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Referring to that case, Labatt (4 Labatt, , ant who is required to use a complicated inMaster and Servant, § 1348) says, that the strumentality, but that the same agreement effect of the master's promise

is not binding upon him when made with the "is to bring into existence a new stipulation servant who uses a simple tool. Just how which operates so as to cast upon the master the simplicity or complexity of the instrutemporarily the responsibility for the particular mentality can affect the validity of the agree risk in question."

ment is beyond our comprehension, In Eureka Co. v. Bass, 81 Ala. 200, 8 So. since, in this state, the risk of injury arising

But counsel for defendant insist that, 216, it is said:

from the use of a simple tool is one of the "The assurances of the employer that the ordinary risks of the employment (Miller v. danger shall be removed is an agreement by Granite County Power Co., 66 Mont. 368, 213 him that he will assume the risk incident to P. 604), the promise of the master to repair the danger for a reasonable time,”

a simple tool cannot have the effect of im. and this is approved in Greene v. Minneapo- posing liability upon him, since none existlis & St. L. Ry. Co., 31 Minn. 248, 17 N. W. ed before the promise was given, and in sup378, 47 Am. Rep. 785.

port of that contention quote from 4 Labatt In St. Louis, I. M. & S. Ry. Co. v. Holman, on Master and Servant, & 1347, the following: 90 Ark. 555, 120 S. W. 146, it is said :

"Before the master can be held liable as for “The effect of a promise to repair by the a failure to perform a promise to remove a master, and of the continuance in his service specific danger, it is necessary to show that by the servant, in reliance upon the promise, the existing conditions were of such nature is to create a new stipulation whereby the mas- that their maintenance implied culpability.” ter assumes the risks impendent during the time specified for the repairs to be made.

The authorities cited in support of the Where no definite period is specified in which text, and the following paragraph of the the given defects are to be remedied, the sus same section, however, disclose that the lanpension of the master's right to avail himself guage quoted means only that it must be of the defense of assumption of the risk by the shown that the appliance was actually de servant continues for a reasonable time,"

fective, and, by reason thereof, the hazards and this is followed in Clark Lumber Co. of the employment were increased. The auv. Johns, 98 Ark. 211, 135 S. W. 892.

thor continues : In Swift & Co. v. O'Neill, 187 Ill. 337, 58

"The very effect of the doctrine of the promN. E. 416, the court stated the general rule ise to repair is to make the master liable when above and said:

he would not be liable otherwise because of

the operation of the doctrine of assumption of "The reason of this rule being, that by the risk." promise of the master a new relation is created between him and the employee, whereby

The situation of the servant using the the master impliedly agrees that the servant simple tool and the one using the complicatshall not be held to have assumed the risk for ed machinery is precisely the same at the a reasonable time following his promise.".

moment complaint is made, and the promise To the same effect are Morden Frog Works to repair is given. In effect the servant usv. Fries, 228 I11. 246, 81 N. E. 862, 119 Am. ing the simple tool says: St. Rep. 428, and Scott v. Parlin & Orendorff "I will not continue to use this defective apCo., 245 III. 460, 92 N, E. 319.

pliance, for in case of injury I will be held to It is the rule in New York that the prom- have assumed the risk; hence I will quit the ise of a master to repair, when made to in- employment rather than take the chances of

injury.” duce the servant to continue to work, constitutes a contract on the part of the master And the effect of the master's promise to to assume the risk and relieve the servant repair must be: therefrom. Rice v. Eureka Paper Co., 174

"If you will continue the employment and the N. Y. 385, 66 N E. 979, 62 L. R. A. 611, 95

use of the defective tool for a reasonable time, Am. St. Rep. 585; Altman v. Schwab Mfg. I agree to relieve you of the burden of the Co., 54 Misc. Rep. 243, 104 N. Y. S. 349; assumption of risk which otherwise would fall Citrone v. O'Rourke, etc., Co., 113 App. Div. upon you, by reason of the fact that the risk 518, 99 N, Y. S. 241.

of injury from the use of a simple tool is one In Trotter v. Furniture Co., 101 Tenn. of the ordinary risks of your employment." 257, 47 S. W. 425, it is said:

Some of the leading cases which apply the "The assurance of the master that the de- rule to simple tools as well as to complicated fect shall be remedied is an agreement by him that he will assume the risk for a reasonable ones, and refuse to recognize the limitation

imposed by the New York court, are Fischer time.”

v. Chicago, M. & St. P. Ry Co., 154 Minn. If this be the correct theory, and we think 78, 191 N. W. 262; Swaim v. C., R. I. & P. it is, then we cannot perceive any reason for Ry. Co., above; Brouseau v. Kellogg S. & saying that the master's agreement shall be s. Co., 158 Mich. 312, 122 N. W. 620, 27 L. binding upon him when made with the serv- R, A. (N. S.) 1052; Barr v. Pen Carbon M.

