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the complaint in this instance does not allege 3. It is insisted, also, that the complaint that Le Sage was a servant of the railway fails to state facts showing a breach of duty company; and while the allegation in ex- on the part of defendants, and also that the press terms cannot be found in the amended negligence alleged was a proximate cause complaint, and its absence is scarcely excus- of the injury. The complaint alleges, and able, still, if there are sufficient facts alleged the answers admit, that the car was being from which such relationship may fairly be operated in a public and much-used street in inferred, we will not feel justified in revers- the city of Butte. From this fact it follows ing the judgment

that the defendants were under the obligation [6] The complaint alleges that at the time or duty to keep a vigilant lookout for people of the injury the defendant railway company who might be rightfully using the street. was the owner of, and operating, street cars [7] The general rule, with the authorities on West Park street in Butte, for the purpose supporting it, is found stated in 36 Cyc. 1520, of transporting passengers from point to as follows: “It is the duty of the driver or point in the city; that at such time and motorman of a street car to exercise reasonplace Le Sage was in charge of one of said able and ordinary care to discover persons cars, in the capacity of conductor; that at using the street on or near the track, and such time and place the car so in charge of liable to be injured by his car, in time to Le Sage was proceeding along West Park avoid injuring them, and if he fails to disstreet between Columbia and Crystal streets; cover a person on or near the track, when “that the defendant Le Sage was driving said by the exercise of ordinary care he could car as motorman, and not acting in his usual have done so in time to stop the car or otherand regular capacity as conductor on said wise avoid the injury, it is negligence for car, doing so with the knowledge and con- which the company is liable." sent of the defendant corporation." In each The complaint alleges that Le Sage, the moof the separate answers filed by the defend- torman, at the time failed to keep a vigiants, these specific allegations are admitted. lant or proper lookout, whereby he might

[4] In attempting to charge the relation have seen the child before it came into a ship of master and servant, it must be con- place of danger. We think the complaint ceded that it is not necessary to plead any contains a sufficient statement of the duty facts other than those necessary to be proven, and breach. in order to establish such relationship when [8] The only specific act of negligence in issue.

charged is in failing to keep a proper look[5] In 1 Shearman & Redfield on the Law out; and the complaint then proceeds; "That of Negligence, $ 158, it is said: “When the by reason of the negligence of said defendplaintiff has suffered injury from the negli ants he (plaintiff] was injured.” This is a gent management of a vehicle, such as a boat, sufficient showing of the causal connection car, or carriage, it is sufficient prima facie between the alleged act of negligence and the evidence that the negligence was imputable injury. Mize v. Rocky Mountain Bell Tel. to the defendant to show that he was the Co., 38 Mont. 521, 100 Pac. 971, 129 Am. St. owner of the thing, without proving affirma- Rep. 659. See, also, same case in 16 Am. & tively that the person in charge was the Eng. Ann. Cas. 1189, and note; Reino v. defendant's servant."

Montana Min. Land Dev. Co., 38 Mont. 291, In 1 Thompson's Commentaries on the Law 99 Pac. 853. of Negligence, $ 580, the same rule is an- [9] 4. Without reviewing the evidence at nounced as follows: "So it is not necessary length, we think it sufficient to go to the to prove an express contract of employment jury upon the question of Le Sage's negliin order to establish the relation of master gence in failing to keep a proper lookout, and servant, but the relation may be implied and that a verdict was justified if the plainfrom circumstances, as where the person com- tiff's evidence was treated as true, as it must mitting the wrong is at the time in the actu- have been. We cannot agree with counsel al conduct of the business of another with for appellants that the evidence is subject his seeming consent, in which case that other to but one construction, viz., that the child will be responsible for the wrong done by the appeared on the track under such circumformer within the scope of the apparent em- stances as to make its injury unavoidable. ployment, on the ground that he has induced There is a sharp conflict in the evidence as the belief that such person is his servant, to whether a wagon passed the car immediand has led another to act upon that belief ately before the injury happened, or whether to his injury." To the same effect are Mc- there was a dust storm which might have Coun v. New York Central & H. R. R. Co., interfered with Le Sage in attempting to 66 Barb. (N. Y.) 338; Growcock v. Hall, 82 keep a lookout; and under these circumInd. 202; Norris v. Kohler, 41 N. Y. 42. stances it was proper to submit to the jury Even though this complaint may not be a the question whether or not the injury was model pleading, we think it fairly appears or was not unavoidable. Harrington v. from it that Le Sage was the servant of the í Butte, Ananconda & Pac. Ry. Co., 39 Mont. railway company at the time of the injury, 299, 102 Pac. 330. and that the rule of respondeat superior is 5. It is insisted that the verdict returned properly invoked.

in this instance is grossly excessive. It has

SONA-BLENESS.

