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the complaint in this instance does not allege that Le Sage was a servant of the railway company; and while the allegation in express terms cannot be found in the amended complaint, and its absence is scarcely excusable, still, if there are sufficient facts alleged from which such relationship may fairly be inferred, we will not feel justified in reversing the judgment

[6] The complaint alleges that at the time of the injury the defendant railway company was the owner of, and operating, street cars on West Park street in Butte, for the purpose of transporting passengers from point to point in the city; that at such time and place Le Sage was in charge of one of said cars, in the capacity of conductor; that at such time and place the car so in charge of Le Sage was proceeding along West Park street between Columbia and Crystal streets; "that the defendant Le Sage was driving said car as motorman, and not acting in his usual and regular capacity as conductor on said car, doing so with the knowledge and consent of the defendant corporation." In each of the separate answers filed by the defendants, these specific allegations are admitted. [4] In attempting to charge the relationship of master and servant, it must be conceded that it is not necessary to plead any facts other than those necessary to be proven, in order to establish such relationship when in issue.

3. It is insisted, also, that the complaint fails to state facts showing a breach of duty on the part of defendants, and also that the negligence alleged was a proximate cause of the injury. The complaint alleges, and the answers admit, that the car was being operated in a public and much-used street in the city of Butte. From this fact it follows that the defendants were under the obligation or duty to keep a vigilant lookout for people who might be rightfully using the street.

[7] The general rule, with the authorities supporting it, is found stated in 36 Cyc. 1520, as follows: "It is the duty of the driver or motorman of a street car to exercise reasonable and ordinary care to discover persons using the street on or near the track, and liable to be injured by his car, in time to avoid injuring them, and if he fails to discover a person on or near the track, when by the exercise of ordinary care he could have done so in time to stop the car or otherwise avoid the injury, it is negligence for which the company is liable."

The complaint alleges that Le Sage, the motorman, at the time failed to keep a vigilant or proper lookout, whereby he might have seen the child before it came into a place of danger. We think the complaint contains a sufficient statement of the duty and breach,

[8] The only specific act of negligence charged is in failing to keep a proper lookout; and the complaint then proceeds; "That by reason of the negligence of said defend

[5] In 1 Shearman & Redfield on the Law of Negligence, § 158, it is said: "When the plaintiff has suffered injury from the negli-ants he [plaintiff] was injured." This is a gent management of a vehicle, such as a boat, car, or carriage, it is sufficient prima facie evidence that the negligence was imputable to the defendant to show that he was the owner of the thing, without proving affirmatively that the person in charge was the defendant's servant."

In 1 Thompson's Commentaries on the Law of Negligence, § 580, the same rule is announced as follows: "So it is not necessary to prove an express contract of employment in order to establish the relation of master and servant, but the relation may be implied from circumstances, as where the person committing the wrong is at the time in the actual conduct of the business of another with his seeming consent, in which case that other will be responsible for the wrong done by the former within the scope of the apparent employment, on the ground that he has induced the belief that such person is his servant, and has led another to act upon that belief to his injury." To the same effect are McCoun v. New York Central & H. R. R. Co., 66 Barb. (N. Y.) 338; Growcock v. Hall, 82 Ind. 202; Norris v. Kohler, 41 N. Y. 42. Even though this complaint may not be a model pleading, we think it fairly appears from it that Le Sage was the servant of the railway company at the time of the injury, and that the rule of respondeat superior is properly invoked.

sufficient showing of the causal connection between the alleged act of negligence and the injury. Mize v. Rocky Mountain Bell Tel. Co., 38 Mont. 521, 100 Pac. 971, 129 Am. St. Rep. 659. See, also, same case in 16 Am. & Eng. Ann. Cas. 1189, and note; Reino v. Montana Min. Land Dev. Co., 38 Mont. 291, 99 Pac. 853.

