appreciate" the danger to bar his recovery in case of an obvious peril, and the Roseberry Act having made a part of our liability law the doctrine of "comparative negligence."

There is a contention in the opening brief of appellant that the verdict is excessive and should be set aside for that reason, but the point does not seem to be insisted upon in the final brief. We may say, however, that a complete answer to the suggestion is found in Zibbell v. Southern Pacific Co., 160 Cal. 237, [116 Pac. 513], and Scragg v. Sallee, 24 Cal. App. 133, [140 Pac. 706].

The case, as we view it, was fairly, conscientiously, and ably tried by the learned judge who presided, and after an examination of the whole record, we are satisfied that the verdict should not be disturbed.

The judgment and order are affirmed.

Chipman, P. J., and Hart, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on January 28, 1918, and the following opinion then rendered thereon:

BURNETT, J.-We have given careful attention to the forcible and instructive petition for rehearing filed herein by appellant. The position urged with the strongest reason relates to the effect of the so-called saving clause in the said Workmen's Compensation Act of 1913. It may be admitted that the language was not very happily chosen to express the intention of the legislature that the law in force at the time should apply to an accident occurring prior to January 1, 1914, but that such was the intention of the legislature we feel reasonably satisfied. Otherwise, said section 91 of the act of 1913 could have no purposeful and effective operation.

If we adopt the reasoning of appellant we must hold that there is no statutory law in force in this state whereby respondent may secure any remedy for the wrong that she suffered. The said act of 1913 was intended to present and embody a complete scheme for the enforcement of a cause of action like that before us, and it is apparent that all prior legislation on the subject is inconsistent with the provisions of said act. But this statute manifestly can be of no value or benefit to respondent, since by express provision the vital

part of the act can have no application to any negligence occurring prior to January 1, 1914.

We do not think the legislature intended that there should be no statutory provision whereby persons in the class of the plaintiff might secure redress for their injuries, but that a fair and just construction of said saving clause leads to the conclusion that respondent's case was to be controlled by the law as it existed when she was injured.

We also think it should be held that plaintiff's right of action was a vested right which could not be taken away by the repeal of said Roseberry Act. At the time the accident happened she was at work under the operation of a law which provided that if injured by the negligence of her employer, she was entitled to damages for the same although she might be guilty of slight negligence herself. In other words, the law provided that a certain class of persons was entitled to be compensated by the employer for personal injuries suffered by the former. Plaintiff showed that she belonged to that class and, therefore, had a vested right to such compensation. The subject was carefully considered by this court in the case of James v. Oakland Traction Co., 10 Cal. App. 785, [103 Pac. 1082], in which a petition for hearing by the supreme court was denied. Therein it was held, in an opinion written by Justice Hart, that "Where section 501 of the Civil Code, as it stood at the time of the injury, regulated the speed of the car so as not to exceed eight miles per hour, such section as it then stood entered into and became part of the contract between the carrier and passengers, which conferred a vested right to recover for breach of such contract, and the subsequent repeal thereof in 1903 cannot operate retroactively to destroy or affect such vested right." We think the same principle is applicable here. The conditions prescribed in the said Roseberry Act constituted a part of plaintiff's contract with defendant, and the question is not, therefore, one of abrogating or changing a statutory remedy, but the construction upon which appellant insists involves an interference with and the destruction of a vested right of an employee sustaining a certain relation to the employer.

The cases cited by appellant-at least, most of them-can be reconciled with our position herein, as they involve a purely statutory right, whereas we are dealing with an obli

gation based upon the common law which is made definite and enforceable by the provisions of the statute.

We may repeat that if plaintiff's right to recover for damages was derived wholly from the statute the legislature, no doubt, while said right was inchoate and not reduced to possession or perfected by final judgment, might repeal the statute and destroy the remedy, but a different rule seems to apply where, as herein, the right is really derived from the common law.

We think the said Roseberry Act and section 1970 of the Civil Code were applicable to the case of the plaintiff, and on the other points we adhere to the views heretofore expressed. The petition for rehearing is denied.

Chipman, P. J., and Hart, J., concurred.

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 February 25, 1918.

[Civ. No. 2241. First Appellate District.—December 29, 1917.] HAROLD F. GRAZER (a Minor), by Annie M. Grazer (His Guardian), Appellant, v. THERESA FLANAGAN et al., Respondents.

