need not here be considered. Counsel for the defendant insisted upon the right to have the question of the plaintiff's residence determined in advance of the hearing on the application for an allowance of attorney's fees and costs, and in this contention he was sustained by the trial judge who, as appears from the petition and return herein, has refused to consider the motion for such allowances. On the other hand, the court proposes to proceed in advance of the trial of the case to a hearing of the motion to dismiss the suit and to determine the truth of the allegation of plaintiff's complaint that she has been a resident of the state of California for a period of one year and of the county of San Diego for a period of ninety days next preceding the commencement of her action. The question presented is as to whether the plaintiff, this petitioner, in view of her verified assertion that she is without means to live or prosecute the action, is entitled to have her application heard in advance of the trial of the main issues. As appears from the petition, the trial judge is of the opinion that the question of the plaintiff's residence, where challenged, must be first established before any jurisdiction rests in the court to make to her any allowance provided to be made under the provisions of the Civil Code. We cannot agree with the view taken by the learned trial judge on that proposition. In the case of Estate of McNeil, 155 Cal. 333, [100 Pac. 1086], it is said: "Section 128 of the Civil Code, relative to residence of the plaintiff, does not impose any limitation on the jurisdiction of the superior court in the matter of divorces, but simply prescribes certain facts essential to the making out of a case warranting a divorce, and allegations in regard to residence stand upon the same footing as any other allegation of facts showing the right to a divorce." Admitting, as we must for the purpose of this motion, that the petitioner is without means to prosecute her divorce action, is to admit that she is without means of meeting the objection raised by the defendant as to one. of the material issues in the case. That issue is to be treated as any other issue of fact, and the wife should in a proper case be furnished with funds by her husband in order that she may employ counsel and produce such evidence as may be available to her. To say that she is entitled to have her motion for a preliminary allowance heard by the court before. being required to meet the defendant on issues regularly proposed by the complaint is not to say that the court must make such allowance, for that is a matter which the discretion of the trial judge will regulate altogether upon the hearing of the motion. But it appears clear to us that the petitioner is entitled to have her application considered in advance of the determination of any question of residence which the defendant has sought to interpose in advance of the trial. Peremptory writ of mandate is ordered to be issued, requiring respondent superior court to proceed in accordance with the conclusions expressed in this opinion; petitioner to have her costs. Conrey, P. J., and Shaw, 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 December 11, 1916. [Civ. No. 1389. Second Appellate District.-October 12, 1916.] LUVISA DELLARINGA, Appellant, v. E. T. HOOKER et al., Respondents. DISMISSAL OF ACTION-ORDER SETTING ASIDE-APPEAL-AFFIRMANCE OF ORDER.-Upon an appeal taken from an order setting aside an order dismissing an action entered upon the written request of the attorneys for the plaintiff, the order appealed from must be affirmed, where the record shows that the defendant prior to the order of dismissal had filed an answer asking for affirmative relief, and no stipulation authorizing the dismissal is furnished. APPEAL from an order of the Superior Court of Kern County setting aside an order dismissing an action. Paul W. Bennett, Judge. The facts are stated in the opinion of the court. W. W. Kaye, Rowen Irwin, and Emmons & Hudson, for Appellant. John F. Poole, for Respondents. JAMES, J.-This appeal was taken from an order of the superior court made on the motion of defendant E. T. Hooker. This order directed that an order of dismissal of the action theretofore entered upon the written request of the attorneys for the plaintiff, be set aside. The action was to quiet title and defendant Hooker had answered prior to the request made for the dismissal of the action, in which answer he set up ownership in the property in controversy and asked for an adjudication to be made in his favor. A clerk's transcript was prepared under the alternative method of appeal, and that is the only document which has been filed in this court. At the time set for oral argument, no counsel for appellant appeared, and counsel for respondent being present stated that the controversy had been settled and that only moot questions were therefore now involved. However, the appellant, upon being advised of the suggestion made, has failed to furnish any stipulation upon which to authorize the court to enter an order of dismissal. We are left without any argument offered by the appellant to sustain the appeal taken. An examination of the record discloses to our minds no reason why the order of the court should be disturbed. The order is affirmed. Conrey, P. J., and Shaw, J., concurred. [Civ. No. 2044. Second Appellate District.