arrangement in which the framers of the instrument have placed them. If the words convey a definite meaning which involves no absurdity, nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the Legislature have the right to add to it or take from it. Newell v. People, 7 N. Y. 9, 97; Hills v. Chicago, 60 Ill. 86; Denn v. Reid, 10 Pet. 524 [9 L. Ed. 519]; Leonard v. Wiseman, 31 Md. 201, 204; People v. Potter, 47 N. Y. 375: Cooley, Const. Lim. 57; Story on Const. § 400; Beardstown v. Virginia, 76 Ill. 34. So, also, where a law is expressed in plain and unambiguous terms, whether those terms are general or limited, the Legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. United States v. Fisher, 2 Cranch, 358, 399 [2 L. Ed. 304]; Doggett v. Florida Railroad, 99 U. S. 72 [25 L. Ed. 301]." Applying that rule to the language of the sections of our statute under consideration, we see but little room for controversy as to the proper construction to be placed thereon. [2] The words in section 4595, "and time may be given to reduce the exception to writing," implies that the exception must be reduced to writing at the time, unless further time is asked and granted. [3] And the time within which it must be presented to the court or judge is governed by section 4598, which is, "within the time given for allowance," which is opposed to the idea that the party excepting has an indefinite time-until the adjournment of the court for the term-as a matter of right within which to do so. [4] At common law a writ of error might be had either for an error apparent on the record, or for an error of fact, but not for an error of law not appearing on the record. The statute (13 Edw. I, c. 31), gave the bill of exceptions to any one that is impleaded before any of the justices, and who doth allege an exception, praying that the justices will allow it. Under that statute the exception was required to be reduced to writing when taken and allowed; and, if not, stated in writing and tendered at the trial, it was waived. Wheeler v. Winn, 53 Pa. 122, 91 Am. Dec. 186. To remedy the inconvenience and delay in the trial in doing so, statutes in the several states in this country have been enacted. Prior to 1890 our statute did not specifically provide within what time the bill should be presented. As disclosed by the records of cases filed in this court, the members of the bar of the state, almost without exception, have construed the statutes to require the bill to be presented at the close of the trial, or that time therefor must be asked and given at that time. [5] The decisions of the courts of other states, which might be persuasive, are of little assistance in construing our statutes on the subject by reason of the various provisions in the statutes of the several states; and, in any event, it is incumbent on this court to construe the statutes and laws of the state according to what it is convinced is the true intent of the lawmakers. We think the words of the statutes quoted, taken in their plain, ordinary, and usual sense, are not ambiguous or contradictory, and mean that, if the exceptions are not reduced to writing and tendered at the trial, time must then be asked and given for that purpose. [6] It is further contended that, although there is nothing in the record here presented showing that time was asked or given within which to reduce the exceptions to writing and present the same for allowance, the fact that the bill was allowed and signed by the judge creates the presumption that time was given and that the bill was presented within such time. But the making of an order granting time to prepare a bill of exceptions and present it for allowance is a judicial act (Schlessinger v. Cook, 8 Wyo. 484, 489, 58 Pac. 757); and, like any other judicial order, must appear by the record brought to this court, (Smith Drug Co. v. Casper Drug Co., 5 Wyo. 510, 40 Pac. 979, 42 Pac. 213). [7] The other ground of the motion, that the bill of exceptions was not allowed until after the commencement of proceedings in error, is not well taken. The bill is not required to be filed with the petition in error, and may be allowed and filed thereafter, if within the time prescribed by the rules for filing briefs, and if otherwise authenticated in time. 3 Enc. Pl. & Pr. 462. [8] In this case it does not appear either by journal entry, recital in the bill, or the certif icate of the judge that upon the denying of the motion for a new trial, or in fact at any time, time was asked or given to reduce the exceptions to writing and present the same should be presented for allowance, except as to the court or judge for allowance. The bill the same may be inferred from the language filed in this court does not purport to have of section 4595, that "time may be given to been presented for allowance until months reduce the exception to writing." The exception was required to be taken at the time, after the trial was ended by the denial of the and time might be given to reduce it to writ-motion for a new trial, and therefore is not ing, as now; but by the act of March 8, 1890, the law was amended, and provided that the bill must be presented to the court or judge "within the time given for allowance." S. L. 1890, c. 37. The amendment was evidently made for the purpose of requiring the bill to be presented within the time given by the court for reducing