dent, immediately after saying the car was so dangerous that it would kill somebody, he got on the car, in charge thereof, and propelled it, at a rate of speed somewhere between five and eight miles an hour, over the bridge where the car left the track, and he incurred his injuries. From this view we fail to see, and are unable to find from the evidence, any support for the contention that he was induced to remain in the service of defendant and use the dangerous car by the promise or assurance of the foreman to furnish a new one as soon as he could get it. And, further, it appears, if he did so, that he disregarded the admonition of the foreman to exercise extraordinary care in the use of the car, and that he was guilty of contributory negligence in propelling this dangerous car at such a rate of speed in going over a bridge 40 feet high, where the accident occurred. There are many authorities that hold that where an employé, having knowledge of the defective condition of machinery with which he is required to work, gives notice of such defective condition to the employer, and is induced to remain by the promise of the employer to repair the same, he may recover for injuries sustained, notwithstanding his knowledge of the condition of such machinery, especially where the danger is not absolute and immediate. But in many of such cases the right to recover is based upon the express promise to repair. But we think the evidence in the case at bar does not bring it within this rule. In the case at bar there was no express promise to repair, or get a new car, and no such assurance or promise to do so was relied upon by plaintiff. The most that can be said is that the foreman informed plaintiff that he had asked for a new car, that he expected it at any time, and directed the plaintiff to use the car in question, with great care, until he could get a new one. Besides, we think the evidence very clearly shows that plaintiff was guilty of such recklessness in the use of the car, especially in the manner in which he was using it at the time of the accident, as no reasonably prudent man would be guilty of, knowing, as he did, its dangerous condition; and that, by such action, he so far contributed to his own injury as to defeat his right of recovery in this case. The plaintiff knew perfectly the defective and dangerous condition of the car, and the risk he assumed in using it. He could not shut his eyes to these well-known things, and recover for injuries sustained by reason of his want of ordinary prudence. Knowing the condition of the car, as plaintiff did, no reasonably prudent person would have assumed the risk of using the same in the manner plaintiff did, even upon any promise made to furnish a new car by the foreman. The plaintiff cannot recklessly use dangerous machinery, and assume recklessly the risk of so doing, and then recover on the promise of defendant to repair or furnish

new machinery, if such promise had been made.

It is unnecessary to consider other assignments of error in this case, especially those as to the instructions. As the instructions for the plaintiff were given upon the theory that the evidence was sufficient to authorize a recovery, they were erroneous. We think the court erred in overruling the motion for a new trial. The judgment is reversed, and cause remanded for new trial. Judgment reversed.

HUNT, J., concurs. DE WITT, J., having been of counsel, did not sit in the case.

(15 Mont, 253)

SPALDING v. HERSHFIELD. (Supreme Court of Montana. Feb. 4, 1895.) DEVISE IN LIEU OF Dower.

Under Sess. Acts 1876, p. 64, § 6, providing that every devise of lands shall be a bar to the widow's claim of "dower in land," in case she takes under the will, unless otherwise expressed in the will, such devise is a bar to dower in lands conveyea by the husband alone during their marriage.

Appeal from district court, Lewis and Clarke county; Horace R. Buck, Judge.

Action by Sarah E. Spalding, formerly Sarah E. Curtis, against Aaron Hershfield. From a judgment for defendant on the pleadings, plaintiff appeals. Affirmed.

This is an action for dower. Plaintiff, in her complaint, states that she was, prior to the 10th day of May, 1884, the lawful wife of one D. W. Curtis; that on said day said Curtis died; that said Curtis, during his lifetime, and during the time plaintiff was his wife, was seised of an estate of inheritance, namely, an estate in fee simple of certain real estate, described in her complaint; that during his lifetime, and while plaintiff was his wife, said Curtis conveyed by deed said real estate, in fee simple, to one Michael Carr; that the plaintiff never joined in the execution of said conveyance, nor ever in any manner conveyed or relinquished any right in said property; that plaintiff, ever since the death of said Curtis, has been entitled to dower in said real estate, and that the same has never been assigned to her; that on the 2d day of June, 1890, said Michael Carr by deed conveyed a portion of said real estate-which portion is described in the complaint-in fee simple to the defendant, as trustee for unknown persons; that said defendant has ever since been, and now is, seised and possessed of said portion of said real estate. The answer of defendant does not deny that plaintiff and said Curtis were husband and wife, or that said Curtis was seised of the real estate described, or that he conveyed it, as alleged, in his lifetime, and while plaintiff was his wife, or that plaintiff never joined in the execution of the conveyance thereof. But defendant does deny that plaintiff has or is entitled to

