especially true where, as in the case before us, the invitation is sought to be established by estoppel against what was in all probability the true intent of the owner. It has been contended broadly that when an owner places or permits anything upon his property which is attractive to others, and one is thereby induced to go thereon, the invitation may be inferred as a fact by the court or jury. Now, since it is manifest that to some classes of persons, such as infants, the things ordinarily in existence and use throughout the country, such as rivers, creeks, ponds, wagons, axes, plows, woodpiles, haystacks, etc., are both attractive and dangerous, it is clear that the adoption of such a broad contention would be contrary to reason, lead to vexatious and oppressive litigation, and impose upon the owners such a burden of vigilance and care as to materially impair the value of property and seriously cripple the business interests of the country. Therefore it has been generally held that the invitation cannot be inferred in such cases. These cases rest upon the sound principle that, where the owner makes such use of his property as others ordinarily do throughout the country, there is not, in legal contemplation, any evidence from which a court or jury may find that he had invited the party injured thereon, though it be conceded that his property or something thereon was calculated to and did attract him. Railway Co. v. Edwards, 90 Tex. 65, 36 S. W. 430, 32 L. R. A. 825; Dobbins v. Railway Co. (Tex. Sup.) 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856, and cases cited therein; Peters v. Bowman, 115 Cal. 345, 47 Pac. 113, 598, 56 Am. St. Rep. 106; Joske v. Irvine (Tex. Sup.) 44 S. W. 1059. Where, however, the owner maintains upon his premises something which, on account of its nature and surroundings, is especially and unusually calculated to attract, and does attract, another, the court or jury may infer that he so intended, and hence invited him." The court concludes the opinion as follows: "In so far as the turntable cases and other cases involving injuries upon dangerous machinery on private property may be considered to lay down the broad proposition that the owner can be held liable without proof of either an intent to injure or an invitation, as these have been above explained, we do not think them based upon sound principle. We do not think the petition in this case shows an invitation, in that it neither alleges such fact, nor that the turntable was unusually attractive; nor does it allege that there was any intent to injure, within the meaning of the principles above discussed. We think the fact of invitation, or the fact of an intent to injure, as the case may be, are issuable ones to be found, and probably should be alleged specifically, or at least such facts should be stated as to make it clear that such issue or issues are presented to be passed upon.

The cases of 9 East, supra, and Corby v. Hill, 4 C. B. (N. S.) 556, seem to recognize that these issues must be presented by the pleadings, and we think this is peculiarly the case under our system, which requires a statement of the facts constituting the cause of action or defense." We are satisfied that this case correctly announces the law as to what should be stated in the complaint under the turntable doctrine.

The case of San Antonio, etc., Ry. Co. v. Morgan (Tex. Civ. App.) 58 S. W. 544, sets forth a complaint for the same accident as in the above case, which is held to be sufficient. By a comparison of that complaint with the one at bar, one can readily distinguish the deficiencies of the latter.

In this complaint there is no direct allegation that the machinery was so especially and unusually alluring to children as to attract them, but only that defendant knew that it did attract them. True, it is alleged that the machinery was dangerous, but no facts are alleged from which the dangerous character of the machinery can be inferred. Conditions may exist under which the most simple machinery or implements may be dangerous. A rake or a hoe would be dangerous if left with the teeth or blade turned up, on premises frequented by children, but would not be dangerous to a child if he did not touch it. There is no allegation that this machinery was inherently dangerous any more than a rake or a hoe, no express allegation of invitation to children to come upon the premises, and no facts are alleged under the above authority from which such invitation could be implied. The child was therefore, under the allegations of the complaint, a mere trespasser upon defendant's property, and the defendant was charged with no greater duty toward him than toward trespassers generally. The rule is well settled that the owner of property is only liable to trespassers for a malicious injury, or one resulting from gross negligence after the peril of the trespassers is known to the owner of the land. Egan v. Montana Central Ry. Co., 24 Mont. 569, 63 Pac. 831; Beinhorn v. Griswold, 27 Mont. 79, 69 Pac. 557, 59 L. R. A. 771, 94 Am. St. Rep. 818; Carman v. Montana Central Ry. Co. (Mont.) 79 Pac. 690. But again, there is no allegation but that this machinery was proper, necessary, and convenient for the use intended in the business of defendant, and that he was conducting a legal business in a lawful way. It is a principle as old as the law itself that one may conduct his business on his own premises. with machinery reasonably necessary and convenient to make the business successful. The maxim, "sic utere tuo ut non alienum lædas," is also recognized, but has no appliIcation to injuries occurring on one's own premises, but simply to injuries occurring on other lands by the wrongful use of one's own premises. Gillespie v. McGowan, 100 Pa. 144, 45 Am. Rep. 365; Uthermohlen v. Bogg's

