written contract could not be varied by parol, | Sinclier, acting as and for her agent in said and so fixed the amount of water, had no application. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2013, 2014.] 5. EXCHANGE OF PROPERTY SENTATIONS IRRIGATION PRIATION. 3(1)-REPREPAPER APPRO The existence of a mere paper appropriation of water of a creek by defendant, rendered unavailing by prior claims taking up all the source of supply, did not meet defendant's representation to plaintiff in an exchange of lands that defendant's land possessed water rights. [Ed. Note.-For other cases, see Exchange of Property, Cent. Dig. § 3.] 6. EVIDENCE 434(11) PAROL EVIDENCE VARYING WRITING. In suit for rescission of a written contract for the exchange of lands stipulating a conveyance by defendant of a right to 150 cubic inches of appropriated water per second of the waters of a creek used in connection with the irrigation of defendant's land, evidence tending to show that defendant possessed no such right was not inadmissible as varying the terms of a written contract. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2013, 2014.] Appeal from District Court, Yellowstone County; Geo. W. Pierson, Judge. Suit by Julia B. Petit against Naomi Sinclier. From a judgment for plaintiff, and an order denying defendant's motion for new trial, defendant appeals. Judgment and order affirmed. C. R. Ingle, of Billings, for appellant. F. B. Reynolds, of Billings, for respondent. matter; that at and before the making of said contract, and as an inducement for plaintiff to enter into said contract, defendant and said Isaac Sinclier, acting as her agent, represented fendant and mentioned in said contract, had to plaintiff that said ranch, then owned by deplenty of water for purposes of irrigation, and it was the intention of defendant and her said that water was going to waste thereon, and that agent thereby to inform plaintiff and have her understand that water in defendant's own right was available at said ranch for the purposes of irrigation, and was so situated as to be reasonably efficient for irrigation purposes, and that such representations were material, and the truth or falsity thereof vitally affected the value and utility of said lands; that said representations were false and fraudulent, were known by defendant and said Isaac Sinclier to be false, in that they did not have at that time, had not had previously, nor has she had since that time any water that, under existing conditions, could be delivered to said ranch; that no water has at any time been plentiful enough upon said ranch that it has gone to waste thereon, and that the only waters that have been available for the irrigation of said ranch within at least the past year have been waters procured from a private ditch of a third party, and in which water defendant has not conveyed, and cannot convey, to plaintif any interest." The cause was tried to the district court of Yellowstone county sitting without a jury, and such trial resulted in findings of fact and conclusions of law favorable to the plaintiff. Judgment was entered conformable to the prayer of the complaint, and from it, as well as from an order denying the defendant's motion for new trial, these appeals are taken. SANNER, J. The plaintiff, Julia B. Petit, and the defendant, Naomi Sinclier, contract[1] The main contention is that the reped in writing for the conveyance by the de-resentations alleged in the complaint do not fendant to the plaintiff of a certain tract of constitute fraud, "do not put in issue the land consisting of 161.19 acres in Carbon question of sufficiency of water, and are pregcounty, together with all the defendant's nant with the admission of plenty of water." "right, title and interest in and to 150 cubic This is clearly untenable, if we understand inches of appropriated water per second of it aright. The parties were dealing with retime of the waters of Blue Water creek, spect to certain lands which confessedly reand used in connection with the irri- quire water for their most successful use; gation of said lands," and "one and one-half the availability of such water in quantity shares of the capital stock of Orchard Ditch sufficient for the purpose was therefore a Company, a Montana corporation," the convital consideration, and any false representasideration to be $500 cash, $3,500 in two tion touching that and relied upon must of promissory notes secured by mortgage upon necessity be a fraud. The representation althe property above mentioned, and a deed to leged, in connection with this matter, is certain real estate belonging to plaintiff in "that said ranch had plenty of water, and Billings (subject to a mortgage for $2,000). that water was going to waste thereon." The money was paid, the notes and mortga-This conveyed, and must have been intended ges were given, the deeds were delivered, and to convey, the idea that the defendant owned each party went into possession of the property exchanged in pursuance of the contract. Shortly thereafter the plaintiff brought this suit to enforce a rescission of the contract, to have returned to her the payment made, and to cancel the notes, mortgage, and deed executed pursuant thereto, upon the ground that she was induced to enter into the same by the fraud of the defendant, alleged as fol lows: or controlled and could transfer with said lands a right to