered by Pittman, though after the due date, his act would have been the act of the company, and the forfeiture would have been waived. We cannot agree with this view. Mrs. Cayford did not know that Pittman had the premium receipt, and she knew nothing of its contents. No knowledge of the extensions of time to pay the premium, granted by Pittman to the insured, was brought home to the company. The limitation, in the conditions of the policy, on the authority of subordinate

agents to waive forfeitures, or collect overdue premiums is valid. Shuggart v. Lycoming Fire Ins. Co., 55 Cal. 408; Enos v. Sun Ins. Co., 67 Cal. 621, 8 Pac. 379; Westerfeld v. New York Life Ins. Co., 129 Cal. 68, 77, 58 Pac. 92, 61 Pac. 667. The assured knew of this provision, or what is the same thing, is charged with knowledge of it. Westerfeld v. New York Life Ins. Co., supra. Under the circumstances of this case, it cannot be held that the company waived the forfeiture caused by the failure to pay the premium when due. Authority to collect premiums does not imply authority to extend the time for the payment of such premiums, or to waive a forfeiture resulting from nonpayment. Bryan v. National Life Ins. Ass'n, 21 R. I. 149, 42 Atl. 513; Mutual Life Ins. Co. v. Abbey, 88 S W. 950, 76 Ark. 328; Metropolitan Life Ins. Co. v. McGrath, 52 N. J. Law, 358, 19 Atl. 386.

In the case of Iowa Life Ins. Co. v. Lewis, 187 U. S. 335, 23 Sup. Ct. 126, 47 L. Ed. 204, the policy contained a clause similar to the one referred to in the policy in this case, restricting the power of the agents of the company in the matter of waiving forfeitures. In that case it was claimed that, conceding the validity of such a clause, the clause itself had nevertheless been waived by the company. A premium note had been placed in the hands of an agent for collection. He had extended the time for its payment, and it was allowed to remain in his hands after maturity. It was held, nevertheless, that his act was unauthorized, and that the company was not estopped from relying on the forfeiture.

In the case of Bank of Commerce v. New York Life Ins. Co., 54 S. E. 643, 125 Ga. 552, it was held that the acceptance of money by a collecting agent upon an overdue premium note did not bind the company as a waiver of the forfeiture resulting from nonpayment of the note at maturity.

The following cases tend more or less to support the conclusion we have reached in this case: Collins v. Metropolitan Life Ins. Co., 32 Mont. 329, 80 Pac. 609, 1092, 108 Am. St. Rep. 578; Fidelity Mut. Life Ass'n v. Bussell, 86 S. W. 814, 75 Ark. 25.

The judgment and order are reversed.

method of covering the mangle, and notify her of the dangers connected therewith.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 972.] 2. SAME-ASSUMPTION OF RISK.

Evidence, in an action by an employé whose hand was drawn into a mangle used in a laundry and injured, held to show that the employe's injuries were due to dangers the risks of which were assumed by her.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 981-986.]

Appeal from District Court, Second District; before Justice J. A. Howell.

Action by Mabel Richards, by her guardian ad litem, against the Ogden Steam Laundry. From a judgment for plaintiff, defendant appeals. Reversed and remanded for a new trial.

