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to, and guarded against, he must be held to have waived the point. Flesher v. Hale, 22 W. Va. 44; Davis v. Allen, 11 Pick. 468; Thomp. Trials, § 2725.

The trial judge, in the exercise of his judicial discretion, and sitting as a chancellor, adopted the verdict, which was only advisory, and made special findings in plaintiff's favor. We therefore decline to hold that the exercise of that discretion in sustaining the verdict was unwise; and in the absence of a showing of misconduct of the jury which did or could, under all the circumstances, have affected the rights of the defendant, public policy alone does not require that the case be remanded for a new trial. The order denying the motion for a new trial is affirmed.

PEMBERTON, C. J., and DE WITT, J.,

concur

(15 Mont. 194)

STATE v. HENDRICKS. (Supreme Court of Montana. Jan. 21, 1895.) KEEPING BAWDY HOUSE-SUFFICIENCY OF INDICTMENT-BILL OF PARTICULARS-EVIDENCE

-REPUTATION.

1. Where the information charged that defendant had at a certain time and place kept a house of ill fame, open to the public day and night for common bawdry, and resorted to for the purpose of prostitution and lewdness; and that defendant, for her own gain, and men and women of ill fame, did there frequent, and did at said time there unlawfully procure and remain whoring, to the common nuisance of good citizens there passing, it was proper to refuse to require the state to furnish defendant a bill of particulars as to the facts relied on to prove the charge.

2. Where the information charges defendant with having kept a bawdy house on "Sixth" street, and the proof shows the street to be "North Sixth," the variance is immaterial.

3. On the trial of one charged with keeping a bawdy house, evidence of the general reputation of the women who frequented the house, including defendant, is admissible, as bearing upon the character of the house and its inmates and the intent of the keeper.

4. On a prosecution for keeping a bawdy house, where the court charged that the use of the house for prostitution must be shown be yond a reasonable doubt to justify a conviction, it was not prejudicial error to charge that whether defendant was the actual "keeper" of said house cannot be proved by reputation, and that they must be satisfied beyond a reasonable doubt that she was the "keeper" before finding her guilty.

5. On the trial of one charged with keeping a bawdy house, the character of the house may be proved by reputation, where there are other facts in connection therewith to satisfy the jury that the house is actually used for purposes of prostitution and lewdness.

Appeal from district court, Custer county; George R. Milburn, Judge.

Fannie Hendricks, informed against as Fannie French, was convicted of keeping a house of ill fame, and judgment of fine and Imprisonment entered against her. On writ of certiorari the judgment of imprisonment was stricken out. 37 Pac. 9. From an order denying a motion for a new trial, defendaut appeals Affirmed.

The defendant was charged by information with having kept and maintained "a certain house of ill fame, commonly called a 'bawdy house,' open to the public night and day for common bawdry, then and on said other days and times, there situate on Sixth street, in the city of Miles City, county of Custer, and state of Montana, and then and on said other days and times, by her, the said Fannie French, kept and used as a house of ill fame, and then and on said other days and times there resorted to for the purpose of prostitution and lewdness; and the said Fannie French, in said house, and for her own lucre and gain, certain evil-disposed persons, whose names to said informant aforesaid as yet are not known, as well as men and women of evil name and fame, and of dishonest conversation, do frequent and come together, did then and on said other days and times there unlawfully and wickedly cause, permit, and procure, and said men and women in said house, as well in the day as in the night, then and on said other days and times, there did suffer and permit to be and remain whoring, to the common nuisance of all good citizens, then and on said other days and times there resided, passing, and being, and an evil example to all others in like case, offending and against the peace and dignity of the state of Montana." The defendant was tried to a jury, and convicted. A judgment of fine and imprisonment was entered against her. By proceedings on writ of certiorari, the judgment of the district court was modified by striking out that part of the judgment of the district court imprisoning the defendant. See State v. Seventh Judicial District Court, 14 Mont. 452, 37 Pac. 9. A motion for a new trial was made in the district court, and overruled. Defendant appeals.

Middleton & Light, for appellant. Henri J. Haskell, Atty. Gen., and Ella L. Knowles and C. H. Loud, for the State.

HUNT, J. (after stating the facts). The errors relied on will be noticed as presented by the briefs. Defendant moved the court to require the county attorney to give her a bill of particulars; that is, "a more specific statement of facts or evidence upon which the plaintiff will rely in the trial of said cause." We think the court correctly overruled this motion. The information was sufficiently specific in its facts, and the charge was so plainly stated that the particular evidence which the state intended to produce was properly withheld from defendant until trial.

