(45 Pac. 866].) The portions of instruction number twelve which we italicize are assigned as error by appellant. The instruction is as follows: "In this action the plaintiff, if he has shown himself entitled to recover, is entitled to recover for all damages which he has suffered up to the time of the trial and for all damages that it is reasonably probable that he will sustain in the future, not exceeding the sum claimed in the complaint. In estimating the compensatory damages in cases of this character, all the consequences of the injury, future as well as past, are to be taken into consideration, in. cluding the bodily and physical pain and suffering which is shown by the proof to be reasonably certain to have naturally resulted from the injury. The plaintiff, if you find him entitled to recover, should be awarded compensation for all expenses actually paid or incurred for doctor's bills, not exceeding the amount claimed therefor in the complaint. If you find that plaintiff is entitled to recover, and believe from the evidence that the injuries sustained are permanent in their character, this must also be taken into consideration in your estimate of damages, and if you find for the plaintiff in this action, such sum should be awarded as in your best judgment will fairly and fully compensate him for any injuries received by reason of the alleged negligence and carelessness of the defendant not exceeding in amount the sum claimed in the complaint."

The mere reading of the whole instruction is sufficient to show that there is no error in it. It seems to us well established that "In actions for negligence, the law does not attempt to fix any precise rules for ascertaining what is a just compensation, but from the necessity of the case, leaves the assessment of the damages to the good sense and judgment of the jury, whose province it is to make the assessment.' (Lee v. Southern Pac. R. R. Co., 101 Cal. 118, (35 Pac. 572]; Howland v. Oakland C. St. Ry. Co., 110 Cal. 523, (42 Pac. 983). It is true the code (Civ. Code, sec. 3333) provides the rule of law governing damages in cases of this kind to be "the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." When the jury was told they might award plaintiff such sum as in their “best judgment will fairly and fully compensate him for any injuries received by reason of the alleged negligence and carelessness of the defendant not ex

" there

ceeding in amount the sum claimed in the complaint, was no suggestion that they might award damages according to any feeling they might have, nor did the court suggest to the jury anything else than that they must exercise their judgment from all the evidence in the case as to what the proper amount of damages should be. Therefore, Fries v. American Lead Pencil Co., 141 Cal. 610, (75 Pac. 164), relied upon by appellant, is not a case in point here. The instruction read as a whole is not objectionable and fairly states the law. The court refused to give the following instructions asked by defendant: "No. 22. I further instruct you that if you find from the evidence that the plaintiff was looking into the chute at the place where he placed the bar to fill it, when clogged, and was thereby injured by reason of any edg. ing or other substance coming out of that hole, then your verdict must be for the defendant." This was not given “because given in substance in defendant's instruction No. 13. The thirteenth instruction is as follows: “I charge you that if you find from the evidence that plaintiff sustained his injuries from any other cause than that alleged in his complaint, you must find a verdict for defendant." This the court gave, and is as fair to the defendant as it could ask. The instruction asked and not given was properly refused because not announc. ing any principle of law. In addition to this and that the court thought it was given in substance in instruction No. 13 there is the further objection to it that it states a fact, to wit: that “where he placed the bar to fill it when clogged,” which should be left to the jury. Further, it totally ignores any negligence on the part of defendant in not providing a safe place for his servant to work, and makes plaintiff liable if he looks at his work while performing it and while so looking is hurt. The instruction was properly refused. Refusing to give defendant's instruction No. 23 is assigned as error. It reads as follows: “I also charge you that if you find from the evidence that plaintiff was using said bar in a careless and negligent manner, being on the wrong side thereof, and while so using the same received the injury of which he complains, then you must return a verdict for the defend

This instruction is not law. It would make no difference how negligently the plaintiff might have been using the bar at the time he was hurt if such negligence in no wise contributed to his hurt, and as to whether he was on the

ant."

wrong side of the bar is a question for the jury when inquiring into the cause of the injury. The instruction announces no rule of law in a case of personal injury by the master to his servant. But the ground was fully covered in instruction No. 5, which was given and goes as far as the law will allow. Instruction No. 5 reads as follows: "If the injuries to plaintiff were caused proximately or exclusively by his own negligence or by the negligence of any of his fellowemployees, the defendant is not liable."

When all the instructions given are read together and considered as a whole, we are satisfied they express the law, and could not have been prejudicial to the defendant.

Judgment and order affirmed.

Chipman, P. J., and McLaughlin, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on December 22, 1906, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 22, 1907, and the following opin. ion was then rendered thereon:

THE COURT.-In denying a rehearing in this case the court desires to state more clearly a fact not so fully brought out in the opinion in the district court of appeal. The machine at which the plaintiff was injured was in the basement of the mill, where there was very little light, and there is a decided preponderance of evidence that, standing in the position which he must occupy in operating the machine, the defendant could not see the defect which was the cause of his injury. In other words, there was not merely a conflict in the evidence, there was a preponderance of evidence to the Affect that the defect in the machine was a latent defect, not obvious, and only discoverable by a careful inspection.