dower in any of the real estate described in the complaint, for the reason, as alleged in the answer, that said Curtis died testate, and by the terms and provisions of his last will the plaintiff "is mentioned as a devisee in said will, and by the terms thereof is made residuary legatee of all the real estate and personal property owned by the deceased at the time of his death," except certain special bequests, amounting to $3,300; that the estate of said Curtis was reasonably worth, at the time of his death, $30,000; that said plaintiff did not, within one year after the probate of said will, or at all, renounce such devise or bequest, and elect to take her dower rights in said estate in lieu thereof, but received and accepted the bequests devised to her by the terms of said will. The plaintiff moved the court to strike out the matters set up in the answer as to the will of said Curtis, and the acceptance of the provisions thereof by plaintiff. This motion was denied, and thereafter judgment was rendered by the court, on the pleadings, in favor of the defendant. From this judgment, plaintiff appeals.

Toole & Wallace, for appellant. Ella L. Knowles, for respondent.

PEMBERTON, C. J. (after stating the facts). The only question for determination by this court is this: Is the plaintiff, by accepting the provisions made for her by the will of her deceased husband, estopped and barred from claiming dower in real estate of which he was seised of an estate of inheritance during coverture, and which he conveyed without her joining him in the conveyance thereof? In Fairchild v. Marshall, 42 Minn. 14, 43 N. W. 563, a well-considered case, and in which the authorities are collated, Mr. Justice Collins, delivering the opinion of the court, says: "The first question raised by the appellant herein is, does the acceptance by the widow of the provision made for her in her husband's will bar her of such legal rights as are fixed by Gen. St. 1878, c. 46, § 3, in real estate sold and conveyed during coverture by the husband alone? Whether a person is required to elect between a provision in his favor in a will and a right independent of it depends wholly on the intention, expressed or implied, of the testator. If it be expressed in terms, or clearly appears from the entire will, that the testator intended a provision made by it in favor of a devisee or legatee to. be in lieu of any other right or claim affecting the estate, the latter must elect which he will take; and, if he accepts what the will provides, he is precluded from asserting such other right or claim, otherwise he might accept the will so far as it benefited, and defeat it as to other provisions. This court decided in Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324, as before stated, that a will such as that under consideration made a case

for election on the part of the widow between the provision made by it in her favor and that which the law makes to a widow out of the estate of her deceased husband. That is to be taken as the settled law of this state. The only question, save as hereinafter stated, left for this case by that decision is as to the extent to which she should be required to elect. Is she compelled to elect only as to rights given by law in the estate of which the husband died actually seised, or estates which he assumed to dispose of by the will, or must she go further, and elect as to similar statutory rights in real property conveyed by him in his lifetime, but the title to which his general estate must make good if the title prove defective? The question points out the answer. The reason why it was held to be contrary to the intention of the testator that the widow should have both the testamentary and the statutory or legal provisions in her favor was that the assertion of the latter by her would be hostile to and tend to defeat the general purpose of the will. This reason applies with as much force to rights to which the law entitles her in real estate which the husband had conveyed during coverture with covenants, and which the general estate left by him was bound by, as it does to such rights in estates of which he died seised. The assertion by the widow of the legal right in the one case would diminish the estate to be distributed under the will, and so tend to defeat its provisions precisely as it would in the other. The assertion of the right would be adverse to the estate left by the testator for distribution under the will and according to its terms. We therefore conclude that the acceptance by the widow of C. C. Washburn, deceased, of the provisions made for her in his will, was and is a bar to any legal claim in land alienated by him during coverture and by warranty deed. This view of the law commends itself to us, and seems to be supported by an unbroken line of authorities upon this precise question. Steele v. Fisher, 1 Edw. Ch. 435; Allen v. Pray, 12 Me. 138; Hornsey v. Casey, 21 Mo. 545; Buffinton v. Bank, 113 Mass. 246; Raines v. Corbin, 24 Ga. 183; Haynie v. Dickens, 68 Ill. 267. Two cases cited by appellant to the contrary-Borland v. Nichols, 12 Pa. St. 38, and Westbrook v. Vanderburgh, 36 Mich. 30-simply construe statutes, and have no bearing upon the issue here. In another case to which the appellant has called attention-Higginbotham v. Cornwell, 8 Grat. 83-a recovery was permitted, evidently because the devise was unconditional, and its acceptance did not require or involve an election by the widow. Neither by implication nor by the express terms of the will could that which she had accepted be declared a substitute for dower. Another case upon which the appellant relied-Braxton v. Freeman, 6 Rich. Law, 35-is to the same effect, and the court concludes its opinion

with the proposition that, as a right to dower may be extinguished by the acceptance of something which may be given for the purpose of satisfying it, such purpose in a will must appear by express terms or by necessary implication. It is evident from these decisions that the common-law rule in respect to the doctrine of election by a widow which prevailed in Virginia and South Carolina when these opinions were written was given a very narrow and restricted construction. The same rule of law in this state is less rigorously and technically applied. In re Gotzian, 34 Minn. 159, 24 N. W. 920." In Corry v. Lamb, 45 Ohio St. 203, 12 N. E. 660, involving the same question, and under a statute very similar to ours, the court, after considering many leading cases, arrives at the same conclusion as the Minnesota court.

