author: ME. JUSTICE PIGOTT'

text:
    SNOOK, Respondent, v. CITY OF ANACONDA, Appellant.
    (No. 1,348.)
    (Submitted October 10, 1901.
    Decided December 2, 1901.)

      Municipal Corporations — Cities—Defective Streets — Duty of City — Liability—Personal Injury — Negligence — Pleading• —Damages—Evidence—Instructions.

    1. A city organized under Compiled Statutes 1887, General Laws, Fifth Division, Chapter XXII, being authorized to provide means by taxation to-_ improve its streets, and by Section 325 to establish and improve streets, and by Section 435 given exclusive control of its streets, is responsible for damages occasioned by reason of its negligently permitting its streets to-become and remain in a dangerous condition.
    2. In an action for damages occasioned by a defect in a street, it is only where the complaint shows that the proximate cause of the injury was the-plaintiff’s own act, that plaintiff must allege (and prove) that in thus acting he was free from negligence.
    3. where, in an action against a city for damages resulting from a defective street, the complaint, after alleging defendant’s negligence, alleges that the-injury was received “without fault or negligence on plaintiff’s part,” contributory negligence is a matter of defense.
    4. Where, in an action against a city for damages resulting from a defective-street, it is admitted that the city, through its mayor and council and police, had personal knowledge of the defect before the accident, the error, if any, in admitting evidence that the overseer of streets said several days-after the accident that he knew of the defect, and had intended to repair it, was without prejudice.
    5. In an action against a city for injuries resulting from a defective street,, questions asked defendant's overseer of streets as to its rules in relation to doing street work on Sunday were properly excluded.
    6. where a bridge in a city street is destroyed, the duty of the city to repair-the street or give warning of the danger to travelers is not affected by the fact that the day after the defect was caused happens to be Sunday.
    7. In an action for injuries resulting from a defective street, a charge that the jury may take into consideration as an item of damages the probable-consequences, so far as proved, of the personal injuries received by the: plaintiff, if any are proved, is proper.

      Appeal from District Court, Deer Lodge County; Theo. Brantly, Judge.

    AotioN by George A. Snook against the City of Anaconda. From a judgment for plaintiff, defendant appeals.
    Affirmed.

      Mr. T. O'Leary, Mr. J. B. Boarman and Mr. JEL. B. White-hill, for Appellant.
    I.

      The court erred in ovewuling the demurrer to the complaint.

    One of the grounds stated is: “That the complaint does not state facts sufficient to constitute a cause of action.” As will be seen on an examination; of the complaint and statement of the case. The action is brought by a private individual against a municipal cóiqioration, claiming damages for the neglect of a public duty ' by the corporation. The exact question raised ' in this demurrer was before this court in the case of Sullivan v. City ■ of 'Helena,, 10 Mont. 134. But it cannot be said that the question was then definitely settled by the court on a fair investigation of the merits of the controversy. Chief Justice Blake in his opinion says: “We already intimated that we do not intend to enter upon the difficult task of pursuing an independent investigation and ascertaining the true principles of law in determining the effect of statutes upon decisions. Our opinion is controlled by an important consideration of another nature.” The consideration referred to by the learned judge was that the decision of Nebraska City v. Campbell, and Barnes v. Distinct of Columbia, by the Supreme Court of the United States,, were binding upon the courts of the territory, nor was the question considered in the case of Sweeney V. City of Butte, 15 Mont. 274. In this case the court says: “One ground for the motion of a new trial was that there was no statute in this state making municipal corporations liable for injuries such as plaintiff complains of. This proposition, however, was upon the argument abandoned by tbe appellant.’’ Tlie action in tbe case of Sullivan v. Gity of Helena was fox injuries received August 29, 1888, and tbe case wras filed December, 188S. Tbe injuries sustained by plaintiff were by reason of an excavation in one of tbe streets, wbicb excavation was made by permission, of tbe building* committee of tbe city council of Helena. Tbe action in tbe case of Siveeney v. City of Butte, was for injuries received by tbe plaintiff falling through a trap' door into a cellar under tbe sidewalk. Tbe city authorities knew of tbe nature and construction of this trap, and of its existence for a period of two years. Thus it will be seen that the actions in these cases are based on very different statements of facts from those of tbe present case. Nor does tbe same reason exist today for this court to be governed by tbe decisions of tbe Supreme Court of tbe Hnited States as did in territorial days. Nor should tbe rule of stare decisis be adhered to, and tbe decision in tbe case of Sullivan v. Gity of Helena be considered as a precedent in determining this question in this case. Tbe city of Helena was organized and working under a special charter, and not under tbe general law under wbicb tbe city of Anaconda was incorporated. There is no statute in Montana fixing, upon cities a liability for injuries sustained through a neglect to perform a public duty. Nor does the complaint in this action make such allegation. Tbe great weight of American authority is in favor of tbe rule that a private action cannot be maintained against a town, county or other qua-si public corporation for the neglect of a public duty, or of a duty imposed alike upon all similar corporations, unless tbe liability to such an action is expressly created by statute. In some of tbe states, however, tbe liability is expressly imposed upon municipal corporations by tbe statutes. (Buswell on Personal Injuries (2d Ed.), Secs. 53 and 60, and cases cited in note 1, page 19, and note 1, page 91; Hastman v. Meredith, 36 N. H. 284; Ohope v. City of Eureka, 78 Cal. 588; Arnold v. Gity of San Jose, 81 Cal. 618; Detroit v. Blakely, 21 Mich. 841; Arkadelphia v. Windham, 49 Ark. 139; Eastman v. Clackamas County (Ore.), 32 Fed. Rep. 24;
      Young v. City Council of Charleston, 20 S. CL 116; Cooley on Torts, Sec. 622, p. 626; 2 Thompson on Negligence, p. 692, '734, note.)
    . It- appears from the complaint that the negligence charged against the defendant is and was the negligence of “a duly appointed and acting street commissioner.” The doctrine of respondeat superior, being founded upon the supposition that the master derives some benefit from the act of a servant, does not apply to a public officer as to- the agent whom he employs in the discharge of a public duty. (Buswell on Personal Injuries, Sec. 51; Territory v. Board of Commissioners, 8 Mont. 412; City of Richmond v. Long, 94 Decs. 461; Stewart v. New Orleans, 61 Id. 218.)
    In an action for p< rsonal injuries, when the complaint shows that the proximate cause of the injury was the plaintiff’s own act, it does not state a cause of action if it fails to allege that such act was done in the exercise of reasonable care and prudence. The complaint in this action makes no such statement. (Kennon v. Gilmer, 4 Mont. 451.) Por these reasons we believe the demurrer to the complaint was good and should have been sustained by the court-.
    II.

      The daonages awao'ded were excessive.

    In such case as the one at ban the rule of law is that even a wrongdoer is only liable for the proximate consequences or his act or default. The plaintiff may recover not only the amount of damage which he suffered prior to the commencement of the- action, but also the damage proceeding continuously from the injury up to the verdict and which it is reasonable certain that he will suffer in the futura There must be a reasonable certainty as to such future damage. A mere probability of its occurrence is not enough. (Sherman & Bedfield, Negligence, Secs. 595-597.)
    III.

      The evidence is insufficient to justify the verdict.

      Tbe complaint in- this action shows that the approximate cause of injury was plaintiffs own act in riding his bicycle into an excavation made by the falling of a portion of the bridge on Chestnut street. In such case it is incumbent upon plaintiff to prove, in addition to the negligence of the defendant, that in the doing of the act he was free from contributory negligence. {Ryan v. Gilmer, 2 Mont. 250; Kennon v. Gilmer, 4 Id. 451; Prosser v. M. 0. Ry. Go., 1Y Id. -388.) There was no proof of negligence on the part of the defendant in causing the defect on the bridge, or of any unreasonable delay in repairing the same, or of any neglect in failing to place proper signals of danger at the broken bridge. Nor does the evidence show that the plaintiff was free from any contributory negligence or that he was using reasonable care at the time of the accident. In such case it is not enough to prove a defect in the street and that plaintiff was injured thereby. No presumption of negligence can arise from such evidence. (Kennon v. Gilmer, 4 Mont-453; Hunt v. Mayor, etc. of New York, 109 N. T. 134.)
    A city does not insure the safety of the people who travel upon its streets. The evidence shows that there was an unusual flood at 'the time, which came down from the mountains, flooding the streets throughout the city. As soon as it was discovered that the bridge on Chestnut street had fallen the defendant used all reasonable care, under the circumstances, on its'part to protect the public. The falling of the bridge was not caused by any act or omission of duty on the part of the defendant. It was not shown that any act of the defendant was done out of the usual co-urse. Nor was there any circumstance shown calling for greater cafe or caution than was taken by defendant id this case. The injuries suffered by plaintiff are clearly shown by the evidence in the case to have been the result of inevitable accident for which no one can be made responsible, even if plaintiff himself was free from fault or negligence. (Sheart man & Redfield, Negligence, Sec. 5 ; Hathaway v. Chicago, etc'.Ry. Go., 51 Mich. 566.

