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which it should be done. I sometimes spoke contract under which the work has been done to Vaughn about matters concerning the pro- must speak conclusively in every case, refertecting of the property and driving the boys ence being had, of course, to surrounding ciroff. Whenever I saw the boys running cumstances. This being so, the mere fact about the cars, either when being driven or that the agent who did the injury carried on standing idle, I chased them away. I don't a separate and independent employment will remember that I told the drivers to keep not absolve his pri ipal from liability. them away, but I remember telling him one Brackett v. Lubke, 4 Allen, 138; Sadler v. day to skin them with his whip. There Henlock, 4 El. & Bl. 570. 'If such were the might have been other times that I gave rule, a party would be exempt from responthese orders, but I don't remember any par- sibility even for the negligent acts of his ticular date. Whenever I saw the boys, if domestic servants, such as his cook, coachthe driver was around, I would speak to the man, or gardener.'” Section 35. "Perhaps driver, but I always made it a point to see the most usual test by which to determine Mr. Vaughn about it, and Vaughn and my- whether the person doing the injury was a self very frequently went over. We chained servant or an independent contractor is to the cars once or twice to keep the boys consider whether he was working by the job away." Under these facts the district court or at stated wages,--so much per day, week, held that Vaughn was an independent con- or month. Schuler v. Railroad Co., 38 Barb. tractor, and that the defendant was not liable 633. A person who works for wages, whose for his negligence.

labor is directed and controlled by the emTo draw the distinction between independ-ployer, either in person or by an intermediate ent contractors and servants is often difficult, agent, is a servant, and the master must anand the rules which courts have undertaken swer for the wrongs done by him in the to lay down on this subject are not always course of his employment. A person who, simple of application. A rule as often quot- for a stated sum, engages to perform a stated ed as any is stated' in the syllabus of the case piece of labor in which he is skilled, the proof Bibb's Adm'r v. Railroad Co., 87 Va. 711; } prietor of the work leaving him to his own 14 S. E. 103, after an able review of the au- methods, is an independent contractor. The thorities, as follows: "Independent contract. proprietor does not stand in the relation of or is one who renders service in the course of superior to him, and is not answerable for an occupation, and represents the will of his the wrongs done by him or his servants in employer only as to the result of his work, the prosecution of the work, unless special and not as to the means whereby it is ac- circumstances exist making him so. Morgan complished, and is usually paid by the job.” | v. Bowman, 22 Mo. 538. The rule has been Brackett v. Lubke, 4 Allen, 138, is also a applied so as to exempt a railway company leading case. The opinion states as follows: from liability for the negligence of a con“The distinction on which all the cases turn tractor who had engaged to do a piece of fillis this: If the person employed to do the ing at twenty cents per yard, although the work carries on an independent employment, company furnished track, trestle, cars, mules, and acts in pursuance of a contract with his and drivers. Railroad Co. v. Grant, 46 Ga. employer by which he has agreed to do the 417. The fact that the employé was hired, work on certain specified terms, in a par- not for a definite time, but to perform a particular manner, and for a stipulated price, ticular job, does not, however, of itself negathen the employer is not liable. The relation tive the relation of master and servant, for of master and servant does not subsist be- under such a contract the employer may well tween the parties, but only that of contractor retain full control over him; and it must be and contractee. The power of directing and constantly borne in mind that the power controlling the work is parted with by the to control, on the part of the employer, is the employer, and given to the contractor. But, essential fact establishing the relation.” Secon the other hand, if the work is done under tion 39. We also find it stated in Shearman a general employment, and is to be perform- & Redfield on Negligence (sections 76 and 77) ed for a reasonable compensation, or for a as follows: “Although, in a general sense, stipulated price, the employer remains liable, every person who enters into a contract may because he retains the right and power of di- be called a 'contractor,' yet that word, for recting and controlling the time and manner want of a better one, has come to be used of executing the work, or of refraining from with special reference to a person who, in the doing it, if he deems it necessary or expedi- | pursuit of an independent business, underent. This distinction is recognized in the takes to do specific jobs of work for other percases adjudged by this court. Sproul v. Hem- sons, without submitting himself to their conmingway, 14 Pick. 1; Stone v. Codman, 15 trol in respect to all the petty details of the Pick, 299; IIilliard v. Richardson, 3 Gray, work. It is not altogether easy to give an 319; Linton v. Smith, 8 Gray, 147." In 2 accurate definition of the word 'contractor Thomp. Neg. p. 909 et seq., we find the fol- as it is used in the reports, and as we shall lowing: “In every case the decisive question use it hereafter; but we think we have apis, had the defendant the right to control, in proximated to accuracy. The true test, as it the given particular, the conduct of the per- seems to us, by which to determine whether son doing the wrong? On this question the one who renders service to another does so as