It is contended by appellant that the lands in controversy, having been alienated by Curtis during his lifetime, constituted no part of his estate, and that plaintiff is not barred from claiming dower therein by electing to take under the will. This contention was made in Corry v. Lamb, supra, and the court answered it by quoting with approval what was said by the Massachusetts court in Buffinton v. Bank, 113 Mass. 246, as follows: "The demandant contends that this land, having been aliened in the lifetime of the testator, is no part of 'his lands,' and therefore not within the provisions of the statute above quoted. But the claim of dower out of the lands aliened, without release by the wife, stands upon the same right as that of dower in lands remaining as part of the estate devised. It may be equally prejudicial to the estate, tending to the exhaustion of the general assets by giving rise to claims upon covenants in the deeds of conveyance, or upon scire facias to revive in part the judgment, for satisfaction of which the alienation took place. Gen. St. c. 103, §§ 22, 23. The same reason exists for applying the bar in one case as in the other. There is nothing in the phraseology of the statute to limit its application to lands held at the decease of the testator. The expressions, 'endowed of his lands,' and 'dower in the lands of her husband' (Rev. St. c. 60, §§ 1, 11; Gen. St. c. 90, § 1), when used affirmatively, embrace, without question, dower in all lands of which the husband is seised at any time during coverture. It can have no more limited meaning when used negatively in defining the bar in Gen. St. c. 92, § 24." The statute of Massachusetts is very similar to the Ohio statute and our own. Our statute (section 6, p. 61, Sess. Acts 1876) is as follows: "Every devise of land or any estate therein, by will, shall bar her dower in lands, or of her share in personal estate, unless otherwise expressed in the will; but she may elect whether she will take such devise or bequest, or whether she will renounce the benefit of such devise or bequest, and take her dower in the lands

and her share in the personal estate." Section 7 of the same act provides that, unless the widow files her written renunciation of the will with the court within one year after the probate thereof, she shall be deemed to have taken under its provisions. Our statute provides that every devise of lands, or any estate therein, by will, shall be a bar to the widow's claim of dower, unless otherwise expressed in the will. The will of Curtis is made a part of the answer in this case. It contains no, expression that it was the intent of the testator that the bequest to plaintiff should be in addition to dower, or otherwise than as a devise to her in lieu thereof. We are of opinion that the plaintiff, by electing to take under the provisions of the will, barred herself of the right to claim dower in any real estate of which her husband died seised, as well as the lands aliened by him alone in his lifetime. By her election she, in effect, relinquished all her rights to be endowed in the lands of her husband, whether the lands had been aliened by him alone in his lifetime, or whether they were lands of which he died seised. This is certainly in accordance with the great weight of authority, The judgment appealed from is affirmed.

DE WITT and HUNT, JJ., concur.

(15 Mont. 267) BRADSHAW v. DEGENHART. (Supreme Court of Montana. Feb. 4, 1895.) MISCONDUCT OF JURORS-ACQUIESCENCE OF OPPOSITE PARTY.

A defendant who joins with jurors in drinking at plaintiff's expense, and who gives no notice to the court of the occurrence till after the verdict is rendered, cannot, on a motion to set aside the verdict, urge that the jurors were, by receiving the liquor, influenced in plaintiff's favor.

Appeal from district court, Deer Lodge county; D. M. Durfee, Judge.

Action by William C. Bradshaw against Lee C. Degenhart. From an order denying a motion for a new trial, defendant appeals. Affirmed.

This action was brought to try the right to the use of the waters of Spring or Alkali Slough creek, of Deer Lodge (now Granite) county, and for an injunction to prevent the party to whom the right of the use of said waters does not belong from diverting the same. There was a trial by jury. A general verdict was rendered for plaintiff. The court adopted the verdict of the jury, and made findings of fact to the effect that on March 1, 1883, the plaintiff appropriated 50 inches of the waters of Spring creek, and continuously used the same for irrigation and domestic purposes from that time up to the commencement of this action, except when deprived of the use thereof by the acts of the defendant; that during the years 1890 and 1891 the defendant diverted the said

Forbis & Forbis, for appellant. F. W. Cole and H. R. Whitehill, for respondent.