      Messrs. Rodgers & Rodgers, for Respondent.
   ME. JUSTICE PIGOTT'

delivered the opinion of the court.

Action to recover damages for bodily injuries alleged to have been caused by the negligent omission of the defendant to keep one of its streets in repair. Verdict for $2,000. The defendant appeals from the judgment and from the order denying its motion for a new trial.

: 1. The alleged facts stated in the complaint are, in substance, ¿s follows: The defendant, - a municipal corporation, is a city of the second class. One of its duties is to maintain its streets in safe condition. Long before the time of the accident to the plaintiff, the defendant by ordinance assumed the duty mentioned, established public streets, created the office of street commissioner, and imposed upon and delegated to him the duty of keeping the streets in repair. Chestnut street is, and for many years prior to the accident has been, a duly-established street and a common thoroughfare under the control and management of the defendant. On this street was a bridge, placed and maintained there by the defendant. About the 5th day of April, 1891, the bridge became out of repair and was washed away, leaving a deep cut across the street, which was dangerous to the life and safety of any person who might travel over the street at night, the existence of which cut was known, or ought to have been known to the defendant and its officers. With full knowledge of the destruction of the bridge and. the existence of the cut, the defendant negligently and wrongfully permitted the bridge to remain out of repair, and the cut to remain unprotected and uncovered, and wrongfully and negligently failed to place any light or signal on or about the cut to warn persons traveling over the street of the dangerous condition thereof. On the night of Sunday, the 18th of April, 1891, while the cut was in the street and while it was negligently exposed and left unguarded and without any light or signal of any nature whatsoever to warn persons traveling on the street of the danger, the plaintiff was lawfully traveling on the street and was wholly unaware of any danger and of the presence of the cut, and while lawfully riding a bicycle thereon, he accidentally, without any fault or negligence on his part, ran into the cut, was thrown violently off of his bicycle, and was precipitated upon the ground and into the cut, whereby he received great bodily injury.

To the complaint the defendant demurred for insufficiency, contending: First, that a municipal corporation proper, such as-the defendant, is not liable for negligence in the care of its streets; and, second, that the complaint shows the proximate cause of the injury to have been the plaintiff’s own act, and does not allege that such act was done in the exercise of reasonable care. The demurrer was overruled, and this action of the court is the first error specified.

The defendant, the city of Anaconda, was organized under provisions which now appear in Chapter XXII of the Fifth Division, General Laws, Compiled Statutes of 1887. By Section 325 of that Chapter the defendant, through its council, was empowered to lay out, establish, open, alter, widen, extend, pave, or otherwise improve the streets within its limits; and by Section 435 the exclusive control of the streets was a power confided to the city. The same Chapter provides means, through taxation, by which these powers may be exercised. Similar powers are granted by Sections 4800, 4875, 4876, 4877, 4878, 4879 and 4880, of the Political Code. Section 4700 provides that “a city or town is a body politic and corporate, with the general powers of a corporation, and the powers specified or necessarily implied in this title, or in special laws heretofore enacted.” The power to repair, coupled with the exclusive control of the streets, made it the ministerial duty of the city to exercise ordinary care to the end that the streets might be reasonably safe for travel. The duty thus imposed is not legislative or judicial in character, but ministerial. Having the power to keep its streets in repair, the defendant was bound to exercise it. The duty corresponds with, and is not less than, the power. For failure to perform that duty the defendant is liable to any one who, without fault on his part, suffers injury thereby. We had supposed that the liability of a municipal corporation proper, as distinguisbed from quasi corporations, sucb as counties and New England towns, for failure to keep in repair its streets, was no longer- an open question in this state; nor do. we think that it is. In Sullivan v. City of Helena, 10 Montana Reports, 134 (25 Pac. 94), such liability was declared, the court saying: “We have already intimated that we do not intend to enter upon the difficult task of pursuing an independent investigation, and ascertaining the true principle of law, and determining the effect of statute» upon decisions. Our opinion is controlled by an important consideration of another nature. At the December term, 1862, and prior to the organization of the Territory of Montana, the Supreme Court of the United States, in Nebraska City v. Campbell, 2 Black, 590, 17 L. Ed. 271, heard a case which arose in the Territory of Nebraska. Mr. Justice Nelson, in the opinion, said: 'The law is well settled in respect to public municipal corporations, upon which the duty is imposed to construct and repair, or to keep in repair, streets or bridges, and upon which is also conferred the means of accomplishing such duty, that they are liable for any special damage arising out of neglect in keeping the same in proper condition. The principle was fully considered at the last term in the case of Weightman v. Washington Corp., 1 Black, 39, 51-53, 17 L. Ed. 52, where all the authorities will be found collected and examined.’ ’’ After referring to Barnes v. District of Columbia, 91 United States 540 (23 L. Ed. 440) ; District of Columbia v. Woodbury, 136 United States 450 (10 Sup. Ct. 990, 34 L. Ed. 472) ; Brown v. District of Columbia, 127 United States 579 (8 Sup. Ct. 1314, 32 L. Ed. 262), and District of Columbia v. McElligott, 117 United States 621 (6 Sup. Ct. 884, 29 L. Ed. 946), the opinion proceeds: “The city of Helena was incorporated by an act of the legislative assembly of the Territory of Montana, which was approved February 22, 1881. The respondent was injured August 29, 1888, and filed December 22, 1888, his complaint in this action. During these times the decisions of Nebraska City v. Campbell, supra, and Barnes v. District of Columbia, supra, were binding upon tbe courts of tbe Territory. Witb full knowledge of tbe legal consequences of tbe proceedings^ it was duly ordained tbat 'said city of Helena hereby assumes for itself tbe care and responsibility of streets, avenues, and alleys.’ Tbe liability, wbicb bad been accurately defined, bas not been restricted by tbe legislative depmrtment, and we can presume tbat tbe rule stated by tbe Supreme Court of tbe United States was satisfactory. We tbink it is our duty under these conditions to adhere to the doctrine wbicb bas been recognized upward of twenty-five years within .the confines of Montana,, and seems to be upheld by tbe weight of modern authority;” tbe opinion closing witb a quotation from Mr. Dillon’s treatise on Municipal Corporations, approving tbe doctrine-as just and supported by tbe overwhelming weight of. authority. In tbe subsequent case of Sweeney v. City of Butte, 15 Montana Reports, 274 (39 Pac. 286), tbe contention tbat such a municipal corporation was not liable was abandoned upon argument, tbe court citing tbe Sullivan Case. In Nelson v. City of Helena, 16 Montana Reports, 21 (39 Pac. 905), and in Leonard v. City of Butte, 25 Montana Reports, 410, 65 Pacific Reporter, 425, tbe doctrine of tbe Sullivan Case was impliedly, but none tbe less necessarily, recognized and followed. Albrittin v. Mayor and Aldermen of Huntsville, 60 Alabama Reports, 486 (31 Am. Rep. 46); Noble v. City of Richmond, 31 Grattan (Va.), 271 (31 Am. Rep. 726) ; Clark v. City of Richmond, 83 Virginia Reports, 355 (5 S. E. 369, 5 Am. St. Rep. 281) ; Conrad v. Trustees of the Village of Ithaca, 16 New York Reports, 158; Hines v. City of Lochport, 50 New York Reports, 236; Nelson v. Village of Canisteo, 100 New York Reports, 89 (2 N. E. 473) ; Pettengill v. City of Yonkers, 116 New York Reports, 558 (22 N. E. 1095, 15 Am. St. Rep. 442); City of Denver v. Dunsmore, 7 Colorado Reports, 328 (3 Pac. 705); Grove v. City of Fort Wayne, 45 Indiana Reports, 429 (15 Am. Rep. 262) ; Hutson v. Mayor, etc. of New York, 9 New York Reports, 163 (59 Am. Dec. 526) ; Cline v. Crescent City Rail- mad Company and City of New Orleans, 43 Louisiana Annual Reports, 327 (9 South. 122, 26 Am. St. Rep. 187) ; Sutton v. City of Snohomish, 11 Washington Reports, 24 (39 Pac. 273, 48 Am. St. Rep. 847); Cleveland v. King, 132 United States Reports, 295 (10 Sup. Ct. 90), are among the great number of cases announcing the same rule. Por a collection of the cases upon this question we refer to Elliott on Roads and Streets, 2d Edition, Sections 611-614, pages 642-649; to Dillon on Municipal Corporations, 4th Edition, Sections 1017-1024, pages 1279-1296; to Tiedeman on Municipal Corporations, Section 339, page 680; to Morrill on City Negligence, Chapter VII, page 72; to Jones on Negligence of Municipal Corporations, Chapter VIII, page 113; and to Williams on Municipal Liability for Tort, Section 70, page 108. We have, however, examined the question in the light of the authorities and of reason; and we believe the decision in the Sullivan Case to be correct. Since 1890 that case has been accepted and followed as the settled law in Montana; the legislative assembly has not seen fit to change the rule there announced. If the people wish to exempt cities and towns from liability for neglect to repair streets, they may do so through that department of the government which makes the statute law, — courts may only interpret the law. So far, therefore, as the first objection to the complaint is concerned, the overruling of the demurrer was proper.

