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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 to bring into existence a new stipulation which operates so as to cast upon the master temporarily the responsibility for the particular risk in question."

is not binding upon him when made with the servant who uses a simple tool. Just how the simplicity or complexity of the instrumentality can affect the validity of the agree ment is beyond our comprehension.

But counsel for defendant insist that,

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

216, it is said:

"The assurances of the employer that the danger shall be removed is an agreement by him that he will assume the risk incident to the danger for a reasonable time,"

and this is approved in Greene v. Minneapolis & St. L. Ry. Co., 31 Minn. 248, 17 N. W. 378, 47 Am. Rep. 785.

In St. Louis, I. M. & S. Ry. Co. v. Holman, 90 Ark. 555, 120 S. W. 146, it is said:

"The effect of a promise to repair by the master, and of the continuance in his service by the servant, in reliance upon the promise, is to create a new stipulation whereby the master assumes the risks impendent during the time specified for the repairs to be made. Where no definite period is specified in which the given defects are to be remedied, the suspension of the master's right to avail himself of the defense of assumption of the risk by the servant continues for a reasonable time," and this is followed in Clark Lumber Co. v. Johns, 98 Ark. 211, 135 S. W. 892.

In Swift & Co. v. O'Neill, 187 Ill. 337, 58 N. E. 416, the court stated the general rule above and said:

"The reason of this rule being, that by the promise of the master a new relation is created between him and the employee, whereby the master impliedly agrees that the servant shall not be held to have assumed the risk for a reasonable time following his promise."

To the same effect are Morden Frog Works v. Fries, 228 Ill. 246, 81 N. E. 862, 119 Am. St. Rep. 428, and Scott v. Parlin & Orendorff Co., 245 Ill. 460, 92 N. E. 319.

It is the rule in New York that the promise of a master to repair, when made to induce the servant to continue to work, constitutes a contract on the part of the master to assume the risk and relieve the servant therefrom. Rice v. Eureka Paper Co., 174 N. Y. 385, 66 N E. 979, 62 L. R. A. 611, 95 Am. St. Rep. 585; Altman v. Schwab Mfg. Co., 54 Misc. Rep. 243, 104 N. Y. S. 349; Citrone v. O'Rourke, etc., Co., 113 App. Div. 518, 99 N. Y. S. 241.

In Trotter v. Furniture Co., 101 Tenn. 257, 47 S. W. 425, it is said:

"The assurance of the master that the defect shall be remedied is an agreement by him that he will assume the risk for a reasonable

time."

from the use of a simple tool is one of the ordinary risks of the employment (Miller v. Granite County Power Co., 66 Mont. 368, 213 P. 604), the promise of the master to repair a simple tool cannot have the effect of imposing liability upon him, since none existed before the promise was given, and in support of that contention quote from 4 Labatt on Master and Servant, § 1347, the following:

"Before the master can be held liable as for a failure to perform a promise to remove a specific danger, it is necessary to show that the existing conditions were of such nature that their maintenance implied culpability."

The authorities cited in support of the text, and the following paragraph of the same section, however, disclose that the language quoted means only that it must be shown that the appliance was actually defective, and, by reason thereof, the hazards of the employment were increased. The au

thor continues:

"The very effect of the doctrine of the promise to repair is to make the master liable when he would not be liable otherwise because of the operation of the doctrine of assumption of risk."

The situation of the servant using the simple tool and the one using the complicated machinery is precisely the same at the moment complaint is made, and the promise to repair is given. In effect the servant using the simple tool says:

"I will not continue to use this defective appliance, for in case of injury I will be held to have assumed the risk; hence I will quit the

employment rather than take the chances of

injury."

And the effect of the master's promise to repair must be:

"If you will continue the employment and the use of the defective tool for a reasonable time, I agree to relieve you of the burden of the assumption of risk which otherwise would fall upon you, by reason of the fact that the risk of injury from the use of a simple tool is one of the ordinary risks of your employment."

Some of the leading cases which apply the rule to simple tools as well as to complicated ones, and refuse to recognize the limitation imposed by the New York court, are Fischer 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.

(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 risk, even though he had complained and received the master's promise to repair, the court said:

In the following cases the rule was applied to injuries arising from the use of simple tools without considering the distinction sought to be made by the New York court. Alkire v. Myers Lumber Co., 57 Wash. 300, 106 P. 915; Notthoff v. Los Angeles, G. & E. Co., 161 Cal. 93, 118 P. 436; Cincinnati, N. O. & T. P. Co. v. Robertson, 139 F. 519, 71 C. C. A. 335; Gold-Hunter M. & S. Co. v. Johnson, 233 F. 857, 147 C. C. A. 523; Ohio & Pittsburgh Milk Co. v. Fehl, 187 F. 792, 109 C. C. A. 640; Shue v. Central of Georgia Ry. Co., 6 Ga. App. 714, 65 S. E. 697; Sapp v. Christie Bros., 79 Neb. 701, 705, 113 N. W. 189, 115 N. W. 319; Dailey v. Swift & Co., 86 Vt. 189, 84