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(230 P.) Co., 81 N. J. Law, 712, 80 A. 930; Hermanek | an injury occasioned by the use of a box, v. Railway, above; M., K. & T. Ry. Co. v. conceded to be a simple instrumentality, and Puckett, 62 Kan. 770, 64 P. 631; Cudahy the court was urged to adopt the limitation Packing Co. v. Skoumal, 125 F. 470, 60 C. imposed by the New York court. In response C. A. 306; Shea v. Seattle Lumber Co., 47 to the contention that the servant should not Wash. 70, 91 P. 623.

be relieved of the burden of assumption of In the following cases the rule was ap- risk, even though he had complained and replied to injuries arising from the use of ceived the master's promise to repair, the simple tools without considering the distinc-court said : tion sought to be made by the New York

"To this we cannot agree.

The difference court. Alkire v. Myers Lumber Co., 57 | between a simple instrument and a complicated Wash. 300, 106 P. 915; Notthoff v. Los An one vanishes when the servant fully undergeles, G. & E. Co., 161 Cal. 93, 118 P. 436; stands that it is dangerous to further use it." Cincinnati, N. 0. & T. P. Co. v. Robertson, 139 F. 519, 71 C. C. A. 335; Gold-Hunter The decision in Marsh v. Chickering is M. & S. Co. v. Johnson, 233 F. 857, 147 C. criticized by the author of the notes to BrouC. A. 523; Ohio & Pittsburgh Milk Co. v. seau v. Kellogg S. & S. Co., in 27 L. R. A. Fehl, 187 F. 792, 109 C. C. A. 640; Shue (N. S.) 1053, and is disapproved by Labatt v. Central of Georgia Ry. Co., 6 Ga. App. (4 Labatt on Master and Servant, § 1355), 714, 65 S. E. 697; Sapp v. Christie Bros., who says: 79 Neb. 701, 705, 113 N. W. 189, 115 N. W.

"It is difficult to see any rational ground 319; Dailey V. Swift & Co., 86 Vt. 189, 84 ) upon which the distinction thus indicated can A. 603.

be sustained

The conclusion arrived In Spencer v. Worthington, 44 App. Div. at by the New York court of appeals is pos496, 60 N. Y. S. 873, decided in 1899, the sibly to be explained by the fact that its at. court, after referring to Marsh v. Chicker- tention was not properly directed to the rationing and other New York cases, said:

ale of the effect ascribed to a promise, as being

essentially a stipulation by the master to ac“The learned counsel for the respondent, cept temporarily the responsibility for any acfrom an elaborate analysis of the decided cases cident that may occur. (See section 1348, subd. in this state, deduces the rule that, where only a, ante.) It seems not reasonable to suppose simple appliances are used, the servant assumes that, if due prominence had been given to this the risk of their character or condition, so aspect of the relations of the parties, the learnfar as they are known to him, potwithstanding ed judges who concurred in the decision in any promise of the master; but, where ma- Marsh v. Chickering would have been more chinery is used, the promise of the master fully alive to the anomaly of the position to to repair defects relieves the servant from as- which that decision commits them.” suming the risk. We do not see on what principle such a rule can well stand There is a

Under the doctrine announced by the New great difference between the use of a steam boiler and that of a stepladder.


York court, the servant, whose employment when, because the servant is an expert, or for requires the use of simple tools only, has any other reasons, his knowledge of the dan- no right to rely upon the master's promise ger arising from the use of the boiler is just to repair; hence, after he discovers that his as great as an ordinary servant would possess working tools are defective, he has no other in the use of a stepladder, we do not see on alternative but to continue work and bear what ground any distinction can be drawn be- the burden of assumption of risk or quit the tween the two cases."

employment, even though it is necessary for In Indianapolis Union Ry. Co. v. Ott, 11 what Carlyle calls the "altogether indispenInd. App. 561, 38 N. E. 812, 39 N. E. 529, sible for daily bread.” decided six months after the Meador Case, In our judgment there is not any reason a recovery by the servant for injuries sus for the limitation sought to be imposed upon tained by the use of a defective lantern aft- the rule, and we decline to recognize it. er the master's promise to repair it, was The judgment is reversed, and the cause sustained.