Nor is the other objection tenable. In Kennon v. Gilmer, 4 Montana Reports, 433 (2 Pac. 21), it was held that where the complaint shows that the proximate cause of the injury was the plaintiff’s own act, he must allege (and prove) that in thus acting he was free from negligence. The complaint in the case at bar does not show, either directly or indirectly, that the proximate cause of the injury was the act of the plaintiff. This is a sufficient answer to the objection; another is that the complaint states that the accident occurred and the injury was received “without any fault or negligence on plaintiff’s part.” Under these circumstances contributory negligence is a matter of ■ defense. (Nelson v. City of Helena, supra; Prosser v. Montana Central Ry. Co., 17 Mont. 372, 43 Pac. 81, 30 L. R. A. 814.) Tbe complaint is not obnoxious to tbe objection specifically urged.

2. It is claimed tbat tbe damages awarded were excessive. After a careful examination of tbe evidence we find it to bave been sufficient to justify tbe verdict.

3. It is next insisted tbat there was no proof of negligence on the part of the defendant. Suffice it to say tbat tbe evidence tending to show a want of ordinary care on tbe part of the city was ample.

4. Several days after tbe accident tbe plaintiff bad a conversation with tbe street commissioner in which the latter said tbat be knew tbe bridge was down, tbat be saw tbat tbe bridge was gone, and that be intended to repair it on tbe Monday subsequent to the accident. To tbe introduction of this testimony tbe defendant objected on the ground tbat tbe city could not be bound by any. statement made by the street commissioner after the time of tbe accident. The objection was overruled, tbe defendant excepting. 'Whether or not tbe testimony was inadmissible because it was hearsay we need not inquire, for tbe defendant admits that tbe city, through its. mayor and aider-men and its chief of police, bad personal knowledge of tbe fact tbat tbe bridge bad been washed out on tbe evening of tbe day cn which it fell. Counsel for tbe defendant expressly state in their brief tbat tbe defendant “already bad notice.” If tbe testimony should bave been excluded, tbe error was without prejudice, for we can see tbat its admission was harmless.

5. Tbe defendant propounded to its street commissioner when called as a witness in its behalf, tbe following questions: “State what tbe rule of the city is in relation to whether or not tbe street work is done upon Sunday.” “State whether or not since you bave been street commissioner, it has been tbe rule to require any street work to- be done on Sunday.’’ Objections to these questions as attempts to- elicit immaterial testimony was sustained, tbe defendant excepting. Tbe action of the court was correct. The questions themselves did not indicate what the answers would be, and there was no offer to show what the defendant expected to prove by the witness. Again, if the answers had been that there was a rule not to require street work to be done on Sunday, it could not have been relevant or material. The existence of such a rule could not operate so as to release the city from its legal duty to repair the street or give warning of the danger to' travelers. Toward the plaintiff the city was under the same obligation to exercise diligence on Sunday as on any other day. The suggestion that the defendant was under no obligation to use ordinary care because Sunday happened to be the day after the defect in the street was caused, is Avholly without merit. The duty of the city was the same as the duty of an individual person would have been under the same circumstances.

6. The ruling of the court in sustaining objections to questions put to a witness called by the defendant in surrebuttal, is urged as an error. It is also argued that the court erred in modifying’ certain instructions prayed for by the defendant, and in giving others. The attentive consideration we have given to the record satisfies us that there was no error preju dicial to the defendant in the rulings of the court, or in its action in modifying the instructions requested, or in its charge, —at least no error that could have been prejudicial to the rights of the defendant. The only instruction which we need notice is No. 17, which reads: “If the jury believe under these instructions and the testimony in this case that the plaintiff is entitled to recover damages from the defendant for any injuries which he has proven that he has sustained by reason of the facts set out in his complaint, then the jury have a, right to find for him such an amount of damages, not to exceed $5,000, as the jury believe from the evidence will compensate him for the personal injuries so received, and in doing so the jury have a right to consider the personal injuries received by him, if any has been proven, the probable consequences of such injuries, so far as proven, any pain or suffering he may have endured in consequence thereof, if proven, to consider bis loss of time in endeavoring to be cured, bis expenses incurred in respect thereto, in so far as the same have been proven, and any permanent injury the plaintiff may have sustained and has been proven in this case.” It is urged that the instruction is erroneous, in that it permitted the jury to take into consideration as an item of damages the probable consequences so far as proved of the personal injuries received by the plaintiff, if any were proved. In the respect adverted to, the instruction is correct, and falls within the cases of Hamilton v. Great Falls Street Railway Company, 17 Montana Reports, 334 (42 Pac. 860, 43 Pac. 713) ; Kendall v. The City of Albia, 73 Iowa Reports, 243 (34 N. W. 833) ; Swift & Co. v. Raleigh, 54 Illinois Appeal Reports, 44; and St. Louis, I. M. & S. R. R. Co. v. Cantrell, 37 Arkansas Reports, 519 (40 Am. Rep. 105).

We do not deem it necessary to notice the other specifications of alleged error. No one of them is well urged.

The judgment and the order refusing a new trial are affirmed. Let remittitur issue forthwith.

Affirmed.

The Chief Justice, having tried the cause as judge of the court below, takes no part in the foregoing opinion.


source: Caselaw Access Project

author: MR. JUSTICE PIGOTT

license: Public Domain

text:
    MAY, Respondent, v. CITY OF ANACONDA, Appellant.
    (No. 1,358.)
    (Submitted October 10, 1901.
    Decided December 2, 1901.)

      Cities — Defective Streets — Liability of City — Contributory Negligence — -Evidence—Exceptions—Appeal—Review.
    1. A city is liable for injuries resulting from its negligently permitting its streets to be and remain in a dangerous condition.

      2. The fact that Political Code, Sec. 5036, declares that every city is responsible. for injuries to property within its limits by mobs or riots, does not . indicate a legislative intent to exempt cities from liability for all other torts.
    3. Where a bowlder remains in a city street for many months, constituting a dangerous obstruction, a finding that the city was negligent in so permitting the obstruction to continue is justified.
    4. where no exception is taken to the ruling of the court in admitting evidence over defendant’s objection, the error, if any, cannot be reviewed on appeal.
    5. under Compiled Statutes 1887, General Laws, Fifth Division, Sec. 320, providing that the fee of streets shown on a city plat shall be vested in the city for the use of the public, a city which by ordinance has accepted and has improved such a street, when sued for injury resulting from a defect in the street, cannot escape liability by denying that the locality is a street.
    6. Where plaintiff was injured by collision with a bowlder in an unlighted city street, which had been used and traveled for years, while he was driving slowly along the center of the street on a dark night, — he having no knowledge of the bowlder, — such act was not contributory negligence.
    7. Removal of the bowlder by the city after the accident was not evidence of negligence in failing to remove it before that time, 'but was relevant as tending to show that the point where the accident occurred was in a street over which the citv had assumed control and hence was under obligation to repair.

      Appeal from District Gourt, Deer Lodge Countyj Theo. Brantly, Judge.

    Action by W. 33. May against tbe city of Anaconda. From a judgment for plaintiff, defendant appeals.
    Affirmed.

      Mr. T. O'Leary, for Appellant.

      Messrs. Rodgers é Rodgers, for Respondent.
   MR. JUSTICE PIGOTT

delivered tbe opinion of tbe court.

Tbis action was brought to recover judgment for damages alleged to bave been suffered by reason of tbe defendant’s neglect to maintain one of its streets in repair. By tbe complaint it is alleged that tbe defendant, a city organized under tbe statutes of Montana providing for tbe organization of municipal corporations, established public streets within its limits and undertook tbe duty of keeping them in safe condition; that among tbe officers of the city was a street commissioner,, having supervision of all tbe streets; that on tbe 3d day of July,. .1897, and for a long time prior thereto, there Avas in Pine street (a street of the defendant) a large rock,or bowlder,which was dangerous to the life and safety of any person or persons who might travel over the street at night, the dangerous character whereof had been and ought to have been known to the defendant and its officers, and which the defendant negligently permitted to remain in the street on July 3, 1897; that on the night of July 3, 1897, while the plaintiff was traveling and driving a wagons on that street, being unaware of the danger and of the presence of the bowlder or rock so negligently left there by the defendant, his wagon, without his fault or negligence, ran over it, throwing the plaintiff from the wagon and causing the lasting and permanent injuries of which he complains. The answer admits that the defendant is a municipal corporation, but denies every ether allegation of the complaint. The jury found for the plaintiff, assessing his damages at $3;500, and the defendant appeals.

1. The complaint is assailed upon the ground that it does not state facts sufficient to constitute a cause of action, and hence does not support the judgment, in that there is no statute imposing upon cities a liability for injuries caused by their negligent omission to keep the streets in a reasonably safe condition. This objection ivas considered and overruled in Snook v. The City of Anaconda, ante, p. —, this day decided.