Run Co., 50 W. Va. 457, 40 S. E. 410, 55 L. R. A. 911, 88 Am. St. Rep. 884. Under the allegations of this complaint, the minor being a trespasser upon defendant's land, the only duty owing to him was not to injure him wantonly or willfully after the defendant or his employés were aware of his peril. There is no allegation of wanton or willful injury, and no sufficient allegation of gross negligence.

The writer of this opinion does not hesitate to say that, in his judgment, the doctrine of the turntable cases is against the weight of authority, and cannot be sustained upon principle or reason. See the following cases: D. L. & W. R. Co. v. Reich (N. J. Err. & App.) 40 Atl. 682, 41 L. R. A. 831, 68 Am. St. Rep. 727; Turess v. N. Y., S. & W. R. (N. J. Sup.) 40 Atl. 614; Walsh v. Fitchburg R. Co., 145 N. Y. 301, 39 N. E. 1068. 27 L. R. A. 724, 45 Am. St. Rep. 615; Daniels v. N. Y. & N. E. R. Co., 154 Mass. 349, 28 N. E. 283, 13 L. R. A. 248, 26 Am. St. Rep. 253; Frost v. Eastern Railroad, 64 N. H. 220, 9 Atl. 790, 10 Am. St. Rep. 396; Ryan v. Towar, 128 Mich. 463, 87 N. W. 644, 55 L. R. A. 310, 92 Am. St. Rep. 481; Uthermohlen v. Bogg's Run Co., 50 W. Va. 457, 40 S. E. 410, 55 L. R. A. 911, 88 Am. St. Rep. 884; Paolino v. McKendall, 24 R. I. 432, 53 Atl. 268, 60 L. R. A. 133, 96 Am. St. Rep. 736. We need not, however, hold on this appeal that such doctrine is incorrect, for two reasons: First, the complaint is insufficient even under that doctrine; and, second, the case is plainly distinguishable from those holding that doctrine.

So far as appears from the complaint, the defendant was engaged in conducting a legal business in a lawful way, with machinery reasonably convenient and necessary to the success of such business on his own land, and not dangerous in itself. It probably was farthest from the intention of defendant or of his employés to injure the child. As well said by the court in the case of Buch v. Amory Co., 69 N. H. 257, 44 Atl. 809, 76 Am. St. Rep. 163: "The defendants' machinery was in perfect order and properly managed. They were conducting their lawful business in a lawful way, and in the usual and ordinary manner. During the plaintiff's presence they made no change in the operation of their works or in their method of doing business. No immediate or active intervention on their part caused the injury. It resulted from the joint operation of the plaintiff's conduct and the ordinary and usual condition of the premises. Under these circumstances an adult in full possession of his faculties, or an infant capable of exercising the measure of care necessary to protect himself from the dangers of the situation, whether he was on the premises by permission or as a trespasser, could not re

pened that the plaintiff caught his hand in the gearing-are not disclosed by the case. It does not appear that any evidence was offered tending to show that he was incapa ble of knowing the danger from putting his hand in contact with the gearing, or of exercising a measure of care sufficient to avoid the danger. Such an incapacity cannot be presumed. [Citing cases.]" As a rule, a child is enticed or allured by dangerous machinery or dangerous places to play with or about them. Play, and not the gratification of curiosity, is usually the goal of all childish instincts and impulses. Its curiosity is usually very easily satisfied, and experience has taught us that a child's curiosity for anything with which he cannot play ceases when he becomes accustomed to and familiar with it. In this case it is alleged that the dangerous machinery was in operation at the time of the injury, and had been so in operation for a long time prior thereto. In so far as the complaint is concerned, this machinery may have been operated for so long a time in sight of the child that it had become familiar with it, and that its curiosity had been satisfied. It is impossible that the child was allured, attracted, or enticed to come upon defendant's premises for the purpose of playing with or upon this machinery. There is always danger for a child to play with or touch moving machinery, and the degrees of danger are immaterial.

