thority, a probate court cannot order a sale for no other reason than that the property should, on account of its condition, be sold with advantage to the estate: Gillenwaters v. Scott, 62 Tex. 670. There can, however, be no doubt of the authority of the legislature to pass a general act authorizing a sale where it is necessary or advantageous to the best interests of the estate: See Dorrance v. Raynsford, 67 Conn. 1, 52 Am. St. Rep. 266, 34 Atl. 706. But there should be some valid reason which makes the sale necessary: See Culbertson v. Coleman, 47 Wis. 193, 2 N. W. 124; Chandler v. Douglass, 8 Blackf. 10, 44 Am. Dec. 732. As is true of the other subdivisions of this subject which we have considered, the chief controversy occurs where acts have been passed after the death of the decedent and after the interest of the beirs has become vested. Is such an act valid? And can a sale of the decedent's real estate be authorized even though it be for the best interest of the estate and of all concerned? According to the principal case such an act cannot be passed, since its effect is to deprive the heirs of their property without due process of law. So far as concerns adults, and those competent to manage their own property, this is undoubtedly true. The rule in such case is precisely the same as it is in the cases already considered. So long as a citizen is under no legal disability to act for himself in the management of his property, he is protected from interference on the part of the state: Gossom v. McFerrin, 79 Ky. 236; Brevoort v. Grace, 53 N. Y. 245; Culbertson v. Coleman, 47 Wis. 193, 2 N. W. 124. Such a statute, as pointed out in this last case cited, is really an attempt to transfer by special act the property of a person not under disability, without his consent, to another person. But as we have noticed elsewhere, there would seem to be no objection to the passage of an act by the legislature authorizing a sale where adults either petition for the act or manifest their consent to it in some other manner. Such an act would seem to be valid even in the case of adults where their free consent is given to it. In addition to the cases heretofore cited, see Brevoort v. Grace, 53 N. Y. 245; Culbertson v. Coleman, 47 Wis. 193, 2 N. W. 124. As previously stated, Linsley v. Hubbard, 44 Conn. 109, 26 Am. Rep. 431. would seem to be of doubtful authority on this point, because such an act was sustained though it was passed in opposition to the wishes of adult heirs to the property. With reference to those laboring under the disability of infancy or of unsound mind, many special statutes have been passed authorizing the sale of their lands by the executor or trustee of the decedent's estate, and such acts have been upheld as constitutional and valid. Thus in Chandler v. Douglass, 8 Blackf. 10, 44 Am. Dec. 732, a special act authorizing the sale of a decedent's realty in which infant heirs were interested, so as to hasten its improvement and increase the value of the residue, and providing that the proceeds should be assets in the administrator's hands, to be disposed of according to law, was held to be valid. A special act of the legislature authorizing the sale of the property of minors, to provide funds for their education and maintenance, is constitutional: Cochran v. Van Surlay, 20 Wend. 365, 32 Am. Dec. 570; Clark v. Van Surlay, 15 Wend. 436; Towle v. Forney, 4 Duer, 164; Leggett v. Hunter, 19 N. Y. 445. These cases, while directed more to providing for the interests of the infants as persons rather than their estates, yet illustrate clearly the doctrine, as announced in Cochran v. Van Surlay, 20 Wend. 365, 32 Am. Dec. 570, that the legislature, as parens patriae, may prescribe such rules as it deems proper for the superintendence, management, and disposition of the property of infants, lunatics, and other incompetent persons. But such action must clearly be for the best interest of the infants and their estate. The power cannot be so extended as to authorize a transfer of property, except where it can legally be presumed that the owner would have assented to the transfer if in a situation to act for himself. In Davis v. Helbig, 27 Md. 452, 92 Am. Dec. 646, it was said that the power of the Maryland legislature to decree a sale of a minor's real estate in particular cases was undoubted. Such conversion of the realty into personalty was deemed not to deprive the minor of his property in any way, but simply changed its form. To the same effect see Dorsey v. Gilbert, 11 Gill & J. 87; Brevoort v. Grace, 53 N. Y. 245. The power of the legislature to authorize by special statute the sale of a minor's property for his benefit was, in Munford v. Pearce, 70 Ala. 452, considered so firmly settled as to constitute a rule of property, and could not be questioned. The apparent doctrine of the principal case that no act can be passed subsequent to a decedent's death allowing an executor to sell the decedent's real property where it is necessary for the best interests of the estate would appear to be limited in most jurisdictions to the case of property the interest in which is vested in persons sui juris, but that the rule is otherwise in the case of infants or others laboring under legal disability. STARR v. KREUZBERGER. MASTER AND SERVANT-DEFECTS, DUTY OF INQUIRY RESPECTING.-An employé is not required to exercise any degree of care or diligence to discover defects. He will not be held to have assumed the risk of them unless he was actually informed of such defects, or they were so obvious that he must have known or simply refused to open his eyes and see; or when he was put upon inquiry by some discovery or suggestion of danger which it was gross carelessness for him to neglect. MASTER AND SERVANT-OPPORTUNITY OF SERVANT TO DISCOVER RISKS OR DEFECTS.-The fact that a servant has as good an opportunity as his master to know of defects involving risks does not necessarily charge him with contributory negligence, so as to preclude his recovery for injuries suffered through such defects. He has the right to rely on his master's inquiry, because it is the latter's duty to inquire, and the servant may assume that proper inquiry has been made by the master. MASTER AND SERVANT.-The fact that an employé had two years before helped to construct a wall cannot be accepted as conclusively charging him with notice of its position and condition. He is not chargeable with contributory negligence because he acted upon his employer's assurance respecting the safety of proceeding with his work upon or about such wall. PRACTICE-FINDINGS, WHEN NOT NECESSARILY CONTRADICTORY.-A finding that the plaintiff was ignorant of the unsafe condition of a wall, and a finding that he did not have a better opportunity than the defendant for seeing and knowing its condition, are not contradictory. Holl & Dunn, for the appellants. A. L. Shinn, A. P. Catlin, and Henry Starr, for the respondent. 