[9] 4. Without reviewing the evidence at length, we think it sufficient to go to the jury upon the question of Le Sage's negligence in failing to keep a proper lookout, and that a verdict was justified if the plaintiff's evidence was treated as true, as it must have been. We cannot agree with counsel for appellants that the evidence is subject to but one construction, viz., that the child appeared on the track under such circumstances as to make its injury unavoidable. There is a sharp conflict in the evidence as to whether a wagon passed the car immediately before the injury happened, or whether there was a dust storm which might have interfered with Le Sage in attempting to keep a lookout; and under these circumstances it was proper to submit to the jury the question whether or not the injury was or was not unavoidable. Harrington v. Butte, Anaconda & Pac. Ry. Co., 39 Mont. 299, 102 Pac. 330.

5. It is insisted that the verdict returned in this instance is grossly excessive. It has

failing to pay the price of the service when due is reasonable.

[Ed. Note.-For other cases, see Electricity, Dec. Dig. & 11.*]

3. ELECTRICITY (§ 11*)-ELECTRIC COMPANIES -SUPPLY OF ELECTRICITY - RULES - REASONABLENESS.

Where it did not appear that a company authorized by its franchise to supply electricity to the inhabitants of a city was also empowered to furnish gas, a rule that it would not serve electricity to any one stealing its gas until all reasonable bills therefor were paid

was not a reasonable one.

[Ed. Note. For other cases, see Electricity, Dec. Dig. § 11.*]

4. PLEADING (§ 214*) — DEMURRER

SIONS.

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ADMIS

The rule that a demurrer to a pleading admits the truth of its allegations so far as they conclusions of law or inferences from facts not state probative facts does not extend to mere pleaded or conclusions drawn therefrom, even if alleged in the pleading.

been well said: "To ascertain what is a fair and just compensation for a personal injury is a judicial problem of difficult, if not impossible, solution." In the note to Cleveland, etc., R. Co. v. Hadley, 170 Ind. 204, 82 N. E. 1025, 84 N. E. 13, 16 L. R. A. (N. S.) 527, as reported in 16 Am. & Eng. Ann. Cas. 1, there is a most complete collation of cases involving personal injuries. The cases are carefully analyzed and classified according to the character of injury and the action taken by the appellate court. A review of those cases involving an injury of the character suffered in this instance discloses that, except in New York and Texas, in every instance where the verdict exceeded $15,000 it has been disapproved, and that in nearly every instance the amount has been reduced to $12,500, or less. While the views of these courts are not binding upon us, they at least indicate in a general way the prevailing opinion as to the reasonableness of verdicts in this class of cases. Considering all the facts and circumstances as disclosed by this record, we think a recovery of $12,500 will compensate for the injury sustained, assuming, as we must, that it is possible to measure in money the extent of an injury which deprives a person of one member of his body. It is ordered that this cause be remanded to the district court, with directions to grant a new trial, unless within 30 days after the remittitur is filed, and plaintiff has notice BRANTLY, C. J. The purpose of this apthereof; he shall file with the clerk of the dis-plication was to compel the defendant to furtrict court his consent in writing that the nish to the relator electricity to light his amount of the judgment be reduced to $12,500 | residence in the city of Butte. In his afas of the date of the filing of such writing. If such written consent be filed within the time designated, then the judgment shall be modified accordingly, and as modified shall stand affirmed, and under those circumstances the order refusing a new trial will also be affirmed, with costs to respondent.

BRANTLY, C. J., and SMITH, J., concur.

(43 Mont. 118)

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*] Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge.

Mandamus by the State, on the relation of William Deeney, against the Butte Electric & Power Company. Judgment for relator, and respondent appeals. Affirmed.

Breen & Jones, for appellant. Maury & Templeman and J. O. Davies, for respondent.

fidavit the relator alleges that he is a resident of that city, and defendant is a corporation organized and existing under the laws of the state of New Jersey, and authorized to do business in the state of Montana; that it is and has been engaged in furnishing electricity to the city of Butte and its inhabitants under a franchise granted to its predecessor in interest by ordinance duly enacted by the city council on July 27, 1883; that, under the provisions of the ordinance, it has the right to extend its lines

STATE ex rel: DEENEY v. BUTTE ELEC- of wire along the streets and alleys of the

TRIC & POWER CO.