A. 603.

In Spencer v. Worthington, 44 App. Div. 496, 60 N. Y. S. 873, decided in 1899, the court, after referring to Marsh v. Chickering and other New York cases, said:

"The learned counsel for the respondent, from an elaborate analysis of the decided cases in this state, deduces the rule that, where only simple appliances are used, the servant assumes the risk of their character or condition, so far as they are known to him, notwithstanding any promise of the master; but, where machinery is used, the promise of the master to repair defects relieves the servant from assuming the risk. We do not see on what principle such a rule can well stand. There is a great difference between the use of a steam boiler and that of a stepladder. * when, because the servant is an expert, or for any other reasons, his knowledge of the danger arising from the use of the boiler is just as great as an ordinary servant would possess in the use of a stepladder, we do not see on what ground any distinction can be drawn between the two cases."

* *

But

In Indianapolis Union Ry. Co. v. Ott, 11 Ind. App. 564, 38 N. E. 842, 39 N. E. 529, decided six months after the Meador Case, a recovery by the servant for injuries sustained by the use of a defective lantern after the master's promise to repair it, was sustained.

In Louisville Hotel Co. v. Kaltenbrun, 80 S. W. 1163, 26 Ky. Law Rep. 208, there was involved a claim for damages arising from

"To this we cannot agree. The difference between a simple instrument and a complicated one vanishes when the servant fully understands that it is dangerous to further use it."

The decision in Marsh v. Chickering is criticized by the author of the notes to Brouseau v. Kellogg S. & S. Co., in 27 L. R. A. (N. S.) 1053, and is disapproved by Labatt (4 Labatt on Master and Servant, § 1355), who says:

"It is difficult to see any rational ground upon which the distinction thus indicated can be sustained. * * The conclusion arrived at by the New York court of appeals is possibly to be explained by the fact that its attention was not properly directed to the rationale of the effect ascribed to a promise, as being essentially a stipulation by the master to accept temporarily the responsibility for any accident that may occur. (See section 1348, subd. a, ante.) It seems not reasonable to suppose that, if due prominence had been given to this aspect of the relations of the parties, the learned judges who concurred in the decision in Marsh v. Chickering would have been more fully alive to the anomaly of the position to which that decision commits them."

Under the doctrine announced by the New York court, the servant, whose employment requires the use of simple tools only, has no right to rely upon the master's promise to repair; hence, after he discovers that his working tools are defective, he has no other alternative but to continue work and bear the burden of assumption of risk or quit the employment, even though it is necessary for what Carlyle calls the "altogether indispensible for daily bread."

In our judgment there is not any reason for the limitation sought to be imposed upon the rule, and we decline to recognize it.

The judgment is reversed, and the cause is remanded for trial.

CALLAWAY, C. J., and RANKIN, GALEN, and STARK, JJ., concur.

BROTHERS v. BROTHERS. (Supreme Court of Montana.

(No. 5518.) Oct. 20, 1924.) 1. Judgment 145(3), 158, 161-Facts disclosing defense to action may appear in form of affidavit or answer.

Defendant, on motion to set aside default,

is required only to set forth facts sufficiently disclosing defense to action, and they may appear in form of affidavit or answer.

2. Appeal and error 957 (1)—Courts favor trial on merits.

As courts favor a trial on the merits, no great abuse of discretion is required to warrant reversal of order refusing to set aside default.

Court must carefully guard rights of those whose mental condition precludes them from acting fully and understandingly upon their own judgment in ordinary affairs of life, such persons being, in a sense, non sui juris.

sion of a life insurance policy. Summons was served on the defendant May 16, 1923. On May 31 the deposition of defendant was taken at the instance of the plaintiff. On June 9, for want of an appearance, the default of the defendant was entered and pursuant thereto, on June 17, judgment was entered in favor of the plaintiff for the relief sought. On September 4, the defendant filed a motion to set aside the default and judgment, and in support of it she filed affidavits and tendered an answer. The plaintiff filed counter affidavits appending thereto defendant's deposition to be considered in opposition to her motion. After hearing, an order was made denying the motion, and from this order defendant appealed.

3. Insane persons 91-Court must carefully guard rights of those whose mental condi- [1] Counsel for plaintiff contend that the tion precludes them from acting understand-law requires the filing of an affidavit of Ingly. merits and that, therefore, the proffered answer, even though it discloses a prima facie defense on the merits, is insufficient. This court, however, has decided that it is only necessary that facts be sufficiently set forth to disclose a defense to the action, and they may appear in the form of an affidavit or answer. Smith v. McCormick, 52 Mont. 326, 157 P. 1010; Farmers' Co-operative Ass'n v. Roper (on motion for rehearing) 57 Mont. 49, 188 P. 141.