Section 5036 of the Political Code declares that- every city or town is responsible for injuries to real or personal property within its corporate limits done or caused by mobs or riots, and the defendant argues-that this would seem to- indicate the legislative intent to exempt municipal corporations from liability for all other torts, upon the principle that expressio unius est exclusio alterius. The sole purpose of the section was to create a liability which did not exist at the common law. Its object was not to relieve municipal corporations of burdens, but to impose a new one-. If the defendant’s argument be correct and the maxim applicable, cities are not answerable for .positive or affirmative acts of negligence whereby the streets are made unsafe, — a rule which we think nowhere finds support or countenance.

2. The defendant’s counsel argue that there was no negligence proved against the city. The bowlder had been a dangerous obstruction in the street for many months and the jury, by their general verdict, impliedly found that the city knew, or ought to have known, of its presence, and was negligent in failing to remove it. Upon the city was imposed the power and the attendant or resulting duty to exercise a reasonable degree of diligence to keep the street free from such obstructions; its omission to use such diligence was actionable negligence. This case is similar to Davis v. City of Austin, 22 Texas Court of Civil Appeals Reports, 460 (54 S. W. 927), but is very different from Kieffer v. Hummelstown Borough, 151 Pennsylvania State Reports, 304, 17 Lawyers’ Reports Annotated, 217, 24 Atlantic Reporter, 1060.

3. The plaintiff testified that in a conversation which he had with the defendant’s street commissioner several months after the accident, the latter declared that he knew the bowlder [was in the street prior to the accident. The defendant objected to the reception of this testimony upon the sole ground that the proper foundation had not been laid to show that the place where the accident occurred was a public street. The court overruled the objection, but no exception was reserved. Under these circumstances it is clear that the question whether there was error cannot be entertained on appeal. The defendant now argues that it could not be bound by any statement made by the street commissioner after the accident. This may be true, and the testimony may have been hearsay, but no such objection was made at the time and no exception whatever was taken.

4. The defendant contends that there was not sufficient 'evidence to prove that the place where the accident occurred was part of a public street which the defendant was obliged .■to use reasonable care to maintain in a state of repair. We think there was. Pine street, upon which the accident occurred, is shown upon the plat or map of the city filed with the 'county clerk in 1883. Section 320 of tbe Fifth Division., General Laws, Compiled Statutes of 1887, provides that the fee of streets shown on such map' or plat shall be vested in the city for the use of the public. The statute'granted, and the defendant by ordinance assumed, control of all the streets and the duty to keep them in repair. Ordinances /were passed providing for the raising of money by taxation for the purpose of improving and repairing all the streets. In establishing grades, the city recognized Pine street as one of its streets. The city, through the council, granted permits for the building of sidewalks on Pine street. There was evidence tending to prove that for fifteen years the street had been regularly traveled, and at the point where the accident happened there were houses and fences on each side of the street. The city had performed work at that -point, and after the accident the street commissioner caused the bowlder to be removed, — of course the removal of the bowlder after the accident was not evidence to show negligence on the part of the city in failing to remove it before the accident, but it was relevant as tending to show that the point where the accident occurred was part of' a street over which the city had assumed control and hence- was under the obligation to- keep in repair. It is difficult to conceive what further evidence could be required as to this matter. In Mayor v. Sheffield, 4 Wallace, 189, the court said: “If the authorities of a city or town have treated a place as a public street, taking charge of it and regulating it as they do other streets, and an individual is injured in consequence of the negligent and careless manner in which this is done, the corporation cannot, when it is sued for such injury, throw the party upon an inquiry into the regularitiy. of the proceedings by which the land bo-came a street, or into the authority by which the street was originally established.” quote also the following language from Maus v. City of Springfield, 101 Missouri Reports, 613, (14 S. W. 630, 20 Am. St. Rep. 634) : “To establish, the character of the locality, where the injury occurred, as part of a public streot, nothing more was essential than to -show that it was in actual possession of the city and open to, and used by, the public as a thoroughfare at the time. This plaintiff did. It was not necessary to prove any formal dedication or appropriation of the street.” To the same effect are Houfe v. Town of Fulton, 34 Wisconsin Reports, 608 (17 Am. Rep. 463) ; Town of Salida v. McKinna, 16 Colorado Reports, 523, 27 Pacific Reporter, 810, and City of Abilene v. Wright, 4 Kansas Appeal Reports, 708, 46 Pacific Reporter, 715.

5. Counsel for the defendant say that it was conclusively shown by the plaintiff’s own testimony that he was injured through his own negligence in driving with a loose rein, out of a walk, on a dark night, over an unlighted street, in a sparsely settled part of the city, of which he had but little knowledge. The evidence given by him tended to prove that when injured he was driving slowly in the night time, in the middle of the street which had been traveled as such for many years, and that he knew nothing of the obstruction which lay in his path. He was justified in assuming that the city had used diligence to keep the street in a reasonably safe condition. We are unable, therefore, to agree with counsel; on the contrary, if his testimony stated the facts (and under the verdict we must assume that it did) he was not guilty of contributory negligence.

Several other supposed errors are mentioned in defendant’s brief; some of them have been treated of in the consideration of the points already discussed, and those not so disposed of are without merit.

The judgment and the order refusing a new trial are affirmed. Memittitur may issue forthwith.

Affirmed.

The Chibe Justioe, having tried the cause in the court below as judge, takes no part in the foregoing opinion.


author: ME. JUSTICE MILBURN

text:
    BOSTON AND MONTANA CONSOLIDATED COPPER AND SILVER MINING COMPANY, Appellant, v. MONTANA ORE PURCHASING COMPANY et al., Respondents.
    (No. 1,559.)
    Submitted October 5, 1901.
    Decided December 2, 1901.)

      Injunction Pendente Inte — Evidence — Judgment — Intent , . , to Appeal. l r

    Where, in an 'action to restrain defendants from removing ore from a certain vein on a motion for injunction pendente Mte¿ it is shown that in a prior action between the parties judgment is entered that defendants are owners of the vein and ore, the court may consider such judgment in determining such motion, though the time for appeal has not elapsed, and plaintiff intends to appeal therefrom.

      Appeal from District Court, Silver Bow Conmty; John Lindsay, Judge.

    Action by the Boston and Montana Consolidated Copper and Silver Mining Company against the Montana Ore Purchasing Company and others. Erom an order denying' plaintiff’s application for an injunction pendente lite, plaintiff appeals.
    Affirmed.

      Mr. Williaim II. D&Witt and Messrs. Foo'bis & Evans, fot Appellant.
    The introduction in evidence of the pleadings and of the judgment and decree was plainly error. This judgment was made and entered February 14, 1900, and the hearing at which the same was introduced was had May 16, 1900, before the time for appeal from said judgment had expired, and until such time had passed, or the judgment satisfied, the said decree was of no force or effect and not admissible as evidence. Section 1895 of the Montana C-ode of Civil Procedure is as follows : “Section 1895. An action is deemed to be pending from the time of its commencement until its final determination on appeal or until the time for the appeal has passed, unless the judgment is sooner satisfied.’’ The obvious purpose of this statute is to give the litigant the full time, through which any case must pass until finally disposed of by the supreme court, in which to litigate the same, so that his rights may not be impaired or affected until he has an opportunity to have the higher court pass upon them. The justice and reason of the rule is apparent when we consider that if any other rule prevailed a party might obtain a judgment and although the losing party appeals from the same, could use the same judgment in bar of another action, that might be brought, and pending a reversal of the case Tipon appeal obtain the full fruits and advantage of his judgment We think that, no citation of authorities is necessary to convince the court that the purpose of Section 1895 is to suspend the judgment and to eliminate the same from the action pending the appeal or until the time for appeal has expired, unless the judgment has been acquiesced in or satisfied. The Supreme Court of California in construing an identical section (Section 1049 of California Code of Civil Procedure), has laid doAvn the doctrine that during the time provided by said section such a judgment cannot be pleaded in bar of another action for the same cause, or introduced in evidence. (Gilmore v. American Central Ins Co., 65 Cal. 63, 2 Pac. 882 ; Naftzger v. Gregg, 99 Cal. 83, 33 Pac. 151; Hairis v. Barn-hart, 91 Cal. 546, 32 Pac. 589; Brown v. Campbell, 100 Cal. 636, 35 Pac. 433; Estate of Blythe, 99 Cal. 472, 34 Pac. 108; Story v. Story & Isham C. Co., 100 Cal. 41, 34 Pac. 675.) It is true that our Montana Supreme Court laid down a different rule in Fredericlcs v. Clarh, 3 Mont.- 261, but at the time the decision was rendered we had no statutory provision similar to Section 1895, above referred to.
    Therefore we submit that in treating said judgment as a bar to. the plaintiff’s rights in this action the court erred.
    Put respondents may contend that, although pleaded in bar, that the said pleadings were admissible in evidence upon the theory of a plea in abatement to the effect that it showed another action pending at the time this suit was brought, but we submit that the showing falls short in every particular of the facts necessary to support such a plea. In the first places the parties to the said action are not the same as the parties in the case at bar. The authorities are unanimous, we think, to support the imposition that in another action pending the parties must be substantially identical. (See Ency. Plead. & Practice, Yol. I, page 757, and numerous- cases cited; Calaveras Co. v. Brocklay, 30 Cal. 325; Kerns v. McKean, 65 Cal. 416, 4 Pac. 404.) The foundation upon which this defense of another action pending rests is the abhorrence which the law entertains for a multiplicity of actions. The law does not permit a party to prosecute two actions for the same cause at the same time, because the second suit is not only unnecessary so far as the enforcement of his rights is concerned but annoys and harrasses the defendant without cause. The reason of this rule can have no application except where the plaintiff in both actions is the same person, and the rule can have no application where the plaintiff in one suit is the defendant in the other. (Ency. of Plead. & Practice, Yol. I, page 758 and cases; O’Connor v. Blake, 27 Cal. 313; Ayres v. Beresley, 32 Cal 620; Felch v. Beaudry, 40 Cal. 439; Walworth v. Johnston, 41 Cal. 61; Lindsay v. Stewart, 72 Cal. 540, 4 Pac. 516; Monroe v. Reid, 64' N. W. 983; Washburn, etc. Manufacturing Co. v. Scott, 22 Eed. Rep. 710.) In the second place, to support such a plea the causes of action in the two suits must be the same. (Ency. Plead. & Practice, Yol. I, page 761 and cases cited; Thompson v. Lyon, 14 Cal. 39; Martin v. Spivalo<, 69 Cal: 611; Larco v. Clements, 36 Cal. 132; Coburn v. Pacific Lumber Co., 46 Cal. 32.) An examination of the pleadings in said action 7,337, and in this cause, will show the court that the ■causes of action upon which the same are based are in no wise similar. Under any view of the case we certainly are at a loss to understand how the pendency of action 7,337, for damages for trespass, and to quiet title to veins alleged to belong to plaintiff, can affect the appellant’s right to bring action against defendants for joint trespasses committed by them on appellant’s premises almost a year after the first suit was brought, and there is certainly no authority for such a position. (Carpenter v. lie-well, 67 Cal. 589, 8 Pac. 814; Sharon v. Hill, 22 Fed. 28; Osborne v. Clovd, 92 Ana. Dec. 413.)