C. S. Varian, for appellant. J. D. Skeen and C. C. Richards, for respondent.

STRAUP, J. This is an action brought to recover damages for personal injury. The defendant was engaged in the laundry busi ness. The plaintiff, 17 years of age, was in its employ. It was alleged in the complaint that it was her duty to feed a mangle and to cover it when it became soiled; that a certain lever which controlled the mangle became loose, worn, and out of repair, and the jar of the machinery and the weight of the lever started the mangle in motion without warning; that the defendant neglected to warn her of the condition of the machinery; that covering the mangle required skill not possessed by plaintiff, and because of her lack of knowledge and experience she was not capable of performing such work safely, all of which was known to the defendant, nevertheless, it imposed such duty upon her, without instructing her as to the method of performing the work or warning her of the dangers connected therewith; and while she was covering the mangle "the lever without notice slipped into gear, and plaintiff's right hand was suddenly drawn into the mangle," scalding, burning, and mashing her fingers. The defendant in its answer admitted that plaintiff's duty consisted of feeding and operating the mangle, but denied that her employment required her to cover the mangle, or that any such duty was imposed upon her, or exacted of her; and alleged that the defendant had been informed that such work was the duty of the foreman; that she was not to attempt it herself, but to notify the foreman when the mangle needed covering; that the plaintiff, in violation of such instructions, attempted to cover the mangle with the assistance of a co-employé, and while doing so the machinery, at the direction of plaintiff, was put in motion by the co-employé, and, after it started, plaintiff's fingers caught in the covering and drawn into the mangle. Defendant denied all acts of negligence charged against it, and further pleaded contributory negligence and assumption of risk on the part of the plain

tiff. A trial before the court and jury resulted in a verdict in plaintiff's favor. The defendant, on appeal, urges that the court below erred: (1) In refusing its request to direct a verdict; (2) in giving certain instructions; (3) in overruling defendant's motion for a new trial based on insufficiency of evidence, and that the verdict was contrary to law; and (4) in excluding certain testimony.

We think the court erred with respect to the rulings presented by assignments 1 and 3. The other assignments we need not notice. It is not alleged in the complaint that the defendant was guilty of negligence in suffering and permitting the lever to become and remain loose and out of repair, nor that it was guilty of negligence which caused the machinery to be started of its own motion. The alleged acts of negligence consisted in the defendant's failure to warn the plaintiff of the condition of the inachinery, to instruct her as to the manner and method of covering the mangle. and to notify her of the dangers connected therewith. For eight months prior to her injury the plaintiff was in the defendant's service engaged in feeding the mangle, Though but 17 years of age, yet she was an experienced and skillful feeder. The starting of the machinery of its own motion without warning, claimed to be due to the loose condition of the lever, was something which occurred, as testified to by plaintiff herself, almost every day during the period of her employment. She further testified, which necessarily must be known to every one, that if her fingers were brought too near the cylinder and steam chest they were liable to be caught and injured. While it may be said that the evidence does not show whether the plaintiff did or did not know that the lever was loose or worn, yet the evidence shows that she operated the lever daily by means of which the belts were shifted from one pulley to another, and that she knew that such shifting caused the mangle to start or stop. The fact that the mangle, when stopped by means of the lever, would start without warning and without human agency, and that it did so start every day for a period of eight months, was well known to her, as appears from her own testimony, and that the dangers arising therefrom were fully appreciated by her. Though it had been shown that the lever was loose or out of repair, and for that reason the belts were liable to be shifted and the mangle started after it had been stopped, and though the defendant had informed plaintiff of such facts, still she would not have been made aware of any danger not known to her, nor of any condition exposing her to danger not fully appreciated by her. She well knew the essential and ultimate fact that, when the mangle was stopped by means of the lever, it was liable to start at any time, and fully appreciated all the at

it

tending dangers arising from such starting. This is not a case where complaint had been made of some defect, and where the master promised to repair, and directed the use or operation of the instrumentality to be continued. Plaintiff here testified that she reported "the condition of the machine" three or four days before the accident to the foreman, but that he "never said anything." Furthermore, the evidence does not show that the lever was loose, or worn, or out of repair. Plaintiff offered no evidence in support of such allegations. Plaintiff testified that she did not know how the machine started; her co-employé, her sister, that neither she nor any other person touched the lever; and another witness, that the mangle had the habit of starting itself by the sudden jerking of the lever. The evidence on behalf of the defendant showed that the machine was in good condition, but that when stopped for 15 or 20 minutes it would slowly start, due to the shifting of the belts on the pulleys caused by the jar of the building and the shaft, occasioned through the operation of other machinery. But this is far from proving the alleged condition of the lever, and with respect to which it is alleged the defendant was negligent in not informing the plaintiff.