SIONS.

been well said: "To ascertain what is a failing to pay the price of the service when fair and just compensation for a personal in- due is reasonable. jury is a judicial problem of difficult, if Dec. Dig. g 11.*]

[Ed. Note. For other cases, see Electricity, not impossible, solution.” In the note to Cleveland, etc., R. Co. v. Hadley, 170 Ind. 204,

3. ELECTRICITY ($ 11*)-ELECTRIC COMPANIES

-SUPPLY OF ELECTRICITY - RULES – REA82 N. E. 1025, 84 N. E. 13, 16 L. R. A. (N. S.) 527, as reported in 16 Am. & Eng. Ann. Where it did not appear that a company Cas. 1, there is a most complete collation of authorized by its franchise to supply electric

ity to the inhabitants of a city was also emcases involving personal injuries. The cases powered to furnish gas, a rule that it would are carefully analyzed and classified accord- not serve electricity to any one stealing its ing to the character of injury and the action gas until all reasonable bills therefor were paid taken by the appellate court. A review of

was not a reasonable one. those cases involving an injury of the charac- Dec. Dig. & 11.*]

[Ed. Note.-For other cases, see Electricity, ter suffered in this instance discloses that, 4. PLEADING (8214*) — DEMURREB – ADMISexcept in New York and Texas, in every instance where the verdict exceeded $15,000 it The rule that a demurrer to a pleading adhas been disapproved, and that in nearly mits the truth of its allegations so far as they every instance the amount has been reduced conclusions of law or inferences from facts not

state probative facts does not extend to mere to $12,500, or less. While the views of these pleaded or conclusions drawn therefrom, even courts are not binding upon us, they at least if alleged in the pleading. indicate in a general way the prevailing opin

[Ed. Note.-For other cases, see Pleading, ion as to the reasonableness of verdicts in Cent. Dig. $8 525–534; Dec. Dig. § 214.*] this class of cases. Considering all the facts Appeal from District Court, Silver Bow and circumstances as disclosed by this rec-County; Jeremiah J. Lynch, Judge. ord, we think a recovery of $12,500 will com

Mandamus by the State, on the relation of pensate for the injury sustained, assuming, William Deeney, against the Butte Electric as we must, that it is possible to measure & Power Company. Judgment for relator, in money the extent of an injury which de- and respondent appeals. Affirmed. prives a person of one member of his body. Breen & Jones, for appellant. Maury &

It is ordered that this cause be remanded Templeman and J. 0. Davies, for respondto the district court, with directions to grant ent. a new trial, unless within 30 days after the remittitur is filed, and plaintiff has notice BRANTLY, C. J. The purpose of this apthereof; he shall file with the clerk of the dis- plication was to compel the defendant to furtrict court his consent in writing that the nish to the relator electricity to light his amount of the judgment be reduced to $12,500 residence in the city of Butte. In his afas of the date of the filing of such writing. fidavit the relator alleges that he is a resiIf such written consent be filed within the dent of that city, and defendant is a cortime designated, then the judgment shall be poration organized and existing under the modified accordingly, and as modified shall laws of the state of New Jersey, and austand affirmed, and under those circumstanc- thorized to do business in the state of Mones the order refusing a new trial will also tana; that it is and has been engaged in be affirmed, with costs to respondent.

furnishing electricity to the city of Butte

and its inhabitants under a franchise grantBRANTLY, C. J., and SMITH, J., concur. ed to its pre-lecessor in interest by ordinance

duly enacted by the city council on July 27,

1883; that, under the provisions of the or(13 Mont. 118)

dinance, it has the right to extend its lines STATE ex rel: DEENEY v. BUTTE ELEC- of wire along the streets and alleys of the TRIC & POWER CO.

