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defendants attempted to prove the same Pact la


dence is uncontradicted that defendants, [3] 2. The evidence was admissible under their driver and two other occupants of the the general denials of the answer. If it car, all saw plaintiff when the car was 100 could have been shown that at the time of feet or more from him, while the testimony | the accident plaintiff was intoxicated to such of the plaintiff himself is that he saw the a degree that his opinion as to the rate the car approaching 10 or 15 m utes before car was running was worthless, and that his was struck, and during that time appreciated condition was such that he could not have the fact that it was drawing nearer and known or appreciated what actually OCnearer. He had all the notice that any curred, the prima facie case made out by his warning could give, and if there was a fail. direct testimony, would have been overcome. ure to give warning, it could not have been It would be a singular rule of law which a proximate cause of his injury.

would deny to defendants the right to chal[2] In support of the other charges plain- lenge the credibility of the plaintiff. To iltiff testified that in his opinion the car was lustrate: If at the time of the accident driven at the rate of 40 miles per hour at plaintiff was asleep or unconscious, and the time of the accident; that he was walk- therefore unable to know the facts to which ing near the right-hand side of the road, go he testified, it would certainly be competent ing north; that the driver of the car under- to show it, and for the same reason it was took to pass to his right instead of to his proper to show that he was intoxicated, if left; that the intervening space was not suf- such was the fact. 2 Wigmore on Evidence, ficiently wide for the purpose; and that by $ 933; Joyce v. Parkhurst, 150 Mass. 243, 22 reason of this violation of the law of the N. E. 899; Schneider v. Great N. Ry. Co., road the collision occurred. On cross-exami- | 47 Wash. 45, 91 Pac. 565; Green v. State, 53 nation counsel for defendants sought to show Tex. Cr. R. 490, 110 S. W. 920, 22 L, R. A. that at the time of the accident plaintiff was (N. S.) 706; Pollock v. State, 136 Wis. 136, intoxicated. Upon objection the court re- 116 N. W. 851 ; Railroad Co. v. O'Connor, fused to permit the investigation, and when 171 Ind. 686, 85 N. E. 969.

[4] 3. The evidence was also admissible in in their case in chief, they were met by the support of the defense of contributory negsame ruling. In each instance the court ligence pleaded in the answer. If the plainerred.

tiff was intoxicated, that fact did not operate 1. The evidence was proper as a part of to relieve him from the necessity of exercis. plaintiff's cross-examination. It is always ing the ordinary care for his own safety permissible on cross-examination of a wit- which the law imposes upon a sober man, ness to test the accuracy of his knowledge or While his intoxication alone would not neces. the completeness or distinctness of his recol. sarily bar his right of recovery, it was a cir. lection; to ascertain the source of his infor- cumstance to be considered in determining mation, his opportunity for accurate observa- whether he was guilty of contributory neg. tion, and his general acquaintanceship with ligence. 29 Cyc. 534, 620. the subject to which his direct examination [5] It is insisted, however, that defendants relates. If he has made an estimate or given may not avail themselves of these erroneous an opinion, he may be cross-examined for the rulings, because they failed to make an offer purpose of shedding light upon the reasona- of proof. The rule which requires that ar bleness of his estimate or the basis of his offer of proof be made has no application to

State opinion. 1 Greenleaf on Evidence, 8 446. cross-examination.

Wakely, 43 These rules are elementary (40 Cyc. 2675) are Mont. 427, 117 Pac. 95; Cunningham v. Railfully comprehended within the terms of sec-way Co., 88 Tex, 534, 31 S. W. 629; Martin tion 8021, Revised Codes, and should be in- v. Elden, 32 Ohio St. 282. Neither has it any voked liberally, rather than restricted. Kipp application to direct examination where the v. Silverman, 25 Mont. 296, 64 Pac. 884; questions themselves indicate clearly the eviState v. Biggs, 45 Mont. 400, 123 Pac. 410; Bank v. Carroll, 35 Mont. 302, 88 Pac. 1012;

dence intended to be elicited. First Nat. Cuerth v. Arbogast, 48 Mont. 209, 136 Pac. Buckstaff v. Russell, 151 U. S. 626, 14 Sup. 383. It is too well settled to be open to contro

Ct. 448, 38 L. Ed. 292.