The evidence is likewise insufficient to show negligence on the part of the defendant in its failure to instruct the plaintiff as to the manner and method of covering the mangle. Covering the mangle means the placing of a padding around the cylinder, and a sheet around the padding. This is done to protect and keep clean the clothes fed through the mangle. The sheet became soiled and required changing about twice a week. Plaintiff testified that her duties were feeding the mangle. It is not made to appear that covering the mangle was any part of her duties, nor that such work was required of her. When asked by her counsel whether the foreman told her whether she or some one else was to do it, the plaintiff answered in the negative. On behalf of the defendant, it was shown that the plaintiff was expressly informed that, when the mangle needed covering she was to notify the foreman or washman. On the day in question the clothes "ran soiled," when the plaintiff, according to her own testimony, notified the washman. He told her that he could not help it, and that he was busy. She then informed the foreman, but, according to her testimony, he paid no attention to her. She then voluntarily, without any direction or request from any one, undertook, with the aid of her sister, a co-employé, to remove the soiled sheet and to place a clean one around the roller. While doing so she was injured. There is also evidence showing that the plaintiff several times assisted the foreman in doing such work. At other times other girls assisted the foreman. Sometimes the plaintiff and her sister did it themselves,

as did also other mangle feeders, in the presence of the foreman, who made no objection to their doing it. We think this evidence lacks the required proof that covering the mangle was a part of plaintiff's duties. Furthermore, the evidence does not show that the plaintiff attempted to do the work in an improper or unsafe manner. It does not appear that, if the plaintiff had been instructed, she could have performed the work more skillfully or safely than she did, or that she thereby would have been enabled to avoid dangers not known to her. So far as is made to appear, she knew the proper manner of performing the work, pursued the usual and ordinary method of doing it, and realized and appreciated all the attending dangers.

Upon the whole case we are clearly of the opinion that the evidence is insufficient to establish the negligence alleged in the complaint; and that the evidence conclusively shows that the injury to plaintiff was due to dangers the risks of which were assumed by her.

The judgment of the court below is therefore reversed, and the cause remanded for a new trial. Costs to appellant.

(Supreme Court of Utah. June 27, 1907.) 1. DIVORCE-SUPPORT OF CHILDREN-ACTION

ON FOREIGN DECREE-PARTIES.

Though a divorce decree directed that plaintiff husband should pay to a third person for the use and benefit of the minor children a certain sum per month until each of the children should become of the age of 18 years, yet such third person was without right to maintain an action to recover the same; the right of action therefor being in defendant wife.

2. PLEADING-DEMURRER-GROUNDS - WANT OF LEGAL CAPACITY TO SUE.

Want of legal capacity to sue, as used in Rev. St. 1898, § 2962, declaring the same to be a ground of demurrer, means as a general rule a want of capacity to appear in court and maintain an action, regardless of in whom is vested the right of action.

3. SAME COMPLAINT REAL PARTY IN INTER

EST-METHOD OF OBJECTION.

Where a complaint shows on its face that the right to maintain the action is not in plaintiff, but in another, such defect may be reached by demurrer.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, § 426.]

4. EVIDENCE-JUDICIAL NOTICE-LAWS OF ANOTHER STATE.

It is the safer rule to require proof of laws of another state relative to the validity and effect of judgments in that state, and not to take judicial notice thereof, under Rev. St. 1898, § 3374, defining matters of which judicial notice may be taken.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 51.]

5. DIVORCE - FOREIGN DECREE TIONAL LAW.

CONSTITU

Though an action on a decree for alimony or maintenance rendered in one state may be

maintained in another state, if the amount payable is fixed and presently due, yet a decree for alimony or maintenance becoming due in the future and payable in installments is not a final decree enforceable in another state, within Const. U. S., requiring full faith and credit to be given in each state to the judicial proceedings of every other state, until the court which rendered it fixes the specific amount due, either in some proper proceeding in the original action or by an independent action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, § 827.]

Appeal from District Court, Salt Lake County; M. L. Ritchie, Judge.

Action by Herbert L. Hunt against Charles H. Monroe on a foreign decree for maintenance rendered in a divorce suit. From a judgment for plaintiff, defendant appeals. Reversed, with directions to sustain the demurrer to the complaint.

