had teamed for sixteen years, and was a skillful teamster; that defendant's horses had the general reputation of being broncos, and mean; and on cross-examination the plaintiff testified that the buckskin horse which ran away with the mower was the worst he ever saw; that no one could hold him; that he took the bit in his teeth and pulled the old horse, the machine, and the plaintiff, and bucked and kicked.

The defendant testified that when the plaintiff came with his own horses to the defendant's ranch he (the defendant) had horses of his own that he wanted to work to the mowers; that the plaintiff worked his own horses a day or two, and worked a team of defendant's in the forenoon on the 3d day of July; that on that day the defendant told the plaintiff that he wanted him to work one of his young horses with an old horse to the machine; that they had been broken to work to the wagon, and were gentle; that the plaintiff could work one of his own horses with one of defendant's young horses, or take one of defendant's old horses with a young horse; the defendant had five teams and mowers cutting his grass; that on the 3d day of July he also told the other drivers to put a young horse with an old horse to each machine, and they did so; that the team hitched up for the plaintiff was a young horse and an old horse; that when the plaintiff started the team the young horse stopped and held back, and the defendant went up to the team and said to the plaintiff that the horse was gentle, but if he was afraid to drive the team the defendant's son Ben or Packard would drive it; that his son Ben and Packard were present, and his son Ben said to the plaintiff that he would drive, or that Packard would drive, and his son offered to drive, and that the plaintiff said that he would drive them himself, and he started off with them, and had gone about 300 yards when defendant's attention was attracted by the plaintiff yelling; that the team ran back to the barnyard, where they stopped. The defendant also testified that the horse had been broken to work to the wagon at Golconda in the spring before; that it had been worked to the wagon for two weeks before the 3d day of July; that it was worked right along to a wagon on the ranch, after the accident, the same as his other horses, and that he never knew or heard that it tried to run away, or that it was wild or dangerous, either before or after the accident. On cross-examination the defendant testified: "That horse was never hitched to a mower before the time plaintiff tried to drive him. Neither my son, nor Packard, nor any one else tried to drive him to a mower that season after plaintiff was hurt. The reason was because there was no more hay to cut. It was not because he was not gentle. I don't know whether I told Roberti that my old woman' could drive him or not, but I have a thousand dollars to bet right

now that she can drive him. I won't bet that she can drive him to a mowing machine, but I will bet she can drive him. We have never worked that horse in a mowing machine, but we have worked him in a wagon. When I saw the team running away, after Roberti fell off the machine, the boys and I ran toward the team to stop them. I did not want my machine all broken up, and after we stopped the team near the corral we went to where Roberti was lying."

The defendant was corroborated largely by the witness Packard and by his son Ben Anderson. The latter testified in part: That when plaintiff took the lines and his seat on the mower the horses started off all right, but the plaintiff pulled on the lines so hard that the young horse, having a tender mouth, stopped; that the old horse continued to pull, and a tug came loose; that the defendant then came up, and told the plaintiff that if he was afraid of the horse the defendant's son Ben would drive him; that the horse was gentle working to a wagon; that witness then said to the plaintiff that he or Packard would drive the team, and witness offered to do so, and the plaintiff said in reply that he would drive them himself; that he started, and when he had gone a few hundred yards he heard the plaintiff yelling, and saw the team come running back to the yard; that every year defendant had some young horses broken to the mower after they had became gentle in working to the wagon. He also testified that the horse was afterwards worked in a wagon and in a machine, and has never since shown a disposition to buck or run away. On cross-examination this witness stated: "I helped break the buckskin to a wagon in February at Golconda. I never drove him to anything but a wagon. He was a big, strong, full-grown animal.

We were working five mowers that day. This buckskin and gray were the only two horses left that had not been worked to the mowers. I told Roberti myself that the horse was gentle. I did so because he was so, and we wanted to get him broke to a machine." Packard testified that the buckskin horse had long legs, was 15 or 16 hands high, was a good runner, and may have been seven or eight years old.

Defendant's daughter testified that at the breakfast table on the 1st day of July she heard her father tell the men that he wanted them to work one of his young horses with an old horse in order to break them to the mower, and she said that she did not think at the time of the trial that the plaintiff was much hurt.