is remanded for trial. In Louisville Hotel Co. v. Kaltenbrun, 80 S. W. 1163, 26 Ky. Law Rep. 208, there was CALLAWAY, C. J., and RANKIN, GALEN, involved a claim for damages arising from 'and STARK, JJ., concur.


sion of a life insurance policy. Summous BROTHERS v. BROTHERS. (No. 5518.) was served on the defendant May 16, 1923. (Supreme Court of Montana. Oct. 20, 1924.) On May 31 the deposition of defendant was

taken at the instance of the plaintiff. On 1. Judgment w 145(3), 158, 161-Facts dis- June 9, for want of an appearance, the declosing defense to action may appear in form fault of the defendant was entered and purof affidavit or answer. Defendant, on motion to set aside default,

suant thereto, on June 17, judgment was enis required only to set forth facts sufficiently tered in favor of the plaintiff for the relief disclosing defense to action, and they may ap- sought. On September 4, the defendant filed pear in form of affidavit or answer.

a motion to set aside the default and judg.

ment, and in support of it she filed affidavits 2. Appeal and error 957(1)-Courts favor trial on merits.

and tendered an answer. The plaintiff filed As courts favor a trial on the merits, no

counter affidavits appending thereto defendgreat abuse of discretion is required to war- ant's deposition to be considered in opposirant reversal of order refusing to set aside tion to her motion. After hearing, an order default.

was made denying the motion, and from this 3. Insane persons Om9l-Court must carefully order defendant appealed.

guard rights of those whose mental condi [1] Counsel for plaintiff contend th the tion precludes them from acting understand- law requires the filing of an affidavit of ingly.

merits and that, therefore, the proffered anCourt must carefully guard rights of those swer, even though it discloses a prima facie whose mental condition precludes them from defense on the merits, is insufficient. This acting fully and understandingly upon their own judgment in ordinary affairs of life, such court, however, has decided that it is only persons being, in a sense, non sui juris.

necessary that facts be sufficiently set forth

to disclose a defense to the action, and they 4. Insane persons em 100-Default should be set aside when substantial doubt exists as to may appear in the form of an affidavit or mental competency of party against whom

Smith v. McCormick, 52 Mont. 326, default was taken.

157 P. 1010; Farmers' Co-operative Ass'n k Whenever substantial doubt exists as to Roper (on motion for rehearing) 57 Mont. mental competency of party against whom de- | 49, 188 P. 141, fault is taken, doubt should be resolved in fa The principal question presented for our vor of application to set aside default, and case determination is whether the facts appeardisposed of upon its merits.

ing in the atlida vits disclose such excusable 5. Judgment w 153(1)-Facts held not to neglect as to entitle the defendant to have

show lack of due diligence in making appli- the default set aside. From the affidavits cation to have default set aside.

it appears that one reason for the deïault is Facts held not to show lack of due dili- the fact that she labored under the misapgence on part of one mentally weak, in making prehension that her appearance before a application to have default set aside.

notary public, when her deposition was tak6. Insane persons ew100-Failure of one of en, was the only appearance required of her

doubtful mental capacity to appear, held "ex- prior to a trial of the action on the merits. cusable neglect" within statute,

Another excuse offered is the mistaken noWhere defendant of doubtful mental capac- tion which slie entertained, based upon repity, believed appearance on taking of deposition was sutficient, failure to appear held "excusable resentations made to her by a friend of plainneglect," within Rev. Codes 1921, § 9187.

tifl', that the insurance policy was compara[Ed. Note.-For other definitions, see Words tively valueless. and Phrases, First and Second Series, Excusa

Standing alone, these facts would not warble Neglect.]

rant the setting aside of the default. Tue

affidavits, however, disclose that on the 11th Appeal from District Court, Jefferson

day of October, 1921, the defendant was comCounty; Lyman H. Bennett, Judge.

initted to the state hospital at Warm Springs, Action by Silas W. Brothers against Cath- by reason of insanity; that on the 4th day erine Brothers. From an order denying mo- of May, 1922, Dr. I. A. Leighton was aption to set aside a default and judgment pointed guardian of defendant; that the against her, defendant appeals.

guardianship was terminated and she was Reversed and remanded with directions. restored to capacity on September 23, 1922;

lloward A. Johnson, of Boulder, for appel- and “That in spite of the decree of restoralant.

tion the defendant still suffered from her Canning & Geagan, of Butte, for respond mental disability to an extent that she did ent.

not understand legal proceedings, and was

helpless to assert her right until Dr. LeighRANKIN, J. This is an appeal from an ton, physician and former guardian, brought order of the district court denying a motion the case to the attention of Howard Johnson, to set aside a default and judgment.

attorney at law," now attorney for defendThe action was brought to obtain posses- ant.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(230 P.) The affidavit of Dr Leighton discloses that | 45 Mont. 250, 122 P. 745, Ann. Cas. 1913E, he had observed the defendant for years and 751: had conversed with her repeatedly during the

"Each case must be determined upon its own year the default was taken, and that he “is facts; and, when the motion is made promptly convinced that defendant did not understand and is supported by a showing which leaves the the import of the legal papers served upon court in doubt, or upon which reasonable minds her in this case.