a contractor or not, is to ascertain whether he or ship or locomotive produced is the "re renders the service in the course of an inde sult." Such "results" produced are often, pendent occupation, representing the will of and probably generally, by independent conhis employer only as to the result of his work, tractors. But we do not think that plowing and not as to the means by which it is accom- a field, mowing a lawn, driving a carriage or plished.” Section 76. “One who has an in- a horse car for one trip or for many trips a dependent business, and generally serves only day is a "result" in the sense that the word in the capacity of a contractor, may abandon is used in the rule. Such acts do not result that character for a time, and become a mere in a product. They are simply a service. servant or agent, and this, too, without doing In addition to these views mentioned, we work of a different nature from that to which have the fact in this case that the railway he is accustomed. If he submits himself to people did not part with the possession or the the direction of his employer as to the details right of possession or control of the railway of the work, fulfilling his wishes not merely plant. It would perhaps be difficult to draw as to the result, but also as to all the means a clear distinction between the relations by which that result is to be attained, the con- which Mr. Gregg held to the railway proptractor becomes a servant in respect to that erty and the drivers, and that of any person work. And he may even be a contractor as admittedly having supervision over them. No to part of his service, and a servant as to a superintendent assumes control over every part. Whether he works as a contractor or minute detail of an employé's work. In all as a servant is a question of mingled law and work which demands sufficient intelligence fact, which it is scarcely possible to decide to require a man instead of a machine, the by any fixed rule which will accurately gov. man must be left to direct his own moveern those cases where the one occupation bor- ments to some extent. But it is clear, from ders closely upon the other. In most instan- our review of Mr. Gregg's testimony, that he ces the distinction is easily observed.” Sec- did not consider the driver of the car as the tion 77. Applying the principles of the deci- servant of a contractor independent of the sions to the facts of the case at bar, we can- railway people. See his testimony cited * not hold that Vaughn was an independent above. Mr. Gregg qualified his statement contractor.

somewhat by an attempt to disclaim any suThe question raised by the appellant as to pervision of the actual moving of the car, but whether the railroad people could, under their we think that his testimony as a whole did charter, delegate the running of their cars to not place Vaughn in the position of an indeanother, is not necessary to discuss, for the pendent contractor. After stating any rule reason that we are of opinion that Vaughn which is to determine whether one is an indewas not in the relation of an independent con- pendent contractor or a servant, it is very tractor. Neither the franchise, the roadbed, easy, by a little casuistry, to construe any pernor the rolling stock were leased to Vaughn son who performs a service to be an indeor given into his control. He was simply em- pendent contractor. We have endeavored to ployed by the month to run a car one trip a point out such dangers. We think that the day. We cannot understand that his position district court fell into just such a mistake. If differed materially from that of a driver em- Vaughn, in this case, is an independent conployed to drive a car 10 trips or 20 trips a tractor, a very few steps further in the same day. All drivers are employed to perform direction of construction would make all certain services, and to some extent they per- servants independent contractors. We are form them in their own way, as does one's wholly satisfied that Vaughn was not an incook, his gardener, or his coachman, as re- dependent contractor, but, on the contrary, marked in the case of Brackett v. Lubke, su- stood in the relation of an employé for wages pra. Referring again to the rule as laid of defendant in this case. The judgment is down in Bibb's Adm'r v. Railroad Co., supra, therefore reversed, and the case is remanded the respondent argues that Vaughn represent- for a new trial. Reversed. ed the will of his employer only as to the result of his work, and not as to the manner of HUNT, J., concurs. its performance; that is to say, that Vaughn contracted to deliver to his employer the result of putting the car over the track once a