(Supreme Court of Montana. March 27, 1911.) 1. ELECTRICITY (§ 11*)-ELECTRIC COMPANIES -DUTY TO SUPPLY.

A company authorized under a franchise to furnish electricity to the inhabitants of a city may be compelled to furnish it to all persons along its lines who offer to and do comply with its rules and regulations.

[Ed. Note. For other cases, see Electricity, Dec. Dig. § 11.*]

2. ELECTRICITY (§ 11*)-ELECTRIC COMPANIES -RULES AND REGULATIONS-REASONABLENESS.

A company authorized by franchise to supply electricity to the inhabitants of a city may adopt and enforce reasonable rules and regulations to protect its interests; and a rule that service may be discontinued as to any patron

city, and is required to furnish electricity to the city and its inhabitants for lighting purposes whenever demand is made for it and upon reasonable terms; that the house in which the relator resides is fitted with wires to receive electricity for domestic use; that the defendant has a power line along an alley through the block in which the relator's house is situated, by means of which it for a long time has been delivering electricity to tofore and until October 19, 1910, the wires the persons residing in the block; that herein relator's nouse were connected with the defendant's line, and electricity was delivered to him for lighting purposes; that relator paid all bills due to the defendant for its service and complied with all of its reason

able rules regarding the use of electricity; | gas, and that it will not sell gas to any one that on the date mentioned the defendant who steals its electricity until all reasonable wrongfully caused the connection between its line and relator's house to be severed, and unlawfully refused to furnish the relator with electricity; that, though demand was made for the restoration of the connection and service, it was refused, and that the relator has been damaged by being compelled to resort to other inferior means of lighting his house, to the amount of $1,000, and to pay counsel fees and costs to the amount of $560.20. Judgment is demanded that a peremptory writ issue requiring defendant to furnish the relator with electricity, and awarding him such sum in the way of damages as will compensate him for the injury and loss suffered.

The defendant's answer admits all the material allegations in the affidavit, except as to the damages. These latter it denies. As a justification for its action and as cause why relator is not entitled to relief, it alleges the following: "That for more than one year last past, and next before the 19th day of October, 1910, this defendant has been a public service corporation, and at all times engaged in furnishing and supplying to the citizens of and residents within the city of Butte in Silver Bow county, Mont., under lawful permission so to do, by means of pipes, gas for fuel and other domestic purposes and lighting purposes. That for the period, full and entire, of 12 months next preceding the 19th day of October, 1910, the said William E. Deeney used for fuel purposes in his said residence gas of this defendant by means of a secret and furtive and clandestine connection with the mains and pipes of this defendant. That this defendant had no notice or knowledge of the said use by the said W. E. Deeney of its gas. That the said W. E. Deeney was during the said period of 12 months next preceding October 19, 1910, continually guilty of larceny of this defendant's gas, and using the same for fuel purposes. That the reasonable value and price of the said gas so used by the said W. E. Deeney in his said residence is more than the sum of $50. That no part of the said sum of $50 has ever been paid by the said W. E. Deeney, or by any one in his behalf, to this defendant for its said gas so used by him. That demand has been made on the said Deeney before the institution of this special proceeding of a civil nature by him that he pay the reasonable value and price of the said gas so furtively used by him, and the property of and made by this defendant. That he refused to pay, and failed to pay, anything at all for the use of the same. That when he was so using the gas of this defendant he intended never to pay for any of the same, and intended to continue to use the same clandestinely and without paying for the same. That this defendant has had for the period of more than one year continuously a rule that it will not serve electricity to any one who steals its

bills and charges for both gas and electricity are paid to the company, this defendant. That such rule is a reasonable rule and regulation, as this defendant avers, and without this rule persons of the disposition to do so get, and there are some in Butte who would obtain, the products of gas and electricity furnished to the public by this defendant without being required to pay or paying for the same." To this answer the court sustained a general demurrer, and, after a hearing on the question of damages, rendered judgment that the writ issue, and that the relator recover damages to the amount of $1, together with costs of the proceeding. The defendant has appealed. The one question submitted for decision is whether the answer alleges facts sufficient to constitute a defense.

