(185 P.) ed. Nor has our attention been called to any evidence in the record showing or tending to show that the commission ever made, entered, or served any special order requiring the gears to be incased. It is true, a safety engineer, representing the commission, went through the plant, in August, 1914, and made certain recommendations, and the same engineer, six months later, again visited the plant and checked up the things that had been done by defendant relative to a compliance with the recommendations he had made on his previous visit, with the result that he found defendant had done about onehalf to two-thirds of the things that he had recommended in August, 1914. Such recommendations, however, cannot be deemed the equivalent of an order made and entered by the commission itself and served on the employer, as contemplated by the act. It follows, therefore, that the evidence fails to show that the commission ever made or served any order requiring the gears to be housed or incased, or any other order with which defendant has neglected to comply. such [9] In the absence of any such general or special order by the commission with respect to the gears, defendant's duty must be measured by the general requirements of the act itself. The act requires every employer to furnish a place of employment which shall be "safe," and to furnish "such safety devices and safeguards * as are reasonably adequate to render place of employment safe." Section 52, Stats. 1913, p. 306. It also is provided by the act that the terms "safety devices" and "safe guards" shall "be given a broad interpretation so as to include any practicable method of mitigating or preventing a specific danger." Subdivision 9, § 51, Stats. 1913, p. 306. The terms "safe" and "safety," as applied to any place of employment, are defined to mean "such freedom from danger to the life or safety of employés as the nature of the employment will reasonably permit." Subdivision 8, § 51, Stats. 1913, p. 306. From these provisions and definitions it will be seen that, in the absence of any general or special order given and made by the commission in the mode and manner provided by the act, defendant's statutory duty, under the general requirements of the act itself, was to use such devices and safeguards as are "reasonably adequate" to render the place of employment safe, and to have its place of employment as free from danger to the life or safety of its employés "as the nature of the employment will reasonably permit." [10] Tested by the foregoing, we are constrained to hold that certain of the court's instructions were erroneous and misleading. For example, the court instructed the jury as follows: "If you find from a preponderance of the evidence in this case that the plaintiff at the 185 P.-33 time of the injury was acting in the course of his employment, then, if such gears constituted a source of danger to the life or safety of the plaintiff, the defendant owed to the plaintiff the duty of providing and maintaining over the gears in question such safety devices or appliances as would tend to mitigate or prevent the danger to plaintiff from contact therewith." This instruction exacted of defendant a greater degree of care than is required by the act. Doubtless it is safe to say that the gears in question were a source of danger, just as all machinery, and, indeed, almost everything with which mankind is daily environed, is, in some degree, a potential source of danger. But the act does not require defendant to provide or maintain a place of employment that does not involve any element of danger whatever. All that is required is that the employer shall furnish a place of employment which is as free from danger to the life or safety of the employés "as the nature of the employment will reasonably permit." Subdivision 8, § 51. Nor does the act require defendant to provide or maintain over the gears "such safety devices or appliances as would tend to mitigate or prevent the danger to plaintiff from contact therewith," irrespective of any other element or consideration. All that the act requires of defendant is that it provide and maintain over the gears such safety devices and appliances as are "reasonably" adequate to render the place of employment safe, and such as provide a "practicable" method of mitigating or preventing danger, and to do what is "reasonably" necessary to protect the life and safety of its employés. Subdivision 9, §§ 51 and 52. After an examination of the entire cause, including the evidence, we cannot say that this misdirection of the jury did not result in a miscarriage of justice. Indeed, it is more than probable that the instructions, considered in their entirety, influenced the jury to defendant's prejudice. In the main, the instructions are too abstract. Considered as a whole, they were calculated to impress upon the minds of the jurors that, irrespective of reasonableness or practicability, it was defendant's bounden duty to incase the gears in housing, and that its mere failure to do so constituted gross negligence or