Merino

Plaintiff recovered judgment before the trial court and defendant appeals from the judgment, and also from the order denying its motion for a new trial.

The cause of action, as stated in plaintiff’s complaint, is one based upon the provisions of section 26 of the Workmen’s Compensation Act (Stats. 1917, p. 831, as amended Stats. 1927, p. 1213). This section provides as follows: “The claim of an employee for compensation shall not affect his right of action for damages arising out of injury or death against any person other than the employer; and any employer having paid, or having become obligated to pay compensation, may likewise bring an action against such other person to recover said damages.”

The facts involved are comparatively simple and, in so far as material to the questions presented upon this appeal, are admitted or supported by uncontroverted evidence. Plaintiff, at a date prior to the accident here involved, had contracted with defendant to sack ground clay from storage tanks constructed and maintained by defendant at its mining and refining plant situated at Death Valley Junction, California. The clay, after being ground in mills, was then transported by a screw…