In rebuttal the plaintiff testified that the defendant did not tell him that his son Ben or Packard would drive the team; that the son Ben did not offer to drive them, nor say that he or Packard would drive them; and that he told the defendant that he would not drive broncos; that nothing was said about the horse by the defendant, nor by defend

time, instead of being gentle enough for a woman to drive. The facts within the knowledge of the defendant and unknown to the plaintiff would hardly warrant such an assurance of extreme gentleness-one which would be likely to induce a timid woman or man to drive him. It is apparent that the plaintiff wished to avoid danger, and that the defendant's remark, as testified to by the plaintiff, which gave the horse a higher recommendation that the circumstances known to the defendant justified, led plaintiff to assume the risk which resulted in his injuries. After a review of the pleadings and evidence, we are not prepared to say that the action is based upon fraud or negligence. The most important allegations in the complaint are that the horse was dangerous, and that the defendant knew that he was so at the time he recommended him to be gentle. Every man is presumed to know what he ought to know, and the defendant, from his experience, as a rancher, with horses, and from what he knew regarding the age and slight breaking of this one, may be charged with knowledge of the fact that there was danger in working him the first time to a mower. True, he states that he told the plaintiff the horse was gentle to a wagon, and that he wanted him to break him to a mower, but this the plaintiff denies. Whether the latter or the defendant and his son and hired man were right in this regard was a question for the jury, and not for this court, to determine. If the statements were made by defendant as testified by his witnesses, we do not think it probable that the plaintiff failed to hear them. The proximity of the parties, and the testimony of the defendant's witnesses that plaintiff made reply, indicate that he heard what is claimed to have been stated to him regarding the horse, if the remarks were made at all; and his denial raised a conflict in that part of the evidence.

The judgment and order of the district court denying the motion for a new trial are affirmed, with costs in favor of respondent.

BELKNAP, C. J., concurs.

FITZGERALD, J. (dissenting). The allegations of the complaint are as follows: "That heretofore, to wit, on or about the 3d day of July, A. D. 1901, plaintiff was employed by said defendant in cutting defendant's hay on the ranch of defendant in said (Humboldt) county with a machine commonly known as a mower or mowing machine. That while so employed as aforesaid on said 3d day of July said defendant requested this plaintiff to work a certain team of defendant's horses on said mower. That one of said horses was unknown to this plaintiff, who was not acquainted with the habits nor disposition of said horse, never having driven or worked, nor seen said horse driven or worked, prior to that time. That said defendant then and there informed this plaintiff that said horse 76 P.-3

was a broken and gentle animal. That said defendant then knew that said horse was neither broken nor gentle, but that he was a wild, dangerous, and uncontrollable animal commonly known as a 'bronco.' That plaintiff, while so employed as aforesaid, and at defendant's request, commenced working said team, but, without any fault on his part, was unable to work, manage, or control same, and said team ran away with said machine and this plaintiff, without any fault on the part of plaintiff, throwing plaintiff therefrom violently, and in such manner that plaintiff was greatly, seriously, and permanently injured," etc. This is an action of damages against the defendant for the injuries that the plaintiff received as he alleges in the above complaint.

If the complaint be considered in the nature of a willful and malicious misrepresentation and fraud under the allegation "that said defendant then and there informed this plaintiff that said horse was a broken and gentle animal; that said defendant then knew that said horse was neither broken nor gentle, but he was a wild, dangerous, and uncontrollable animal commonly known as a bronco❞— then I think the evidence does not support the allegation; for there is nothing therein to show that the defendant knew that the horse was "a wild, dangerous, and uncontrollable animal commonly known as a bronco." Could the complaint be considered as an action of damages for negligence on the part of the defendant under the relations of master and servant between defendant and plaintiff? It would seem not. The Indiana B. & W. R. Co. v. Burdge, 94 Ind. 46; Shearman & Redfield on Negligence, § 20, and note; and Labatt's Master and Servant, § 59, and note 4.

Does the evidence given on the trial support the verdict of the jury in favor of plaintiff? While there is some conflict in the evidence on other points, to me it seems, though otherwise to my Brethren, that the uncontradicted evidence is as follows: Plaintiff hired to defendant to work for defendant in running defendant's mower in mowing hay on defendant's ranch. Plaintiff was an experienced teamster, and had before broken horses for a man by the name of Snapp, and plaintiff himself owned and worked bad horses. Defendant told plaintiff that he wished him to work to a mower a horse of defendant's that had not been broken to work to the mower, but had been broken to work to a wagon, and that the horse was broken and gentle in working to a wagon; that defendant wanted plaintiff to work said horse with an old and gentle horse, so as to break the unbroken horse to work to a mower. An old horse and the young and unbroken horse were hitched to a mower, and plaintiff mounted the mower and started to drive the team. The young horse stopped. The other horse then stopped also. A tug came loose and was fixed, the team started again, and the young

