removed to said lots, and, as soon as he was ready for the insurance, he would notify the defendant to issue the policy; that, on or about June 9th thereafter, Russell notified defendant that he was ready to have the policy issued, and the policy was issued; that at the time of the solicitation by Gibson, as agent, Russell paid in advance the premium for the said policy; and that it was well known to defendant that Russell did not want the policy issued and delivered until the house was removed to the lots hereinbefore referred to; and that the policy was not delivered until after the house was removed. On February 9, 1893, it is averred, the property was totally destroyed, and that, on February 10th, Russell and plaintiff, the assignee of Russell's interest, notified defendant of the fire, and thereupon defendant waived the conditions of the policy requiring that notice of loss should be in writing, and released Russell from the performance of all conditions relat ing to proofs of the loss, and promised to pay plaintiff the sum of $600, the amount of the insurance, and stated that no further notice of the loss or proofs of the loss were necessary; that thereafter defendant refused to pay the insurance, upon the ground that the property covered by the policy was not destroyed by fire. The answer alleged a delivery of the policy to Russell on April 7, 1892, and set up that, at the time of the execution and delivery of the contract of insurance, Russell was engaged in the erection and construction of a building for use as a dwelling and greenhouse, upon the premises described in the policy, and that Russell applied for the policy upon the building aforesaid, then in process of construction. The defendant denied that the building described in the policy was destroyed by fire. The answer admitted that there was a fire on the 9th of February, 1893, whereby a dwelling house, at that time standing upon one of the lots in the policy of insurance described, was destroyed by fire, and denied that at any time prior to the delivery of the policy the company was ever notified that the building which was afterwards destroyed by fire would se removed to, or erected upon, any of the ots mentioned in the policy; denied that Russell ever said that he desired insurance upon the building which was destroyed by fire, or that he ever requested the defendant not to issue or deliver a policy until after the building which was subsequently destroyed by fire was removed to the lots mentioned in the policy. It is also alleged that the building which was burned was erected long subsequent to the issue and delivery of the contract of insurance, and was not attached to, or in any manner made a part of, the building insured, and which was upon the said premises and in process of construction at the time of the making of the contract of insurance; that the building destroyed was never used as a greenhouse; that the plaintiff failed to make proofs of loss as required by the

terms of the policy; that any information to plaintiff that plaintiff need furnish no written proofs of loss was given while under the belief that the building described in the policy had been destroyed. The answer denies all waiver, and pleads concurrent insurance without authority. The replication denied the new matter set forth in the answer. Evidence was introduced before the jury. At the conclusion of plaintiff's testimony, the defendant moved the court to dismiss the action, upon the ground that the evidence showed that the property insured had not been destroyed by fire, that the building destroyed was not covered by the policy of insurance, and because it appeared that the building destroyed was never occupied as a greenhouse. The court granted this motion. Plaintiff excepted, and appeals from the order for nonsuit and judgment for costs. The transcript contains no judgment, but, by leave of this court, plaintiff has filed a copy of the original "judgment and order in the case," in which the following entry appears after the formal recitals: "Defendants then moved the court for a nonsuit, which motion was sustained by the court, to which plaintiff excepts. It is therefore ordered and adjudged by the court that this action be dismissed, and the case withdrawn from the jury. is further ordered, adjudged, and decreed by the court that the defendant recover of and from the plaintiff its costs and disbursements herein expended, amounting to $18.80. And it is further ordered by the court that plaintiff be granted a stay of proceedings for thirty days to prepare statement on appeal."

It

James Donovan, for appellant. A. J. Shores, for respondent.

HUNT, J. (after stating the facts). The appeal in this case is "from the order of nonsuit and judgment for costs." Respondent contends that an order for nonsuit is not appealable. But it is laid down in Leese v. Sherwood, 21 Cal. 152, that a dismissal of an action is in effect a final judgment in favor of the defendant. "It is a final decision of the action as against all claim made by it, although it may not be a final determination of the rights of the parties as they may be presented in some other action." See, also, Zoller v. McDonald, 23 Cal. 136, and McLeran v. McNamara, 55 Cal. 508. Hayne, New Trial & App. p. 559, in note 21, puts this quære: "Is not an order granting a nonsuit a final judgment? Such an order amounts to a dismissal of the action, and we have seen that a dismissal is a final judg ment." Here the court granted a motion for nonsuit, dismissed the suit, and ordered and adjudged that respondent recover its costs. This was a judgment. Hayne, New Trial & App. p. 555, and note. The only possible thing left to do was the entry of a more formal judgment by the clerk. Surely, the effect of the ruling of the court was that

of a final decision against plaintiff, and we think he could appeal from such an order, as a judgment.