HUNT, J. (after stating the facts). The appellant makes two points-First, that the evidence was insufficient to sustain the verdict of the jury; and, second, misconduct of the jury. Upon the first point, after reading the testimony of the many witnesses produced upon the trial, the truth of the admission of counsel for the appellant is confirmed, -that there was a substantial conflict in the evidence upon the material issues in the case. The verdict is fully supported by the evidence. In such a case, by the well-established precedents of this court, the verdict of the jury, where it has been reviewed by the court below in determining the credit to be given to the witnesses, will not be disturbed.

Upon the ground of misconduct of the jury, the affidavits show that by permission of the court, before the arguments of counsel, the jury were allowed to visit the irrigation ditch in question, and, for the purpose of viewing the ground, were gone the better part of two days. While the jury were on their way to view the premises, in charge of the undersheriff, Thomas F. Ward, and while they were at the town of Drummond, several jurors were invited by the plaintiff, William C. Bradshaw, to drink or smoke with him. The facts and circumstances are set forth in the affidavit of the undersheriff, who had charge of the jury, and who swears as follows: "That it was agreed between the parties to said suit that each should pay one-half of the costs and expenses of such visit to the said premises, and affiant was instructed by the attorneys of the respective parties that all the expenses of transportation, food, and entertainment would be so paid; and this affiant did collect such costs and expenses, in equal proportions, from the plaintiff and defendant. That while affiant, with the said jury and others, were at the town of Drummond, waiting for the train to convey them to Phillipsburgh, affiant was invited by W. C. Bradshaw, the plaintiff, to take a drink with him. That they went to the saloon of Samuel Ritchie, and all the persons in said saloon at that time were also asked by Bradshaw to drink. That among the number so invited were some of the said jurors; but the names of whom, and the number thereof, affiant does not now remem

ant, L. C. Degenhart, and some of his witnesses, were among the number. That, altogether, about 25 persons were present, and were treated at the same time by the said Bradshaw. That there was a general invitation by Bradshaw, to all persons present, to drink; and no special invitation was given by said Bradshaw to the jury, or any particular jurymen. That nothing was said or done by the said Bradshaw, for the purpose of influencing the verdict of the jury, at the time of said treat. That, by agreement of the attorneys of the respective parties, the said Degenhart and Bradshaw were, by an order of the court, permitted and authorized to accompany affiant and the jury to view the said premises; and, except when viewing said premises, the jury were, by agreement of the parties and the instruction of the court, permitted to separate, and were not kept together, or under control of affiant." The plaintiff, Bradshaw, also filed an affidavit, in which he corroborates Ward, and says that by permission of the court he and the defendant accompanied the jury; that by agreement they were permitted to sepurate, and "that while the parties, the officer in charge of the jury, the jurors, and many of the persons who had been witnesses in the trial of said cause, and other persons, were at the town of Drummond, awaiting the departure of the train for Phillipsburgh, this affiant did invite the officer in charge of said jury to take a drink with him; that the said officer and some of the jury also joined them; that the defendant, L. C. Degenhart, and some of his witnesses, as well as other persons, were invited by affiant, and all, to the number of about 25 persons, were treated to liquor or cigars at affiant's expense; that all of said jurors did not participate in said treat, but affiant believes that two of them did join, to wit, Beacock and McMahon; that nothing was said or done by this affiant for the purpose of influencing said jurors in their verdict, and affiant believes, and so states, that no juryman was influenced in his verdict by reason of said treat at affiant's expense; that affiant is informed and believes that jurors E. Girard, Joseph Richards, P. C. Patterson, F. W. Dunton, Thos. Blakely, and Tobias Schurtz, James Beaton, Lars Beck, and Peter Johnson, and Ed. Newman were not present, and did not participate in said treat." Affidavits were filed by jurors Beaton, Dunton, Newman, and Beck to the effect that they were not present, did not drink with, nor were they or any of them treated by, the said Bradshaw, at the time mentioned. The jurors Dunton and McMahon swore that the jurors Patterson, Schurtz, Johnson, Girard, Richards, and Blakely were not present, and did not drink with or at the expense of plaintiff, Bradshaw. John McMahon, a juror, by affidavit, admits that he took a cigar at the expense of plaintiff,

Bradshaw. Beacock was the one juror who evidently did take a drink.