horse ran away, taking with him the other horse and mower. The plaintiff was violently thrown to the ground and greatly injured. On the foregoing the testimony is, as it seems to me, uncontradicted, for I think the rebuttal testimony of plaintiff does not extend to a contradiction of the defendant and his son Ben as to conversations had by them with plaintiff prior to the time of the accident, to wit, about noon of July 3d. My Brethren think otherwise, and, should the truth be as they think, yet it seems to me that, before a brand of such legal and moral obliquity as would inevitably fall upon the defendant should he be held to have knowingly, willfully, and wantonly placed a human being in a position where the most probable result would be death or great bodily harm to him, the evidence of it should be clear and unequivocal. It is always held that fraud should be clearly proved. To place a human being in a position where he might meet death or great bodily harm is certainly equal to fraud in civil transaction, for fraud would only take from a person property; but willfully to do the thing just mentioned would most probably deprive him of life or limb. The proof of the latter should certainly measure up to the full requirement of the proof for fraud in civil transactions. The contradictions of the conversations that the defendant and his son Ben said that they had with plaintiff prior to the noon of July 3d should have been specific, and not merely general;. for in those conversations defendant and his son Ben distinctly state that they informed the plaintiff that the horse that did the mischief was gentle, and broken to work to a wagon, but had not been broken to work to a mower, and that the defendant wanted plaintiff to hitch him with an old horse to work him to the mower. The result of such a denial, and the jury and court so holding, would be so serious to defendant-so nearly resembling, or perhaps equaling or surpassing, fraud-that the proof of it should, like the proof of fraud, be clear. The result of holding the allegations of the complaint thus proved would put the defendant in the position of knowingly and deliberately laying a trap for the plaintiff; lulling all suspicions of the plaintiff to rest, and tolling him into a position in which plaintiff would most probably lose his life or receive great bodily harm. In the case at bar the plaintiff did actually receive great and lasting injury. Surely no human being should be thus branded unless the question of his guilt be fairly presented to court and jury, and the facts warranting it clearly and distinctly proved. This, it seems to me, has not been done in this case.

On the following there is contradiction: Defendant's son Ben and a man by the name of Packard testify that when the team stopped after the first starting about noon of July 3d defendant came up and told plaintiff that if plaintiff was afraid to drive the team defendant's son Ben or Packard would drive it, and

also defendant's son Ben told plaintiff the same thing, and that plaintiff replied, "No, I will drive the team myself;" Packard and Ben adding in their testimony that plaintiff also said, "I have broken horses for Snapp." Plaintiff, in rebuttal, denied that either defendant or defendant's son Ben told plaintiff that Ben or Packard would drive the team. Plaintiff, however, did not deny that he at the time said, "No, I will drive the team myself; I have broken horses for Snapp."

Such being the testimony, on an analysis of it what should be the result? First. Let us consider the testimony up to the moment the team stopped and the defendant came up. Wherein, up to that time, was defendant either false in his statements to plaintiff or negligent in his statements or acts? Second. Suppose at the time defendant came up to the stopped team that neither defendant nor his son Ben told plaintiff that defendant's son Ben or Packard would drive the team, would this omission have rendered the defendant negligent? In the light of what, according to the testimony above stated, defendant had previously told plaintiff, as the uncontradicted testimony shows, it would seem that the defendant would not have been negligent. This position is strengthened by the fact that under the general rule courts and juries are not unnecessarily to find witnesses perjured, but must reconcile testimony, if it can reasonably be done. Under said rule there is, perhaps, no necessity to find that either defendant and his son Ben and Packard committed perjury when they swore that defendant and his son Ben told plaintiff that the said son or Packard would drive the team, or that the plaintiff committed perjury when he said that they did not so tell him; for it is quite possible that the defendant and his son Ben did on the occasion say what the three witnesses said that they said; and it is also quite possible that the plaintiff did not hear them say it. If they said it, and plaintiff did not hear it, at that time, there was at that time nothing negligent on the part of defendant; and, if nothing of the kind whatever occurred, still, under the uncontradicted testimony as it appears to me in the record on appeal here, I cannot see wherein defendant was negligent or in default. It would seem that under the facts stated in the uncontradicted testimony neither defendant nor plaintiff could have anticipated that the horse would run away; that defendant had no more reason to think so than the plaintiff had; that plaintiff's opportunities for knowledge on the subject were equal to those of defendant; that the unfortunate accident that caused the melancholy result of injury to the plaintiff was one of the ordinary risks of plaintiff's employment; and that while all should, and doubtless do. much regret it, defendant cannot legally be mulcted in damages therefor.

Perhaps it may be proper to state that I have not overlooked the fact that the plain

tiff testified that he told the defendant that he would not "drive broncos or bad horses; that he was getting too old for that"; and also that plaintiff testified that the defendan: told him that the horse was gentle, and that defendant's "old woman" could drive him. The first statement does not, in the light of the uncontradicted testimony, materially alter the case; and the second statement must have meant, and plaintiff must have understood that it meant, that the horse was gentle in working to a wagon, and that the defendant's wife could drive the horse to a wagon.