The following cases fully support the proposition that this case is distinguishable from the turntable cases, and that no liability is charged against defendant in the complaint: Buch v. Amory Co., 69 N. H. 257, 44 Atl. 809, 76 Am. St. Rep. 163; Uthermoklen v. Bogg's Run Co., 50 W. Va. 457, 40 S. E. 410, 55 L. R. A. 911, 88 Am. St. Rep. 884; Gillespie v. McGowan, 100 Pa. 144, 45 Am. Rep. 365; Loftus v. Dehail, 133 Cal. 214, 65 Pac. 379; Savannah, F. & W. Ry. Co. v. Beavers, 113 Ga. 398, 39 S. E. 82, 54 L. R. A. 314; Paolino v. McKendall, 24 R. I. 432, 53 Atl. 268, 60 L. R. A. 133, 96 Am. St. Rep. 736; Holbrook v. Aldrich, 168 Mass. 15, 46 N. E. 115, 36 L. R. A. 493. 60 Am. St. Rep. 364; Stendal v. Boyd, 73 Minn. 53, 75 N. W. 735; Erickson v. Great Northern Ry. Co., 82 Minn. 60, 84 N. W. 462, 51 L. R. A. 645, 83 Am. St. Rep. 410; Richards v. Connell, 45 Neb. 467, 63 N. W. 915; Klix v. Nieman, 68 Wis. 271, 32 N. W. 223, 60 Am. Rep. 854; Overholt v. Vieths, 93 Mo. 422, 6 S. W. 74, 3 Am. St. Rep. 557; Barney v. H. & St. J. R. Co., 126 Mo. 372, 28 S. W. 1069, 26 L. R. A. 847; Rodgers v. Lees, 140 Pa. 475, 21 Atl. 399, 12 L. R. A. 216, 23 Am. St. Rep. 250.

Plaintiff seeks to avoid the effect of the decision of this court in Egan v. Mont. Cent. Ry. Co., supra, by attempting to allege want of ordinary care by defendant in that he failed and neglected to warn said minor of the dangers incident to his playing about the machine, or to request him to cease playing about it and to leave the premises.

MILBURN, J. I concur in the result reached; that is to say, that the judgment should be affirmed. The complaint does not state a cause of action, and this is apparent for the reasons stated. I do not agree with all that is said in the opinion as to absence of legal duty to a trespasser. I do not believe that the turntable doctrine is wrong.

HOLLOWAY, J. I agree with the result reached-that the complaint does not state facts sufficient to constitute a cause of action under the authority of San Antonio & A. P. Ry. Co. v. Morgan, referred to in the opinion. I do not agree with much that is said in the opinion, particularly with reference to the soundness of the doctrine announced in the so-called "turntable cases," or the applicability of that doctrine to a case of the character of the one now under consideration.

(32 Mont. 159)

BORDEAUX v. BORDEAUX. (Supreme Court of Montana. March 13, 1905.)

DIVORCE

SUIT MONEY - COUNSEL FEES - REFUSAL TO ALLOW PREJUDICE -FINDINGS

APPEAL-REVIEW-CONDONATION-EVIDENCE.

1. Where, in divorce, defendant moved for suit money and counsel fees before trial, a denial of attorney's fees and refusal to allow more than $200 suit money was not prejudicial to defendant, it appearing that she was represented by eminent counsel, and nothing appearing to show that she did not have all the witnesses she desired, though her application showed that she had spent over $1,600 in preparing the case, and that she owed about $900 of such sum.