willful misconduct. Judgment reversed. We concur: SLOANE, J.; THOMAS, J. Opinion of Supreme Court Denying Hearing this court we are not to be understood as PER CURIAM. In denying a hearing in intimating an opinion to the effect that there was sufficient evidence to support a conclusion of gross negligence or willful misconduct on the part of defendant, or on the question whether every failure to comply with a requirement of the Industrial Acci- ¡dered. The defendant appeals, specifying dent Commission or the statute is necessari- various alleged errors of law and particularly ly gross negligence or willful misconduct. that the verdict is unsupported by the eviOn these questions we reserve expression of opinion. The application for a hearing in this court after decision by the District Court of Appeal of the Second Appellate District, Division 2, is denied. All concur except MELVIN, J., absent, and LAWLOR, J., who concurs in the denial of the hearing. (43 Cal. App. 703) O'BRIEN v. L. E. WHITE LUMBER CO. (Civ. 2931.) (District Court of Appeal, First District, Division 1, California. Oct. 21, 1919.) 1. MASTER AND SERVANT 70(1)-CONSENT TO REDUCTION IN SALARY BINDING. Where plaintiff, on being advised that his employer would have to put him on half time, replied that he was willing to help by going on half time during the financial stringency and thereafter accepted as his monthly salary one-half of prior salary, he could not recover full pay where times never got any better until the company sold out. 2. MASTER AND SERVANT 721⁄2- EMPLOYÉ NOT ENTITLED TO COMPENSATION FOR USE OF AUTOMOBILE. Use of automobile by employé in the business of his employer without any intention of making a charge, except to the extent that use might be compensated by the value of gasoline, oil, and tires furnished by employer, cannot be made the basis of a claim for compensation. dence. The facts giving rise to the dispute may be briefly summarized as follows: The plaintiff was an employé of the defendant, having sus tained that relation to it for some 30 years. In the month of October, 1914, he was de fendant's superintendent, his duties as such relating to that part of defendant's business carried on in and around Point Arena, and which consisted of lumbering, the manufac ture and shipping of railroad ties, the conduct of a mercantile store, and a limited amount of simple farming, and received for his services a salary of $200 per month. On the 29th of that month the president of the company addressed to him a letter, the terms of which are as follows: "Dear Frank: As ties and everything have gone to the 'bow-wows' we will have to put you for the present on half-time, beginning November 1, 1914. I dislike to do this but cannot help it. As soon as things brighten you will be given full time again. Please advise me if this is satisfactory. We have made cuts in salaries all over and are letting off some men. "Cut Emery's salary to $75.00; cut McCallum to $75.00. If they are not satisfied we will get somebody else who will be because we cannot continue as things are. F. C. Drew." "Very truly yours, Testifying to the receipt of this letter, O'Brien said: "I think I answered on receipt of it, probably the same day or the next day. I cannot remember the exact wording of my letter, but as near as I can remember I told him I had shown this letter to McCallum and Emery and Appeal from Superior Court, Mendocino they had accepted the cut, and for myself I County; J. Q. White, Judge. Action by C. F. O'Brien against the L. E. White Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed. Metson, Drew & MacKenzie, of San Francisco, and H. L. Preston and Preston & Preston, all of Ukiah (R. G. Hudson, of San Francisco, of counsel), for appellant. was willing to help my employer out by going on half time during the financial stringency. I then went ahead with my work the same as I had been." Thereafter and until the defendant sold its business nearly two years later, the reduced salary was paid to the two employés named in the letter, and the plaintiff received and accepted as his monthly salary the sum W. D. L. Held, of Ukiah, and J. W. Kingren, of $100, performing, however, practically the of Point Arena, for respondent. RICHARDS, J. The plaintiff brought this action against the defendant to recover the sum of $2,189 as the reasonable value of work and labor and compensation for the use of his automobile in the service of the defendant, which sum the complaint alleges is the balance due upon an open and current account between the plaintiff and defendant. The latter answered, denying any liability whatever. A trial had before a jury resulted in a verdict in favor of the plaintiff, for $1,875, for which amount judgment was ren same duties as before, and devoting the same amount of the time to the defendant's business. He had access at all times to his a count carried on the books of the defendant, wherein he was credited monthly with the sum of $100 as salary and charged with merchandise purchased by him in the company's store, and with sums