Contracts of insurance ought to be construed to carry out the intention of the parties, as expressed or indicated by their language used. Beach, Ins. § 546. Such contracts having for their object indemnity, the rule is that they are to be construed liberally to carry out such objects. "No rule in the interpretation of a policy is more fully established, or more imperative and controlling, than that which declares that in all cases it must be liberally construed in favor of the insured, so as not to defeat without a plain necessity his claim to the indemnity, which in making the insurance was his object to insure." May, Ins. § 175. It is also an established principle in the construction of fire insurance policies, as well as other contracts, that the words of the agreement are to be applied to the subject-matter about which the parties are con tracting at the time, the presumption being that such matter is in the minds of the parties at the time of their agreement. Wood, Ins. p. 145. Bearing these principles in mind, was the action of the lower court in granting a nonsuit correct? The evidence tended to show that in April, 1892, Mr. Gibson, the defendant's agent, solicited insurance from Russell, owner of the premises; that Russell told him that he intended to move the house he was then living in to the lots described in the policy, and would connect it with the greenhouse then being constructed on said lots described in the policy. This building to be moved was a one-story house, with four rooms, attached to a greenhouse. The policy and description therein were made out by the agent, and were upon J. H. Russell's "one-story frame, shingle-roof building, and additions, while occupied as a dwelling and greenhouse, situated on lots Nos. 5, 6, and 7, block 24, on the side of avenue, and between street, and in Boston and Great Falls addition to street, Great Falls, Montana. Other concurrent insurance permitted. Permission granted to complete." After the dwelling house was moved to the lots, Russell received his policy. The dwelling house was moved to one of the lots described in the policy, but was not connected with the greenhouse, which stood on the furthest of the three lots so described. The fire destroyed a one-story frame house, the same house that was removed from the place where it had stood when the agent solicited the insurance, but with additious thereto, which made it a nine instead of a four room house. The identity of the property described, whether the building burned was covered by the policy, was the main question. That was one of fact, and we think was erroneously decided. Southwest Lead & Zinc Co. v. Phoenix Ins. Co., 27 Mo. App. 446. Parol evidence is admissible, not v.45P.no.2-14

to vary or contradict the terms of the policy, but to explain it,-to get at its true meaning. Tesson v. Insurance Co., 40 Mo. 33, 50 Mo. 112; Beach, Ins. § 552. "The gen eral rule is that the construction of the policy of insurance is a question of law for the court to determine, and warranties, as we shall see hereafter, must be strictly enforced, regardless of their materiality; but when the language employed to describe the thing warranted is not free from ambiguity, or when it is equivocal, and its interpretation depends upon the sense in which the words are used, in view of the subject to which they relate, the relation of the parties, and the surrounding circumstances properly ap plicable to it, the intent of the parties be comes a matter of inquiry, and the inter pretation of the language used by them is a mixed question of law and fact. Such a question is to be submitted to the jury under appropriate instructions." Rich. Ins. § 45. On a ruling upon a motion for a nonsuit, the law regards the issues proved which the evidence tends to prove. Soyer v. Water Co., 15 Mont. 1, 37 Pac. 838.

