liam E. O. Starkey, the 14 year old son of terms "dairy, agricultural, viticultural or deceased, both testified that it was the cus- horticultural labor," as used in the statute, for tom on the trout farm to clear away the by the employment of the words used it is brush from the vicinity of the flume every clear that the Legislature did not intend to fall; that this was done to minimize the fire include dairy farming, fruit farming, grape risk; that this work of clearing away the growing, or, we may add, "fish farming," fern and brush had been done in the fall of within the term "farm," or it would not have the years 1915, 1916, and 1917; and that the employed terms of narrowing import. deceased was engaged in that work at the time of his death.

[2] In view of this conflict in the evidence the finding of the commission that the injury to the deceased "arose out of and in the course of such employment, was proximately caused thereby, and occurred while the employé was performing services growing out of and incidental to the same," must be upheld.

Likewise, we must interpret the term "stock raising" in the sense in which it is commonly employed, namely, the raising of those domestic animals usually classed as "live stock," and commonly raised on farms or ranches, such as horses, mules, cattle, sheep, goats, hogs, and the like. Petitioner has gone to great length in quoting from dictionaries and encyclopedias to show that the term "stock raising," in its broadest sense, includes the propagation of domestic trout. It is clear that, if the term is to be taken in its generic sense, it will include the propagation and rearing of all domestic animals, which, it may be conceded here, includes domestic trout. But it is equally clear that

the Legislature did not use the term in its

3. Petitioner contends, also, that the award "should be annulled upon the ground that said Industrial Accident Commission, in rendering a decision and entering an award against the petitioner, acted without and in excess of its authority, in that the business conducted by the petitioner, E. W. Krobitzsch, to wit, the propagation of trout for domestic purposes, comprises farm labor and stock generic sense so as to include the raising of raising, and that an employé of such business all domestic animals; otherwise, "poultry is excluded from the benefits of the 'Work-raising" would not have been specially mentioned. men's Compensation, Insurance and Safety Act of 1917,' by virtue of subdivision 'a' of section 8 of said act." The said subdivision reads, in part:

Excluding any employé engaged in household domestic service, farm, dairy, agricultural, viticultural or horticultural labor, in stock or poultry raising. *

The business conducted by the employer herein was one prohibited by law (section 632, Pen. Code) prior to the adoption of the statute of 1911 on the subject of raising trout for domestic purposes (Stats. 1911, p. 378). In the title of that act the business is thus described: "Persons engaged in the business of propagating and rearing such fish." The license issued by the board of fish and game commissioners under this act is entitled: "Licensed Pond for Culture of Domesticated Trout or Other Fish." The certificate recites:

"That a holder thereof is the proprietor of a private pond or ponds called and situate in the county of , state of California, upon the real property described as follows: is hereby authorized to keep and propagate therein and dispose of as provided by law, trout or other fish."

[3] We are of the opinion that the petitioner is not entitled to exemption under the provisions of this act. It seems clear beyond question that the Legislature did not intend to use in a general sense the terms employed in describing the excluded classes. If that had been the intention of the Legislature, it would not have used the terms "farm, dairy, agricultural, viticultural or horticultural labor," for "farm labor" would, in the broad sense, include labor engaged in dairying, agriculture, horticulture, stock raising, and poultry raising and anything which can be defined as cultivation of the soil. 19 Cyc. 456; It will be observed that in this legislation, 2 C. J. 988. The very wording of the clause which was on the statute books at the time of the act upon which petitioner relies shows of the enactment of the Workmen's Compenthat the Legislature was giving a restricted sation Act of 1917, neither the word "farm" meaning to the term employed and was seg- nor "stock" is used. Instead thereof, the regating into certain definite and exclusive words used are "pond" and "fish." It seems classes all kinds of "labor" which in the to us that, if the Legislature had intended broad and unrestricted sense would come to exclude labor employed in such an enterunder the head of farming. "Farm labor" prise from the operation of the Workmen's must, we think, be taken in its ordinarily | Compensation Act, it would have in terms accepted meaning as labor engaged in the pro- so specified. duction of hay, grain, vegetables, and the like by the tillage of the soil. To give the term

We do not think, therefore, that such labor is to be included in the terms "stock

(185 P.)

It follows that the award must be affirmed, | file the same without payment of fees is deand it is so ordered.

We concur: ANGELLOTTI, C. J.; SHAW, J.; OLNEY, J.; WILBUR, J.; LENNON, J.; MELVIN, J.

nied.