of money drawn by him, and was familiar with the contents of this account. From the letter set forth above O'Brien understood “that they (the company) were just short of funds, and that was about all that they could afford to pay at that time until times got better or they sold out, and (185 P.) that I was to receive half pay until times got [in the record to the effect that the expression better." He further testified: "Q. Well, you understood, didn't you, Mr. O'Brien, that you was just to get a hundred dollars a month until times got better? A. Yes, sir. "half time" refers to the proportion of the day an employé works; but while it may be conceded that such is the literal meaning of the expression, and that it is frequently used in that sense, it is equally true that in the present case it was used by the defendant and "Q. For your full time, that's right, isn't it? understood by O'Brien as referring to the A. I understood that he was to pay me a hun-amount of his monthly salary. It is also dred dollars a month until times got better, abundantly clear from the evidence that the and from the past dealings I had with him he use of O'Brien's automobile in the defendant's would pay me the balance when times got betbusiness was made by O'Brien without any ter or he sold. "Q. Well, and times never got any better un-intention of making a charge therefor other til they sold out, as you say, never got any better, did they? A. No. "Q. Got worse, didn't they? A. Yes, I think they did, if anything." In April, 1916, the defendant sold its business and property. Shortly thereafter O'Brien wrote to the president of the company a letter in which he said: "Having knowledge of your fairness in all my past dealings with you I am asking if you will not pay me full salary for the past 19 months" -meaning, of course, by full salary the sum of $200 per month instead of the $100 per month that had been paid to him. O'Brien also called on and had some conversation with the president of the defendant in reference to this request, but it was finally refused, and on November 18, 1916, O'Brien rendered a bill to the defendant for the sum of $1,750, being the difference between $100 and $200 per month for the period of 171⁄2 months. This bill the defendant declined to pay; and shortly thereafter O'Brien brought this action for the sum of $2,189, the difference between that amount and the $1,750 previously demanded, being claimed as compensation for the use in defendant's service of plaintiff's automobile. It appears that O'Brien had from a time dating back to about six months before the reduction of his salary owned an automobile which he occasionally used while attending to the business of the defendant, the latter furnishing to O'Brien without charge the gasoline, oil, and tires used in its operation. No previous demand for compensation for this service had ever been made on defendant by O'Brien, not even upon the occasion when in November, 1916, he rendered his bill for back salary. than the value of the supplies which he drew from the defendant, and was therefore gratuitously given, except to the extent it might be compensated by the value of such supplies. Such use, therefore, cannot form a legal basis for the plaintiff's demand. The claim of plaintiff for back pay was one that might well have been addressed to the generosity of the defendant as was done, but we can find no legal foundation for it in the evidence which, we are convinced, affords no basis for the verdict of the jury in the plain AP (District Court of Appeal, 1. APPEAL AND ERROR 80(5), 82(1) PEALABILITY OF INTERLOCUTORY JUDGMENTS AND ORDERS. A judgment in an action for an accounting after dissolution of a partnership, authorizing sale of property, held a final appealable judgment, making special orders following such judgment also appealable, in view of Code Civ. Proc. § 963. 2. APPEAL AND ERROR 714(4)-CONSIDER ATION OF STATEMENT OF ACCOUNT IN BE- On appeal from interlocutory judgment by default taken on the judgment roll alone, a statement of account filed by plaintiff with the judge before judgment was entered cannot be considered in determining whether judgment is authorized though the judgment is in exact accord with the statement. 3. APPEAL AND ERROR 934(1)-PRESUMP TIONS DEFEATING Judgment. [1, 2] We think it is quite clear from the foregoing statement of facts that O'Brien had no legal claim upon the defendant either for salary or for the use of his automobile. It is apparent that the letter of the president of the company of November 29, 1914, was understood both by the defendant and O'Brien to mean that from that time forward his salary was to be at the rate of $100 per month without other change in the conditions of his employment, and that he accepted the reduction of salary. There is some evidence roll alone, the court on appeal will presume An appellate court will never indulge in presumptions to defeat a judgment. 