2. Under the express provisions of Code Civ. Proc. § 1114, no judgment is reversible for want of findings at the instance of a party who, at the close of the evidence and argument, shall not have requested findings in writing, and caused the request to be entered on the minutes.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, §§ 916-919.]

3. Under the express provisions of Code Civ. Proc. § 1114, in a case tried by the court the judgment is not reversible for defects in the findings unless exceptions to the defects are made in the trial court.

4. While, generally speaking, condonation in divorce is a defense not available unless pleaded, when, though not pleaded, the issue has been contested in the evidence without objection, and it clearly appears that the offense alleged in the complaint has been condoned, the divorce will be denied.

5. Under Acts 1903, 2d Ex. Sess. p. 1, making it the duty of the Supreme Court to determine questions of fact unless for a good reason a new trial or the taking of other evidence in the district court be ordered, the Supreme Court will hesitate to overturn findings based on substantially conflicting evidence which would justify an inference in favor of either party; but where the conflict is trifling, or the evidence preponderates decidedly against the findings, the Supreme Court will examine the facts and establish its own conclusion.

6. In divorce, evidence considered, and held sufficient to show that the offense charged in the complaint, if committed, had been condoned.

On rehearing. Judgment for plaintiff and order denying a new trial reversed.

For former opinion, see 75 Pac. 524.

McHatton & Cotter, J. B. Roote, and W. A. Clarke, Jr., for appellant. Stapleton & Stapleton, B. S. Thresher, and C. F. Kelly, for respondent.

BRANTLY, C. J. It is not necessary to state again the issues presented by the pleadings and tried in the district court. These are stated in full in the former opinion. 30 Mont. 36, 75 Pac. 524. At the former hearing the respondent was not represented by counsel, nor was a brief filed in his behalf. A rehearing was granted for the reason that the court was in doubt whether its decision in the case was not based upon considerations which were not properly presented by the record. We shall first notice the contentions of the parties as to the correctness of the conclusions stated in the former opinion, and then make further reference to the evidence and to the principles of law which we deem applicable.

1. Suit money and counsel fees: Counsel for respondent contend that the order of August 17, 1901, making the allowance for suit money and denying counsel fees was an appealable order, and as such cannot be reviewed on this appeal, no matter whether or not the court abused its discretion in the premises. It is argued that this position is sustained by the decisions in In re Finkelstein, 13 Mont. 425, 34 Pac. 847; State ex rel. Nixon v. District Court, 14 Mont. 396, 40 Pac. 66; Bordeaux v. Bordeaux, 29 Mont. 478, 75 Pac. 359; Sharon v. Sharon, 67 Cal. 185, 7 Pac. 456, 635, 8 Pac. 709; White v. White, 86 Cal. 212, 24 Pac. 1030; and the provisions of section 1742 of the Code of Civil Procedure. If the order is appealable under the provisions of section 1722 of the Code of Civil Procedure, as amended by the act of 1899 (Laws 1899, p. 146), then by the provisions of section 1742, supra, it may not be reviewed upon appeal from the judgment, it not being an intermediate order within the meaning of that section. Finlen v. Heinze, 27 Mont. 107, 69 Pac. 829, 70 Pac. 517. In all the cases cited by counsel except the case of White v. White the particular order complained of was one in effect a final judgment allowing a specific sum for alimony and counsel fees or suit money. It was held that such an order falls within the statute (section 1722, as amended), because it is a final judgment in the case. The case of White v. White was one in which an application for alimony was denied. The court, without discussion, or giving any reason for its conclusion, held such an order appealable, remarking: "With respect to the right of appeal, there would seem to be no distinction on principle between an order denying and an order granting alimony pendente lite." On principle, there seems to us to be a wide distinction; for an order granting alimony finally adjudges that the husband must pay a specific sum of money to his wife or her counsel, and in some cases awards execution

for it. The order denying the application merely refuses for the time being to make a requirement to pay, there being nothing in the nature or form of it to give it any of the characteristics of a final judgment. While an appeal does lie from the former, it does not seem to follow, as a matter of course, that such is the case with the latter. The view we have taken of this case, however, renders unnecessary a discussion and determination of this distinction, if it exists, and the rights of the wife in the premises; for, though the order be not appealable, and therefore reviewable on this appeal as affecting the judgment, yet upon the showing presented in the record we do not think this action of the court prejudiced the defendant.