W. W. Little and M. E. Wilson, for appellant. Goodwin & Van Pelt, for respondent.

FRICK, J. The plaintiff, respondent in this court, filed his complaint in the district court of Salt Lake county, in which the following facts are alleged: "That at all the times hereinafter mentioned the district court, city and county of Denver, Second judicial district, in and for the state of Colorado, was a court of general jurisdiction, duly created and organized by the laws of that state. That prior to the 27th day of August, 1902, an action for divorce had been duly commenced by Charles H. Monroe (the defendant herein) against one Mary L. Monroe in said court by the personal service of process on the defendant, and thereafter said defendant duly appeared in said cause by her attorney. That thereafter, and on the 27th day of August, 1902, both said parties appeared in open court, and such proceedings were then and there had that a judgment and decree was duly given and made by said court in favor of the plaintiff, dissolving the bonds of matrimony between the said plaintiff, Charles H. Monroe, and the defendant, Mary L. Monroe, and granting to said defendant, Mary L. Monroe, the sole care and custody of the two minor children of said parties, to wit, Edward T. Monroe, aged 12 years, and Mary C. Monroe, aged 15 years. That in and by the terms of said judgment and decree it was further adjudged and decreed that the said plaintiff, Charles H. Monroe, pay to the plaintiff herein, Herbert L. Hunt, for the use and benefit of said minor children, the sum of $10 each per month, payable each and every month, from the date of said decree until each of said children should become of the age of 18 years. That there became due and payable to said plaintiff, for the use and benefit of said minor Mary C. Monroe, prior to becoming 18 years of age on the 11th day of November, 1904, the full sum of two hundred and sixty-five dollars ($265.00), no part of which has been paid, except the sum of thirty dollars, ($30.00) paid thereon on or about the month

of April, 1903 That there is now due and payable to the plaintiff for the use and benefit of said minor Edward T. Monroe, the full sum of five hundred and three dollars, ($503.00), no part of which has been paid, except the sum of thirty dollars ($30.00), paid thereon on or about the month of April, 1903. That said minor Edward T. Monroe will not become 18 years of age until the 21st day of May, 1908. That pursuant to the terms of said judgment and decree said defendant in said action, Mary L. Monroe, took the sole care and custody of said two minor children, and has ever since kept and retained the same, and has by her own labor and effort kept, maintained, and educated the said children without any assistance from the said Charles H. Monroe, except the sum of sixty dollars ($60.00), as stated in paragraph No. 3. That said Mary L. Monroe has no property, and is dependent solely upon her own labor for her support, and the support and maintenance of said minor children."

Upon the foregoing allegations respondent prayed judgment for the amount of alimony that had accrued up to the time of filing the complaint, and for such additional sum as would become due under the terms of the decree before final judgment in the action, and for costs. To this complaint the defendant, appellant in this court, appeared and filed a demurrer, basing it upon two grounds, to wit: (1) That it appears from the complaint that the plaintiff has not legal capacity to sue, for the reason that upon the face of the complaint it appears that the plaintiff is not the real party in interest; and (2) that the complaint fails to state sufficient facts to constitute a cause of action. The demurrer was overruled, and, the appellant electing to stand thereon and declining to plead further, the court, upon proper proof being made, found that there was due and unpaid of the alimony sued for the sum of $708, and entered judgment in favor of respondent and against appellant for said sum and for costs, from which judgment this appeal is taken.

Two questions are presented by the appeal: (1) Did the respondent have the legal right to maintain the action in his own name? and (2) is the judgment or order sued on a final judgment on which an action can be maintained?

As to the first proposition the fact is palpable that the respondent was neither a party, a beneficiary, nor assignee of the judgment sued on. He was not in any way related to nor interested in the subject-matter of the original action, but was connected with the result thereof merely by being made the recipient of the money as the same was ordered to be paid for the use and benefit of Mary L. Monroe, the party to the original action for divorce, and in which the order or alleged judgment sued on was made. As was said in Page v. Page, 189 Mass. 86, 75