city, and is required to furnish electricity to

the city and its inhabitants for lighting pur(Supreme Court of Montana. March 27, 1911.) | poses whenever demand is made for it and 1. ELECTRICITY (8 11*)-ELECTRIC COMPANIES upon reasonable terms; that the house in -DUTY TO SUPPLY.

which the relator resides is fitted with wires A company authorized under a franchise to furnish electricity to the inhabitants of a

to receive electricity for domestic use; that city may be compelled to furnish it to all per the defendant has a power line along an alsons along its lines who offer to and do comply ley through the block in which the relator's with its rules and regulations.

house is situated, by means of which it for [Ed. Note.-For other cases, see Electricity, a long time has been delivering electricity to Dec. Dig. 8 11.*] 2. ELECTRICITY ($ 11*)- ELECTRIC COMPANIES

the persons residing in the block; that here -RULES AND REGULATIONS-REASONABLE

tofore and until October 19, 1910, the wires

in relator's aouse were connected with the A company authorized by franchise to sup- defendant's line, and electricity was deliv. ply electricity to the inhabitants of a city mayered to him for lighting purposes; that relaadopt and enforce reasonable rules and regulations to protect its interests; and a rule that tor paid all bills due to the defendant for its service may be discontinued as to any patron I service and complied with all of its reason

NESS.

au

able rules regarding the use of electricity; | gas, and that it will not sell gas to any one that on the date mentioned the defendant who steals its electricity until all reasonable wrongfully caused the connection between its bills and charges for both gas and electricity line and relator's house to be severed, and are paid to the company, this defendant. unlawfully refused to furnish the relator That such rule is a reasonable rule and reguwith electricity; that, though demand was lation, as this defendant avers, and without made for the restoration of the connection this rule persons of the disposition to do so and service, it was refused, and that the get, and there are some in Butte who would relator has been damaged by being compelled obtain, the products of gas and electricity to resort to other inferior means of lighting furnished to the public by this defendant his house, to the amount of $1,000, and to without being required to pay or paying for pay counsel fees and costs to the amount of the same.” To this answer the court sus$560.20. Judgment is demanded that a per- tained a general demurrer, and, after a hearemptory writ issue requiring defendant to ing on the question of damages, rendered furnish the relator with electricity, and judgment that the writ issue, and that the awarding him such sum in the way of dam- relator recover damages to the amount of ages as will compensate him for the injury $1, together with costs of the proceeding. and loss suffered.