(16 Mont. 8) day by his own methods. But so it might be ANACONDA MIN. CO. V. SAILE. argued that one's coachman contracts to pro

Supreme Court of Montana. April 8, 1895.) duce the result of conveying his master from

JUDGMENT BY DEFAULT_VACATION – Conditions. his house to his office, or wherever he may

1. Where defendant's attorney, relying on wish to go; or one's cook contracts to pro- information received from the clerk that no duce the result of placing before his master business would be transacted by the court unhis daily food. But such is not the sense in

til after a certain date, gave no further atten

tion to his demurrer then pending until such which the word "result" is used in the rule.

date, and it was overruled, and default entered, We think the word “result," as so used, means defendant's negligence was excusable, and the a production or product of some sort, and not

default properly opened. a service. One may contract to produce a

2. In opening a default against a defendant

upon the ground that his negligence was exhouse, a ship or a locomotive and such house, cusable, it was not error to refuse plaintiff's request that, as a condition of opening the de- business transacted by the court until Nofauli, the defendant be denied the right to plead

vember 14th. Hearing a demurrer was busithe statute of limitations.

ness of the court. The clerk modified his Appeal from district court, Deer Lodge

statement by saying, further, in his affidavit, county; Theodore Brantley, Judge.

that he did not intend to convey the idea Action by the Anaconda Mining Company

that no demurrers would be heard. But the against Raimond Saile. From an order set

fact is that he said that no business would ting aside a judgment against defendant by

be done, and the idea certainly was convey. default, plaintiff appeals. Affirmed.

ed to Mr. Adkinson that hearing demurrers The defendant's demurrer to the plaintiff's

was a part of the business which would not complaint was submitted to the court, and

be transacted until after November 14th. overruled October 8, 1892. Defendant was

Long prior to November 14th the demurrer granted 10 days to answer. No answer was

was heard and overruled, and defendant's filed. Default was entered October 20th,

default entered. We think Adkinson was ex. and judgment was rendered for plaintiff,

cusable in relying upon the information November 26th. Defendant moved to set

which the clerk gave him. The clerk was aside the judgment and the default. The

the ministerial officer of the court.

We motion was granted. Plaintiff appeals. The

think that an attorney had perfect right to motion was on the ground of mistake, sur

rely upon the statement of such a court ofprise, and excusable neglect. An answer

ficer that no business would be done until a was also tendered with the motion, Defend

certain time. It is not as if this informaant's attorney, F. Adkinson, upon the motion,

tion came from a sheriff, or a bailiff, or some filed his affidavit, by which it appeared that attendant upon the court. The clerk had the on September 30, 1892, Attorney Adkinson

records of the court, and knew its business. went to the clerk's office in the town of Deer

It is not, as suggested by appellant, as it Lodge, where the court was held, at which

the clerk had told an attorney that the court time and place he ascertained that the de- would take a certain action in a case, that murrer was still pending, and the clerk in

he would overrule or sustain a demurrer, or formed him that no business would be trans

do some other judicial act. Perhaps an atacted by the court until after the general torney would not be excused in relying upon election, which was to be held in November,

the statement of the clerk as to some judicial and that he (the clerk) was then preparing act which the court was to do, but be cernotices to send to jurors that their attend

tainly was justified in relying upon the state. ance would not be required until November

ment of the clerk simply that no business 14th. Said Attorney Adkinson, depending was to be transacted by the court. We do upon this information, did not then further

not think that an attorney could ordinarily appear in the case until after the default.