      Messrs. MclIaMon & Cotter and Messrs. Toole & Bach, for Respondents.
   ME. JUSTICE MILBURN

delivered the opinion of the court.

This is an appeal by the plaintiff from the order of the district court of the Second judicial district, made May 16, 1900, denying an injunction pendente lite. The action was commenced February 28, 1898, by appellant, who .alleged that defendants trespassed upon certain portions of the Pennsylvania lode claim, extracted ore of the reasonable value of $50,000, and -would continue to trespass unless enjoined. Answer was filed admitting entry beneath the surface of said claims and extraction of ore, but setting up ownership of the ore because of ownership in veins apexing in adjoining claims and dipping under the Pennsylvania claim’s surface. Replication was filed denying the affirmative allegations of the answer. A supplemental answer was filed, showing that since the beginning of this suit the said district court, in an action wherein the Montana Ore Purchasing Company was plaintiff against appellant, as defendant, had, on February 14, 1900, decreed that the property in dispute in this action was the property of the plaintiff Montana Ore Purchasing Company, one of the defendants herein, said cause being numbered in said district court 7,337. The respondent Montana Ore Purchasing Company produced affidavits upon the hearing in the district court of the case at-bar to show the identity of the property, and prayed the court below to deny the injunction, in its discretion, upon the showing that the court had declared the respondent Montana Ore Purchasing Company to be the owner of the property upon wbicb appellant declared trespass bad been committed by the respondents. The court granted the prayer and denied the injunction.

It is not claimed that plaintiff has acquired any,title to the property in dispute which it did not have at the time of the decree aforesaid in said cause numbered 1,337. Nor is it contended that the title of defendant Montana Ore Purchasing Company, which was decreed as in it, was in any wise changed or altered after said decree was entered, or that any right of possession in it to the property was changed or altered after the decree.

Testimony in the form of the pleadings in cause 7,337, affidavits and oral testimony was, over the objection of the plaintiff, introduced to support the points relied upon by defendants, and to show the identity of the property. The court, upon the objection of defendants, refused to admit the affidavits of certain parties offered on behalf of plaintiff, showing that appellant had not acquiesced in or satisfied the judgment in cause 7,337, and that appellant was using diligence to present a motion for a new trial and to perfect its appeal from the judgment in cause 7,337. Testimony was offered by plaintiff to rebut ownership of the ores in question in defendants, or any of them; but the court refused to admit it. These refusals, as well as the admission of the evidence offered by defendants, the plaintiff assigns as error.

There is only one question in this cause which need be considered. The determination of that will determine the matter of this appeal.

The defendant in cause 7,337 having appealed, and the appeal still being undetermined in the supreme court, and the judgment therein not having been satisfied, was the judgment suspended for all purposes, not only in bar of another action, but also so suspended that, upon a hearing upon an order to show cause why an injunction pendente lite, in another action affecting the same property and the same parties, should not issue, the court could not consider it as affecting sound discretion in. granting or refusing sucb injunction? Numerous authorities have been cited by appellant to support ite contention that sucb a judgment not yet final (except in tbe sense that it is a final judgment from which appeal lies), is a bar to another action; but we do not consider that the introduction of such a judgment* under such circumstances as those herein shown, is for the purpose of a bar, but only as evidence going to the discretion of the court or judge in determining, on hearing, whether it or he will permit the property in the then suit to be carried off or destroyed pending the action in which, perhaps, the judgment may or may not be a bar, as may be afterwards determined.

In Naftzger v. Gregg, 99 Cal. 83, 33 Pac. 757, 37 Am. St. Rep. 23, one of the cases cited by appellant, — referring to Section 1049 of the Code of Civil Procedure of California. (Section 1895, Code of Civil Procedure of Montana), where the court holds the judgment not a bar in a subsequent suit affecting the same property between the same parties, in a. concurring opinion Justices Harrison and Patterson were of the opinion that the judgment might be introduced as evidence, .saving that Section 1049 of the California Code of Civil Procedure was not intended to prescribe a rule of evidence, but to determine the condition of an action after judgment has been-rendered, and, inferentially, the effect of the judgment; and they go further, and say that there are many cases in which a judgment is admissible in evidence at any time after its entry.

Our view that the introduction of the judgment roll (in cause 1,331) and the introduction of evidence to show the identity of the property at the hearing of the motion to show cause why an injunction pendente lite should not issue was not error, is further supported by a very well considered opinion in Smith v. Smith, 134 Cal. 117, 66 Pac. 81, wherein a deed was erroneously excluded from evidence, the validity of the conveyance resting upon a judgment from which an appeal was pending. The court held that the introduction of the deed in no wise would tend to enforce the judgment which was suspended by the appeal.

Why could not the fact, when brought to the attention of the court below, that it had decreed the property as not in anywise belonging to the plaintiff, be considered by it in passing upon the order to show cause why plaintiff and appellant should not have an injunction pendente- lite against the defendants in the action, and be regarded in its sound discretion as a sufficient reason why the injunction should be denied ? On principle or authority we cannot see how a court should be held to have abused its discretion in saying that, whereas it had decreed the property or right of possession not to be in the plaintiff, but in the defendant Montana Ore Purchasing Company, it refused to enjoin the defendants from entering upon or using the same. This would not be passing upon the merits of the case* which is, as appears from the record, still pending, in the district court.

. That the judgment in cause 7,337, now on appeal, would or would not be a bar to the action wherein the injunction pen-dente lite was granted, we. are not called upon now to decide. Suffice it that we hold that there was no abuse of discretion in the refusing of the injunction pendente lite, or error in admitting the said judgment and proof offered by defendants in evidence, or in refusing to admit the offered testimony as to the pendency of the appeal in cause 7,337, as the latter was immaterial in the matter of the hearing on the order to show cause why an injunction pendente Hie should not issue.

There seems, from the briefs and argument, to be no question but what the property in dispute was the same in cause 7,337 and in the matter on appeal.

The order denying the injunction pendente lite is affirmed.

Affirmed.


author: ME. CI-IIEF JUSTICE BEANTLY

text:
    CORNISH et al., Appellants, v. FLOYD-JONES, Respondent.
    (No. 1,377.)
    (Submitted November 18, 1901.
    Decided December 9, 1901.)

      Appeal — Record—Review.
    Code of Civil Procedure, ■ Sec. 1737, provides that, on appeal from an order, except one granting or refusing a new trial, the appellant must furnish a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing below. On appeal from an order denying an application to have certain loans declared preferred claims against an insolvent bank, the only papers found in the transcript, besides a copy of the notice of appeal, were a copy of the petition, and of an affidavit to support it, neither of which was identified by bill of exceptions as the papers used on the hearing, a copy of the order of the court denying the petition, and a copy of the opinion of the court setting forth the reasons for its actions. Held, that such opinion and the unidentified petition and accompanying affidavit could not he considered, so that the transcript was insufficient to show any error, as the only papers before the court were the notice of appeal and copy of the order.

      Obiter. Under Section 1739, Code of Civil Procedure, counsel have no authority to certify the papers as those used, or the only ones used, on the hearing.

      Appeal from District CourtLewis and Glarhe County; 8. FI. Mclntire, Judge.