The defendant has appealed. The one ques. The defendant's answer admits all the ma- tion submitted for decision is whether the terial allegations in the affidavit, except as answer alleges facts sufficient to constitute a to the damages. These latter it denies. As defense. a justification for its action and as cause [1] It is conceded by defendant-and the why relator is not entitled to relief, it al- concession is proper-tbat a company leges the following: "That for more than thorized under a franchise to carry on a one year last past, and next before the 19th business public in its nature, such as furday of October, 1910, this defendant has been nishing electricity to the inhabitants of a a public service corporation, and at all times city, may be compelled to furnish it to all engaged in furnishing and supplying to the persons along its lines who offer to, and do, citizens of and residents within the city of comply with its rules and regulations. State Butte in Silver Fow county, Mont., under ex rel. Milsted v. Butte City Water Co., 18 lawful permission so to do, by means of Mont. 199, 44 Pac. 966, 32 L. R. A. 697, 56 pipes, gas for fuel and other domestic pur- Am. St. Rep. 574; Shepard v. Milwaukee poses and lighting purposes. That for the Gaslight Co., 6 Wis. 539, 70 Am. Dec. 479, period, full and entire, of 12 months next and note; Williams v. Mutual Gas Co., 52 preceding the 19th day of October, 1910, the Mich. 499, 18 N. W. 236, 50 Am. Rep. 266; said William E. Deeney used for fuel pur- Haugen v. Water Co., 21 Or, 41, 28 Pac. poses in his said residence gas of this defend- 244, 14 I. R. A. 424; Mackin v. Portland ant by means of a secret and furtive and Gas Co., 38 Or. 120, 61 Pac. 134, 62 Pac. 20, clandestine connection with the mains and 49 L. R. A. 596; State v. Telephone Co., 17 pipes of this defendant. That this defend- Neb. 126, 22 N. W. 237, 52 Am. Rep. 404: ant had no notice or knowledge of the said Crumley v. Watauga Water Co., 99 Tenn. use by the said W. E. Deeney of its gas. 420, 41 S. W. 1058. That the said W. E. Deeney was during the [2] It is likewise properly conceded by the said period of 12 months next preceding relator that such a company may adopt and October 19, 1910, continually guilty of lar- enforce whatever rules and regulations, or ceny of this defendant's gas, and using the pursue any course of conduct it may deem same for fuel purposes. That the reasonable necessary to protect its interests, providing value and price of the said gas so used by they are reasonable, and that a rule that the the said W. E. Deeney in his said residence particular service may be discontinued as to is more than the sum of $50. That no part any patron who fails or refuses to pay the price of the said sum of $50 has ever been paid of the service when due is reasonable. State by the said W. E. Deeney, or by any one in ex rel. Milsted v. Butte City Water Co., supra; his behalf, to this defendant for its said gas American Waterworks Co. v. State, 46 Neb. so used by him. That demand has been made 194, 64 N. W. 711, 30 L. R. A. 447, 50 Am. on the said Deeney before the institution of St. Rep. 610; Mackin v. Portland Gas Co., this special proceeding of a civil nature by supra; Tacoma Hotel Co. v. Tacoma Light him that he pay the reasonable value and & Water Co., 3 Wash. St. 316, 28 Pac. 516, price of the said gas so furtively used by 14 L. R. A. 609, 28 Am. St. Rep. 35. him, and the property of and made by this [3] These concessions narrow the inquiry defendant. That he refused to pay, and down to the specific question: Is the rule failed to pay, anything at all for the use or upon which the defendant relies a reasonable the same. That when he was so using the one? In State ex rel. Milsted v. Butte City gas of this defendant he intended never to Water Co., supra, it was said: Certainly pay for any of the same, and intended to con- the company may make reasonable rules and tinue to use the same clandestinely and with regulations. Doubtless it may require payout paying for the same. That this defend- ments in advance for a reasonable length of ant has bad for the period of more than one time. It may within reasonable limitations year continuously a rule that it will not cut off the supply of those who refuse to pay serve electricity to any one who steals its' water rents due. It may make regulations authorizing an examination of meters in fendant has a gas franchise. That it has, houses at reasonable times or adopt other however, is at best not a just inference from reasonable rules for the regulation of its af- anything stated in the answer, but rather fairs. But it has no power to abridge the an inference from facts the existence of obligations assumed by it in accepting its which rests altogether in surmise. The alfranchise to supply an inhabitant of Butte legation on this subject is a mere conclusion. with water, if he pays them for it in ad. It is a crime to steal gas. Rev. Codes, $ vance, and is tenant in the possession and 8659. But the defendant has no more right occupancy of a house in need of water for to use its franchise to protect its private general purposes.” Accordingly it was held gas business than it would have to protect that a rule under which it would "deal only its private merchandise business. with the owners of property requiring water Upon the facts as presented in this case, to be turned on, or the agents of such own the relator was entitled to have the defenders,” was unreasonable, because it was in ant furnish to him electricity upon the same conflict with its franchise.

footing with every other citizen. The de[4] By interposing a general demurrer to fendant might prosecute him in the courts defendant's answer, the relator admitted the for a violation of the law, but could not astruth of its allegations, and, so far as they sue to itself the power to punish him for state probative facts, this court must assume the violation of a rule which it had no powthem to be true. But the rule does not ex- er to adopt. The demurrer was properly sustend to mere conclusions of law or inferences tained. from facts not pleaded or conclusions drawn The judgment is affirmed. therefrom, even if alleged in the pleading.

Affirmed. It includes only facts properly pleaded. Mc

SMITH and HOLLOWAY, JJ., concur. Cormick v. Riddle, 10 Mont. 467, 26 Pac. 202; 31 Cyc. 333; 6 Ency. Pl. & Pr. 336; Bliss on Code Pleading, $ 418.