be expected to go further, and inquire of the In opposition to the motion, the clerk filed

judge as to such a matter, which was surely his affidavit, in which he admits that he

reasonably within the knowledge of the stated to said Adkinson that there would be clerk. This case is readily distinguishable no business in said court until after Novem

from City of Helena v. Brulo (this term) 39 ber 14th. The clerk said that he did not

Pac. 456. In that case the attorney had no state that there would be no motions or de

a pology whatever for his negligence. He murrers until after November 14th, and he

simply stated that he was not advised as did not intend or suppose that he was con

to the ruling upon his demurrer. It did not veying the idea to Adkinson that no demur

appear that it was any one's duty to advise rers would be heard. With the motion de- him. fendant tendered an answer. The action

It has been suggested in this case that dewas in the nature of ejectment. The answer

fendant's attorney was inexcusably negli. denied the allegations of the complaint, and

gent, in that on the 30th of September he further pleaded the statute of limitations. did not withdraw his demurrer, and file an The plaintiff requested that, if the default

answer, for the reason that it appears there were opened, the court impose as a condition

was no merit to his demurrer. It is probthat the defendant be not allowed to plead | ably true that the demurrer was not well the statute of limitations. The court re- taken, for, if it had been, defendant would fused to impose this condition, and opened doubtless have appealed from the judgment the default generally, upon payment of the entered after overruling his demurrer. But costs.

we cannot say that it was negligence not to Geo. W. Winston, M. Kirkpatrick, and W. withdraw the demurrer, and file an answer, W. Dixon, for appellant. F. Adkinson and on September 30th. It certainly is a practice Brazelton & Scharnikow, for respondent. not to be commended to file frivolous de

murrers, but no penalty heretofore has ever DE WITT, J. (after stating the facts). We been imposed by statute or by practice upon are of opinion that the district court did not such action. We cannot say that, in considerr in holding that the negligence of defend. eration of the law and practice in that reant was excusable. The defendant alleges- spect, it was negligence not to withdraw an and it is not denied-that the clerk told him unmeritorious demurrer, as long as the par. on September 30th that there would be do ty had the right under the law to file it,

and have it remain on record until disposed law exercised what I cannot but deem a most of by an order of the court in the ordinary unseemly anxiety to suppress the defense; course of practice.

and when, to the reproach of the law, almost Again, it is urged that the court erred in every effort of Ingenuity was exhausted to opening the default without imposing the catch up loose and inadvertent phrases from terms that the defendant should not be al- the careless lips of the supposed debtor, to lowed to plead the statute of limitations. It construe them into admission of the debt. is argued by appellant that, as the de- Happily, that period has passed away; and fendant is asking to be relieved from his judges now confine themselves to the more own negligence, he should not be allowed to appropriate duty of construing the statute, hold plaintiff to the results of its negligence rather than devising means to evade its operby virtue of its not commencing its action ation.'" The respondent also cites the folwithin the period of the statute of limita- lowing cases, which are in point: Freem. tions. But defendant's negligence, we have Judgm. (4th Ed.) 8 108, citing Ellinger's Apdetermined, was excusable, while as to peal, 114 Pa. St. 505, 7 Atl. 180, and Mitchell whether the plaintiff's negligence in letting v. Campbell, 14 Or. 454, 13 Pac. 190; Herman the statute of limitations run was excusable V. Rinker, 106 Pa. St. 121; Sossong v. Rosar, is not a question. The statute of limitations 112 Pa. St. 197, 3 Atl. 768; Gourlay y. Hutis a defense to which all men are entitled as ton, 10 Wend. 595. a right. The views of courts, since statutes We are therefore of opinion that the disof limitation were first considered, have trict court exercised a proper discretion in changed. Originally, it was regarded as a opening this default, and, it so being deterstatute of repose, and not one of presump- mined that the negligence of defendant was tion. This view changed, and the statute excusable, he had the right to interpose the was regarded as one of presumption, and not defense of the statute of limitations, and the of repose.