    ActioN by. F. E. Cornish, and others against E. H. Floyd-Jones (Substituted for A. J. Steele), receiver of the National Loan & Savings TJnion. From an order denying an application to have certain loans declared preferred claims, plaintiffs appeal.
    Affirmed.

      Mr. G. T'F. Wiley, for Appellants.

      Mr. T. J. Walsh, for Eespondent.
   ME. CI-IIEF JUSTICE BEANTLY

delivered the opinion of the court.

It is not clear from the record filed in this court what is the nature of the proceeding in the district court which gave rise to this appeal. From the statement of the case made in appellants’ brief, however, we gather that in August, 1898, a suit was brought by stockholders or creditors of the National Loan & Savings Union, a corporation organized under the laws of Montana authorizing building and loan associations, to have the corporation declared insolvent, and to adjust its affairs through the agency of a receiver. The title of that cause is not made to appear. The papers in the transcript before us are entitled, “In the Matter of the Eeceivership' of the National Loan & Savings Union, A. J. Steele, Eeceiver.” Upon the cover of the transcript and in the brief filed -by appellants’ counsel we find the title, “F. E. Cornish et al. v. A. J. Steele, Receiver of the National Loan & Savings Union.” In a supplemental brief of counsel lie bas used the title, “ F. E. Cornish et al. v. R. H. Floyd-Jones, Receiver." We have adopted this latter title, for tba reason that since the appeal was filed in tbis court, K,. U. Floyd-Jones was substituted, on suggestion of counsel, for A. J. Steele as defendant and respondent. Nothing appeal’s from the papers filed at the time the suggestion was made, however, to aid us in any way to understand the nature of the proceeding in the district court.

As we gather it from the transcript, it seems that the appellants made an application to the district court by petition filed in the cause above mentioned against the corporation whose affairs are in course of adjustment by Floyd-Jones as receiver (who has been substituted in place of A. J. Steele since this appeal was taken),- for the purpose of having certain alleged loans made by the petitioners to the corporation declared preferred claims, and for an order directing the receiver to pay them in full out of the funds first coming into his hands. This appeal is from an order denying the application.

Without stopping to consider other matters of practice called to our attention by counsel for the receiver as conclusive of the appeal, we must affirm the order on the ground that the transcript does not make it appear that the district court committed error. Section 1I3Y of the Code of Civil Procedure provides: “On appeal from an order, except an order granting or refusing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing in the court below.” The only papers found in the transcript, besides a copy of the notice of appeal, are a copy of the petition referred to, of an affidavit apparently used to support the allegations of the petition, of the order of the district court denying it, and of the opinion of the court setting, forth the reasons for its action. The opinion is no part of the record on appeal, and cannot be resorted to for any purpose. (Menard v. Montana Central Railway Co., 22 Mont. 340, 56 Pac. 592.) The affidavit and petition are not identified by bill of exceptions embodying them as the papers used on the hearing. We therefore have no means of knowing that they were so used, either alone or in connection with others. For anght that appears, the allegations of the petition may have been controverted, and evidence introduced by .the parties to sustain the issues thus made. It was said by this court in Rumney Land & Cattle Co. v. Detroit & Montana Cattle Co., 19 Mont. 557, 49 Pac. 395: “On appeal every presumption in favor of its correctness attaches to a decision or order of the district court. Hence it is incumbent on the appellant to show wherein any error has been committed by the lower court. The transcript must show the error, directly, not by way of inference or presumption.” In the same case, in construing Section 1737, supra, the court held that the only mode of presenting the papers used upon hearing in the district court is by formal bill of exceptions.

It was.said in State ex rel. Pierson v. Millis, 19 Mont 444, 48 Pac. 773, that on appeal from an order the papers used on the hearing might also be identified by a certificate of counsel, under Section 1739. This yiew seems to have been approved in Rumney Land & Cattle Co. v. Detroit & Montana Cattle Co., supra, and also in the later case of Beach v. Spokane Ranch & Water Co., 25 Mont. 367, 65 Pac. 106. In none of these cases however’, was the extent of the authority of attorneys under Section 1739 before the court for consideration. The stater-ments in them were made in the course of the argument by way of illustration. We take occasion now to say that we doubt whether that section is susceptible of the construction assumed in these eases to be proper. We think the authority given by it extends no further than to permit counsel by their certificate to obviate the necessity of a certificate by the clerk as to the correctness of the copies contained in the transcript. As was held in the first two cases cited, the clerk may not certify the papers as those used, or the only ones used, on the hearing. Neither, in our opinion, may the attorneys do so. We shall therefore not feel bound by these cases when the point properly arises. In the present case the. papers used on the hearing of the motion were not identified in any way.

The only papers before us, therefore, are the copy of the order and of the notice of appeal; and, it not being made to appear that any error was committed in the making of the order, it is affirmed.

Remittitur forthwith.

Affirmed.


author: ■ ME. CHIEF JUSTICE BEANTLY

text:
    KING, Respondent, v. LINCOLN, Appellant.
    (No. 1,365.)
    (Submitted November 12, 1901.
    Decided December 9, 1901.)

      Appeal — New Trial — Statement—Insufficiency of Evidence to-Justify Verdict — Account Stated — Jury—Bound by Charge..
    1. Where the only specification in the statement for, a new trial is that the evidence is insufficient to support the verdict “in finding for the plaintiff in the sum of $95.70, with interest,” and that the “verdict is contrary to the evidence,” there is a failure to comply with the requirement of Code of Civil Procedure, Sec. 1173, that when the motion is for insufficiency of evidence the statement shall specify the particulars in which such evidence is alleged to be insufficient.
    2. An appellant cannot complain of an error, in an instruction, which is in his favor.
    3. A jury is bound by the law given by the court, whether correct or not,— except, possibly, in prosecutions for libel.
    4. Evidence reviewed, and held, that a finding by the jury, that there was an account stated, was contrary to the law as given by the court, and that the court should therefore have granted a new trial, even though it became satisfied that its instruction was wrong.

      Appeal from District Court, Fergus County; Dudley Du Bose> Judge.

    Action by Joseph King against Alvin Lincoln. From a judgment for plaintiff, and from an order denying a new trial,, defendant appeals.
    Reversed.

      Mr. Wm. M. Blackford and Mr. F. E. Strana-han, for Appellant.
   ■ ME. CHIEF JUSTICE BEANTLY

delivered tbe opinion of tbe court.

Action upon an account stated. Tbe complaint alleges that on September 29, 1891, at tbe city of Chicago, Ill., an account was stated between tbe plaintiff and tbe defendant, and that there was found due from defendant to plaintiff a balance of $95.10, no part of which has been paid. Judgment is de-' manded for this sum, with interest from tbe date of settlement.

Tbe defendant makes specific denial of all these averments, except bis failure to pay tbe alleged balance, and then avers affirmatively that in August, 1897, be and plaintiff entered into an agreement whereby they associated themselves together for tbe purpose of rounding up cattle owned by them, respectively, then running upon tbe Judith range, in Fergus county, Mont., in order to ship them to market at Chicago, Ill.; that by the terms of tbe .agreement they were to charge $2 per head for all stray cattle collected and shipped; that tbe fund thus collected should be apjilied to the payment of tbe expenses of tbe roundup, so far as it would pay them; that any balance left over should be paid by tbe plaintiff and defendants in amounts proportioned to tbe number of cattle shipped by each; that tbe round-up and shipment were completed, and tbe cattle sold in Chicago on or about September 29, 1897; and that on or about that date tbe plaintiff and tbe defendant came together to settle their accounts, but that no agreement was reached or balance found, for tbe reason that plaintiff refused to give defendanc credit for certain receipts for strays collected and for calves branded during tbe round-up. Demand is then made for an accounting and for judgment for any balance found due tbe defendant.

Tbe plaintiff in- bis reply admits that tbe contract was made as alleged by tbe defendant, except that, in recognition of a custom prevailing in that portion of the country, by express terms it was stipulated that no charge should be made for strays collected which belonged to persons engaged in neighboring roundups. He then alleges that the settlement was made and the balance found in accordance with the agreement, as stated, and that the defendant, assenting to its correctness, promised to pay it. Upon a trial the plaintiff recovered a verdict for the amount claimed, with interest, and judgment was entered accordingly. The defendant has appealed from the judgment and an order denying a new trial.

1. It is contended that the evidence is insufficient to justify the verdict. We cannot examine the evidence to determine whether this contention is well founded, for the reason that the statement used in support of the motion for a new trial fails to specify the particulars wherein the evidence is insufficient. The only specification found in the statement is the following: “The evidence is insufficient to support the verdict of the jury in finding for the plaintiff in the sum of ninety-five and 10-100 dollars, with interest. Said verdict is contrary to the evidence.” This statement is pregnant with the admission that- a verdict for any other amount less than that actually rendered would have been proper, and that it is contrary to the evidence because it was not for a less amount. As an attempt to point out any particular in which the evidence failed, or the absence of any material fact, to warrant the jury in finding as they did, as is contemplated by the statute (Code of Civil Procedure, Sec. 1173), it is inexcusably insufficient (Zickler v. Deegan, 16 Mont. 198, 40 Pac. 410; Hayne, New Trial & App. Sec. 150), and the trial court ivas justified in ignoring it. It amounts to no more than a repetition of the ground for a new trial required to he stated in the notice of intention.