[1] It is conceded by defendant-and the concession is proper-that a company authorized under a franchise to carry on a business public in its nature, such as furnishing electricity to the inhabitants of a city, may be compelled to furnish it to all persons along its lines who offer to, and do, comply with its rules and regulations. State ex rel. Milsted v. Butte City Water Co., 18 Mont. 199, 44 Pac. 966, 32 L. R. A. 697, 56 Am. St. Rep. 574; Shepard v. Milwaukee Gaslight Co., 6 Wis. 539, 70 Am. Dec. 479, and note; Williams v. Mutual Gas Co., 52 Mich. 499, 18 N. W. 236, 50 Am. Rep. 266; Haugen v. Water Co., 21 Or. 411, 28 Pac. 244, 14 L. R. A. 424; Mackin v. Portland Gas Co., 38 Or. 120, 61 Pac. 134, 62 Pac. 20, 49 L. R. A. 596; State v. Telephone Co., 17 Neb. 126, 22 N. W. 237, 52 Am. Rep. 404; Crumley v. Watauga Water Co., 99 Tenn. 420, 41 S. W. 1058.

[2] It is likewise properly conceded by the relator that such a company may adopt and enforce whatever rules and regulations, or pursue any course of conduct it may deem necessary to protect its interests, providing they are reasonable, and that a rule that the particular service may be discontinued as to any patron who fails or refuses to pay the price of the service when due is reasonable. State ex rel. Milsted v. Butte City Water Co., supra; American Waterworks Co. v. State, 46 Neb. 194, 64 N. W. 711, 30 L. R. A. 447, 50 Am. St. Rep. 610; Mackin v. Portland Gas Co., supra; Tacoma Hotel Co. v. Tacoma Light & Water Co., 3 Wash. St. 316, 28 Pac. 516, 14 L. R. A. 669, 28 Am. St. Rep. 35.

[3] These concessions narrow the inquiry down to the specific question: Is the rule upon which the defendant relies a reasonable one? In State ex rel. Milsted v. Butte City Water Co., supra, it was said: "Certainly the company may make reasonable rules and regulations. Doubtless it may require payments in advance for a reasonable length of time. It may within reasonable limitations cut off the supply of those who refuse to pay water rents due. It may make regulations

anything stated in the answer, but rather an inference from facts the existence of which rests altogether in surmise. The allegation on this subject is a mere conclusion. It is a crime to steal gas. Rev. Codes, § 8659. But the defendant has no more right to use its franchise to protect its private gas business than it would have to protect its private merchandise business.

authorizing an examination of meters in | fendant has a gas franchise. That it has, houses at reasonable times or adopt other however, is at best not a just inference from reasonable rules for the regulation of its affairs. But it has no power to abridge the obligations assumed by it in accepting its franchise to supply an inhabitant of Butte with water, if he pays them for it in advance, and is a tenant in the possession and occupancy of a house in need of water for general purposes." Accordingly it was held that a rule under which it would "deal only with the owners of property requiring water to be turned on, or the agents of such owners," was unreasonable, because it was in conflict with its franchise.

[4] By interposing a general demurrer to defendant's answer, the relator admitted the truth of its allegations, and, so far as they state probative facts, this court must assume them to be true. But the rule does not extend to mere conclusions of law or inferences from facts not pleaded or conclusions drawn therefrom, even if alleged in the pleading. It includes only facts properly pleaded. MeCormick v. Riddle, 10 Mont. 467, 26 Pac. 202; 31 Cyc. 333; 6 Ency. Pl. & Pr. 336; Bliss on Code Pleading, § 418.

Upon the facts as presented in this case, the relator was entitled to have the defendant furnish to him electricity upon the same footing with every other citizen. The defendant might prosecute him in the courts for a violation of the law, but could not assume to itself the power to punish him for the violation of a rule which it had no power to adopt. The demurrer was properly sustained.

The judgment is affirmed.
Affirmed.

SMITH and HOLLOWAY, JJ., concur.

(43 Mont. 93)
BRITANNIA MINING CO. v. UNITED
STATES FIDELITY & GUAR-
ANTY CO.