-October 12, 1916.] ROY KIRKPATRICK et al., Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION et al., Respondents; JAMES MCLEOD, Applicant. WORKMEN'S COMPENSATION ACT-DEATH OF EMPLOYEE OF TEAMING COMPANY-HIRING OUT OF TEAM AND EMPLOYEE TO THIRD PARTYLIABILITY OF EMPLOYER.-Under the terms of the Workmen's Compensation, Insurance and Safety Act, a person engaged in the business of contract teaming and hauling is liable to the dependent parents of an employee for his accidental death while engaged in hauling lumber for a lumber company, where he, in pursuance of a request made to his employer by the lumber company for a team and driver, was directed by his employer to perform such work. ID.-MEANING OF TERMS "EMPLOYER" AND "EMPLOYEE."-The Workmen's Compensation, Insurance and Safety Act, in sections 13 and 14 thereof, furnishes its own definition of the terms "employer" and "employee." The former term includes every person who has any person in service under any contract of hire, express or implied, and the latter term includes every person thus in the service of such employer. ID. COMPENSATION TO DEPENDENTS OF KILLED EMPLOYEES-CONSTITUTIONALITY OF ACT.—The provisions of the Workmen's Compensation Act authorizing the payment of compensation to dependents of employees whose death has resulted from injuries received in the course of their employment, are constitutional. 'APPLICATION for a Writ of Review, originally made to the District Court of Appeal for the Second Appellate District, to review an order made by the Industrial Accident. Commission awarding compensation for death. The facts are stated in the opinion of the court. Hickcox & Crenshaw, for Petitioners. Christopher M. Bradley, for Respondents. CONREY, P. J.-A writ was issued in this proceeding to review an order of the Industrial Accident Commission whereby it awarded to the dependent parents of one Jay McLeod compensation for his accidental death while in the employ of Roy Kirkpatrick, defendant in that case and one of the petitioners herein. Jay McLeod was regularly employed by Kirkpatrick as a driver and teamster in connection with Kirkpatrick's business, which was that of contract teaming and hauling. On that day the Blinn Lumber Company requested the Pasadena Transfer Company to furnish a team and driver for the delivery of some lumber. The Pasadena Transfer Company called upon Kirkpatrick to furnish a team. and driver to fill this order. Thereupon Kirkpatrick directed McLeod to take his team and do the hauling required. As Kirkpatrick did not have a wagon suitable for hauling lumber, a wagon of the Pasadena Transfer Company was used. While using said wagon and the horses of Kirkpatrick in hauling lumber for the Blinn Lumber Company the accident occurred which resulted in the death of McLeod. The Southwestern Surety Insurance Company is the insurance carrier for Kirk patrick, and had insured him against liability for compensation for injuries sustained by his employees in connection with his business. Petitioners' first contention is that at the time of the accident McLeod was not the employee of Kirkpatrick, but was the employee of the Blinn Lumber Company, and that therefore Kirkpatrick was not liable for compensation to McLeod or to his dependents. The argument is based upon rules which often have been enforced in cases arising out of injuries to third persons through negligence of employees, and cases arising out of negligence resulting in injuries to employees, wherein it became necessary to determine who was the employer or master responsible for the acts of the servant or liable for injuries to the servant. It has sometimes been held that where the direct or immediate employer furnishes his servant to a third person to do work of the latter, and places the employee under the exclusive control of such third person in the performance of the work, the employee becomes for that particular purpose the servant of him to whom the employee is furnished; with resultant responsibility on the part of the employer whose work is being done. An instance of this kind is shown in Cotter v. Lindgren, 106 Cal. 602, [46 Am. St. Rep. 255, 39 Pac. 950]. It was there held that the defendant, who was the first or general employer of the servants whose negligence caused plaintiff's injuries, was not responsible for their negligence, because the work in which the servants were employed was not work of the defendant, and the defendant had not at that time the control or right to control or supervise the conduct of the servants in doing that work. But even in negligence cases it does not always follow that the general employer is freed from responsibility by the mere act of hiring out his employees to third persons to be used by them in the performance of their work. Thus in Stewart v. California Improvement Co., 131 Cal. 125, [52 L. R. A. 205, 63 Pac. 177, 724], the defendant company had employed one Conger as engineer to manage a steam-roller owned by it. The steam-roller, with the engineer in charge, was hired out by the company to the city of Oakland for use in rolling and leveling a street, such use being under the direction of the superintendent of streets. The plaintiff suffered injuries caused by negligence of the engineer, who carelessly let off steam from the engine without giving warning |