The application for suit money and counsel fees, though made before the trial, was heard during its progress. The trial opened and proceeded to the time of the hearing of the motion without an application for a continuance on the ground that the defendant had no counsel, or on the ground that she was not prepared for trial, or on any other ground. Though the defendant knew perfectly well what her necessities were, she proceeded with the trial, and did not at any time during its progress indicate to the court that she could not proceed without imperiling her rights. At the same time it appears that she was represented by eminent counsel, who do not seem to have relaxed their efforts in her behalf in any degree because their fees were not provided for. Nor is there in the record any fact supporting the idea that she did not have all the witnesses she desired, or all the information concerning the plaintiff's witnesses necessary to conduct her defense as successfully as she would had an additional allowance been made. Her application shows that she had spent about $1,100 in investigating the plaintiff's witnesses, and that she owed her agents about $900 of this sum. It cannot be a ground for reversing the judgment that the court did not grant her, besides the $200, an additional allowance to pay witness fees and other charges, and to liquidate her liabilities to her agents for the work theretofore done by them, when it does not appear that she suffered for the want of any testimony whatsoever. An additional allowance might well have been made upon her showing, and perhaps the court erred in the exercise of its discretion in not making it. It is not apparent, however, that any prejudice was done by the court's ac tion.

2. As to the findings: On motion the court adopted findings 1, 2, 3, 4, 5, 6, and 7 returned by the jury in favor of the plaintiff, and made an additional one as to plaintiff's residence. All the other findings were rejected. The decree was entered in accordance with these findings, and they are sufficient to support it. The defendant requested other findings, but what they were the record does not disclose. There is in the

record no bill of exceptions showing that the defendant, at the close of the evidence and argument in the cause, made written request for findings upon the subject of recrimination, or any other issue, and had the request entered in the minutes of the court, nor that any exception was taken to the action of the court in refusing to make the requested findings, as provided in section 1114 of the Code of Civil Procedure. Under these circumstances the judgment may not be reversed because of any defect in the findings, or any failure on the part of the court to make a finding upon any particular issue (section 1114, supra; Gallagher v. Cornelius et al., 23 Mont. 27, 57 Pac. 447; Haggin v. Saile et al., 23 Mont. 375, 59 Pac. 154; Currie v. Montana Central Ry. Co., 24 Mont. 123, 60 Pac. 989), for, under this provision of the statute, every finding necessary to support the judgment will be presumed, and the failure of the court to make specific findings upon the issues made upon the affirmative matter alleged in the answer is not ground for reversal of the judgment, in the absence of a specific showing by way of bill of exceptions reserved upon the court's ruling, and made a part of the record.

Before the hearing the appellant asked and obtained leave to file a supplemental transcript embodying the findings rejected by the court. This supplement was treated as a part of the record, and the opinion of the court was based in part upon the showing supposed to be made by it. Respondent has called attention to the fact that the matters embodied therein formed no part of the judgment roll, or of the statement on motion for new trial, or of any bill of exceptions settled by the court, being authenticated only by a certificate of the clerk. For this reason they have on this investigation beer excluded from consideration, with the result. already stated, that there is nothing in the record preserved under the requirements of the statute, from which it appears that the court committed error in refusing to make any findings, or in rejecting any of those made by the jury.

3. Condonation: The contention is made that this court was in error in considering the matter of condonation at all, for the reason that, being a special defense, it could not avail the defendant, unless it had been specially pleaded in her answer. Speaking generally, this defense, as a bar to the action, cannot be made of avail by the defendant unless it be alleged in the answer. It is like any other defense in the nature of confession and avoidance, and therefore a special defense-such as payment in actions upon contract for the recovery of money. or of accord and satisfaction, or contributory negligence in actions for personal injuries— of which the plaintiff is entitled to notice This view is supported by the great weight of authority. 7 Enc. Plead. & Prac. 92, Warner v. Warner, 31 N. J. Eq. 225; Moore