(Supreme Court of Montana. March 22, 1911.)
1. SHERIFFS AND CONSTABLES (§ 157*)-LIA-
BILITY OF BONDSMEN - WRONGFUL SALE -
MINING MACHINERY.

Defendant contends that it is admitted that it is a public service corporation engaged in supplying the inhabitants of Butte with both gas and electricity, and that it may refuse to sell either to any person who has been guilty of a larceny of the other, so long as he refuses to pay the value of the Rev. Codes, § 4428, provides that all maquantity stolen. For present purposes, and chinery or tools used in working or developing in view of the facts stated by relator in a mine shall be deemed affixed to the mine. his affidavit, it may be assumed that it suf- Section 4425 provides that what is affixed to ficiently appears from the answer that the land shall be real property. Section 6828 provides that before real property can be sold on defendant is a corporation engaged in supply-execution 20 days' notice thereof must be given. ing the inhabitants of Butte with electricity, with the powers and privileges conferred by its charter, and a franchise under which it is conducting its business. But it does not follow that it may under the guise of a rule adopted ostensibly to secure and protect its interests in rendering this public service impose restrictions designed to extend the same protection to other business conducted by it having no connection with the fran

chise granted by the city for a specific purpose. It is not alleged that the defendant possesses a franchise to supply gas to the inhabitants of Butte. So far as appears, its engagement in the manufacture and distribution of gas may be wholly without a franchise. If this is so, this part of its business stands upon the same footing as would dealing by it in electrical fixtures and other merchandise of the same character. No one

would contend for a moment that a rule declaring that the defendant could cease to furnish electricity to any person who should be in default of payment of a bill for merchandise of the description mentioned would be within the purview of the powers granted by the franchise. It may be that the de

Section 6829 provides that an officer selling
without the notice prescribed in section 6828
to his actual damages. Held that, in selling
forfeits $500 to the aggrieved party in addition
mining machinery as personal property, upon
five days' notice only, a sheriff subjected himself
and bondsmen to the penalty.

Constables, Dec. Dig. § 157.*]
[Ed. Note. For other cases, see Sheriffs and

2. EVIDENCE (§ 83*) - PRESUMPTIONS- -PER-
FORMANCE OF OFFICIAL DUTY-DOCKET OF
JUDGMENT.

trary, it will be presumed that a clerk perIn the absence of any showing to the conformed his duty of docketing a judgment rendered in his court, so as to make it a lien on real estate under Rev. Codes, § 6807.

[Ed. Note.-For other cases, see Evidence, Dec. Dig. § 83.*]

3. EXECUTION ($ 127*)-"LEVY"-OBJECT OF. The object of a levy of execution is to bring the property within the custody of the law and prevent the judgment debtor from disposing of it to the prejudice of the creditor before sale which the judgment is already a lien by docketcan be made, and in case of real estate, on ing, the ordinary meaning of the word "levy" as used in section 6827 and elsewhere is inapplica

ble.

[Ed. Note. For other cases, see Execution, Dec. Dig. § 127.*

For other definitions, see Words and Phrases,' vol. 5, pp. 4101-4106; vol. 8, p. 7705.]

Mont.)

BRITANNIA MINING CO. v. UNITED STATES FIDELITY & G. CO.

47

4. SHERIFFS AND CONSTABLES (§ 157*)-IR- | his second term, Quinn, as sheriff, sold the REGULAR SALE-LIABILITY OF SURETIES.

Where a sheriff at the close of his term of

office levied an execution on real estate, and sold it after the beginning of his second term, giving only five days' notice of sale, instead of 20 days as required by Rev. Codes, § 6828, the sureties on his official bond for the second term were liable for the penalty and damages prescribed by section 6829 for such cases, the wrong being in the irregular sale, and not in the levy, which was a mere formal taking, in view of the fact that the judgment on which execution was issued was already a lien on the property sold.

