Thereafter, and on August 31, 1915, the defendant's demurrer was overruled, and on October 11, 1915, the latter filed its answer and also filed what it denominated as both a counterclaim and a cross-complaint, but which in reality was only a counterclaim. (Code Civ. Proc., sec. 437; ThomasFruit Co. v. Start, 107 Cal. 206 [40 P. 336]; PickwickStages v. Board of Trustees, 189 Cal. 417 [ 208 P. 961].) Thereafter for approximately ten years no action was taken by either party.
Thus, in the case of a "gratuitous employee" he is guilty of a "culpable degree of negligence" when he is guilty of gross negligence (italics added; Lab. Code, § 2850; see Burke v. Zanes, supra, 193 Cal.App.2d 773, 780); and in a case of an employee for a consideration, he is guilty of a "culpable degree of negligence" when he fails to use ordinary care (italics added; Lab. Code, § 2854), consistent with the degree of skill required and to be used as provided in Labor Code sections 2858 and 2859. (See Thomas Fruit Co. v. Start, 107 Cal. 206 [ 40 P. 336], construing former Civ. Code, §§ 1983 and 1984, upon which Lab. Code, §§ 2858 and 2859, respectively, are based.) In our view the word "culpable" is used in its dictionary definition, that is, "conducive to accident, loss, or disaster" (Webster's 3d New International Dictionary) and in the context of active participation in the wrongful act.
The process of reasoning is that by which the identity of a substance in gross is established by the identity of a sample. (See 2 Wigmore, (3d ed.) § 439; Thomas Fruit Co. v. Start, 107 Cal. 206, 209 [40 P. 336]; Albers Milling Co. v. Carney (Mo.) 341 S.W.2d 117, 122, 123.) The inference that the capsule contained heroin is strengthened by defendant's testimony, unbelieved by the jury, that the capsule was empty, that he discarded it; by his denial that Muns had said, "There's a half a cap for you, man" and of other statements made by Muns as testified to by the officer; and by defendant's account of the circumstances surrounding his putting the capsule into his mouth and spitting it out.
Our research has not developed a case of this state which is closely parallel. The nearest in point of any case located is Thomas Fruit Co. v. Start, 107 Cal. 206 [40 P. 336]. In that case plaintiff sued to recover compensation for the drying of prunes.
It may be well to notice briefly the citations of appellants to the point that such liability does exist. Section 1197 of the Code of Civil Procedure that "Nothing contained in this chapter shall be construed to impair or affect the right of any person to whom any debt may be due for work done or materials furnished, to maintain a personal action to recover such debt against the person liable therefor," simply means that the right to a lien as provided in said chapter is not the exclusive remedy but, in addition, the person furnishing the work or materials may recover the amount due from the one who promised to pay it, or, as stated in Central L. M. Co. v. Center, 107 Cal. 197, [40 P. 336], "the personal action provided for is a simple action upon the contract against the person who purchased the materials, whether contractor or owner, and has no reference to the lien given by the statute." Brennan v. Swasey, 16 Cal. 141, [76 Am. Dec. 507], involved the question whether plaintiffs waived their lien by causing an attachment to be issued and levied upon property of the debtor to secure the same demand.
It is quite true that Davis, having bought the materials from plaintiff as owner, was personally liable for the full amount, whether the property was sufficient to pay it or not; and it is also true that section 1197 of the Code of Civil Procedure provides that: "Nothing contained in this chapter shall be construed to impair or affect the right of any person to whom any debt may be due for work done or materials furnished to maintain a personal action to recover such debt against the person liable therefor." But, where the action is to foreclose the lien, the defendant being also personally liable, the whole amount due is ascertained, "and whenever, [40 P. 336] in the sale of the property, there is a deficiency of proceeds judgment may be docketed for the deficiency in like manner and with like effect as in actions for the foreclosure of mortgages" (Code Civ. Proc., sec. 1194), while the personal action provided for is a simple action upon the contract against the person who purchased the materials, whether contractor or owner, and has no reference to the lien given by the statute. And in such action the plaintiff, even though he filed a lien, cannot include the cost of filing, nor can he recover attorney's fees, those items being incident to a foreclosure of the lien and not to the personal action.