the exception to writing, properly a part of the record in the case. The motion to strike the bill of exceptions from the files and records of this court will be granted and the bill will be stricken from the files; and as the only error assigned in the petition in error is the denying of the motion for a new trial, and as no questions are presented which can be considered in the to dismiss the proceedings in error must also be granted and the proceedings in error dismissed, and it is so ordered. in favor of the claimant, and the board appealed. Section 16 of the Workmen's Compensation Bill of exceptions stricken and proceed- Act (Laws 1915, c. 96), provides that the inings in error dismissed. dustrial accident fund is liable for the payment of compensation to an employé, or in POTTER, C. J., and BLYDENBURGH, J., case of his death to his dependents, for "in 1. MASTER AND SERVANT 373 WORK MEN'S COMPENSATION ACT DEATH FROM Where an employé of a county while engaged in work upon the public roads was killed by lightning, death resulted from an "industrial accident," within Workmen's Compensation Act (Laws 1915, c. 96) § 16, providing that the industrial accident fund is liable for the payment of compensation to an employé, or, in case of his death, to his dependents for injury arising out of and in the course of his employ ment. 2. MASTER AND SERVANT 361-WORKMEN'S An employé of a county required to work on a steel grader while a thunderstorm was threatening was not exposed to more than the normal risk which the people of the community generally are subject to, and there could be no recovery for his death from lightning under Workmen's Compensation Act (Laws 1915, c. 96) § 16, imposing liability for death from "an injury arising out of and in the course of his employment"; the words "out of" pointing to the origin of the accident, and being descriptive of the relation which the injury bears to the employment. Appeal from District Court, Big Horn County; Chas. A. Taylor, Judge. Proceeding under the Workmen's Compensation Act by Kate L. Wiggins for compensation for the death of Herbert L. Wiggins, deceased. From a judgment reversing the decision of the Industrial Accident Board re-jecting the claim, the Board appeals. Re versed and remanded. S. C. Ford, of Helena, and R. S. Mitchell, of Glendive, for appellant. C. C. Guinn, of Hardin, for respondent. jury arising out of and in the course of his employment." The phrase quoted was incorporated in the English Compensation Act of an early date, and has been copied into the act adopted by practically every one of the states of the Union which has a statute dealing with the subject. It has been construed frequently by the British and American courts, and the authorities agree that, to warrant payment of compensation, the facts must disclose that the injury or death, as the case may be, resulted from (a) an industrial accident, (b) arising out of and (c) in the course of the employment. In other words, it is held that these terms are employed conjunctively, and not disjunctively, and that the burden of proof is upon the claimant to establish, by a preponderance of the evidence, that all three of these conditions are met. The authorities are too numerous to be cited. They will be found collected and reviewed in Ann. Cas. 1913C, p. 1, 1914B, p. 498, 1916B, p. 1293, and 1917C, p. 760. It is conceded by the appellant board that the death of Wiggins resulted from injury received by him while in the due course of his employment. Our inquiry is thus limited to two principal questions and to questions subsidiary to one of them: [1] 1. Can it be said that the death of Wiggins resulted from an industrial accident? We have heretofore indicated that the terms of our act are sufficiently comprehensive to include injury resulting from an act of God, and we adhere to that doctrine and answer the first inquiry in the affirmative. and Clark County v. Industrial Accident Board, 52 Mont. 6, 155 Pac. 268, L. R. A. 1916D, 628. Lewis [2, 3] 2. Did the death of Wiggins result from injury arising "out of" his employment? The words "out of" point to the origin or cause of the accident and are descriptive of the relation which the injury bears to the employment. Without attempting to formulate a rule which will include every injury within the meaning of this phrase, it is sufficient for the purposes of this appeal to say that if, by reason of the nature of the employment itself or the particular conditions under which the employment is pursued, the HOLLOWAY, J. On June 28, 1916, Her- workman is exposed to a hazard peculiar to bert L. Wiggins, in the employ of Big Horn the employment under the circumstances, and county engaged in work upon the public injury results by reason of such exposure, roads, was killed by lightning. His dependent then it may be said fairly that the injury mother presented to the Industrial Accident arises out of the employment, or, stated in Board a claim for compensation, but the claim different terms, the workman must have been was rejected, and this action resuited. The exposed by his employment to more than the trial court rendered and entered judgment normal risk to which the people of the com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes munity generally are subject, in order that his injury can be said to arise out of his employment. Workmen's Compensation