This case emphasizes the distinction beversy that intoxication deadens the sensibilities, and therefore evidence that a witness tween an erroneous ruling admitting incom. was intoxicated at the time to which his tes

petent evidence and a like error excluding timony relates reflects upon his capacity for might be able to say that the error

competent evidence. In the first instance we accurate observation, correct memory, and unbiased judgment. 17 Cyc. 787; 40 Cyc. terial evidence excluded might have had if

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harmless, but no one can say what effect ma2574. It is no objection to say that the evi- before the jury for consideration. dence, if produced, would have tended to make out defendants' special defense.

The judgment and order are reversed, and If

the cause is remanded for a new trial, the question was within the legitimate range

Reversed and remanded. of cross-examination, it was none the less so that it was also proper in support of defend. BRANTLY, O. J., and SANNER, J., conants' case.




(54 Mont. 533)

was granted, and final judgment entered disSTATE ex rel. O'BRIEN V. MAYOR OF missing the proceedings, thus in effect upBUTTE et al. (No. 3878.)

holding the action of the board and of the (Supreme Court of Montana. April 1918.) mayor. This appeal is from that judgment.

The theory of the appellant in instituting 1. MUNICIPAL CORPORATIONS Om 185(7)–Po

LICE OFFICERS – REMOVAL – TRIAL BEFORE the proceedings in the court below was that BOARD--SUFFICIENCY OF ACCUSATION. the accusation before the board stated no

In a proceeding before the examining and charge upon which he was triable by the trial board of the police department under Rev. board, and the evidence taken to sustain the Codes, $ 3309, an accusation against a police captain, alleging a series of offenses, each tend- accusation was too unsubstantial to warrant ing toward the ultimate inquiry as to the fit- his removal; hence there was no justification ness of the accused for his office, is not to be to make the order complained of. Whether, tested under the rigid rules of criminal proce- in view of the provisions of section 3308, dure, and that some of the specifications considered as a basis for criminal prosecution may Revised Codes, this theory is sufficient to be barred by limitations cannot affect sufficien- justify the use of the writ of review we cy of accusation.

need not determine, because no question is 2. MUNICIPAL CORPORATIONS Ow185(12)-RE- raised upon the method pursued, and because MOVAL OF POLICE – SUFFICIENCY OF Evi.

SUPPORT FINDINGS - POLICE we are compelled to say that there was a BOARD.

sufficient accusation and sufficient evidence Where, an accusation against a police to justify the result. captain, three out of five specifications of conduct unbecoming an officer stand undisputed, be

[1] 1. The accusation charges: (a) That ing violations of law and at least one of them O'Brien falsely stated to the board upon his a crime, their quality and consequence were for examination for a position on the police the board to determine.

force that he had never been convicted of 3. MUNICIPAL CORPORATIONS Ow185(1)—"OF. a crime, whereas he had prior thereto been


convicted of petit larceny; (b) that he had A police_captain is an officer within the failed for over three years after his appointmeaning of Rev. Codes, 88 371, 372, making it ment to file an official bond as required by a crime punishable by disqualification from hold- law and the ordinances of the city of Butte; ing office for officers to buy and sell city warrants, and the application of these sections can | (c) that on June 5, 1913, contrary to law he not be avoided by a plea of accommodation to purchased a warrant of the city of Butte a brother officer.

issued to J. J. Barry, and on April 16, 1915, [Ed. Note.-For other definitions, see Words collected the face thereof with accrued inand Phrases, First and Second Series, Officer.) terest; (d) that in June, 1915, he publicly

Appeal from District Court, Silver Bow associated with a drunken woman, and asked County; J. J. Lynch, Judge.