Nor did she un- might reach different conclusions, the doubt derstand that she was in default in said case, should be resolved in favor of the motion.” but, on the contrary, defendant believed that by appearing before a notary public to give No great abuse of discretion by the trial her deposition she preserved her legal right court in refusing to set aside a default need to appear in the matter and would be inform- be shown to warrant a reversal, for the ed of the time set for trial; that her failure courts universally favor a trial on the merto appear was occasioned by her mistake its. and inadvertence by the mental disability No two cases will be found which present hereinabove referred to, which said mental the same circumstances for consideration, for disability persists to a great extent in spite each depends upon its own facts, Morse v. of defendant's restoration to capacity as Callantine, 19 Mont. 93, 47 P. 635; Collier hereinabove mentioned."

V. Fitzpatrick, 22 Mont. 553, 57 P. 181; The only counter affidavit filed relating to Farmers' Co-operative Ass'n v. Roper, 57 the mental condition of the defendant was Mont. 42, 188 P. 141; Pengelly v. Peeler, 39 the affidavit of P. E. Geagan, attorney for Mont. 26, 101 P. 147; Nash v. Treat, supra; plaintiff, wherein he sets forth that "he is in re Davis' Estate, 15 Mont. 347, 39 P. 292; acquainted with and has known the defend. Simpkins v. Simpkins, 14 Mont. 386, 36 P. ant, Catherine Brothers, for 20 years last 759, 43 Am. St. Rep. 641, and therefore appast, and knows that she is no stranger to plications of this character are addressed the law or litigation, and knows that during to the legal discretion of the court and should the pendency of this whole litigation she was be disposed of as substantial justice may mentally alert, evasive, and that she fully seem to require. Watson v. S. F. & H. B. understands, and did fully understand, at all R. R. Co., 41 Cal. 17. times since the beginning of this case the na [3, 4] It is the duty of the court to guard ture thereof and her right and liabilities carefully the rights of those whose mental therein."

condition is such that they cannot act fully Under any view that may be taken of the and understandingly upon their own judgaffidavits we are obliged to say that doubt ment in the ordinary affairs of life because, exists concerning the mental capacity of the in a sense, they are non sui juris, and, whendefendant. We are confronted with the posi- ever substantial doubt exists as to the mental tive, unequivocal declaration of Dr. Leigh- competency of the party against whom a deton, the former guardian of the defendant, fault is taken, it is always better to resolve that at the time summons was served upon the doubt in favor of the application to set her and until after the default was obtained, aside the default and dispose of cases of she was suffering from the mental disability this character upon their merits, rather than for which she was committed to Warm to maintain too strict a regard for technical Springs. No attempt was made to refute this rules of procedure. evidence by medical testimony.

[5] It is urged that due diligence was not It becomes necessary then, to determine exercised in making application to have the whether the mental condition of the de- default set aside. The affidavits filed in fendant, together with all the surrounding behalf of the defendant recite that she did circumstances, constitutes the excusable neg. not learn of the default for some days after lect contemplated hy section 9187 of the Re- the entry of judgment; that several days vised Codes of 1921, which provides, among were consumed in search of the policy; that other things:

upon finding it defendant wrote to the in"The court may likewise, in its discretion, surance company to ascertain its validity and after notice * relieve a party

first learned that it was still in force when from a judgment, order, or other proceeding, she received its reply on August 29. Detaken against him through his

excus- fendant's attorney then prepared the applicaable neglect."

tion to set aside the default and filed it on

September 4. Considering the defendant's [2] This section was enacted for the very mental condition, together with all the surpurpose of giving to the courts the power to rounding circumstances, we cannot say that relieve parties from judgments obtained due diligence was not used within the meanagainst them by reason of mistake, inadvert- ing of section 9187. ence, or excusable neglect, and in interpret [6] Neglect, no more excusable than that ing it courts should, in furtherance of jus- disclosed hy the record before us, has been tice, maintain the same liberal spirit which held sufficient to justify reversal of trial prompted its enactment. The rule is con- courts for their refusal to set aside defaults. cisely stated by this court in Nash v. Treat, We are of the opinion that excusable neglect