Acts; A Corpus Juris Treatise, p. 77. It is not contended that there was anything in the nature of the particular work upon which Wiggins was engaged that exposed him to extra hazard, but it is insisted that the conditions under which he was required to do his work at the time of the accident exposed him to more than the natural risk of being struck by lightning. He was required to work with a metal road grader at a time a thunderstorm was threatening. These facts appeared from an agreed statement. The trial court reached the conclusion that the deceased had been exposed to an abnormal risk, by a process indicated in an opinion expressed at the time judgment was rendered, as follows: "In this case we are of the opinion that we are justified in taking judicial notice of the principle of the lightning rod, the natural attractiveness of metal, and especially of steel, for lightning, and we hold that under the facts in this case the deceased was exposed by reason of his employment about an iron and steel road grader to unusual hazard from lightning; that such employment increased the natural hazard from lightning to which all living creatures are exposed." Assuming, without deciding, that in disposing of a case submitted upon an agreed statement of facts the court may supplement the record by matters of which it may properly take judicial notice, the question resolves itself into this: Was the court justified in taking judicial notice of the natural attractiveness of metals for lightning? Section 7888, Revised Codes, enumerates the matters and things of which the courts of this state may take judicial notice. The only provision of the statute which could possibly be invoked here is: "Courts take judicial notice of laws of nature.' danger from lightning within the sphere of their influence, and, if so, to what source of information may one resort to refresh his recollection and confirm him in his knowledge of the existence of the law? The trial court apparently treated the attractiveness of metals for lightning as the principle which underlies the use of the lightning rod, or, stated differently, upon the assumption that the lightning rod attracts the lightning, the iron and steel composing the road grader possessed the same property, and because of their attractiveness for the lightning, their enforced use by the deceased increased his risk beyond the normal limit. As a result of scientific research covering a period of 150 years or more, certain fairly well-defined theories concerning the action of lightning have been evolved. The discussion of them by scientists is elaborate and necessarily of a technical character. It would be impossible for us to reduce them to form available for presentation here, but an excellent summary of them is to be found in a brochure by H. H. Cochrane, a leading electrical engineer of this country, from which we quote the following: "I may say that such laws [the laws governing the action of lightning] as exist are the same as those applying to other electric currents or discharges. Such laws, however, are exceedingly difficult to apply in the case of lightning, on account of the great number of unknown and unknowable variables which exist in any particular case. Certain atmospheric condiclouds, to become charged with electricity. The tions cause the mist or vapor which forms potential of this charge tends to increase as the particles of moisture increase in size and decrease in number. When the potential becomes sufficiently high, the charged cloud will relieve itself by discharging either to another cloud of lower potential, or to the earth. It is the latter kind of lightning only in which we are in terested. "The character of such a discharge to earth the depends upon the size of the cloud, its distance from the earth, the potential to which it is charged, the quantity of the charge, and the character of the path through the atmosphere in which the discharge takes place. The discharge may be oscillatory, with a frequency varying from a few thousand cycles per second up to several million cycles per second, or it may be a single direct stroke, with a current flowing in one direction only. In the latter case the impulse or wave of current will ordinarily have such a steep wave front that its characteristics will largely resemble those of the high frequency oscillatory discharge. In 15 R. C. L. 1127, it is said: "Judicial notice will be taken of scientific facts which are universally known, and which may be found in encyclopedias, dictionaries, or other publications, as well as of scientific methods and instruments, but they must be of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. Here, as elsewhere, a judge may refresh his memory, if it is at fault, by resorting to any means for that purpose which he deems safe and proper. Examples of scientific matters of judicial cognizance are the laws of gravitation, the revolution of the earth, the change of the seasons, and the expansion of metals when heated and their contraction when cooled. The general na the same theory. ture and qualities of electricity and its manifold uses, the telephone, its nature, operation, and use, are likewise entitled to recognition under * However, cognizance may not be taken of scientific matters of uncertainty or dispute, or of insufficient notoriety, even though learnedly discussed in