4. APPEAL AND ERROR 907(3) PRESUMP TIONS AS TO SUFFICIENCY OF EVIDENCE TO SUPPORT JUDGMENT. Where an appeal is taken on the judgment For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that the evidence offered was sufficient to sup- [§692; and, where judgment is full, complete, port the judgment. 5. APPEAL AND ERROR 1011(1)-REVIEW OF QUESTIONS OF FACT. The conclusion of the trial court will not be disturbed on appeal, when based upon conflicting affidavits involving the decision of a question of fact. 6. APPEAL AND ERROR and enforceable without that provision, it will be considered as surplusage. 13. JUDICIAL SALES 53-EFFECT OF FAILURE TO GIVE NOTICE REQUIRED. Neglect of an officer making a sale directed by a judgment to give notice required by law does not affect the validity of the sale, but the 1074(1)-HARMLESS party aggrieved has his remedy against the officer for any injury sustained by reason of such neglect. ERROR IN FAILING TO FILE AFFIDAVITS OF MERITS TO SET ASIDE DEFAULT JUDGMENT. Where an appeal from refusal to vacate default judgment is taken on the judgment roll alone, and it appears that the decision of the court was based on conflicting affidavits, it is immaterial whether or not there was an affidavit of merits complying with the legal requirements. 7. APPEAL AND ERROR 957(1)-DISCRETION AS TO OPENING DEFAULT JUDGMENT. A motion under Code Civ. Proc. § 473, to open a default and vacate an interlocutory judgment, being addressed to the discretion of the court, its decision will not be disturbed on appeal, in the absence of a showing of abuse. 8. JUDGMENT 143(3) OPENING DEFAULT FOR MISTAKE OR INADVERTENCE OF COURT. Where summons and complaint have been served upon defendant, who has paid no attention thereto, his default cannot be opened on the ground of inadvertence, mistake, surprise or excusable neglect on the part of the court, within Code Civ. Proc. § 473; such section applying to the mistakes or inadvertence of a party and not of the court. 9. JUDGMENT 373-POWER OF COURT TO SET ASIDE JUDGMENT FOR FRAUD. A court has inherent power to set aside a judgment for fraud upon the court, and such right is not derived from Code Civ. Proc. § 473. Action by Noah Williams, Jr., against George H. Reed, for an accounting after dissolution of a partnership. Judgment for plaintiff, and defendant appeals. Affirmed. Valentine & Newby, G. H. P. Shaw, and John H. Foley, all of Los Angeles, for appellant. Irwin, Smith & Rosecrans and Davis & Rush, all of Los Angeles, for respondent. THOMAS, J. This is an action for an acCounting after dissolution of a partnership. Plaintiff's complaint herein was filed December 31, 1915, and, with the summons there after issued, was served on defendant on January 11, 1916. Default of defendant was entered on January 24, 1916. On March 15, 1916, an interlocutory judgment was entered Appellant contends that the judgment was based upon a statement theretofore filed in said cause by respondent. This contention is opposed by respondent, who argues that, there being no findings of fact, and none of the evidence adduced upon the hearing of the matter being preserved in either a bill of exceptions or a statement of the case, only matters shown by the judgment roll, consisting in this case only of the complaint and judgment, can be considered. On March 28, 1916, an amendment to said interlocutory judgment was made by the court, without any notice to appellant. Appellant appeals 11. APPEAL AND ERROR 821 SEPARATE from this judgment and the amendment CONSIDERATION OF SEPARATE APPEALS PRESENTED BY ONE TRANSCRIPT. thereto. This will be referred to here as the first appeal. On April 26, 1916, appellant duly served and filed his motion to open said default and set aside said interlocutory judgment, together with affidavits in support thereof, and his answer to the complaint. On April 2 Where a defendant has taken four separate appeals on different grounds, that all such appeals are in the same transcript, and that the record presents the entire transaction by means of which respondent sought to reap an unfair advantage, does not authorize the court to consider all of such steps as presented by the tran-1916, and just prior to the hearing of said script, but each appeal must be separately considered without relation to the others. 12. JUDICIAL SALES 3-JUDGMENT OF SALE; NECESSITY OF DIRECTIONS TO SHERIFF AS TO SERVICE OF NOTICE. motion, respondent served on appellant counter affidavits. On April 29, 1916, this motion was denied. From the order denying this motion appellant has appealed. This is the second appeal. May 2, 1916, respondent served upon appelAn interlocutory judgment, in an action for an accounting after a partnership dissolu- lant a notice of motion to confirm the sale tion in ordering a sale of the property, need of the property of the partnership made by not direct the sheriff how and where to give the sheriff. Objections to the confirmation the notice of sale provided by Code Civ. Proc. of said sale were filed by appellant, and (185 P.) after hearing evidence both for and against { "That before interlocutory judgment was ensuch confirmation, the court, on May 6, 1916, tered, the plaintiff filed a