the proprietor of a lodging house in Butte John F. O'Brien, as police captain, was to violate a city ordinance by lodging said accused of conduct unbecoming an officer, woman there without registering; (e) that and tried before the Police Board, where the from lack of ability, judgment, courage, and charges were found proved and the Mayor addiction to intoxicants he is not, and never ordered his discharge from the police force, was, competent to properly discharge the after which, upon application by the State, duties of a police officer. It may be that, on the relation of John F. O'Brien, against tested by the rigid rules of criminal prothe Mayor of Butte and the Examining and cedure, this accusation would be found deTrial Board of the Police Department for fective; but it is not to be so tested. Bailey the City of Butte, a writ of review to the v. Examining & Trial Board, 45 Mont. 197, district court was obtained, where a judg- 122 Pac. 572. In every such proceeding the ment quashing the writ was entered, from ultimate inquiry is the fitness of the accused which relator appeals. Affirmed.

to hold his position, and such inquiry is raisW. E. Carroll, of Butte, for appellant. ed by the specific questions whether he is inGeo. D. Toole and John T. Andrews, both competent or has been guilty of neglect of of Butte, for respondents.

duty or misconduct in office or conduct un

becoming an officer. Section 3309, Rev. SANNER, J. Until his removal as here | Codes. That the accusation is sufficient on inafter mentioned, John F. O'Brien was a its face to present these questions is clear; police captain of the city of Butte. An ac- and its sufficiency in that respect cannot cusation was filed against him under the be defeated by the fact that some of the Metropolitan Police Law, which, upon his specifications, considered as a basis for trial before the police board, was found to criminal prosecution, may be barred by the be proven, and as the result he was ordered statute of limitations. by the mayor to be discharged from the [2, 3] 2. Out of the five specifications force. He thereupon procured from the dis-three stand undisputed. The appellant contrict court of Silver Bow county a writ of fessedly did declare upon his application review, and the proceedings of the board that he had never been convicted of crime, being certified up to the district court, a when the truth was that he had pleaded motion to quash was interposed, the motion guilty of petit larceny and suffered a judgDent of fine therefor. It is not for us to 3. PRINCIPAL AND AGENT Omw 193 ACTION say that, upon the evidence disclosed, this FOR PRINCIPAL-QUESTION FOR JURY. could have been regarded as a peccadillo: of professional services relative to a note held

In an action by an attorney for the value the fact is established, and its quality as by defendant, whether defendant acted for himwell as its consequences were for the board. self, or as agent of the apparent owner of the So, too, it is unquestioned that he had for note, held for the jury. over three years failed and neglected to file Appeal from District Court, Custer Counhis official bond, thus displaying, if the board ty; D. S. O'Hern, Judge. so chose to regard his action, a neglect of Action by George W. Farr against Henry duty and an indifference to the provisions Stein. From a judgment for plaintiff and an of the law in that behalf. Finally, he did order denying new trial, defendant appeals. purchase and realize upon the city warrant Affirmed. referred to in the charge, and this, because

Henry Stein, pro se. It is a crime punishable by disqualification

Geo. W. Farr, of

Miles City, for respondent. from holding office (Rev. Codes, 88 371, 372), is a manifestation almost conclusive of that

BRANTLY, C. J. This action was brought negligence and indifference to official propriety which the examining and trial board by plaintiff in a justice's court of Miles City was in duty bound to notice. The contention township, in Custer county, to recover the is made that O'Brien was not an officer with reasonable value of professional services perin the meaning of these sections, and that formed by him for defendant as an attorney the circumstances of his act removed it from at law. The complaint alleges, in substance, any purpose which the sections were intended that the plaintiff at the special instance and to serve; but neither position is tenable. request of defendant rendered him profesO'Brien was an officer (State ex rel. Quin

sional services and gave him professional tin v. Edwards, 38 Mont. 250, 99 Pac. 940; advice relative to the payment of interest on Peterson s. City of Butte, 44 Mont. 401, 409, a promissory note for the sum of $70, exe120 Pac. 483, Ann. Cas. 1913B, 538); and ap- cuted by Mrs. Cora Hoppe to one Sol Miness plication of the sections cannot be avoided by and the foreclosure of a chattel mortgage any plea of accommodation to a brother offi- given by the former to the latter to secure cer, particularly where the accommodator did the payment of the note. For his defense not disdain to accept the interest accrued the defendant relied on a general denial. when the warrant was collected.