scientific publications." Is it a known law of nature that metals, such as iron or steel, possess properties which "When the atmosphere in the path of the discharge is variable in its characteristics, in other words, if the stroke passes successively through atmospheric strata of high and low temperature, and of varying degrees of moisingly variable, so that the breakdown of the ture, the potential gradient will be correspondatmosphere will occur by a step by step process. The potential gradient in the atmosphere in close proximity to the cloud may be sufficientbreak down as a preliminary step. The potenly high to cause this part of the atmosphere to tial of the cloud, having now advanced to a new point, will stress the atmosphere adjacent to vance in the breakdown, and so the stroke will the new point sufficient to cause another adprogress from point to point, until it finally that of a quantity of water released on the top of a hill, which starts a small stream downward in the most available path, which stream turns from side to side in its course down the hill, always taking the easiest path, until it reaches the bottom. "This, I believe, is the most usual form of lightning stroke. A rarer form occurs when the atmosphere is practically uniform in character between a broad, flat cloud and the earth. In this case the potential gradient between the cloud and the earth will be more nearly uniform, and no discharge will occur until the atmosphere throughout the entire course of the stroke is stressed to the breakdown point. The voltage required for this kind of a stroke is very much higher than that required for the class of stroke first described, and the severity of the stroke is correspondingly greater. "If the earth were perfectly flat and uniform, the points at which lightning would strike would be determined entirely by the location of the charged clouds and the characteristics of the atmosphere intervening between the clouds and the earth. In general, the lightning would start from the lowest point on the charged cloud, and would follow the path of least resistance through the atmosphere to the earth. Where the earth is not uniform, due to either variable contour, or the existence of buildings, trees, poles, or other projections from the surface, or due to regions of good conductivity, caused by moisture, as compared with regions of poor conductivity, caused by dry sand or rock, the course of the lightning to the earth will be somewhat modified by these irregularities. This follows from the fact that the lightning always tends to take the path of least resistance. "In all ordinary cases, however, the location and configuration of the storm clouds, and the more or less variable conductivity of the atmosphere, are by all means the predominating factors in determining where the lightning will strike, and all ordinary, natural, or artificial projections from the earth's surface are of comparatively small importance." passage of the electricity through the build- The most diligent research on our part We may assume for present purposes has failed to disclose any authority which that a lightning rod properly adjusted to a supports the theory upon which this cause building furnishes some protection against was decided by the court below; on the damage from lightning; but, so far as our contrary, so far as they point to any conresearch has gone, there appears to be no clusion respecting the subject, the authorities difference of opinion among the authorities indicate quite clearly that the presence of the that the lightning rod is not employed be- metal road grader could not have had any cause it attracts the lightning. From the perceptible influence upon the lightning, and articles in the standard encyclopedias and did not tend to increase the natural hazard from the work of Sir Oliver Lodge, entitled of the deceased's employment. For this rea"Lightning Conductors and Lightning son it cannot be said from this record that Guards," we deduce the following: The lightning rod projecting above the building which it is intended to protect may be the object upon which the atmospheric breakdown occurs, and, being a good conductor of electricity, it will ordinarily conduct the discharge safely into the ground and relieve the building itself from danger. When electricity passes through a poor conductor, it generates intense heat. If there is no lightning rod attached to a building, and the breakdown occurs at some projecting portion of the building, the heat generated by the his death resulted from an accident arising out of his employment, as the term is used in our Workmen's Compensation Act. The judgment is reversed, and the cause is remanded to the district court, with directions to enter judgment for the defendant board. Reversed and remanded. SANNER, J., concurs. BRANTLY, C. J., being absent, takes no part in the foregoing decision. (54 Mont. 316) cusable neglect in failing to appear at the J. I. CASE THRESHING MACHINE CO. v. trial, and insufficiency of the complaint to SIMPSON. (No. 3844.) (Supreme Court of Montana. Jan. 4, 1918.) 