4. Insane persons 100-Default should be set aside when substantial doubt exists as to mental competency of party against whom default was taken.

Whenever substantial doubt exists as to mental competency of party against whom default is taken, doubt should be resolved in favor of application to set aside default, and case disposed of upon its merits.

5. Judgment 153(1)-Facts held not to show lack of due diligence in making application to have default set aside.

Facts held not to show lack of due diligence on part of one mentally weak, in making application to have default set aside.

6. Insane persons 100-Failure of one of doubtful mental capacity to appear, held "excusable neglect" within statute.

Where defendant of doubtful mental capacity, believed appearance on taking of deposition was sufficient, failure to appear held "excusable neglect," within Rev. Codes 1921, § 9187.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Excusable Neglect.]

Appeal from District Court, Jefferson County; Lyman H. Bennett, Judge.

Action by Silas W. Brothers against Catherine Brothers. From an order denying motion to set aside a default and judgment against her, defendant appeals.

Reversed and remanded with directions. Howard A. Johnson, of Boulder, for appellant.

Canning & Geagan, of Butte, for respond

ent.

RANKIN, J. This is an appeal from an order of the district court denying a motion to set aside a default and judgment.

The principal question presented for our determination is whether the facts appearing in the affidavits disclose such excusable neglect as to entitle the defendant to have the default set aside. From the affidavits it appears that one reason for the default is the fact that she labored under the misapprehension that her appearance before a notary public, when her deposition was taken, was the only appearance required of her prior to a trial of the action on the merits. Another excuse offered is the mistaken notion which she entertained, based upon representations made to her by a friend of plaintiff, that the insurance policy was comparatively valueless.

Standing alone, these facts would not warrant the setting aside of the default. The affidavits, however, disclose that on the 11th day of October, 1921, the defendant was committed to the state hospital at Warm Springs, by reason of insanity; that on the 4th day of May, 1922, Dr. I. A. Leighton was appointed guardian of defendant; that the guardianship was terminated and she was restored to capacity on September 23, 1922; and "That in spite of the decree of restoration the defendant still suffered from her

mental disability to an extent that she did not understand legal proceedings, and was helpless to assert her right until Dr. Leighton, physician and former guardian, brought the case to the attention of Howard Johnson, attorney at law," now attorney for defend

The action was brought to obtain posses- ant.

(230 P.)

"Each case must be determined upon its own facts; and, when the motion is made promptly and is supported by a showing which leaves the court in doubt, or upon which reasonable minds might reach different conclusions, the doubt should be resolved in favor of the motion."

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 year the default was taken, and that he "is convinced that defendant did not understand the import of the legal papers served upon her in this case. 串 * Nor did she understand that she was in default in said case, but, on the contrary, defendant believed that by appearing before a notary public to give her deposition she preserved her legal right to appear in the matter and would be informed of the time set for trial; that her failure to appear was occasioned by her mistake and inadvertence by the mental disability hereinabove referred to, which said mental disability persists to a great extent in spite of defendant's restoration to capacity as hereinabove mentioned."

The only counter affidavit filed relating to the mental condition of the defendant was the affidavit of P. E. Geagan, attorney for plaintiff, wherein he sets forth that "he is acquainted with and has known the defendant, Catherine Brothers, for 20 years last past, and knows that she is no stranger to the law or litigation, and knows that during the pendency of this whole litigation she was mentally alert, evasive, and that she fully understands, and did fully understand, at all times since the beginning of this case the nature thereof and her right and liabilities therein."

Under any view that may be taken of the affidavits we are obliged to say that doubt exists concerning the mental capacity of the defendant. We are confronted with the positive, unequivocal declaration of Dr. Leighton, the former guardian of the defendant, that at the time summons was served upon her and until after the default was obtained, she was suffering from the mental disability for which she was committed to Warm Springs. No attempt was made to refute this evidence by medical testimony.

It becomes necessary then, to determine whether the mental condition of the defendant, together with all the surrounding circumstances, constitutes the excusable neglect contemplated by section 9187 of the Revised Codes of 1921, which provides, among other things:

"The court may likewise, in its discretion, after notice * relieve a party 串串 from a judgment, order, or other proceeding, taken against him through his excusable neglect."

[2] This section was enacted for the very purpose of giving to the courts the power to relieve parties from judgments obtained against them by reason of mistake, inadvertence, or excusable neglect, and in interpreting it courts should, in furtherance of justice, maintain the same liberal spirit which prompted its enactment. The rule is concisely stated by this court in Nash v. Treat,

No great abuse of discretion by the trial court in refusing to set aside a default need be shown to warrant a reversal, for the courts universally favor a trial on the merits.