Plaintiff recovered judgment in the justice's Of the other specifications we say nothing, court. A trial on appeal in the district court because the record affords room for diver- also resulted in a judgment for the plaingence of opinion. We should hesitate to im- tiff. Defendant has appealed from the judg. pute immorality or cowardice to Mr. O'Brien ment and an order denying his motion for a upon what is before us; but there is nothing new trial. He appeared in this court and to show that the board did so, and as the filed a brief in his own behalf. evidence suffices in other respects, we think [1, 2] His principal contention is that the the district court was correct in its refusal court erred in denying his motion for a new to interfere. The judgment appealed from trial on the ground that the evidence is inis affirmed.

sufficient to justify the verdict. While tacitAffirmed.

ly admitting that services of the value al

leged were rendered by plaintiff at his speBRANTLY, C. J., and HOLLOWAY, J., cial instance and request, he argues that the concur.

evidence discloses that in employing plaintiff he was acting, not for himself, but in a

representative capacity as agent of Miness, 64 Mont. 529)

the apparent owner of the note and mortFARR v. STEIN. (No. 3890.)

gage, and hence that he did not become per(Supreme Court of Montana. April 6, 1918.) sonally liable to plaintiff. To fortify his ar.

gument he cites many cases which declare 1. PRINCIPAL AND AGENT Cw136(1)–LIABIL- the rule that an agent is not personally liaITY OF AGENT-CONTRACT.

ble on a contract entered into by him on beAn agent is not personally liable on a contract made by him on behalf of his principal if half of his principal if it appears, in point he disclosed the identity of his principal and of fact, that he disclosed the identity of his made the engagement for him.

principal and made the engagement for him. 2. PRINCIPAL AND AGENT 193 ACTION There is no doubt as to the correctness of FOR PRINCIPAL-QUESTION FOR JURY. this rule. Though expressed in varying

When the evidence of what was said and done at the time of a particular transaction by terms, it is recognized by the courts and an agent in the light of attendant circumstanc- text-writers generally. Anderson v. Timberes is equivocal and furnishes the basis for dif- lake, 114 Ala, 377, 22 South. 431, 62 Am. St. ferent inferences as to what the intention of Rep. 105; Hewitt v. Wheeler, 22 Conn. 557; the parties was, the question whether the agent acted for himself or for his principal is for Wheeler v. Reed, 36 Ill. 81; Murphy v. determination by the jury.

Helmrich, 66 Cal. 69, 4 Pac. 958; Argersing. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

er v. McNaughton, 114 N. Y. 535, 21 N. E. , was any mention made of the relation the de 1022, 11 Am. St. Rep. 687; Neely v. State, fendant bore to Miness, the ostensible payee 60 Ark. 66, 28 S. W. 800, 27 L. R. A. 503, 46 of the note; nor was anything said as to the Am. St. Rep. 148; Whitney v. Wyman, 101 ownership of either it or the mortgage, the U. S. 392, 25 L. Ed. 1050; 2 Kent's Com. 630, plaintiff assuming that the defendant was 631; 31 Cyc. 1555; 1 Mechem on. Agency (20 the owner and had caused them to be executEd.) 1169, 1179; Story on Agency, § 267. ed by Mrs. Hoppe to Miness, a fictitious perSection 5453 of the Revised Codes, embodies son, ostensibly a resident of New York City, in principle the same rule. It provides : to avoid the payment of taxes in Montana.

"One who assumes to act as an agent is re- While there is no direct evidence tending to sponsible to third persons, as a principal for establish this fact, there are circumstances his acts in the course of his agency, in any of which furnish some basis for an inference the following cases, and in no other: (1) When, with his consent, credit is given to him person that it was the fact, or, to say the least, ally in a transaction.

which leave a reasonable mind in doubt on Obviously, the assumption by one to act the subject. This condition of the evidence as agent for another must of necessity re required a submission of the issues to the quire this fact to be declared by him in ap- jury; and, as its conclusion thereon was appropriate terms, as well as the name of the proved by the trial judge in denying the moprincipal for whom he is acting. Obviously, tion for a new trial, this court must accept also, when the evidence of what was said it as final. and done at the time of the particular trans- A second contention is that the court erred action, in the light of the attendant circum- in refusing to direct the jury to return a verstances, is equivocal and furnishes the basis dict for the defendant and in submitting cerfor different inferences as to what the in- tain instructions requested by the plaintiff. tention of the parties was, the question We have already shown that the evidence whether defendant acted for himself is for called for a finding by the jury. The court determination by a jury.