The mere fact that the jurors took the refreshment is, by itself, not enough to vitiate their verdict. Territory v. Hart, 7 Mont. 489, 17 Pac. 718; Territory v. Burgess, 8 Mont. 57, 19 Pac. 558. The inquiry in this case involves the further element, however, of whether the verdict must be set aside because the jurors, respectively, smoked and drank at the expense of the successful party. The rule adopted by many courts seems to be that "where a juror has been treated, fed, or entertained by the successful party, or at his expense, a new trial will, in nearly all cases, be granted," upon grounds of public policy, and without regard to any investigation into whether the verdict was right or wrong. Thomp. & M. Jur. § 372, and cases cited. Thomp. Trials, § 2566, qualifiedly approves the general rule, by stating that the circumstance that the drink was furnished at the expense of the prevailing party or his attorney "will turn the scale against the verdict, unless it is shown that it was not intended to influence his action in the cause, and had no such influence on his mind." To sustain the rule without the qualification stated, the author cites the learned opinion of Justice Garber, of Nevada, in Mining Co. v. Showers, 6 Nev. 291, where it was decided, in 1871, that because jurors drank liquor at the expense of the prevailing party, during a trial, either by design or inadvertence, in the presence or out of the presence of the bailiff, a verdict must be set aside. To uphold the rule, as limited, the author relies upon the case of Railroad Co. v. Porter, 32 Ohio St. 328 (decided in 1877), where the court, after reviewing the earlier decisions, holds that "the mere fact of treating jurors by a party, during the progress of a trial, so far evinces a purpose to influence them that, unexplained, it is held to be a ground for vacating a verdict rendered in his favor." Under the rule, as limited, it appears, therefore, that the burden of explaining that the treating was not done with the design of influencing the jurors is upon the party who paid for the refreshment. We approve of the limitation, and have no hesitation in establishing the practice that whenever a juror has been guilty of any such impropriety as to accept, during the progress of a case, liquor or tobacco, or any other such favors, at the expense of a litigant to the suit on trial, or his attorneys, the burden of proof is upon the prevailing party to satisfy the court that "it can be safely assumed" the mind of the juror was not improperly influenced, and that the party's conduct in no way operated upon him, to corrupt his verdict. Indeed, we are inclined to hold that the rule, without the limitation, is sound, and that if a juror accepts a treat from a party to a suit, without the knowledge or acquiescence of the opposite party, and no opportunity is given the opponent to bring the matter to the court's

or judge's notice until the judge has charged the jury, or until after verdict is rendered, such misconduct on the part of a juror, when made the ground for a new trial, is enough to require the court to set aside a verdict upon the ground of public policy, and the necessity of honest and impartial administration of justice. But the case before us is not quite like any cited by either counsel, and. is not to be wholly governed by the applications of any of the decisions referred to. Here the jury, bailiff, and the parties were waiting for a train, at a small town, The plaintiff, after asking the bailiff to drink, extended his invitation to all others present, including two jurors, the defendant, witnesses who were there, and others who happened to be in the saloon. There is nothing tending to prove that the plaintiff sought the jurors, or intended in any manner to influence any one who was present. The casual manner in which the treating was done negatives the idea of improper motive. Not a word was said about the case, and it does not even appear that the plaintiff had any conversation at all with the jurors. Nevertheless, if the defendant had not been present, and thus known of the conduct of the jurors, we should be inclined, as above stated, to follow the general rule, that the mere fact that the jurors drank or smoked at plaintiff's expense would, in the fear of "possible improper motives," demand that the verdict be set aside. At least, it would take a very strong showing to sustain the verdict of a jury in such a case. But where a defendant himself so far forgets the proprieties of the relation which exists between a jury, with a case on trial before them, and a party to such trial, as to not only drink with them, but does so at the plaintiff's expense, we think he contributes to the misconduct of the jurors and of the plaintiff, and stands upon about the same footing, provided he makes no complaint before the court charges the jury, and in no manner seeks to have the error cured. The learned counsel for appellant says that it was a very trying situation for the defendant, and that most men, under like circumstances, would have accepted plaintiff's hospitalities. We are not prepared to admit this contention, but, assuming it is a correct observation of human nature, still if, despite his better convictions, by moral weakness, or by intensity of his zeal to curry favor with the jurors, he was led into such conduct, bis duty was plainly to lay the matter before his counsel, to the end that the court might act in the premises. He was willing at the time to take the refreshment, and speculate upon the chances of a verdict; and, now that he has lost, we are of the opinion he cannot plead the embarrassments of the occasion as sufficient excuse to relieve himself of an unfavorable decision. By his knowledge of, and active part in, the conduct of the jurors, and by his silence when the matter might have been excepted