the use of water sufficient in quantity and so situated as to be usable at her will for the irrigation of all the lands. It does not aid her, nor adversely affect the complaint, to say that it permits the inference of "plenty of water" in the creek or elsewhere, if that water was, for any reason, not subject to her command. [2] It is further contended that the evi"That said contract was negotiated with dence does not justify the result, in that the plaintiff by defendant and her husband Isaac statement imputed to the defendant was true, Water creek, used in connection with the ir rigation of said lands." The evidence which tended to show that there was no such right can hardly be condemned as a variation of the terms of the written contract. . Finally, attention is called in a general way dence which, it is said, were erroneous. The judgment and order are affirmed. BRANTLY, C. J., and HOLLOWAY, J., con cur. and that the plaintiff was not shown to have relied upon it or to have been damaged by it. It is a permissible inference from the evidence that the total flow of Blue Water creek during the irrigation season is not sufficient to supply the rights confessedly prior to that transferred by the defendant to certain rulings in the admission of evito the plaintiff, and that in point of fact neither the defendant nor her predecessors in interest ever posted any notices at the point of diversion pursuant to such claim of appropriation, or ever perfected the same by the construction of ditches, or ever diverted any water claimed thereunder, save through the Orchard Company ditch. It is true that on one occasion, for a period of about five days, such diversion amounted to something like 108 inches; but this was due to the complaisance of others, who might have interfered. Her interest in the Orchard ditch, as covered by the contract, was only 1 shares, or 3/40 of its total carrying capacity, and the total carrying capacity of that ditch did not exceed 500 inches. A consideration of the entire record satisfies us that the court was justified in its finding against the truth of defendant's representations. So, too, there was warrant for the inference that the plaintiff relied upon these representations. She says she did, and she could not have done otherwise. She might-2. as she did-cause an examination of the records to be made and thus be held to know what the records would disclose. But the existence of prior rights sufficient to consume all the waters of the creek could not be definitely ascertained from the records, because they might not show the total flowage of the creek and would not show what deductions could be made for abandonments, nonuser or return of waters to the creek. [3] It is needless to add that if the representations which related to a vital element of the transaction were false and were relied on, damage necessarily ensued. [4-6] Again it is insisted "that the written contract, having fixed the amount of water, cannot be varied by parol, and the amount of water or priority is not in issue." The answer is threefold: (a) This is a suit to enforce a rescission for fraud inducing the contract; hence the rule invoked does not apply. Hillman v. Luzon Café Co., 49 Mont. 180, 142 Pac. 641; Sathre v. Rolfe, 31 Mont. 85, 77 Pac. 431. (b) The amount, as measured by the needs of the place, and the priority of defendant's right, as affecting the availability of the water claimed thereunder, were distinctly put in issue; the existence of a mere paper appropriation, rendered unavailing by prior claims taking up all the source of supply, could not meet the representations. (c) The written contract stipulated a conveyance by defendant of a right to "one hundred fifty cubic inches of appropriated water per second of time of the waters of Blue (53 Mont. 251) (No. 3728.) Feb. 16, 1917.) REYNOLDS v. JONES et ux. 1 APPEAL AND ERROR 854(6)-REVIEW- An order, sustaining in general terms a motion for new trial made on all the statutory grounds, must be approved, if it can be justified on any of them. [Ed. Note.-For other cases, see Appeal and GROUNDS INSUFFI If, notwithstanding the presumption in favor of plaintiff, under the maxim of res ipsa loquitur, the trial court on the whole case made is of opinion that plaintiff had not sustained the burden of showing actionable negligence, it is its duty to grant defendant a new trial. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 142, 143.] 3. NEW TRIAL 70-DISCRETION. The granting of a new trial for insufficiency of the evidence is in the sound legal discretion of the trial court, subject to review only for abuse thereof. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 142, 143.] Appeal from District Court, Yellowstone County; Geo. W. Pierson, Judge. Action by Margaret E. Reynolds against Frank N. Jones and wife. From an order granting a new trial, plaintiff appeals. Affirmed. C. R. Ingle, of Billings, for appellant. Nichols & Wilson, of Billings, for respondents. HOLLOWAY, J. The plaintiff, while leaving the Star Theater in Billings, was injured by a billboard falling against her. She brought this action to recover damages, and secured a favorable verdict. The lower court granted a new trial, and plaintiff appealed from the order. [1-3] The motion for a new trial was made upon all the statutory grounds, and the order sustaining it is general in terms. If the order can be justified upon any of the grounds, it must be approved. Scott v. Wag For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Governor of this state issued to Mr. Cutts a commission as such member to fill the vacancy thus caused; that such commission was presented to the House of Representatives and referred to its committee on privileges and elections; that pursuant to the report of said committee Mr. Cutts was seated by the House as such member, has since acted, and will, unless ousted, continue to act as such. goner, 48 Mont. 536, 139 Pac. 454, L. R. A. | duly elected member of said House of Repre1916C, 491. One ground of the motion is in- sentatives for the county of Silver Bow, the sufficiency of the evidence to justify the verdict. There was not any evidence to disclose what caused the billboard to fall, and plaintiff relied upon a presumption of negligence invoking the maxim res ipsa loquitur. The defendants offered evidence tending to show the degrees of care exercised by them with reference to the billboard. The presumption on the one hand, and the evidence on the other, at least raised an issue as to whether defendants were guilty of actionable negligence. The burden was upon the plaintiff to sustain the affirmative of this issue by a preponderance of the evidence, and though the presumption had the force and effect of evidence, if, upon the whole case made, the trial court was of the opinion that plaintiff had failed to sustain the burden thus imposed, the duty devolved upon it to grant a new trial. Hamilton v. Monidah Trust, 39 Mont. 269, 102 Pac. 335. The application was addressed to the sound, legal discretion of the court below, and its order is subject to review only for an abuse of that discretion. An examination of the record fails to disclose any such abuse, and for this reason the order is affirmed. (Supreme Court of Montana. Feb. 21, 1917.) The House of Representatives, which under Const. art. 5, § 9, is the judge of the ultimate right of persons claiming seats as members thereof, having seated one as a member, its decision is conclusive on the court, so that the court will not entertain a proceeding to try his right to act as a member, as the most it could do would be to decide an abstract question of a law, for which the courts are not constituted. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 11, 12; States, Cent. Dig. § 39.] Original quo warranto proceeding by the State, on relation of S. C. Ford, Attorney General, against William Cutts. Application denied. S. C. Ford, of Helena, for relator. We cannot and should not take jurisdiction of this proceeding because it must end in nothing. Each House is the judge of the ultimate right of persons claiming seats as members thereof (Constitution of Montana, art. 5, § 9; State ex rel. Thompson v. Kenney, 9 Mont. 223, 232, 23 Pac. 733), and its decision, right or wrong, is conclusive upon us (State ex rel. Smith v. District Court, 50 Mont. 134, 138, 145 Pac. 721; Cooley, Const. Lim. [7th Ed.] p. 189, and cases cited, note 1). Being powerless to enforce any judgment of ouster against a person recognized by either House as a member thereof, the utmost we could do would be to decide an abstract question of law; the courts of this state are not instituted for that purpose. The application is denied. (53 Mont. 306) STEVENS v. HENNINGSEN PRODUCE CO (No. 3730.) (Supreme Court of Montana. Feb. 24, 1917.) 1. MASTER AND SERVANT 262(3)-INJURIES TO SERVANT-ASSUMPTION OF RISK-PLEADING. The defense of assumption of risk on the part of the servant can generally be availed of only by a special plea. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 858.] 2. MASTER AND SERVANT 288(1)-INJURIES TO SERVANT-ASSUMPTION OF RISK-QUESTION FOR JURY. The question whether the servant assumed the risk is generally for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1068, 1069, 1087, 1088.] 3. MASTER AND SERVANT 262(3)—INJURIES TO SERVANT-ASSUMPTION OF RISK-NECESSITY OF PLEADING. Where the plaintiff's own evidence furnishes a basis for the single inference that he assumed the risk, the burden is upon him to exculpate himself or he cannot recover, whether the master pleads assumption of risk or not. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 858.] 4. MASTER AND SERVANT 217(14)-INJURIES TO SERVANT-ASSUMPTION OF RISK - EVIDENCE. PER CURIAM. Application under section 6951, Revised Codes, by S. C. Ford, Attorney General, for an order directed to William Cutts, requiring the latter to show cause why the Attorney General should not have leave and the servant was ordered to remove goods by When fire was discovered in a building to file a complaint in the nature of quo war- elevator, and the elevator stuck, and to remove ranto to try the right of William Cutts to a piece of timber which blocked it the servant, act as a member of the House of Representa- instead of entering the shaft by a door near the tives, Fifteenth session. The petition shows timber, entered at the other side and stood so that descending counterweight struck him, when that upon the death of Jerry J. Flanigan, al he knew of the operation of the elevator and the probable danger, he assumed the risk and could not recover. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 574.] 5. MASTER AND SERVANT 246(3)-INJURIES TO SERVANT-ASSUMPTION OF RISK-EMERGENCY. In such case, where the fire had not approached the elevator or the goods, there was no such emergency as excused the servant's acting as he did. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 792, 793.] piece of 2x4 timber standing on end at one side of the shaft. Seeing that this obstruction must at once be removed, the plaintiff ordered the elevator to be moved to the second floor and held there until he could effect the removal. The elevator was raised as directed. While plaintiff was reaching into the shaft to remove the timber, the elevator was moved upward by some one without warning, with the result that the counterweights descended and struck plaintiff, inflicting the injury complained of a compound fracture of his right leg, besides bruises upon his back and head. The negligence charged is: "That in the construction of said elevator shaft and particularly that portion of the same where the counterweights went up and down, according to the position of the said elevator, the said defendant carelessly and negligently failed and neglected to inclose that portion of said elevator in the basement on the south side where the said counterweights ascended and descended. * * BRANTLY, C. J. Action for damages for a personal injury suffered by plaintiff durThe defenses relied on were a denial of neging the course of his employment by defend-ligence by defendant, and affirmative pleas ant. The trial in the district court resulted that plaintiff assumed the risk, and that he in a judgment in favor of the defendant aft- was injured by the negligence of his fellow er an order sustaining its motion for a nonsuit. Plaintiff has appealed from the judgment, and an order denying his motion for a new trial. The following narrative of facts is gathered from the complaint: servants. The motion for nonsuit was made upon several grounds. As we view the evidence, however, though we assume that defendant was guilty of negligence in the particular alleged-which is by no means clearly established by the proof-the nonsuit was proper on the ground that plaintiff's own evidence discloses a case of assumed risk. On January 11, 1912, the defendant was conducting a warehouse and cold storage business in the city of Butte. It occupied a [1-3] The rule is settled in this jurisdicbrick building consisting of three stories and tion that this defense can be availed of only a basement. Besides stairways connecting by special plea (Longpre v. Big Blackfoot the several floors, there was an elevator for Milling Co., 38 Mont. 99, 99 Pac. 131; Moshconveying goods to and from them. The ele- er v. Sutton's New Theater Co., 48 Mont. vator was installed in a shaft and was mov-137, 137 Pac. 534), and that the question ed by a cable and pulley. It was balanced whether the plaintiff did assume the risk is by counterweights, which ascended and de- generally for the jury. An exception to this scended between two guides near the middle general rule is where the plaintiff's own eviof the south side of the shaft. Plaintiff was dence furnishes a basis for the single inferin the employ of the defendant as superin-ence that he assumed the risk. The burden tendent of its business, and as such had is then upon him to exculpate himself or he charge of the building and defendant's em- cannot recover, and this whether the defense ployés. A. P. Henningsen was its president. is pleaded or not. Longpre v. Big Blackfoot Discovery having been made that the build- Milling Co., supra. The exception is founded ing was on fire on the basement floor, Hen- upon the principle that in order to recover ningsen directed the plaintiff to save as for an alleged wrong of his master, the servmany of the goods stored in the building as ant must make out a case which does not possible. Assisted by the other employés he afford a substantial basis for the inference proceeded to remove such of them as he that he has exculpated the master by taking could without danger to his assistants or responsibility upon himself. himself. To accomplish this, they loaded the The evidence establishes these facts: The goods upon trucks and removed the loaded fire was discovered about 2:30 o'clock in the trucks by means of the elevator to the first afternoon. The plaintiff was ordered by or street floor, and thence to the street. Henningsen to get the employés together and When this work was begun on the basement remove the goods from the building. The floor, it was discovered that because of an plan adopted was to load them on trucks obstruction in the pit or excavation at the and lower or raise the trucks to the main or bottom of the shaft, the deck would not de- street floor in order to reach railroad cars scend to the level of the floor, or "land," so standing on a siding used by the defendant. that the trucks could be loaded upon it. Up- All goods had been removed, except those on investigation this was found to be a stored in the basement. It was then about For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 5 o'clock. The building was constructed with, plaintiff's right leg was caught by the dedouble walls leaving air spaces between. scending counterweights and injured as alThe fire had originated in one of these air leged. Plaintiff had been in the employ of spaces, and by the efforts of the firemen had the defendant about 13 years, having worked been prevented from spreading to other parts for it as laborer and helper, and as travelof the building or to the