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is shown, that a meritorious defense is ten- 60 days he sought reinstatement, by instidered, and that under all of the circum- tuting proceedings in mandamus directed stances, the trial court should have opened against the mayor, upon whose application the default and permitted the defendant to the proceedings were later dismissed. Thereanswer.

after, on November 25, 1922, he filed an acThe order is reversed and the cause re- tion in the district court, under the provi. manded to the district court, with directions sions of section 5099 of the Revised Codes of to set aside the default and judgment and 1921, against the mayor and the members of permit the defendant to answer.

the examining and trial board to require Reversed and remanded.

them to reinstate him. The cause was tried

to the court sitting without a jury, and in CALLAWAY, C. J., and HOLLOWAY, GA-effect resulted in a judgment of dismissal, LEN, and STARK, JJ., concur.

from which plaintiff appealed.

The defendants urge that the trial court was without jurisdiction to hear the cause;

their contention being that the action was KING v. MAYOR OF CITY OF BUTTE et al. not commenced within the statutory period (No. 5545.)

of 60 days after the decision of the exam

ining and trial board. (Supreme Court of Montana. Oct. 1, 1924.)

Section 5099 provides: 1. Limitation of actions w 182(3) - General

. The district court of the proper statute of limitations must be pleaded spe- county shall bave jurisdiction, however, in a cially.

suit brought by the officer or member, to de. To take advantage of general statutes of termine whether the essential requirements of limitations as defense, they must be pleaded | law have been complied with in the matter of specially.

his trial, but such suit must be brought by such 2. Municipal corporations Com 185(14) – Com- officer or member within a period of sixty days plaint by police officer must show action following the decision of said board; within limitation.

provided further, that no action for the resto

ration to office by any member of the police deWhere exclusive right of police officer to partment unlawfully or illegally removed or sue was found, in Rev. Codes 1921, § 5099, excluded from office shall be maintained unless within 60 days to require municipal officers to the same is begun within a period of sixty reinstate him, complaint must show affirma- days from the date of accrual of the cause of tively that action was brought within time

action. fixed. 3. Limitation of actions en 130(2)-Act ex The complaint upon its face shows that

tending time fixed by general statutes held this action was not instituted until Novemnot to apply to action created by statute pre- ber 25, 1922, nearly five months after the scribing special limitation.

cause of action accrued. Plaintiff, however, Rev. Codes 1921, $ 9054, providing that, if contends that section 5099 is a statute of action commenced within time limited by law limitations, and that the defendants, having failed for specified cause, plaintiff may bring failed to plead it, waived its benefits. This new action within year after termination of original one, does not apply to actions created brings us to the question whether the 60-day by statute which prescribed special limitation.

limitation provided in section 5039 affects only the remedy or is one of the conditions

upon which the right of action depends. Appeal from District Court, Silver Bow

In the case of Dolenty v Broadwater County; Wm. E. Carroll, Judge.

County, 45 Mont, 261, 122 P. 919, Mr. Justice Action by Bernard King against the Mayor Holloway said: of the City of Butte and others. Judgment “The rule is well settled in this country that for defendants, and plaintiff appeals. Af- whenever a statute grants a right which did firmed.

not exist at common law, and prescribes the M. S. Galasso and Frank E. Blair, both of time within which the right must be exercised, 'Butte, for appellants.

the limitation thus imposed does not affect the J. T. Andrew and F. E. Blodgett, both of remedy merely, but is of the essence of the

right itself, and one who seeks to enforce such Butte, for respondent.

right must show affirmatively that he has

brought his action within the time fixed by the RANKIN, J. Plaintiff, formerly a police statute; and, if he fails in this regard, he fails officer of the city of Butte, was charged be- to disclose any right to relief under the statfore the examining and trial board of the ute. 25 Cyc. 1398; Bank v. Powhatan Clay police department of that city with being in Co., 102 Va. 274, 1 Ann. Cas. 83, 46 S. E. 294; toxicated while on duty

W. Va. 813,
Lambert v. Ensign Mfg. Co.,
The board, after

26 S. E. 431; Taylor v. Cranberry I. & C. Co., trial and hearing on June 30, 1922, found 94 N. C. 523; The Harrisburg, 119 U. S. 199, him guilty as charged, and the day follow- 30 L. Ed. 358, 7 Sup. Ct. Rep. 140; Hill v. ing the mayor approved the findings and disc Board of Supervisors, 119 N. Y. 344, 23 N. E. missed him from the police force. Within 1 921."

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