[Ed. Note. For other cases, see Sheriffs and Constables, Dec. Dig. § 157.*]

5. PLEADING (§ 126*) - ANSWER-NEGATIVE PREGNANT.

Where plaintiff alleged it was a corporation organized under laws of Wisconsin, with its principal office in Milwaukee, and the answer denied any knowledge sufficient to form a belief as to whether it was duly, or at all, organized under the laws of Wisconsin, or had its principal place of business in Milwaukee or elsewhere, such plea is a negative pregnant, which does not raise any issue as to the corporate existence of the plaintiff, but rather admits plaintiff's corporate character.

fixtures and mining machinery under the execution mentioned above, to satisfy the Nickey judgment. At such sale one Charlton became the purchaser, and thereafter took possession of the purchased property and removed it.

On February 27, 1905, after a hearing the district court made an order vacating the sale, and directing the surrender of the property to the Britannia Mining Company, this plaintiff. This action was thereupon brought against the United States Fidelity & Guaranty Company, as surety on Quinn's official bond for his second term.

It is alleged that Quinn sold the property on January 3, 1905, without having given any previous notice of such sale; except a posted notice of five days only; that Charlton broke the fastenings and removed the machinery, and in so doing certain parts were broken and otherwise injured; that by reason of the removal of the machinery the works in the mining claims were flooded and great damage done; that the plaintiff company was at great expense in returning the machinery to its place and in renewing

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 261-263; Dec. Dig. § 126.*] 6. NEW TRIAL (§ 68*) — GroundS - INSUFFI-broken and missing parts. It is alleged that

CIENCY OF EVIDENCE.

Where, by the undisputed evidence, plaintiff was entitled to some amount, a general verdict for defendant was not supported by the evidence, so that a grant of a new trial was therefore proper.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 135-140; Dec. Dig. § 68.*]

the sale by the sheriff under the circumstances constituted a breach of official duty. The prayer is for judgment for $11,000 damages, and costs.

The answer admits the corporate existence of the defendant company; the election, qualification, and service of Quinn as sheriff;

Appeal from District Court, Silver Bow the giving of the official bond by the defendCounty; Jeremiah J. Lynch, Judge.

Action by the Britannia Mining Company against the United States Fidelity & Guaranty Company. A verdict was rendered for

defendant, and from an order granting a new trial, defendant appeals. Affirmed.

ant as surety for Quinn during his second have not been paid; denied generally every term; that the damages claimed by plaintiff other allegation in the complaint; and pleads affirmatively (1) that the levy under the

Nickey execution was made during Quinn's first term; and (2) the pendency of another

Kremer, Sanders & Kremer, for appellant.action. W. A. Pennington, for respondent.

A demurrer was sustained to each of these affirmative defenses, and, defendant electing to stand upon its answer, the cause proceeded to trial, which resulted in a general verdict in favor of the defendant. Plaintiff thereupon moved for a new trial upon all the statutory grounds, except excessive verdict. A bill of exceptions in support of the motion was prepared and settled, and on September 12, 1910, the court by a general order granted the motion, and defendant ap

HOLLOWAY, J. For two years prior to January 2, 1905, John J. Quinn was the duly elected, qualified, and acting sheriff of Silver Bow county. The sureties upon his official bond during that time are not mentioned and are not parties to this proceeding. At the general election held in November, 1904, Quinn was re-elected and on the 2d day of January, 1905, qualified and entered upon the discharge of his duties for his sec-pealed. ond term, with this defendant, United States 1. It is insisted by appellant that, if the Fidelity & Guaranty Company, surety upon sheriff's action in selling the property, as it his official bond for that term. On Decem- was sold, gave rise to any liability, it was a ber 20, 1904, there had been placed in Quinn's liability incurred during his first term, for hands, as sheriff, an execution issued on a which appellant is not responsible; and this judgment recovered by Charles E. Nickey contention is made upon the theory that the against this plaintiff. At that time plaintiff entire proceedings of the sheriff under the owned and was possessed of certain mining execution, from the date of its levy until and claims, mining fixtures, machinery, and tools including the sale, constituted an entirety, used in working such mining claims. On an indivisible act, and since such act had January 3, 1905, and after the beginning of its inception during Quinn's first term the •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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