In our opinion, the plaintiff made out a prima facie case of the loss by fire of his one-story, frame, shingle-roof dwelling house, situate upon the lots, and described in the policy. It follows that the court ought not to have granted a nonsuit unless it appeared that defendant's additional ground of motion was well taken,—that the building destroyed by fire was never occupied as a greenhouse. But we do not think that, prima facie, the defendant is relieved from liability because the frame, shingleroof building and additions were not occupied for the two purposes,-a dwelling house and a greenhouse. The evidence tends to prove that the agent and the insured understood that the frame house was for dwelling purposes, while the greenhouse was for its proper purposes, and that the policy was made out with that understanding. At least, there is nothing in the policy inconsistent with the evidence to that effect. Furthermore, upon the whole evidence in the record, the conduct of the company, by its agent Gibson, who was in Great Falls after the fire, tends to prove that the agent intended to insure the particular house destroyed. By expressly waiving formal proofs of loss after the fire, and saying that the defendant was ready to pay its loss, he seems to have identified the house destroyed as the house insured. Of course, if the hazard were increased by not connecting the house and greenhouse, and such increase were without defendant's consent, different questions would arise. But those matters are not now before us. The plaintiff sought to introduce evidence of the value of the property destroyed, by asking for opinions of builders and others upon descriptions given. Much of this testimony was excluded. The rule laid down by the supreme court of Colorado appears to be just, and to

A complaint for vagrancy, which was otherwise sufficient, should not have been dismissed on the ground that it contained scandalous matter, in that it also charged defendant with "being a first-class pimp." The court, of its own motion, should have stricken out the objectionable words, and rebuked the persons who used them, or permitted them to be used.

Appeal from district court, Silver Bow county; William O. Speer, Judge.

A complaint charging Hod. Peasley with a violation of Ordinance 55, § 1, of the city of Butte, was dismissed, and the city appeals. Reversed.

L. J. Hamilton and John W. Cotter, for appellant.

HUNT, J. The defendant was adjudged guilty of vagrancy, in violation of section 1 of Ordinance 55 of the city of Butte. The complaint originally made in the police court of the city of Butte was signed by Charles Swanson, a policeman. It charged the defendant with a violation of section 1 of Ordinance 55 of said city, entitled "An ordinance relating to vagrants, opium smoking and obstructing sidewalks," and contained the following averment: "That upon Information and belief, at and in said city the said defendant, then being, did then and there violate said section of said ordinance, by willfully and unlawfully being an idle and dissolute male person who loiters in and about saloons, gambling houses, and houses of prosticution, and being a first-class pimp." The defendant appealed to the district court from the judgment in the police court. In the district court the defendant demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer and dismissed the case for the reason that the complaint contained scandalous matter. The defendant was discharged. The city of Butte appealed. We are constrained to reverse the ruling of the court. The complaint stated an offense, by charging the defendant with having unlawfully been an idle and dissolute male person, loitering about saloons, gambling houses,

and houses of prostitution. The court seems to have taken this view of the main allegations of the complaint, as the dismissal was put upon the express ground that the complaint contained scandalous matter. Plainly, the matter considered scandalous were the words concluding the charging part of the complaint, viz. "and being a first-class pimp." These words constituted an allegation of matter unbecoming the dignity of the court to hear. It would therefore have been eminently proper for the court, of its own motion, to strike them out, and to severely rebuke the complainant or attorney who had used them, and the magistrate of the city who had permitted them to be used. But the action should not have been dismissed because a portion of the complaint was irrelevant or scandalous. Section 101 of the Code of Civil Procedure of 1887 provides that irrelevant matter inserted in a pleading may be stricken out upon such terms as the court may, in its discretion, impose. This section—indeed, the inherent power of a court-is sufficient to enable it to strike out of any pleading scandalous language not material to the matter in dispute. The following authorities are in point: Baylies, Code Pl. p. 365; McVey v. Cantrell, 8 Hun, 522; 1 Daniell, Ch. Pl. & Prac. p. 351. The word "pimp," in the complaint, is by itself not necessarily so objectionable. Webster defines "pimp" as one who provides gratification for the lust of others; a procurer; a pander. It is likewise defined in substantially the same language in the Century Dictionary. It is particularly offensive, however, in this complaint, by the language connected with its use. Scurrility and slang have no proper place in a pleading. Naturally, the word, by its significance, is used as a term of opprobrium, bearing cruelly upon the moral character of a person so charged. But the court ought to have stricken out the objectionable language, instead of dismissing the action; for, independently of the objectionable words, the defendant was sufficiently charged with vagrancy. The order sustaining the demurrer and dismissing the action is reversed.