The views changed again, and court did not err in refusing to impose the the modern doctrine is that it is a statute of terms that he be not allowed to plead that repose. 3 Pars. Cont. c. 6. We quote from defense. The judgment is affirmed. that chapter as follows: "And at length, through a series of decisions, going to show PEMBERTON, C. J., and HUNT, J., conthat the statute is intended for the relief and cur. quiet of defendants, the law reached the conclusion justly and forcibly expressed by Mr.

(16 Mont. 14) Justice Story in the case to which we have before referred. He says: 'I consider the

CABBAGE v. SCHULTZ. statute of limitations a highly beneficial stat.

(Supreme Court of Montana. April 8, 1895.) ute, and entitled, as such, to receive, if not a

APPEAL REVIEW OF FINDINGS or Fact. liberal, at least a reasonable construction, in

A verdict in an action involving issues furtherance of its manifest object. It is a

of fact only, upon which the evidence is con

flicting, will not be disturbed on appeal. statute of repose, the object of which is to suppress fraudulent and stale claims from

Appeal from district court, Silver Bow springing up at great distances of time, and

county; J. J. McHatton, Judge. surprising the parties or their representa

Action by John Cabbage against Mary tives, when all the proper vouchers and evi

Schultz on an account for work and labor dence are lost, or the facts have become ob

performed by plaintiff on defendant's min. scure from the lapse of time or the defective

ing claim, and for money expended at de memory or death or removal of witnesses.

fendant's request. From a judgment for The defense, therefore, which it puts forth,

plaintiff, defendant appeals. Affirmed. is an honorable defense, which does not seek F. T. McBride, for respondent to avoid the payment of just claims or demands, admitted now to be due, but which PEMBERTON, C. J. This is an action on encounters, in the only practicable manner, account, for work and labor done and persuch as are ancient and unacknowledged, formed by plaintiff on the mining claim of and whatever may have been their original defendant, at her instance and request; for validity, such as are now beyond the power money expended at her request, and for her of the party to meet, with all the proper use and benefit; and for the amount of an vouchers and evidence to repel them. The account assigned to plaintiff, which it is alnatural presumption certainly is that claims leged was due and owing from defendant to which have been long neglected are unfound- one James W. Cabbage. The answer of deed, or, at least, are no longer subsisting de fendant denies all the allegations in the commands. And this presumption the statute plaint. The case was tried by a jury, and a has erected into a positive bar. There is verdict rendered on the full amount of the wisdom and policy in it, as it quickens the account. Judgment was rendered in accorddiligence of creditors, and guards innocent ance with the verdict. The defendant filed persons from being betrayed by their igno her motion for a new trial, which was denied rance or their overconfidence in regard to by the court. From the judgment and the transactions which have become dim by age. order denying a new trial, defendant ap Yet I well remember the time when courts of peals.

Counsel for the appellant contends that the evidence is insufficient to authorize the verdict, or support the judgment. We cannot agree with this contention. There is an absolute conflict of evidence in the case, but it is amply suflicient to warrant the verdict. A simple conflict of evidence does not authorize this court to set aside the verdict and reverse the judgment. It was the province of the jury to settle this conflict. They are, by law, the judges of the credibility of the witnesses, and the weight to be given to their testimony. They tried the issues joined by the pleadings in the case. These issues were purely those of fact. These issues were fairly submitted to the jury by the instructions of the court. The court, who tried the case, heard the witnesses, saw and considered their manner and interest in the event of the suit, refused to set aside the verdict and grant a new trial. From a full investigation of the record, we are of the opinion that there was no error in the action of the court. The judgment is affirmed.