(43 Mont. 93) Defendant contends that it is admitted BRITANNIA MINING CO. v. UNITED that it is a public service corporation engaged

STATES FIDELITY & GUARin supplying the inhabitants of Butte with

ANTY CO. both gas and electricity, and that it may re- (Supreme Court of Montana. March 22, 1911.) fuse to sell either to any person who has 1. SHERIFFS AND CONSTABLES ($ 157*)—LIAbeen guilty of a larceny of the other, so BILITY OF BONDSMEN – WRONGFUL SALE — long as he refuses to pay the value of the

MINING MACHINERY.

Rev. Codes, § 4428, provides that all maquantity stolen. For present purposes, and chinery or tools used in working or developing in view of the facts stated by relator in a mine shall be deemed affixed to the mine. his affidavit, it may be assumed that it suf- Section 4425 provides that what is affixed to fciently appears from the answer that the vides that before real property can be sold on

land shall be real property. Section 6828 prodefendant is a corporation engaged in supply-execution 20 days' notice thereof must be given. ing the inhabitants of Butte with electricity, Section 6829 provides that an officer selling with the powers and privileges conferred by without the notice prescribed in section 6828 its charter, and a franchise under which it forfeits $500 to the aggrieved party in addition

to his actual damages. Held that, in selling is conducting its business. But it does not mining machinery as personal property, upon follow that it may under the guise of a rule five days' notice only, a sheriff subjected himself adopted ostensibly to secure and protect its and bondsmen to the penalty. interests in rendering this public service Constables, Dec. Dig. § 157.*]

[Ed. Note.-For other cases, see Sheriffs and impose restrictions designed to extend the

2. EVIDENCE (8 83*) PRESUMPTIONS — PERsame protection to other business conducted

FORMANCE OF OFFICIAL DUTY-DOCKET OF by it having no connection with the fran- JUDGMENT. chise granted by the city for a specific pur: trary, it will be presumed that a clerk per

In the absence of any showing to the conpose.

It is not alleged that the defendant formed his duty of docketing a judgment renpossesses a franchise to supply gas to the dered in his court, so as to make it a lien on inhabitants of Butte. So far as appears, its real estate under Rev. Codes, $ 6807. engagement in the manufacture and distribu- [Ed. Note.-For other cases, see Evidence, tion of gas may be wholly without a fran

Dec. Dig. § 83.*] chise. If this is so, this part of its business 3. EXECUTION ($ 127*)—"LEVY"-OBJECT OF.

The object of a levy of execution is to bring stands upon the same footing as would deal- the property within the custody of the law and ing by it in electrical fixtures and other prevent the judgment debtor from disposing of merchandise of the same character. No one

it to the prejudice of the creditor before sale would contend for a moment that a rule de- which the judgment is already a lien by docket

can be made, and in case of real estate, on claring that the defendant could cease 'to ing. the ordinary meaning of the word "levy" as furnish electricity to any person who should used in section 6827 and elsewhere is inapplica

ble. be in default of payment of a bill for merchandise of the description mentioned would Dec. Dig. $ 127.*

[Ed. Note. For other cases, see Execution, be within the purview of the powers granted

For other definitions, see Words and Phrases, by the franchise. It may be that the de- vol. 5, pp. 4101-4106; vol. 8, p. 7705.)

4. SHERIFFS AND CONSTABLES ($ 157*)—IR- his second term, Quinn, as sheriff, sold the REGULAR SALE—LIABILITY OF SURETIES.

fixtures and mining machinery under the exWhere a sheriff at the close of his term of office levied an execution on real estate, and sold ecution mentioned above, to satisfy the Nickit after the beginning of his second term, giv- ey judgment. At such sale one Charlton being only five days' notice of sale, instead of 20 came the purchaser, and thereafter took posdays as required by Rev. Codes, $ 6828, the session of the purchased property and resureties on his official bond for the second term were liable for the penalty and damages pre- moved it. On February 27, 1905, after a scribed by section 6829 for such cases, the hearing the district court made an order vawrong being in the irregular sale, and not in cating the sale, and directing the surrender the levy, which was a mere formal taking in of the property to the Britannia Mining Comview of the fact that the judgment on which execution was issued was already a lien on the pany, this plaintiff. This action was thereproperty sold.