therefore properly refused to direct a ver[3] The evidence embodied in the record dict. The objection to the instructions subhere presents such a question. It would mitted did not question their correctness in serve no useful purpose to set it forth and point of law, but merely questioned the proanalyze it in detail. The following summary priety of submitting the case to the jury at of it will be sufficient to exemplify this: all. Defendant's contention in this behalf is The plaintiff and defendant both reside in without merit. Miles City, Custer county. At the time the Finally, it is contended that the court services over which this controversy arose erred in admitting and excluding evidence. were rendered, Mr. Herrick, an attorney at Technically some of the rulings in this belaw, was in the employ of the plaintiff. A half were erroneous. Some of the evidence question had arisen between defendant and admitted was immaterial; but it is not Mrs. Hoppe as to whether defendant had not pointed out that it prejudiced the defendant, exacted and collected interest on the note at nor, by a careful examination of the entire a rate in excess of that stipulated for there record, have we been able to ascertain that in (Laws 1913, p. 51), and had become liable it did. The evidence excluded was wholly to the forfeiture prescribed by the statute. (immaterial and did not relate to any issue in Defendant sought the advice of Mr. Herrick the case. The rulings in this connection in this connection, and also his services in were correct. the foreclosure of the mortgage, if this The judgment and order are affirmed. should become necessary. Mr. Herrick, aided by plaintiff, took up the question of inter

SANNER and HOLLOWAY, JJ., concur. est and later advised defendant that there was nothing in the way of a foreclosure, but

(25 Wyo. 436) that this would not be necessary, as Mrs.

HOGLAN V. GEDDES. (No. 890.) Hoppe was willing to make a settlement of the matter. In fact, a settlement was pend-(Supreme Court of Wyoming. April 22, 1918.) ing at that time and later was effected either on the basis then proposed or upon a


JUDGE. different basis. When Mr. Herrick and the Where a district judge presides at a trial in plaintiff were informed of the terms propos- another district upon an order of the judge of ed by the defendant and were requested to Const. art. 5, § 11, and Comp. Št. 1910, § 912,

the district wherein cause is pending, under put them in writing, they refused to act fur- he is at least a de facto judge, and where no ther for the defendant, because they became objection to his authority is made before or dursatisfied that the terms proposed by him ing the trial, all objection to such authority is

waived. were not fair and just to Mrs. Hoppe. The evidence does not disclose how the settlement 2. APPEAL AND ERROR 185(3)- JUDGES

19-OBJECTIONS TO SUBSTITUTE JUDGE. was finally made. At no time during the sev

Such objection cannot be made for the first eral visits by defendant to plaintiff's office time on appeal or in the motion for new trial.

3. CONSTITUTIONAL LAW 31 SELF-EXE-, in the district court in Sheridan county. That

CUTING PROVISIONS SPECIAL OR SUBSTI. county is one of the counties of the Fourth TUTE JUDGE.

Const. art. 5, § 11, providing that “the judges judicial district, but Judge E. C. Raymond, of the district courts may bold courts for each judge of the Seventh judicial district, presidother," is self-executing, and confers authority ed at the trial, ordered judgment on the veron the judge of one district to call in the judge dict, and heard and overruled defendant's of another district without reference to statute and independent of request or reason for substi- motion for a new trial, pursuant to an order tution.

of the judge of the Fourth district calling 4. JUDGES 15(1) - SUBSTITUTE JUDGE and assigning him to hear, try, and determine GROUNDS—"ANY CAUSE."

