El Nuevo mexicano., 1916-05-04

80
servants. as well as TO discharge unfit
and incompetent fellow servants.
2. The court will not disturb a YER
dict on appeal when the same Is sup
ported by substantial evidence, but
will when the same is not supported
by substantial evidence.
3. The general rule is that q single
act Of negligence on the part of the
fellow servant, which proximately CON
tributes to the injury Of another fell
low servant, affords no proof that the
first named servant was unfit or in
competent, unless such single act was
of such a character as TO necessarily
brand or characterize him as unfit or
incompetent.
A. Where a single act Is relied up
on to show the unfitness or incompet-
ency OF a fellow servant, and the neg
iigence Of the master in selecting that
servant TO work in his employ, or in
continuing to retain such servant.
and that act indicates only e 3liGht
negligence and not incompetency,
held, that a motion for a directed YER
dict by appellant should have been
granted.
Opinion by Justice Parker: Chief
Justice Roberts and Justice Hanna
concurring.
Albright VS.. Albright
No. 1899. Claude Albright, appel
liant, VS., ]. G. Albright, ct al appel
lees. Bernalillo county. Suit OF par
til on as to separate estate Of the
mother. Judgment affirmed.
Syllabus
a. In a suit instituted by a daugh-
ter against her father for the parti-
tion of the real estate owned by her
mother at the time of her death, she
having died intestate, the uncorrobo-
rated evidence of the father Is suffi-
cient to sustain a finding by the trial
court that the real estate, standing
in the name of the wife at the time of
her death, was community property.
Section PITS, Code 1915, has no appli-
cation to a suit between heirs for the
partition Of the real estate Of their
ancestor.
2. Section 1887, C. L.. 1884, and Sec
JIOlA lDU0. III IL 1901 WulCn QOlAACA
separate property" Of the. wife and
further provided that, "and any wo-
man. may, during co~veture, receive,
take hold, use and enjoy the property
Of any and every description and all
the avails of her industry, free from
any liability of her husband on ac-
count of his debt, as fully as If she
were unmarried" construed. Held,
that the clause quoted simply exempt
ed the earnings Of the wife from liza
bility for the debts of the husband
and did not make the wife's earnings
her W separate property.
3. Under Sections 4169, and All,
Code 1915, In every amendatory o.
supplemental pleading filed by a
party, it is necessary for him TO there-
in restate his entire cause Of action,
defense or reply, and, all matters set
forth in his original pleading and not
carried forward into his amended or
supplemental pleading are abandoned,
and, a judgment for the defendant,
dismissing, a cause OF the merits, is
Res Adjudicata only as to such mat
tiers as were carried forward by n
plaintiff into his amended or supple
mental complaint,
a. Without a judgment the plea OF
res adjudicata has no foundation and
neither the verdict of a jury nor the
findings of a court or referee, even
though in a prior action upon the
precise point involved in a subsequent
action and between the same par
ties, constitutes a bar.
s. Although admissions contained
in a pleading Of a party in a former
action are admissible, the pleading
does not c~onclusively establish the
facts alleged therein and is open to
explanation or rebuttal.
Opinion by Chief Justice Roberts,
Justices Parker and Hanna concur
ring.
State VS.. Pine
No. 1874. State of New Mexico, APP
VS., lose Antonio Pine, appel
liant. Bernalillo county. This appeal
is from a conviction for larceny of