upon brought against the United States Fi. (Ed. Note.-For other cases, see Sheriffs and delity & Guaranty Company, as surety on Constables, Dec. Dig. 157.*]

Quinn's official bond for his second term. 5. PLEADING ($ 126*) — ANSWER — NEGATIVE It is alleged that Quinn sold the property PREGNANT.

on January 3, 1905, without having given Where plaintiff alleged it was a corporation organized under laws of Wisconsin, with its | any previous notice of such sale; except a principal office in Milwaukee, and the answer posted notice of five days only; that Charldenied any knowledge sufficient to form a belief ton broke the fastenings and removed the as to whether it was duly, or at all, organized machinery, and in so doing certain parts under the laws of Wisconsin, or had its principal place of business in Milwaukee or elsewhere, were broken and otherwise injured; that by such plea is a negative pregnant, which does reason of the removal of the machinery the not raise any issue as to the corporate exist- works in the mining claims were flooded ence of the plaintiff, but rather admits plain- and great damage done; that the plaintiff tiff's corporate character.

[Ed. Note.--For other cases, see Pleading company was at great expense in returning Cent. Dig. $8 261-263; Dec. Dig. $ 126.*] the machinery to its place and in renewing 6. New Trial ($ 68*) – GROUNDS — INSUFFI- broken and missing parts. It is alleged that CIENCY OF EVIDENCE.

the sale by the sheriff under the circumstancWhere, by the undisputed evidence, plaintiff es constituted a breach of official duty. The was entitled to some amount, a general verdiet prayer is for judgment for $11,000 damages, for defendant was not supported by the evi

and costs. dence, so that a grant of a new trial was therefore proper.

The answer admits the corporate existence [Ed. Note. For other cases, see New Trial, of the defendant company; the election, Cent. Dig. 88 135-140; Dec. Dig. $ 68.*]

qualification, and service of Quinn as sheriff; Appeal from District Court, Silver Bow the giving of the official bond by the defendCounty; Jeremiah J. Lynch, Judge.

ant as surety for Quinn during his second Action by the Britannia Mining Company have not been paid; denied generally every

term; that the damages claimed by plaintiff against the United States Fidelity & Guar- other allegation in the complaint; and pleads anty Company. A verdict was rendered for affirmatively (1) that the levy under the defendant, and from an order granting a Nickey execution was made during Quinn's new trial, defendant appeals. Affirmed.

first term; and (2) the pendency of another Kremer, Sanders & Kremer, for appellant. action. W. A. Pennington, for respondent.

A demurrer was sustained to each of these

affirmative defenses, and, defendant electHOLLOWAY, J. For two years prior to ing to stand upon its answer, the cause proJanuary 2, 1905, John J. Quinn was the duly ceeded to trial, which resulted in a general elected, qualified, and acting sheriff of Sil- verdict in favor of the defendant. Plaintiff ver Bow county. The sureties upon his of- thereupon moved for a new trial upon all ficial bond during that time are not men- the statutory grounds, except excessive vertioned and are not parties to this proceeding. dict. A bill of exceptions in support of the At the general election held in November, motion was prepared and settled, and on 1904, Quinn was re-elected and on the 20 September 12, 1910, the court by a general day of January, 1905, qualified and entered order granted the motion, and defendant apupon the discharge of his duties for his sec- pealed. ond term, with this defendant, United States 1. It is insisted by appellant that, if the Fidelity & Guaranty Company, surety upon sheriff's action in selling the property, as it his official bond for that term. On Decem- was sold, gave rise to any liability, it was a ber 20, 1904, there had been placed in Quinn's liability incurred during his first term, for hands, as sheriff, an execution issued on a which appellant is not responsible; and this judgment recovered by Charles E. Nickey contention is made upon the theory that the against this plaintiff. At that time plaintiff entire proceedings of the sheriff under the owned and was possessed of certain mining execution, from the date of its levy until and claims, mining fixtures, machinery, and tools including the sale, constituted an entirety, used in working such mining claims. On an indivisible act, and since such act had January 3, 1.905, and after the beginning of its inception during Quinn's first term the

“For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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