1. JUDGMENT 167 - DEFAULT SETTING ASIDE-DENIAL. Though defendant had answered, his demurrer having been overruled, a default judgment was rendered for plaintiff on the failure of defendant and his counsel to appear when the case was called for trial. On the day following, defendant applied to have the judgment set aside and the cause tried on its merits; the grounds of the motion being excusable neglect and insufficiency of the complaint to state a cause of action. The court ordered that the judgment be set aside on condition that defendant pay the taxable costs and file his written consent that the case be tried on the issues as joined when the case was set for trial, and that the case be tried at the next term of court. Held that, as there was no application for a continuance or leave to file an amended answer before the court, the imposition of terms affecting those subjects was not authorized, and defendant was at liberty to treat the order as in effect denying his motion. 2. BILLS AND NOTES 210-NEGOTIATIONDELIVERY. Under Rev. Codes, 88 5878, 5899, title to notes drawn payable to a named corporation or bearer will pass by delivery, and a holder may maintain an action for collection. 3. BILLS AND NOTES 467(2) — ACTIONS COMPLAINT. state a cause of action. In disposing of the motion the court made the following order: "The court ordered that the judgment in the case be set aside and opened on the condition that the defendant within 20 days after this date pay the clerk of the court for the plaintiff the taxable costs of the plaintiff, and further that the defendant file his written consent that the case be tried on the issues as joined when the case was set for trial on January 26, 1916, and, further, that defendant file his written consent within 20 days that the case be tried at the next ensuing term of court." Defendant treated the order as one denying his motion, and appealed from the judgment and from so much of the order as required him to consent to try the cause upon the issues already framed, and to agree that the cause should be tried at the next term of court. The order indicates that the trial court considered defendant's showing sufficient, and no complaint is made that the court imposed costs. There was not before the court any application for a continuance or for leave to file an amended answer, and the imposition of terms affecting those subjects was clearly not authorized or justified. For Plaintiff sued on notes payable to another or bearer. The complaint failed to disclose that this reason, defendant was at liberty to treat the action was prosecuted in the name of the the order as, in effect, denying his motion. real party in interest, as required by Rev. Codes, [2, 3] The motion should have been grant§ 6477, and did not allege that the notes were ed, for the complaint does not state facts made, executed, or delivered to plaintiff. Held, that though, under sections 5878, 5899, such sufficient to constitute a cause of action in notes would pass by delivery and a holder might favor of the plaintiff. The complaint alleges maintain an action for their collection, the that on January 12, 1911, the defendant complaint was insufficient, for it would not pro-made, executed, and delivered his three tect defendant against another suit on the same notes. Appeal from District Court, Valley County; F. N. Utter, Judge. Action by the J. I. Case Threshing Machine Company, a corporation, against John H. Simpson. From a default judgment for plaintiff, and an order treated as one denying his motion to vacate the same, defendant appeals. Reversed and remanded. Nolan & Donovan, of Butte, and Thomas Dignan, of Glasgow, for appellant. John Hurly and Clement A. Parker, both of Glasgow, and Norris & Hurd, of Great Falls, for respondent. HOLLOWAY, J. [1] In January, 1915, the J. I. Case Threshing Machine Company, a corporation, commenced this action to enforce payment of three promissory notes. The defendant first interposed a general demurrer, which was overruled, and then answered. At the time the cause was set for trial, defendant and his counsel failed to appear, and judgment was rendered in favor of plaintiff for the full amount claimed. On the day following, counsel for defendant made formal application to have the judgment set aside and the cause tried on its merits. The grounds of the motion were ex promissory notes, a copy of each of which is set forth at length. It alleges that certain payments were made, and that the sum of $2,108.80 and interest "still remains due, owing, and payable upon said promissory notes, no part of which has been paid." Each of the notes is payable to "J. I. Case Threshing Machine Co. (incorporated) or bearer." Assuming that the payee and plaintiff are the identical corporation, the complaint still fails to disclose that this action is prosecuted in the name of the real party in interest, as required by section 6477, Revised Codes. The complaint does not allege that the notes were made, executed, or delivered to the plaintiff, or that plaintiff is the owner or holder thereof, or that the amount due upon the indebtedness is due to the plaintiff. Section 6573, Rev. Codes. Indeed, it would seem that the complaint was drawn adroitly to avoid any direct allegation that plaintiff has an interest in the notes sufficient to warrant it in maintaining the action. It is true that the notes are payable to J. I. Case Threshing Machine Company (incorporated), but they are also drawn to bearer, and such notes pass from hand to hand by mere delivery. Section 5878, Rev. Codes. It was not absolutely necessary for plaintiff to allege that it was the owner of the notes at |