statement with the overruled said objections and entered an or- judge of said court, at his request, and repreder confirming the sale. Appellant thereup-sented that it was a correct statement of the on applied to the court to fix the amount of copartnership account between plaintiff and dethe bond to stay execution pending appeal, words and figures as follows, to wit.” fendant, which said statement was and is in under sections 943, 945, Code of Civil Procedure. Said application was granted, the court fixing the bond at the sum of $10,000, and such appeal was then taken and the bond given according to law. We shall refer to this as the third appeal. Then follows a copy of the statement. An examination of the interlocutory judgment discloses the fact that it is in exact accord with the said "statement." How can one escape the conclusion, it is asked, that the judgment was based thereon? June 24, 1916, respondent served upon appellant's attorneys a notice of motion, sup[3] It is urged by respondent that on an ported by affidavits, to enter final judgment appeal from a default judgment only matters in said cause. Appellant did not appear at shown by the judgment roll-consisting in this hearing, and, on June 30, 1916, the court this case only of the complaint and judggranted this motion and entered final judgment-can be considered. If no other point ment accordingly. This is the fourth appeal herein. By proper stipulation the records in all four appeals have been, for the convenience of court and counsel, included in one transcript. The appeals will be considered in the order presented. were urged by appellant than the one now under consideration it might be conceded that respondent's position would be invulnerable. Tomlinson v. Ayres, 117 Cal. 568, 49 Pac. 717; Nevada Bank v. Dresbach, 03 Cal. 324. But other points are urged, and presently we shall see the force of appelIn reference to the first appeal, it may lant's position here. For our present purenlighten the matter some if it is understood pose we call attention to the fact that, limitthat the complaint alleges that respondented to the judgment roll, we are confronted had "paid into said copartnership business, with the query: "Was the interlocutory both as capital and for the conduct and judgment warranted under the allegations of maintenance of said business, the sum of of the complaint?" If not, is it error appar$31,309.42, and has received from and on ac-ent on the face of the judgment roll? It is count of said copartnership the sum of $6,554.83 in money," leaving a net investment, as we gather from the said allegation, of $24,854.60. The statement of the account submitted to the court by respondent, and upon which the interlocutory judgment was rendered, shows the amount invested by respondent to be the sum of $43,151.22, and the amount withdrawn the same as alleged in the complaint, to wit, $6,554.83, leaving his net investment at $36,596.39-or the sum of $11,741.79 more in favor of respondent, apparently, than the allegations of the complaint authorize. Respondent contends that there is no warrant in the record for such conclusion, as already herein before set forth. [1, 2] We are confronted at the outset with the query as to whether the interlocutory judgment, so called, entered herein is a “final judgment.” If it is not, then no appeal from it is legally permissible, and the special orders, entered by the court subsequently to the entry thereof, and before the entry of the so-called judgment, are not appealable orders. Under the authority of Zappettini v. Buckles, 167 Cal. 27, 138 Pac. 696, we hold the judgment now under consideration to be a final judgment; that consequently an appeal lies therefrom, and hence that each of the special orders following said judgment was also appealable. Section 963, Code Civ. Proc. The transcript discloses, as a part of appellant's bill of exceptions, the following: true, as was said in Ohleyer v. Bunce, 65 Cal. 544, 4 Pac. 549, that an appellate court will never indulge in presumptions to defeat a judgment. What have we in this case, outside of an assumption based upon no evidence to which our attention has been called, to support appellant's claim that the judgment here was based upon the "statement" referred to? "The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue" (Section 580, Code Civ. Proc.), and "a default admits the material allegations of the complaint, and no more." Ellis v. Rademacher, 125 Cal. 556, 58 Pac. 178; Balfour, etc., v. Sawday, 133 Cal. 228, 65 Pac. 400. It is urged by appellant that the complaint contains no allegation which justifies the following-appearing as a portion of the interlocutory judgment: "That the sheriff of said county of Imperial, state of California, is hereby appointed to take possession of all said property belonging to said copartnership," etc. We think this was not in excess of the relief demanded. In other words, the language just quoted simply specifies one of the steps in a series to be taken by the said sheriff in carrying out the terms of the judg |