LANDLORD AND TENANT-LIABILITY TO MAKE REPAIRS COMMON-LAW RULE.-At the common law a lessor is not liable to make repairs to a structure rented as a dwelling-house unless by force of an express contract or covenant; the tenant takes the premises for better or for worse, and cannot involve the landlord in expense for repairs without his consent.

ID. FAILURE TO REPAIR-REMEDIES OF LESSEE.-In this state, in the absence of an express contract relating to repairs, sections 1941 and 1942 of the Civil Code are controlling, and for failure to repair the lessee has either of two remedies, viz., (a) treat the failure to repair as a breach of the lease and vacate the premises; or (b) himself make the repairs at the expense of the landlord after notice to him, providing they do not entail an expenditure of more than one month's rent.

ID. BREACH OF COVENANT TO REPAIR - DAMAGES FOR PERSONAL INJURIES NOT RECOVERABLE.—In an action for damages for breach of the landlord's covenant to repair, damages for personal injuries sustained by the tenant or any member of his family are not recoverable.

ID.-ACTION FOR INJURIES-PLEADING

INSUFFICIENT COMPLAINT.-In an action against a landlord for damages for personal injuries sustained by a minor son of the tenant, resulting from the negligent failure of the landlord to make repairs, the complaint fails to state a cause of action where it is alleged that the defect which caused the injuries was obvious and known to exist before the tenancy began, and no facts and circumstances are alleged attending and explaining the accident which would relieve the plaintiff of the inference of contributory negligence.

APPEAL from a judgment of the Superior Court of Alameda County. Everett J. Brown, Judge.

The facts are stated in the opinion of the court.

Ostrander, Clark & Carey, and A. J. Woolsey, for Appcl

lant.

Fitzgerald, Abbott & Beardsley, for Respondents.

KERRIGAN, J.-This is an appeal from the judgment entered upon an order sustaining defendant's demurrer to plaintiff's amended complaint in an action brought to recover damages for personal injuries.

The action is through the plaintiff's guardian, and the injuries are alleged to have been sustained by plaintiff as a consequence of an explosion of gas occurring upon certain premises which had been rented to the plaintiff's parents by the owners thereof to be occupied as a dwelling.

Stripped of legal verbiage, it appears from the complaint that on the twenty-third day of March, 1915, the plaintiff's mother and a real estate agent, one of the defendants, visited the house in question, and after an inspection of the same and some negotiations, it was agreed that the plaintiff's parents should become the tenants of the property at a monthly rental of $18.50; that while the rent should not commence until April, the tenant should have the privilege of taking possession on the 25th of March, and it was further agreed that the owners of the property represented by the agent should

place the premises in proper repair for habitation, and that they, through their said agent, "in particular did promise to place in proper condition for use a certain gas-pipe in said dwelling-house . which was at the time without a cap or other appliance to prevent the escape of gas." It is also alleged in the amended complaint that on said twenty-fifth day of March, while the plaintiff was assisting his parents in moving into the dwelling-house, and while in that portion of the house in which said uncapped gas-pipe was situated, there was an explosion of escaped gas from the uncapped pipe, which explosion caused the personal injuries set forth in the complaint. The demurrer was general and special, and the question presented by the record and the briefs is, Does the complaint state a cause of action against the defendants?

At the common law a lessor is not liable to make repairs to a structure rented as a dwelling-house unless by force of an express contract or covenant; the tenant takes the premises for better or worse, and cannot involve the landlord in expense for repairs without his consent. (Van Every v. Ogg, 59 Cal. 563.) The Civil Code, however, in section 1941, provides that the lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it in a condition fit for such occupation, and repair all subsequent dilapidations thereof which render it untenantable. The succeeding section (1942) gives the option to the tenant, after notice to the landlord, to make repairs not requiring an expenditure of more than one month's rent, the same to be deducted from the rent, or to vacate the premises and be discharged from performance of the conditions of the lease. In the absence of an express contract relating to repairs, sections 1941 and 1942 control; and in such case it is held that the statutory liability of the lessor declared in 1941 is limited by the provisions of 1942, so that for failure to repair the lessee has either one of two remedies, viz., (a) treat the failure to repair as a breach of the lease and vacate the premises; or (b) himself make the repairs at the expense of the landlord after notice to him, providing they do not entail an expenditure of more than one month's rent. (Van Every v. Ogg, supra; Sieber v. Blanc, 76 Cal. 173, [18 Pac. 260]; Gately v. Campbell, 124 Cal. 520, [57 Pac. 567].)