124 CHIPMAN, C. Action by an employé against his employers to recover damages for personal injury claimed to have been sustained through their negligence. The defendants claimed that the injury was the result of plaintiff's carelessness. The cause was tried by the court and plaintiff had judgment. Defendants moved for a new trial, and the appeal is from the order denying the motion. Some objections are made to the findings as contradictory and argumentative, but the principal question argued is that the findings are not supported by the evidence. The injury resulted from the falling of a brick wall on which plaintiff was working as a bricklayer. The findings challenged were: "Finding 3. That said brick wall was in an unsafe condition for the work for which plaintiff was employed and directed to perform, and which defendants knew, but of which plaintiff was ignorant. That while working, and through and by the negligence of the defendants in employing plaintiff upon said work and directing him in the manner of performing the same, and without fault or negligence on the part of the plaintiff, the said wall fell upon and injured plaintiff," etc. "Finding 4. That plaintiff did not have a better opportunity than the defendants of seeing and knowing the condition of said wall. That plaintiff was not guilty of carelessness or negligence in working upon said wall." Plaintiff was a journeyman bricklayer of thirty years' experiDefendants were partners and contractors for the work ence. 125 being done, Kreuzberger being an experienced bricklayer and contractor, and Harvie a carpenter and contractor. The work was being done on a small brick building, part of the premises of the City Brewery in Sacramento, attached to the east side of the main brewery building. It was a one-story brick structure, with a brick gable front. The improvement consisted in raising the building an additional story and adding to the thickness of the wall by building a new four-inch wall of pressed brick from the ground, upon and against the entire front. The roof was first detached from the walls of the building and raised to the required height and supported there free from the walls. The new wall was to be tied or fastened to the old wall by cutting out two courses of brick across the front every two feet and inserting therein what were called "headers," or courses of brick, crosswise of the main wall, so as to connect the main with the new wall, and thus tie them together. These grooves were cut continuously across both buildings, as both were undergoing similar changes. We have to deal, however, with the smaller building and shall refer only to it. The walls of this building were originally twelve or fourteen inches thick from the ground up to the bottom of the ceiling joists, a distance twelve or fourteen feet. From this point a fire-wall extended upward "several feet above the bottom of the ceiling joists," and was eight or nine inches thick, resting on the twelve-inch wall. Upon this fire-wall was the front gable-end, of the same thickness as the fire-wall. Successive grooves were cut, and no question is made that this could be done safely in the thirteen-inch wall, but the last groove was cut about two inches below where the eight-inch fire-wall rested on the thirteen-inch wall, which undermined the fire-wall or gable-end, and it fell upon and injured plaintiff while he was at work. Appellants say in their brief: "It is not denied that cutting this last groove, four and one-half inches deep into the thirteeninch wall, two inches below the point where the nine-inch wall commenced, caused the nine-inch gable-wall to fall; and the whole question is whether the plaintiff is free from negligence in cutting this groove." It is conceded by both parties that there was no danger in cutting the grooves in the thirteen-inch wall, and all of them had been cut by direction of Kreuzberger as continuous grooves, 126 i. e., from end to end, without leaving any sections of the bricks in the grooves. There is evidence that where there is danger from the upper portion of the wall giving way when un dermined in this manner, the proper and safe course to pursue is to leave portions of the wall, at intervals, undisturbed, but in the thirteen-inch wall this, it is conceded, was not necessary, and no such precaution was taken. There were six workmen on the job and all were on the scaffold at the time the last groove was reached, and they had begun work on it when defendant Kreuzberger appeared. Plaintiff testified that he was employed by defendant Kreuzberger and was working under his direction, as it appears were the other workmen also; at the time of the accident they were working on a scaffold nine or ten feet high, and they had carried up the four-inch wall about twelve feet; plaintiff was working at the east end of this wall or corner of the building, and on his left were the other workmen at intervals along the scaffold; the top of the brick wall at the corner was so high above the scaffold that plaintiff could not reach to the top. He testified: "I am not certain how high that thirteen-inch wall extended up. There was a fire-wall on the building. I did not know at that time how high the fire-wall was. There was nothing on the front of the building, where I was working, to indicate where the fire-wall commenced. Standing upon that platform where I was at work I could look up and see that the firewall was an eight-inch wall at the top. . . . . At the time we were cutting the slot, just before the wall fell, we had built up the four-inch wall to where the course of stone was put on, and that would stop our work until the stone masons had completed theirs. Mr. Kreuzberger came to me and said that he did not see how we were going to continue the work there; that the stone masons were in the way. But he says, 'You can cut a slot through there for the next header, and then you and Corsaw go up to the Buffalo Brewery.' I said, 'Where will I cut?' He turned to the wall and said, 'Well, about here,' putting his finger on the wall. I looked up and said, 'Aren't we getting pretty high? And he said, 'No, that's all right.' Then Corsaw, standing inside of me, said: 'Well, what's the matter with cutting under the header?' That would bring it two courses still lower 127 than he first indicated. He said, 'All right; let it go at that, and have them all cut on the same line.' He left then and went toward Mr. Day's corner. . . . . He came back and finally said, . . . . ‘Just cut that slot through, and you and Corsaw come up there, and the other boys will have to knock off.' He turned then and left again. We went to work and cut where he told us that is, under the header." He then describes how .... |