No two cases will be found which present the same circumstances for consideration, for each depends upon its own facts, Morse v. Callantine, 19 Mont. 93, 47 P. 635; Collier v. Fitzpatrick, 22 Mont. 553, 57 P. 181; Farmers' Co-operative Ass'n v. Roper, 57 Mont. 42, 188 P. 141; Pengelly v. Peeler, 39 Mont. 26, 101 P. 147; Nash v. Treat, supra; In re Davis' Estate, 15 Mont. 347, 39 P. 292; Simpkins v. Simpkins, 14 Mont. 386, 36 P. 759, 43 Am. St. Rep. 641, and therefore applications of this character are addressed to the legal discretion of the court and should be disposed of as substantial justice may seem to require. Watson v. S. F. & H. B. R. R. Co., 41 Cal. 17.

[3, 4] It is the duty of the court to guard carefully the rights of those whose mental condition is such that they cannot act fully and understandingly upon their own judgment in the ordinary affairs of life because, in a sense, they are non sui juris, and, whenever substantial doubt exists as to the mental competency of the party against whom a default is taken, it is always better to resolve the doubt in favor of the application to set aside the default and dispose of cases of this character upon their merits, rather than to maintain too strict a regard for technical rules of procedure.

[5] It is urged that due diligence was not exercised in making application to have the default set aside. The affidavits filed in behalf of the defendant recite that she did not learn of the default for some days after the entry of judgment; that several days were consumed in search of the policy; that upon finding it defendant wrote to the insurance company to ascertain its validity and first learned that it was still in force when she received its reply on August 29. Defendant's attorney then prepared the application to set aside the default and filed it on September 4. Considering the defendant's mental condition, together with all the surrounding circumstances, we cannot say that due diligence was not used within the meaning of section 9187.

[6] Neglect, no more excusable than that disclosed by the record before us, has been held sufficient to justify reversal of trial courts for their refusal to set aside defaults. We are of the opinion that excusable neglect

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is shown, that a meritorious defense is ten- 160 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 the default and permitted the defendant to

answer.

The order is reversed and the cause remanded to the district court, with directions to set aside the default and judgment and permit the defendant to answer. Reversed and remanded.

against the mayor, upon whose application the proceedings were later dismissed. Thereafter, on November 25, 1922, he filed an action in the district court, under the provisions of section 5099 of the Revised Codes of 1921, against the mayor and the members of the examining and trial board to require 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

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1. Limitation of actions 182 (3) General statute of limitations must be pleaded specially.

To take advantage of general statutes of limitations as defense, they must be pleaded specially.

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The district court of the proper county shall have jurisdiction, however, in a suit brought by the officer or member, to determine whether the essential requirements of law have been complied with in the matter of his trial, but such suit must be brought by such

*

2. Municipal corporations 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.

Where exclusive right of police officer to sue was found, in Rev. Codes 1921, § 5099, within 60 days to require municipal officers to reinstate him, complaint must show affirmatively that action was brought within time fixed.

provided further, that no action for the restoration to office by any member of the police department unlawfully or illegally removed or excluded from office shall be maintained unless the same is begun within a period of sixty days from the date of accrual of the cause of

action.

3. Limitation of actions 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.

Rev. Codes 1921, § 9054, providing that, if action commenced within time limited by law failed for specified cause, plaintiff may bring new action within year after termination of original one, does not apply to actions created by statute which prescribed special limitation.

Appeal from District Court, Silver Bow County; Wm. E. Carroll, Judge.

Action by Bernard King against the Mayor of the City of Butte and others. Judgment for defendants, and plaintiff appeals. Affirmed.

M. S. Galasso and Frank E. Blair, both of Butte, for appellants.

J. T. Andrew and F. E. Blodgett, both of Butte, for respondent.

cause of action accrued. Plaintiff, however, contends that section 5099 is a statute of limitations, and that the defendants, having failed to plead it, waived its benefits. This brings us to the question whether the 60-day limitation provided in section 5099 affects only the remedy or is one of the conditions upon which the right of action depends.

In the case of Dolenty v. Broadwater County, 45 Mont. 261, 122 P. 919, Mr. Justice Holloway said:

"The rule is well settled in this country that whenever a statute grants a right which did not exist at common law, and prescribes the time within which the right must be exercised, the limitation thus imposed does not affect the remedy merely, but is of the essence of the

right itself, and one who seeks to enforce such 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; Lambert v. Ensign Mfg. Co., 42 W. Va. 813, toxicated while on duty The board, after 26 S. E. 431; Taylor v. Cranberry I. & C. Co., trial and hearing on June 30, 1922, found 94 N. C. 525; 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 dis- Board of Supervisors, 119 N. Y. 344, 23 N. E. missed him from the police force. Within 921."

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