ANGELLOTTI, C. J., LAWLOR, J., WILBUR, J., and OLNEY, J., concur.

(181 Cal. 489)

RANKIN v. SUPERIOR COURT OF SAN
JOAQUIN COUNTY. (Miscellaneous 202.)

(Supreme Court of California. Nov. 6, 1919.)

MANDAMUS ~154(2)—PETITION INSUFFICIENT
TO AUTHORIZE WRIT.

An application for a writ of mandate to require the superior court of county to deliver to the Supreme Court for petitioner's use in preparing an application for habeas corpus certified copies of the records of the court in his cause, which merely alleged that petitioner's restraint was illegal, that court had no jurisdic- | tion to try his cause, that the matter purported to be charged in the information did not constitute a public offense, and that petitioner had good cause for discharge on habeas corpus, does not set forth sufficient facts to warrant relief.

In Bank.

Application by Nathan Rankin for a writ of mandate to be directed to the Superior Court of San Joaquin County, State of California. Application denied. See, also, 183 Pac. 686. Nathan Rankin, in pro per.

PER CURIAM. One Nathan Rankin, confined in the California state prison at San Quentin under a judgment of the superior court of San Joaquin county, has presented, with an application that the same be filed without payment of costs, a petition for a writ of mandate against said superior court to require said court to deliver to this court for his use in preparing an application for a writ of habeas corpus, certified copies of

(43 Cal. App. 315)

TULARE COUNTY POWER CO. v. PACIFIC
SURETY CO. (Civ. 1991; Sac. 2850.)
(District Court of Appeal, Third District, Cal-
ifornia. Sept. 20. 1919. Opinion of Supreme
Court In Bank Denying Hearing, Nov. 17,
1919.)

1. INSURANCE €558(1)—INDEMNITY INSUR

ANCE; WAIVER OF NOTICE OF ACCIDENT.

Conditions of a liability policy requiring immediate notice to insurer of an accident are waived, when the insurer actually assumes control of the litigation growing out of an accident.

2. INSURANCE 388(5)

--

LIABILITY INSURANCE; WAIVER OF CONDITIONS BY ASSUMING CONTROL OF ACTION.

The fact that attorneys for a liability insurance company gave attorneys for insured permission to take part in the case and represent the insured did not prevent assumption of control of the case by the company from constituting a waiver of prior breach of conditions by insured, in the absence of a complaint that the defense was interfered with by insured's attorneys.

3. INSURANCE 670-FINDINGS NOT INCONSISTENT.

In an action by insured under a liability inall the conditions of said policy" may be consurance policy, finding that plaintiff "performed sidered as surplusage, and not inconsistent with a further finding of waiver on the part of the insurer of performance of conditions. 4. INSURANCE

INGS.

670-CONSISTENCY OF FIND

A finding in an action by insured under a liability insurance policy that F., W., D., C.,

and B. were all acting as legal representatives
of both the insured and the insurer, and were
co-operating in the defense of an action under
the terms of the policy, was not inconsistent
with a further finding that F., insured's attor-
ney, in making a motion for new trial, was rep-
resenting the insurer and not the insured.
5. APPEAL AND ERROR 1071(1)—HARMLESS

the records of said court in his cause. In so far as said petition attempts to show any matter which would be material on an ap plication for a writ of habeas corpus or for a writ of mandate it is manifestly insufficient to warrant any relief, inasmuch as it appears to allege no specific facts showing illegality in his imprisonment. The bare allegations that his restraint is illegal, that the court In an action on a liability insurance polhad no jurisdiction in his cause, that the mat-icy, that a finding that F., W., D., C., and B. ter purported to be charged in the informa- were all acting as the legal representatives tion does not constitute a public offense, and of both the insured and the insurer was inthat petitioner has good cause for a discharge consistent with a further finding that F. was on a writ of habeas corpus or other proceed-representing the insurer and not the insured ing do not sufficiently set forth the specific could not harm defendant.

ERROR IN INCONSISTENT FINDINGS.

facts warranting relief either under manda- 6. APPEAL AND ERROR 1071(3)-HARMLESS mus or on habeas corpus.

No merit appearing in the application sought to be filed, it is ordered that leave to

ERROR IN FINDINGS OF FACT.

In an action on a liability insurance policy, insurer cannot complain that a finding that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

plaintiff had performed all the conditions of [be performed therein, and could properly deny the policy was unsupported by the evidence, a motion for a change of venue to the county where the court also found upon ample evi- in which San Francisco is located. dence that insurer had waived any breach of conditions.