2. The next error alleged is that the verdict is contrary to law, in that, under the definition given by the court in its instructions of the expression “account stated,” the, jury could not from the evidence have found for the plaintiff. In this connection the jury were instructed: “An account stated is a document or writing wbieb exhibits the state of account between parties, and the balance owing from one to the other, and when assented to, either expressly or impliedly, it becomes a new contract. An action upon it is not founded upon 'the original- items, but upon, the balance agreed to by the parties. And the general rule is that, when the stated account is admitted, it can be avoided only by averment, and proof of fraud, mistake, etc. But the account, in order to- constitute a contract, should appear to be something more than a mere memorandum. It should show upon its face that it was intended to be a final settlement up to date; and this should be expressed with clearness and certainty.” This paragraph of the charge is quoted substantially from the opinion in Coffee v. Williams, 103 Cal. 550, 37 Pac. 504. Whether it embodies a correct statement of the law we may not upon this appeal undertake to determine, for the reason that the appellant did not on the motion for a new trial in the court below, nor does he now, question its correctness. Furthermore, even if it be conceded that it is erroneous in requiring in proof of the account stated a Avriting, — more than a mere memorandmn, — showing upon its face that it was intended to- be a final settlement up to date, this would be an error in appellant’s favor, and he \yould be in no position to complain; for from this point of viéAV it cast a greater burden upon the plaintiff than he should- have been required to sustain. For the determination of. the question presented by the assignment, however, it is a matter of no moment whether it is a correct statement of lavs7 or not. ’ As ¿ declaration by the court of the law in this case, the jury were bound to accept it as authoritative, and to apply it to the facts submitted in evidence. They were not at liberty to disregard it, and find a verdict according to their own notions of what the laAv is. Their province was to find the facts. The province of the court was to declare the law. A verdict found in disregard of the authoritative declaration of the court, made for their guidance, cannot be permitted to stand, whether the law thus declared be right or wrong. These appropriate and dis<-tinct functions of the court and jury were discussed and defined, by tbis court, in Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, 43 Pac. 714, and, after an examination of the adjudged cases upon the subject, it was held that, where it is apparent that the jury have disregarded the instructions given, a new trial should be granted without regard to whether the instructions are correct in point of law. .Though there is a conflict of authority upon this subject, the rule as stated in the case cited we believe to be based upon better reason. To say that it is not error for the jury to disregard the authority of the court,, and to find according to their notions of the law, is to say that they are the judges of the law as well as the facts, — a doctrine never recognized in this jurisdiction, except, possibly, in prosecutions for libel, which are regulated by express constitutional provision (Constitution, Art. III, Sec. 10).

Upon looking into the evidence, it is apparent that the jury found that there was an account stated between the parties as-claimed by the plaintiff, and that the balance ascertained was the amount found by the verdict. At the time of the alleged settlement there were present the plaintiff, the defendant, and one Shipman, who acted as clerk for them. The plaintiff had paid almost all the expenses of the round-up-, and had collected all the stray fees. The three sat around a table. The plaintiff had with him three receipted bills, with check stubs to show the amounts paid out by him. He called off these items^ and they were summed up by Shipman on a piece of paper. The defendant called off some items- of expensa paid by him. The plaintiff then stated from a memorandum the number of strays collected and shipped, and from this was found the amount realized toward the total expenses. Then a balance was struck, and it was found that the defendant was indebted to the plaintiff to-the amount of $95.70. Neither of the parties had any books- or formal accounts kept by themselves, nor was a formal account made out by Shipman. The amount due, as he says, was, what they were after. When the balance- was announced by Shipman, the plaintiff pushed all the papers across the table toward tbe defendant, who did not examine them, bnt pushed them aside, expressing himself as satisfied. He thereupon called for a blank check, but before filling it out he and plaintiff began to discuss the disposition by plaintiff of money collected by him for branding calves during the round-up. The defendant claimed that he was entitled to half of this, which the plaintiff disputed. Thereupon they began to quarrel. Finally the defendant left, followed soon after by Shipman and plaintiff. All the papers and memoranda were left lying upon the table. This is the substance of the proof offered by the plaintiff. The defendant’s evidence tended to show an attempt to reach a settlement as he alleges> but that no result was reached. It is manifest from this resume that the result reached by the jury was impossible, under th'e instruction quoted; for there is nothing to show that the conference between the parties terminated in a formal written statement — something more that a mere memorandum — of the mutual accounts, showing upon its face that it was intended to be a final statement up to date, and expressed with clearness and certainty. Clearly, the jury disregarded the explicit direction, and concluded that the memorandum made by Shipman, the form and contents of which are not shown, was sufficient under their own conception of what was required, proceeding upon the theory that, inasmuch as the defendant had assented to the balance found, he should be held to abide his agreement. The district court should therefore have granted a new trial, -even though, upon consideration, it became satisfied that the instruction was wrong.

As stated above, the condition of the record precludes an expression of opinion at this time, either as to the sufficiency of the evidencel to support a verdict for the plaintiff or as to the correctness 'of the instruction ini point of law. We may go no further than to require the cause to be tried under the law as it shall be expounded by the court.

The judgment and order are reversed, and the cause is remanded, with direction to grant a new trial.

Reversed and remanded.


author: ME. JUSTICE PIGOTT

text:
    COWELL, Respondent, v. MAY et al., Appellants.
    (No. 1,379.)
    (Submitted November 19, 1901.
    Decided December 9, 1901.)

      Garnishment — Contingent Liability — Liability of Garnishee— Evidence — Findings—Supplemental Findings.

    1. Iu order to charge a garnisbee, there must be at tbe time of the service a debt due or to become due, and not a contingent liability .or a conditional contract merely.
    2. One whose land had been sold under foreclosure, and against whom a deficiency judgment had been entered, contracted to sell his equity to the purchaser on the foreclosure for a certain sum, if the purchaser would secure and deliver to the debtor a receipt from the judgment creditor for all sums due him from the debtor. The debtor executed a deed, and deposited it in escrow, to be delivered to the purchaser on the delivery of the receipt, and the payment of the balance of the purchase price, $10 being paid at the time. Prior to any delivery of the receipt or any waiver of the same on the part of the debtor, the execution purchaser waj served with garnishment process at the suit of the judgment creditor. Held, that the purchaser was not liable, his liability to the debtor having been merely contingent.
    3. Implied findings may supplement, but they cannot be allowed to contradict, express findings.
    4. It was proper to admit evidence showing that after service of the garnishment process, the deed in escrow was destroyed, and another one made, and the entire consideration paid, for the purpose of showing what the original terms of the contract were at the time the process was served.
    5. The trial court having found the facts as to the contract as originally made, and that there had been no delivery of the receipt, or waiver thereof, findings to the effect that the destruction of the deed in escrow after service, and the giving of another deed, and the payment of the consideration, were for the purpose of evading the garnishment process, could not aid the plaintiff.

      Appeal from District Court, Ravalli Gounty; F. H. Woody, Judge.

    Action by Charles L. Cowell against Albert May and George May, co-partners under the firm name and style of May Brothers. Erom a judgment in favor of plaintiff, defendants appeal.
    Reversed.

      Mr. G. B. Gallcins, for Appellants.