erty; but it rests upon those considerations of right and justice which have been gathered into the great body of the rules and principles known as the 'common law.' There is no question as to the power of the states to legislate and change the rules of the common law in this respect as in others; but, in the absence of such legislation, the question is one determinable only by the general principles of that law." Reference must, therefore, always be had to the principles controlling the relations of the master towards his servant. We should turn, too, to the decisions of learned courts which have applied those principles, and established precedents worthy to be regarded as authorities. But in the consideration of all such adjudged cases it is well to bear in mind that the varying applications of the rules of the law of negligence demand that each decision should be strictly regarded with relation to the exact facts before the court. The distinctions necessarily become highly im portant. The familiar rule is that a servant entering into service assumes the ordinary risks of the employment entered into, which include the risk of injuries caused through a fellow servant's negligence. The recognition of this rule underlies the Ross Case, 112 U. S. 377, 5 Sup. Ct. 184, and the many subsequent decisions of the federal supreme court. The difficulties have been in determining what is properly deemed a common employment. After consideration of the conduct of railroads and their "vast and diversified" business, it has been finally held that the principle that a master is liable to a servant who is injured through the master's failure of duty towards him is reasonably applied where, of practical necessity, there are distinct and separate departments of service in the general conduct of the business, and where persons placed by the master in charge of any such departments or separate branches are given entire or absolute control therein. Such persons, so far as employés under them are concerned, are vice principals and representatives of the master. Such is the doctrine of the Ross Case, supra, as interpreted and followed by the supreme court in late decisions. But the application of the rule of the Ross Case has been most cautiously restricted by the supreme court, and their discussions of the meaning of the phrase, "different branches or departments of service," demonstrate the care with which the learned justices now guard the line of separation between a fellow workman and a superintendent of a particular and separate department. "It has ever been affirmed," they say in the Baugh Case, "that the employé assumes the ordinary risks incident to the service; and, as we have seen, it is as obvious that there is risk from the negligence of one in immediate control as from one simply a co-worker." In Railroad Co. v. Hambly, 154 U. S. 349, 14 Sup. Ct. 983, the court, by Justice Brown, classify the decisions of

the leading state courts upon the fellowservant doctrine, and thus speak of the classes of cases involving the questions of "subordination" of fellow servants and "different departments": "Of both classes of cases, however, the same observation may be made, viz. that to hold the principal liable whenever there are gradations of rank between the person receiving and the person causing the injury, or whenever they are employed in different departments of the same general service, would result in frittering away the whole doctrine of fellow service. Cases arising between persons engaged together in the same identical service-as, for instance, between brakemen of the same train, or two seaman of equal rank in the same ship-are comparatively rare. In a large majority of cases there is some distinction, either in respect to grade of service or in the nature of their employments. Courts, however, have been reluctant to recognize these distinctions unless the superiority of the person causing the injury was such as to put him rather in the category of principal than of agent,-as, for example, the superintendent of a factory or railway, and the employments were so far different that, although paid by the same master, the two servants were brought no further in contact with each other than as if they had been employed by different principals." To these examples where the superior is deemed a principal rather than an agent, may be added the superintendent of a mine, as was decided in Kelley v. Mining Co., 16 Mont. 484, 41 Pac. 273.

Adhering to the doctrine that mere superiority of position is no ground of liability, the supreme court has recently been called on to decide the precise question involved in this case. In Railroad Co. v. Peterson, 16 Sup. Ct. 843, one Holverson was foreman of an extra gang of men employed on a section of the road to keep the same in repair. The duties of the gang were to put new ties in where necessary, and to do work of that general nature. The section gang worked under the foreman or boss. Holverson, as foreman, had the power to employ men and to discharge them. The Company furnished the tools. Holverson always went with the men, and superintended their work. While the men were returning from work one day upon two hand cars, Holverson, the foreman, negligently applied the brakes on the front car, and abruptly stopped it. He gave no warning of his intention, and the rear car ran into the one ahead, the result of which was that the first car was thrown from the track, and plaintiff was injured. He recovered damages. The court assume that Holverson had exclusive charge of the direction and management of the gang in all matters connected with their employment, and that the plaintiff was subject to the authority of Holverson in all, matters relating to his duties as laborer. The circuit court of appeals held (2 C. C. A. 157, 51 Fed. 182) that