DE WITT and HUNT, JJ., concur.

citizens. The defendant admits the ownership of the lots, but denies all the allegations of the complaint, and pleads that it conducts a general electric light business in Butte; that by an ordinance of the city it was required to erect new poles throughout the city, and only on one side of the street; that on East Broadway it could only erect poles on the north side, while the premises of plaintiff were on the south side; the defendant is under contract with the city of Butte to light the streets and public buildings of the city, and is the only contractor for such purpose; that to comply with the city ordinance and said contract the electric light wires had to be carried from the poles on the north side of Broadway through the alley in the rear of plaintiff's lots because defendant was not permitted to set poles on the south side of the street; that said alley had to be used to relieve the main street of too many wires; that the city engineer gave the defendant permission to set three poles in said alley, and the pole in the rear of plaintiff's premises was one of the three; that said pole was not set on any premises belonging to plaintiff, but was set in the alley; and that it could not be in any other place without great in. convenience, damage, and disregard to the public and private welfare. There was a supplemental answer filed, in which the defendant set forth that since the institution of the suit the plaintiff petitioned the city coun. cil to have the pole objected to removed, and the city refused to grant the request. No replication was filed. The cause was heard by the court. The evidence disclosed the following facts: The pole in question stands in the alley in the rear of the California Brewery, a half foot east of the line of the lots owned by plaintiff, and about an equal distance south of the line of Broadway. Its position was about in the middle of a side. walk 3 feet wide, in the alley; the rear entrance to plaintiff's property being about 20 feet distant from the pole. The side entrances are 30 and 60 feet distant. The alley is 16 feet wide. Directly opposite the rear of the premises of plaintiff stands the city hall, a three-story brick building, with an area way from the basement thereof projecting into the alley. The areaway connected with the city hall prevented the pole from being placed on the opposite side of the alley from plaintiff's property. The city ordinances of Butte prevented the defendant from erecting poles on the south side of Broadway, because the telephone poles were on that side, and only one line of poles is permitted on each side of a street. The pole is necessary where it is in order to light the streets, and to relieve the main street of too many wires, The pole could not be placed further down in the alley, because wires from across the street would strike the city ball, and become dangerous, and because such a position would bring the poles closer together than 90 feet, which is prevented by ordinance. The de

(16 Mont. 1) LOEBER v. BUTTE GENERAL ELECTRIC

CO. (Supreme Court of Montana. April 8, 1895.) Cities- ERECTION OF ELECTRIC Light Poles

ABUTTING OWNERS. Defendant company, under contract to furnish electric light for a city, set one of its poles in the center of the sidewalk in an alley in the rear of plaintiff's saloon, about 20 feet from the rear entrance thereto. A city ordinance regulating the location of such poles made the use of the alley necessary, and the situation of the city hall rendered the other side unavailable. It was shown that the location of the pole in no way inconvenienced plaintiff or endangered his property. Held not an interference with plaintiff's rights, nor unreasonable use of his easement in the alley, against which injunction would lie.

Appeal from district court, Silver Bow county; William 0. Speer, Judge.

Action by J. Fred Loeber against the Butte General Electric Company. Judgment for plaintiff, and defendant appeals. Reversed.

Injunction. The plaintiff is the owner of lots 13 and 14, in block 38, in the city of Butte. These lots are occupied by a meat market and saloon. The property abuts upon Broadway and an alley running through said block. Plaintiff, in his complaint, says that he is the owner of a sidewalk in the rear of the brewery saloon in the alley; that the defendant, on May 26, 1893, without his consent, commenced to tear up the sidewalk at the corner of his said premises, and to dig thereat, and to erect a pole, and to place electric wires thereon, all of which would in. terfere with the travel upon said street, and retard the free use thereof and of the alley, and injure the premises, and endanger the property of plaintiff and the lives of the

an

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