      Mr. Frank Woody, for Respondent.
   ME. JUSTICE PIGOTT

delivered, tbe opinion of tbe courts

Tbe defendants pncbased at sheriff’s sale under a .decree of foreclosure, tbe land of one Harris. Upon tbe coming in of tbe sheriff’s return, on tbe 8th day of July, 1897, a deficiency judgment for $290 was docketed in favor of Cowell, tbe plaintiff in that action and also tbe plaintiff in this, and against Harris, tbe defendant therein. On tbe 10th day of July, 1897, tbe defendants, being' desirous of obtaining immediate possession of the land so purchased by them, entered into negotiations with Harris, they offering to pay him for bis equity of redemption tbe sum of $350, and Harris promising to convey for that price if be could get a receipt from tbe plaintiff in full .of all demands. On tbe next day Harris signed and acknowledged a deed therefor and left it in tbe possession of one Cal-kins upon tbe express condition, agreed to by tbe defendants, that be should not deliver it until the defendant Albert May delivered to Calkins a receipt in full of all claims and demands which,tbe plaintiff held against Harris. Tbe condition in respect of tbe receipt was shown to have been for tbe benefit of Harris only, tbe performance of which be might waive. ■ There was no evidence tending to prove that tbe defendants, or either of them, promised t to procure or deliver tbe receipt. Tbe receipt was never obtained. At tbe time tbe deed was signed tbe defendants paid $10 to Harris on tbe purchase, price. Thereafter, but ¡on tbe same day, tbe plaintiff caused the sheriff to serve upon tbe defendants a copy of tbe writ of execution issued upon tbe deficiency judgment, together with a notice that any debts owing by them to Harris were attached. Tbe defendants made answer to tbe garnishment by denying that they were, or that either of them was, indebted to Harris. On tbe 13th day of July, 1897, Calkins, with whom tbe deed.bad been left in escrow, prepared another deed in which Harris was named as tbe,-grantor and the defendants as the grantees, conveying tbe same property described in tbe first deed. In company with one of tbe defendants, Calkins went to Jhe ranch of Harris, returned to him the first deed, and requested him to sign, acknowledge and, deliver the second one. This he did, and the defendant who was then present paid to Harris $340, the remainder of the purchase price: Thereafter the court,, by an order to that effect, authorized the plaintiff, who, as we have said, was i the judgment creditor of Harris, to institute an action against the defendants for the recovery of the alleged debt owing by them to Harris; whereupon this action was commenced tunder the provisions of Section 1266 of the Code of Civil Procedure. The complaint states the formal matters required in an action of this character, and alleges that at the time of i the service of the copy of the execution and of the notice on the defendants, they were indebted to Harris in the sum of $340, and prays for judgment that the defendants be, compelled to pay to the plaintiff a sufficient amount therefrom to satisfy his judgment against, Harris. The defendants by answer denied that at the time of the garnishment they, or either of them, were, of was, indebted to Harris in. any sum whatever. In this statement are set out such facts as we deem relevant to the only question necessarily presented(on the appeals; what other matters the evidence may have tended to prove need not be recited. The court found for the plaintiff and rendered-judgment in his favor. Prom the judgment and order refusing a new trial the defendants prosecute these appeals.

The single question upon which the case as presented to this court must he decided, is whether or not the defendants were indebted to Harris at the time the garnishment was served upon, them. The court made special findings of fact, the fourth and fifth of which are as follows: “Fourth. That on the 10th day of July, 1897, when the notice of garnishment was served on the defendants, the said Benjamin N. Harris had, executed a quitclaim deed of his equity of redemption to; a tract of land to said May Brothers, for a valuable consideration upon the following conditions, to-wit: Said Harris placed said deed in the hands of C. B. Calkins, and at the same time instructing said Calkins not to deliver said deed to said May Brothers, until Albert May, one of tbe firm of said' May Brothers, sbonld deliver to said Calkins a receipt in full of all claims and demands which one Charles L. Cowell had and held against said Harris, and that upon the delivery of said receipt, the said Calkins was to deliver said deed to May Brothers, they paying to said Harris a balance of $340, they, May Brothers, having already paid to said Harris $10 at the time of the execution of said deed. Fifth. That said Albert May did not procure said receipt from said Coiwell, on attempt soi to do.” Both parties agree that these findings are correct, and although implied findings may supplement they cannot be allowed to contradict express findings. Under the evidence it is unquestionable that there was a contract entered into between May Brothers and Harris for the purchase and sale of the equity of redemption. It is equally true that, under the fourth finding, the stipulations in the contract were mutual and dependent, and the liability of the defendants conditional, — in other words, they would not become indebted to Harris unless and until Albert May delivered to Calkins a receipt in full running from Cowell to Harris, or Harris waived such delivery. ■ The defendants did not expressly promise to obtain or deliver tire receipt, nor did any legal duty or obligation so to do rest upon them, or either of them. To get it might have been impossible. If they did not get it and Harris did not waive the fulfillment of this condition, the executory contract of sale would fall and there could be no cause of action in favor of Harris against the defendants arising out of the nonpayment of the purchase price. They had, it is true, agreed with Harris to make the purchase and to pay him $350, and they had paid him $10' of the price, but that agreement was subject to- the condition just mentioned. Unless the fulfillment of the condition was waived by Harris, the delivery of the receipt was a condition precedent to the existence of a debt. The procurement and delivery of the receipt was an act which Harris required to be done for his benefit, and for his benefit only; and if Albert May had delivered the receipt to Calkins, then Harris would have possessed the right (perhaps without a formal demand of payment, but in any event after such demand) to maintain an action against the defendants for the unpaid purchase price; but until the receipt was delivered, or until Harris waived its delivery, there was no indebtedness owing by the defendants to Hands. Such was the condition at the time the garnishment was served. Harris might have waived the performance of the the condition precedent to the defendants’ liability, and this waiver would have created a liability certain, the right to enforce which would have inured by subrogation to the plaintiff; but Harris did not do so until after the defendants were served. Although the immaturity of a debt at the time of garnishment is, of itself, unimportant in so far as the ultimate liability of the garnishee is concerned, yet, in order to charge him, there must be an existing debt at the time of the service, — a contract under which a debt may or may not arise is not sufficient. There must be at the time of the service a debt due or to become due, and not a contingent liability or a conditional contract merely. “The debt from the garnishee to the defendant, in respect of which it is sought to charge the former, must moreover be absolutely payable, at present or in future, and not dependent on any contingency. If the contract between the parties be of such a nature that it is uncertain and contingent whether anything will ever be due in virtue of it, it will not give rise 1» such a credit as may be attached; for that cannot properly be called a. debt which is not certainly and at all events payable, either at the present or some future period.” (Drake on Attachment, 7th Ed. Sec. 551.) Except in so far as the necessity .of making a demand for payment (if such necessity would have existed) is concerned, the plaintiff stands in no better position than Harris; the former was subrogated to the rights of the latter. The question whether the defendants are liable to1 the plaintiff may be tested by inquiring whether Harris, without waiving his right to the receipt from Cowell, could have maintained an action against May Brothers at the time of'the garnishment. Let it be supposed that Harris had sued the defendants on'July 10, 1897, to recover judgment for $340, alleging tbe matters stated in findings four and five, a demand and a refusal on tbe part of tbe defendants to pay tbe money or deliver tbe receipt, and that be did not waive tbe performance of tbe condition 'touching tbe receipt, but would insist upon tbe performance of that condition as prerequisite to' tbe delivery of tbe deed; is it not apparent that tbe complaint would be de-murrable for want of substance? Or if tbe plaintiff bad brought tbe present action while tbe original contract was in force and before tbe transaction of July 13, is it not perfectly clear that tbe defendants would prevail because at tbe time of tbe garnishment they did not owe a debt to Harris? Again, let it be supposed that tbe defendants, upon being garnished, paid to tbe sheriff tbe remainder of tbe purchase price, as they may do under Sections 900, 903, 1218, and 1262 of tbe Code of Civil Procedure (if they are indebted to tbe principal defendant), and thereupon bad demanded of Harris tbe delivery of tbe deed, asserting that they bad fully performed tbe conditions on their part; could tbe defendants compel Harris specifically to perform tbe contract by delivering tbe deed of' conveyance? Would not tbe court declare that tbe payment to tbe sheriff was not tbe liquidation of any debt owing by tbe defendants to Harris, but was merely voluntary? We think such wonld be tbe case. Tbe plaintiff is in no better situation than Harris would have’been under tbe circumstances suggested in tbe first example. For aught that appears, tbe receipt required by Hams might never be obtained; if not obtained by tbe defendants or waived by Harris, there could be- no liability of tbe defendants to him under the terms of tbe original contract. The case of Baltimore & Ohio Railroad Company v. McCullough & Company, 12 Grattan, 595, wherein tbe court held tbe garnishee not liable, involves tbe consideration of a question identical in principle with the case at bar.

Other special findings have to do with tbe conduct of the defendants and Hands after tbe service of garnishment- Among them is one. that there was no new bargain on July 13 when tbe old deed was surrendered, tbe new deed delivered and tbe payment made, and tbat tbe transaction of tbat date was for tbe purpose of avoiding the effect of tbe garnishment of July 10. In passing we remark tbat tbe first part of this finding conflicts with tbe fourth finding, for Harris delivered tbe new deed and accepted payment without requiring tbe defendants to comply with tbe condition of tbe first contract touching tbe receipt from Cowell; and as to tbe fatter part of tbe finding, we observe tbat tbe 'motive imputed may have, existed, but if tbe fourth and fifth findings be correct there was no debt attached by tbe process of garnishment. With respect to this finding and all other findings subsequent to tbe fifth, it is sufficient to say tbat, while evidence of tbe facts to which they relate was admissible because of its tendency to prove what tbe terms of tbe contract of July 10 were and whether there was an indebtedness owing by tbe defendants to Harris at tbe moment of service, they cannot, in view of tbe fourth and fifth findings, sub-serve any purpose. It was for tbe court below to draw from all tbe evidence tbe inferences of fact and declare what tbe contract was and whether a debt existed. Tbe only legitimate conclusion ultimately deducible from findings four and five is tbat tbe contract to purchase was conditional and tbe liability of tbe defendants contingent; tbat at tbe time of tbe garnishment tbe condition upon which depended tbe liability of tbe defendants for tbe remainder of the purchase price bad not been performed by them or waived by Harris, and hence tbat there was no debt.

Hnder tbe findings, we must therefore bold that at tbe time of the garnishment tbe defendants were not indebted to Harris, and hence tbat there was no debt attached by tbe process of garnishment.

For these reasons tbe judgment and tbe order appealed from are reversed and tbe cause is remanded for a new trial.

Reversed and remanded.