For the foregoing reasons I think the order of the trial court denying a new trial should be reversed; that a new trial should be granted; and that the plaintiff should, if he so desires, have the privilege of amending his complaint so as to make his cause of action be one sounding in negligence, and not one sounding in knowing, willful, and wanton and reckless injury, and perhaps even fraud. But should the plaintiff still think that the facts of the case justify him in alleging his cause of action as one sounding in knowing, willful, wanton, and reckless injury, and perhaps fraud, he should, on a retrial thereof, be held to make clear proof that it is such.

It may perhaps be proper to remark here that should the complaint be one sounding in willful, knowing, and deliberate wrong and injury, such as is sometimes called "laying a trap" for plaintiff, then some decisions go to the extent that neither "assumptions of risks" nor "contributory negligence" on the part of plaintiff could, by the defendant, be pleaded in bar of the action.

(142 Cal. 471)

VANDALL v. TEAGUE et al. (S. F. 2,621.)* (Supreme Court of California. March 11, 1904.)

HOMESTEAD-COMMUNITY PROPERTY-DEATH OF HUSBAND-WIFE'S TITLE-MORTGAGE FORE

CLOSURE-LIMITATION OF ACTIONS.

1. Code Civ. Proc. § 337, bars an action on a contract founded on a written instrument in four years. Section 1569 declares that no claim against a decedent's estate which has been presented and allowed is affected by the statute of limitations pending proceedings for the settlement of the estate. Section 726 provides that there can be but one action for the recovery of any debt secured by mortgage. Section 1474 provides that, where a homestead is selected from community property, it vests on the death of one of the spouses absolutely in the survivor. Civ. Code, 2911, provides that a lien is extinguished by the lapse of time within which an action may be brought on the principal obligation. Held that, where a homestead was selected from community property, and subsequently mortgaged by a husband and wife, and the husband died, and the wife conveyed her interest, limitations did not cease to run in favor of the wife's grantee, as against foreclosure, because of the fact that the claim had been presented to the estate and allowed.

2. Code Civ. Proc. § 1475, providing that claims against the estate of a decedent secured by incumbrance on the homestead must be pre

Rehearing denied April 9, 1904.

sented as other claims against estates, and that, if the funds of the estate be inadequate to pay all claims, the claims so secured must be first paid, does not forbid the commencement of foreclosure proceedings under a mortgage given by deceased and his wife on their homestead, selected from community property, so as to prevent limitations running in favor of the sur viving wife as against foreclosure.

Commissioners' Decision. In Banc. Appeal from Superior Court, Fresno County; J. R. Webb, Judge.

Suit by Murray A. Vandall against Luther A. Teague, as administrator with the will annexed of William P. Teague, and others. From a decree in favor of defendants denying mortgage foreclosure, plaintiff appeals. Affirmed.

W. S. Goodfellow, for appellant. M. K. Harris, for respondents.

CHIPMAN, C. Foreclosure of mortgage. Plaintiff had judgment of foreclosure as to the defendant, the administrator of the estate of William Teague, but judgment was denied as against the interest of defendant Hattie Teague. Plaintiff appeals from the judgment.

The following facts appear from the findings and proceedings: In 1883 William and Mary Teague were husband and wife. The mortgaged premises belonged to them as the property of the community. In that year Mrs. Teague duly filed a homestead on the premises. On August 14, 1889, William and Mary Teague executed to plaintiff's assignor, the German Savings & Loan Society, their joint promissory note, payable one year after date, and also on that day executed their mortgage on the premises in question to secure the payment of said note. In February, 1894, William Teague died testate. Thereafter defendant Luther Teague was appointed administrator of the estate of William with the will annexed, and thereafter, to wit, August 2, 1894, by an order duly given and made, the court set apart the premises as a homestead to Mary Teague, widow of deceased, and to Hattie Teague, their sole minor child. Within four months after the appointment of said administrator plaintiff's assignor duly filed its claim against said estate upon and in respect of said promissory note and mortgage, and on August 2, 1894, the claim was allowed and approved by said administrator, and on September 3, 1894, was duly allowed by the judge. On January 10, 1897, the said Mary conveyed to the said Hattie the said mortgaged premises, and the latter ever since has been and now is the exclusive and sole owner and in possession of said lands and premises, but whatever interest said Hattie has she derived under and by virtue of said deed of said Mary, her mother, and widow of deceased. The complaint was filed December 2, 1897. The answer pleaded the statute of limitations as to Mary and Hattie Teague and title in the latter under the deed of Mary Teague.