[Civ. No. 293. Second Appellate District.-November 24, 1906.] STAR MILL AND LUMBER COMPANY, Respondent, v. JAMES E. PORTER, Appellant.

MECHANICS' LIENS-NOTICE OF LIEN-PLEADING IMMATERIAL VARIANCE.-In an action to foreclose liens for materials furnished to the contractor, a variance between the amount stated in the notice of lien and a less amount claimed in the complaint is immaterial. ID.-CONTENTS OF NOTICE-CREDITS-FACTS CORRECTLY STATED.Whether the full amount of the contract price is stated with credits in the notice of lien or the true amount due after deducting credits is stated is immaterial, provided the facts were correctly stated. ID.-VARIANCE BETWEEN COMPLAINT, NOTICE, AND FINDING.-The fact that the finding shows a less sum due than that claimed in the complaint, as well as in the notice of lien, shows no material variance. The doctrine of variance in relation to the pleadings has no application to the notice of lien, and it is sufficient that the statement in the notice of lien is true to the extent of the amount found due.

ID.-APPLICATION OF PAYMENT MATURITY OF OBLIGATIONS-RATABLE APPLICATION.-A payment cannot properly be applied on the obligation earliest in time, but only on the obligation earliest in date of maturity. When different obligations of the same class mature at the same time, the payment is required, by section 1749 of the Civil Code, to be applied to the items so maturing ratably. ID. ERRONEOUS APPLICATION NOT PREJUDICIAL-JUDGMENT FOR LESS THAN AMOUNT DUE.-An erroneous application of payment is not prejudicial to the appellant where the record shows that the judgment is for a less sum than would be properly due if the application had been properly made, although the error in allowing judg ment for the less sum cannot be corrected upon this appeal.

ID. TERMS of Contract-INCORRECT STATEMENT SUBSTANTIAL TRUTH SHOWN. Where the notice of lien incorrectly stated that one of the terms of the contract was based upon the reasonable market value, instead of a special promise to pay a fixed amount, and where the finding of the court that this statement, though incorrect, was not made fraudulently, does not show that the price fixed was not the market price, and the evidence shows without contradiction that this was the fact in the case, the statement in the notice of lien is substantially true, which is all that is required to give it validity.

ID. IMMATERIAL MISSTATEMENT NOT PREJUDICING OWNER.-Where the fact appears that the fixed price stated was the market price, no

injury can result to the owner; nor can the misstatement be regarded as material.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. W. P. James, Judge.

The facts are stated in the opinion of the court.

John E. Daly, and A. D. Laughlin, for Appellant.

There was a material variance. Plaintiff must recover, if at all, upon the cause of action set out in the complaint, and not upon some other developed in the proofs. (Moudran v. Gout, 51 Cal. 151; Bryan v. Torney, 84 Cal. 126, 130, 24 Pac. 319; Owen v. Meade, 104 Cal. 182, 37 Pac. 923; Shenandoah etc. Co. v. Morgan, 106 Cal. 409, 39 Pac. 802; Rogers v. Kimball, 121 Cal. 253, 53 Pac. 648; Davis v. Pacific Teleph. etc. Co., 127 Cal. 312, 59 Pac. 698; Nichols v. Randall, 136 Cal. 431, 69 Pac. 26.) The rule of variance applies to liens of mechanics, and materialmen. (Reed v. Morton, 99 Cal. 617, 34 Pac. 333; Palmer v. La Veigne, 104 Cal. 34, 37 Pac. 775; Santa Monica L. & M. Co. v. Hege, 119 Cal. 380, 51 Pac. 555; Wilson v. Nugent, 125 Cal. 283, 57 Pac. 1008; McClain v. Hutton, 131 Cal. 141, 61 Pac. 273, 63 Pac. 182.) There was a misapplication of payment. (Civ. Code, sec. 1479, subd. 3)

A. C. Lawson, for Respondent.

The application of payment was properly made. (Civ. Code, sec. 1479, subd. 4.) There is no material variance. The notice of lien properly claimed the balance due, and there is no prejudice in the judgment. (Code Civ. Proc., sec. 1187; Continental B. & L. Assn. v. Hutton, 144 Cal. 609, 78 Pac. 21.)

SMITH, J.-—This is an appeal from a judgment for the plaintiff, and from an order denying the defendant's motion for a new trial.

The suit was brought to foreclose several liens for materials furnished the defendant by the plaintiff or the plaintiff's assignors. The judgment and findings with reference to three of these are attacked on various grounds.