goods. When the ing agent and superintendent. He had had rescuers began work in the basement, it was experience as stationary engineer, had operfound that an obstruction in the elevator ated compressors, was familiar with mashaft prevented the proper placing of the chinery, and knew the mechanism of the deck for the loading of trucks upon it. This elevator. He knew that when it was moved, was made known to Henningsen by the plain- the counterweights would move; fully realtiff, both being then upon the street floor. ized that the course he was pursuing was The plaintiff testified as to what then oc- perilous, and appreciated the fact that he curred as follows: might suffer injury if the elevator was mov "I told him that a piece of timber or some-ed. This is put beyond doubt by the fact that thing had gotten underneath the elevator and they couldn't load it up. He asked me, he says, 'Well, can't you get it fixed?' Mr. Henningsen asked me what was the matter, and I told him there was something in the elevator pit, and that the elevator would not go down to the bottom to land, and we couldn't get the goods on, and he said, 'Can't you fix it?' He said, 'Go down there. We have to get the goods out of the way. We don't know what this fire is going to amount to.' Now I was just about the landing of the stairway, and I told him I could, and he made the remark, 'It is a hell of a time for the elevator to get out of order.'" when he went to the shaft he ordered the elevator to be held until he gave the signal, and by his statement that he relied on the order thus given by him being obeyed. Evidently this order, if heard by the men above, was understood to mean that the elevator should not be lowered. However this may have been, under the circumstances the only conclusion permissible is that he deliberately took a chance that he would not be injured, for he did not claim that he was hurried or that his attention was distracted by the emergency of the fire, nor did he offer to explain why he pursued the course he did. The only inference possible is that he did it to avoid stepping into the water or the necessity of passing around to the east side of the elevator shaft. [4] At the time plaintiff went down by the direction of Henningsen, neither knew what was the cause of the trouble. When he discovered it, being familiar with the operation of the elevator and having observed the conditions and circumstances confronting him at the moment, his knowledge of the danger was superior to that of Henningsen, and he thus became the exclusive judge as to the course he should pursue. He thus assumed the risk, and hence cannot charge his injury to the negligence of defendant, if it was negligent in failing to inclose or box in the counterweights. Leary v. Anaconda C. Min. Co., 36 Mont. 157, 92 Pac. 477; Fotheringill v. Washoe Copper Co., 43 Mont. 485, 117 Pac. 86; Molt v. Northern Pac. Ry. Co., 44 Mont. 471, 120 Pac. 809; 26 Cyc. 1202; Bailey on Personal Injuries, § 459; 8 Thompson on Negligence, 4643. The plaintiff went immediately to the basement floor to get the elevator in order. The shaft was between 6 and 7 feet square, and was built about corner posts. On the west it was open so that one approaching from that direction could step from the basement floor into the pit or sump, which was about 16 inches in depth. At that time the pit contained several inches of water. On the east the shaft was boarded up, but there was a doorway opening into it. The floor of the basement on this side was higher than on the west side, so that the bottom of the pit was about 30 inches below its level. On the north the shaft was boarded up. On the south it was open except for the space occupied by the guides for the counterweights which had their footings on the lip of the pit somewhat to the west of the center. Goods were piled on that side so near to the shaft that entrance could not be effected from that direction. There was a 16 candle power electric light so placed that it lighted the shaft pit sufficiently to enable one approaching from the west to see an obstruction in it. The piece of timber was found by plaintiff standing on end, and leaning against the lip of the pit on the east side in front of the door. It could have been reached easily and without any danger from the counterweights, by means of the door on the east side or by stepping into the pit. Instead of pursuing either of these courses, the plaintiff first called to those who were in charge of the eleva-1164, 137 Am. St. Rep. 709, Bracey v. Northtor above, to hold it until he gave the sig- western Imp. Co., 41 Mont. 338, 109 Pac. 706, nal. Without waiting for a response he put 137 Am. St. Rep. 738, Hollenback v. Stone & his left foot on the west lip of the pit, his Webster E. Corp., 46 Mont. 559, 129 Pac. right upon the south between the guides, and 1058, and Nelson v. Northern Pac. Ry. Co., leaned toward the east to reach the timber. 50 Mont. 516, 148 Pac. 388. They have no While he was in that position, some one-- application. In the first place, they deal althe evidence does not disclose who moved together with the rule governing the defense [5] Counsel insist that the evidence presents a case of emergency in which the plaintiff was injured in an endeavor to save the property of his master, and cite and rely upon these cases: Da Rin v. Casualty Co., 41 Mont. 175, 108 Pac. 649, 27 L. R. A. (N. S.) |