Appeal from Superior Court, Tulare Coun

7. INSURANCE 435–LIABILITY INSURANCE; ty; W. B. Wallace, Judge.

NEGLIGENCE OCCURRING PRIOR TO POLICY.

Action by the Tulare County Power Company against the Pacific Surety Company. Judgment for plaintiff, and defendant ap

Where accident happened during the period of a liability insurance policy, insurer cannot claim that it was not liable, in that the negli-peals. Affirmed. gence causing injury was in construction work done prior to the issuance of the policy.

8. INSURANCE 514-LIABILITY INSURANCE; PAYMENT OF LOSS BY CHECK.

Where insured in a liability insurance policy, after an accident sold his business under an agreement reciting that the judgment of an injured person was a lien upon the property, and that the balance due insured under the agreement should not be paid by the purchaser until such judgment and lien were fully satisfied of record, and the purchaser drew a check to insured with which insured, together with a small check of his own, paid the judgment, insured actually sustained loss and paid money in satisfaction of the judgment within the meaning of the insurance policy.

Denson, Cooley & Denson and Cooley & Lachmund, all of San Francisco, for appellant.

Middlecoff & Feemster, of Visalia, for respondent.

HART, J. The action was brought by plaintiff to recover upon a liability insurance policy, issued by defendant, dated June 18, 1913. Judgment was entered in favor of plaintiff for $5,460, with interest and costs, from which judgment defendant prosecutes this appeal.

From the allegations of the complaint it appears that plaintiff was a California corporation doing business in the county of

9. INDEMNITY 6-STRICT CONSTRUCTION OF Tulare, and "between noon on the 16th day

CONTRACT.

of June, 1913, and noon on the 16th day of June, 1914, was engaged in the business of operating and maintaining an electric light and power plant" in said county, together with extension lines and service connections, etc.; "that on said 18th day of June, 1913, said defendant made its contractor's public liability policy of accident insurance," a copy of which was attached to and made part of the complaint, to portions of which we shall hereinafter refer. It was further

alleged and found that, "on the 18th day of June, 1913, said defendant delivered said policy of insurance to this plaintiff, and plaintiff paid the full amount of the premium provided for in said policy of insurance to said defendant." It was found that said premium was paid to defendant on or about the 3d day of January, 1914, "and defendant waived the payment thereof prior to such time, and waived any defense it had to said policy by reason of said premium not being paid prior to the time it was so paid." On the 10th day of July, 1913, one L. C.

12. VENUE 7-IN ACTION ON LIABILITY IN- Bergen was being furnished for hire by

SURANCE POLICY.

In view of Const. art. 12, § 16, and Civ. Code, § 1626, under an affidavit of an agent of a liability insurance company, that the policy was received by affiant in Tulare county by mail from the head office of the insurer at San Francisco, and affiant as agent of insurer personally delivered the policy to insured in Tulare county, and it was the practice and custom of insurer to pay its losses incurred in Tulare county by sending drafts to affiant, and affiant would thereupon deliver them personally to the beneficiaries, court could properly find that the contract was made in Tulare county and was to

plaintiff with electricity for lighting and power on certain property in Tulare county, and "in order to use said power said L. C. Bergen maintained on said lots a well for irrigating purposes, and an electric motor and pump and pumphouse"; that plaintiff had erected along the south line of said premises a line of poles and a system of wires known as "primary" wires, "charged with a dangerous and life-destroying force and current of electricity

to wit, 6,600 volts"; that the motor was to be operated by 220 volts and the lights by 110 volts; that, to reduce said

(185 P.)

Tulare, in which she asked for $50,000 damages on account of the death of her husband. Summons was duly issued, and a copy of the complaint and summons was served on plaintiff, and on December 11, 1913, plaintiff forwarded to defendant, at San Francisco, said summons and complaint. On December 27, 1913, defendant wrote the following letter to Messrs. Holley & Holley, Visalia:

6,600 volts to 220 and 110 volts, respectively, [ tiff, in the superior court of the county of transformers and ground wires were "supplied, furnished, installed, and erected at said pumping plant" by plaintiff, the system of wires, switches, etc., being known as "secondary" wires. On said 10th of July, 1913, said Bergen descended into the pit in which said pump was located for the purpose of inspecting said pumping plant; at that time "there was a dangerous, unusual, and excessive current of electricity passing from said "In rel: L. C. Bergen v. Tulare County 'primary' wires and into the drop cord and Power Co. Our Mr. W. B. Renton has made electric light which hung in the pit of said a thorough investigation of the facts surroundpumping plant, * rendering said drop ing the nonpayment of premium in this case wire and electric light highly dangerous to and this office is in receipt of his report therehandle, and that this dangerous condition on, in view of which this company will, upon was at said time unknown to said Bergen receipt of the Tulare County Power Company's and unknown to this plaintiff." Bergen check for earned premium in the amount of came in contact with the drop wire and lighted to reinstate this policy without prejudice. $572.08 due from 6/16/13 to 9/16/13, be pleasand was instantly killed, without any fault We inclose bill for this amount. For this puron his part. pose, we will ask you to have assured return to us at once the papers in the case."

On December 29, 1913, Holley & Holley wrote plaintiff as follows:

It was alleged in the complaint and found by the court that "upon the occurrence of said accident, and as soon thereafter as plaintiff was informed that a claim was made against plaintiff on account of said ac"I have received a letter from the Pacific cident, plaintiff did, to wit, on the 16th day Surety Company this morning offering to reinof September, 1913, give immediate written state the liability policies in that company notice thereof, with the fullest information which were written and effective June 16, 1913, obtainable at the time, to the defendant's and which were canceled for nonpayment, upon head office at San Francisco, and at the same the payment of the earned premium from June time by the said notice gave like notice of 16th to September 16th. As I understand it, the making of said claim on account of said this contemplates the assumption of all liaaccident." The notice above referred to was their issuance, including the case of L. C. Bergbility under these policies from the date of in the form of a letter, signed by Drew & en v. Your Company which has been filed for Drew, attorneys, Fresno, addressed to the de-action, on which case the Pacific Surety Comfendant at San Francisco, and read as fol-pany formerly denied liability. * You will understand that if you accept the propo

lows:

"You are hereby notified that on September sition, you will be relieved of all expense in 3, 1913, Mrs. Sarah E. Bergen, as administra- connection with the defense of this case of trix of the estate of L. C. Bergen, deceased, Bergen's." has through her attorneys * * made a claim against the Tulare County Power Com

pany [assured under policies Nos. C. P. 2347 and C. E. 4212], for and on behalf of herself and the minor children of said deceased [naming them] for the death of said L. C. Bergen, claiming that the death of said deceased was caused by coming in contact with a drop cord in the pit of the pumping plant belonging to the deceased. The attorneys have not made claim for any particular amount. We are serving this notice on your company under the provisions of your policy. Mr. Bergen met his death some time in July, but this is the first direct intimation that we have of any claim against the company for his death."

Upon receipt of said last-mentioned letter, plaintiff paid to defendant the amount of premium demanded by it. On March 3, 1914, defendant wrote plaintiff:

"This letter will serve to notify you that policy No. CP-2374, issued to you on June 16, 1913, and subsequently canceled, has been reinstated as of the date of issue, and is in full force and effect."

It was then found that thereupon plaintiff rendered to defendant all assistance in plaintiff's power in the protection of its interest; that defendant, in the name of plaintiff and on its behalf, filed an answer to the Bergen complaint; that a trial of said action was had, and judgment was given therein in favor of the administratrix for the sum of $12,"You are hereby advised that the above poli- 500 and $160 costs. Further facts, appearing cies have been canceled upon the books of this from the record, will be adverted to in the company by reason of the nonpayment of pre-discussion of the points raised upon the apmiums thereunder, and that the same have been void and of no effect from date of issue."

On September 17, 1913, the defendant replied to the above letter as follows:

peal.

[1] 1. It is first contended by appellant On December 8, 1913, Sarah E. Bergen, as that plaintiff failed to perform the first conadministratrix of the estate of L. C. Bergen, dition of the policy, namely, "Upon the occurdeceased, commenced an action against plain-rence of an accident, the assured shall give

185 P.-26

immediate written notice thereof with the [ Feemster & Walker, at Visalia, the attorneys fullest information obtainable at the time," for the power company, suggesting that an and that plaintiff failed to give immediate amended demurrer to the complaint be filed, notice of the claim "with full particulars," as required by the policy.

"Of course the conditions of the policy requiring notice to the home office of probable liability are intended primarily to afford opportunity to the insurer promptly to take charge of a defense. Such requirements are reasonable and just, but they are waived when, as in this case, the insurer actually does assume control of the litigation growing out of the acci-it, but said, "Besides, the real and only question is, Did the court err in denying the motion?"