the case. Comp. St. 1910, § 912, providing that, “when

[1, 2] It is contended as the only ground refrom any cause" a district judge is unable to try a cause, he shall call upon a judge from another lied on for a reversal that Judge Raymond district to preside thereat, held to give a judge was without authority to preside at the trial authority to call in another judge whenever he or to hear and determine the cause. The condeems cause sufficient. [Ed. Note. For other definitions, see Words the order aforesaid of the regular judge of

tention is based on two grounds: First, that and Phrases, First and Second Series, Any.)

the district stated an insufficient reason for 5. JUDGES 18-AUTHORITY OF SUBSTITUTE JUDGES.

calling in another district judge; second, An order, calling a district judge to try a that while the trial of this case was proceed. case in another district, and giving as a reasoning before Judge Raymond in the courtroom that the regular judge thereof is otherwise oc of the courthouse in Sheridan county Judge cupied, held to confer authority upon judge so called 'upon, under Comp. St. 1910, $ $12. pro- Parmelee, judge of said Fourth district, was viding that “when from any cause" a judge is holding court and engaged in the trial of anunable to try a case, he may call in a judge other case in another room of the courthouse. from another district to preside thereat.

The order of Judge Parmelee calling upon 6. APPEAL AND ERROR Cw536-BILL OF Ex Judge Raymond to hear and determine the CEPTIONS-MATTERS NOT IN RECORD.

Where no time had been granted within case recited as the reasons therefor that which to present a bill of exceptions, and the Judge Raymond was in the district at the court so certifies when bill is presented to him timę; that the judge of the Fourth district for allowance, and in addition certifies as to con

was otherwise occupied, “and it appearing tents of bill, but does not allow same, it cannot be considered as bill of exceptions; matters that it would better suit the convenience of therein contained do not become a part of rec- the parties and the court." The Constituord.

tion provides: 7. APPEAL AND ERROR Om553(1) PROCEED

“The judges of the district courts may hold INGS Nor IN RECORD-BILL OF EXCEPTIONS. courts for each other and shall do so when re

Where objection is made to authority of quired by law." Article 5, 8 11. substitute judge because regular judge was trying a case at same time, facts in support of ob It is provided by statute (section 912, Comp. jection, on writ of error, must appear from rec, Stat 1910) as follows: ord of trial as shown by bill of exceptions, and statements in notice of motion and affidavits in hold courts for each other, when from any cause,

“The judges of the several district courts shall support thereof are insufficient.

any judge of a district court is unable to act or 8. JUDGES 15(1) - SUBSTITUTE JUDGE to hear, try or determine any cause, or to hold

SEPARATE SESSIONS AT SAME TIME IN SAME any term or portion of a term of any district DISTRICT.

court in his district; and in such event the Where a district judge presides at a trial in judge so disqualified or unable to act shall call another district upon an order of regular judge upon one of the other judges of the district court thereof, the holding of court by the regular to hear, try and determine such cause, or to judge at the same time does not invalidate au: hold such term or portion of a term of court, thority of the special judge, whatever effect it and the said judge so called upon, shall try, hear may have on the proceeding in which the regular or determine said cause, or hold such term or judge is sitting.

portion of a term, with all the jurisdiction, powError to District Court, Sheridan County; district court of the district whereto he is called

er and authority possessed by the judge of the E. C. Raymond, Judge.

to act as judge." Action by Laura G. Geddes against M. C.

Thus the Constitution expressly authorizes Hoglan. Judgment for plaintiff, and motion

a district judge to hold court for another, for new trial overruled, and defendant brings and declares it his duty to do so when reerror. Affirmed.

quired by law. And the statute so requires F. Byrd, of Sheridan, for plaintiff in error. when he is called upon by the judge of anR, E. McNally, of Sheridan, for defendant in other district who, from any cause, is unable

to act, or to hear, try, or determine any

cause, or to hold any term or portion of a POTTER, C. J. This case is here on error. term. Being qualified, as the judge of one The plaintiff in error was defendant in the district, to hold court for another district court below, and upon a jury trial of the judge in his district under conditions authorcause there was a verdict against him, and a izing it, and having assumed authority and judgment thereon for $500 and costs. The jurisdiction to preside at the trial of this proceeding in error is brought to reverse that cause upon an order of the judge of the disjudgment. The action was brought and tried trict wherein the cause was pending, Judge

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


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