As will be observed by the information, the house is alleged to be situate on Sixth street, in the city of Miles City. On the trial, the state's witnesses swore that the street was Sixth, and was known as Sixth, but the defendant introduced a plat of Miles City, showing that the house was on North Sixth street. Granting that this was a variance, it

was an immaterial one, and could not prejudice the rights of defendant.

Upon the trial, witnesses were asked as to the general reputation of the women who lived in the house,-whether they were virtuous or not. The same question was asked in relation to defendant herself. These questions were all objected to as incompetent. We are of opinion that the better reasoning sustains the ruling of the court in permitting proof of the general reputation for prostitution and lewdness of the persons, inmates of the house. It tends to prove the character of persons who resort to the place, and the intent of the keeper, and the general character of the house itself. The illicit acts which establish a woman's character as a prostitute are very difficult to prove; and of necessity, in order to place sufficient facts before a jury, from which they may draw common-sense and legitimate inferences, there are a few classes of cases, of which this is one, where, to develop truth, character may be affirmatively proved by the prosecution, and by hearsay evidence of general reputation. Com. v. Gannett, 79 Am. Dec. 693; Com. v. Kimball, 7 Gray, 329; 2 Bish. Cr. Law, § 112; State v. Hull (R. I.) 26 Atl. 191; Whart. Cr. Ev. § 261; State v. Brunell, 29 Wis. 435; State v. McDowell, Dud. (S. C.) 346; Territory v. Stone (Dak.) 4 N. W. 697; Drake v. State (Neb.) 17 N. W. 117. This view being supported by the weight of authority, it is difficult to see why the reputation of any particular inmate of the bawdy house should not be inquired into because such inquiry may involve the defendant herself. The principle of law that the character of a defendant may not be attacked by the state unless she puts her character in issue by her defense cannot be said to be violated because the evidence of her reputation is not admitted to prove that, inasmuch as the defendant is a prostitute, she is therefore a bad woman, and thus would be more likely to commit the crime charged against her, but as bearing upon a material issue in the information; that is, the character of the inmates of the house, of which she may happen to be one, and the character of the house, and the intent of the keeper. For these purposes we hold that, in cases like the one at bar, such evidence is competent and proper, particularly when limited by an instruction to the jury as to its applicability. A woman may live as the sole inmate and keeper of a bawdy house; yet, if several of the cases cited by appellant correctly state the law, although the reputation of the inmates of a bawdy house is a proper subject of investigation, still there could be no testimony offered to prove the fact that she was by reputation a prostitute, simply because she was the person charged with the offense. We think such a distinction is not well founded, and prefer to lay down the rules fixed in those cases which put the defendant keeper, if an inmate, on a plane with the others, whose characters become matters

of common repute. See Sparks v. State, 59 Ala. 82, and State v. Brunell, 29 Wis. 435.

The court charged the jury, by instruction No. 11, as follows: "It is competent for the state to prove by reputation the character of the house, and of the inmates, and of those who frequented the house, for the purpose of proving the character of the house kept; but whether or not the defendant was the actual keeper of said house cannot be proven by reputation. You must be satisfied by other proofs, beyond a reasonable doubt, that she was the keeper, before you can find her guilty." The use of the house being material, the appellant argues that this statement of the law by the court was error. She contends that even if the court holds that the reputation of the inmates of a bawdy house may be legally proved to be bad, for purposes herein discussed, nevertheless the character of the house itself may not be so proved, but that positive evidence must be adduced for that purpose. There are a few cases which decide that, where the house has the reputation of being bawdy, the jury may find as a fact, from such evidence alone, that it is a bawdy house, and is used as such; but we are of opinion that, the use of the house for evil purposes being a material fact, there should be proof of such actual use, and that reputation alone, without such proof, is insufficient. Such was evidently the theory of the county attorney in the conduct of this case, because he carefully avoided the introduction of any testimony pertaining to the reputation of the house, and relied entirely upon proof of facts of a most positive nature. We do not hold that the state must prove the reputation of the house, as do some cases (Cadwell v. State, 17 Conn. 467), but that, while evidence of its general reputation is competent as bearing upon its character, yet there must be some testimony of its actual use as a house of ill fame (State v. Smith [Minn.] 12 N. W. 524; State v. Boardman, 64 Me. 523; Toney v. State, 60 Ala. 97; State v. Lee, 80 Iowa, 75, 45 N. W. 545). This proof may be made by showing, as was done in this case, the gathering at the place of men and women for illicit commerce of the sexes, by the lewd conduct of such persons, by their obscene language and profanity, or by other facts and circumstances from which may be deduced the conclusion that the house was in fact used for purposes of prostitution and lewdness. By the instruction above quoted, the jury were told that the character of the house could be proved by reputation. This is the law, provided there are other facts or circumstances in connection with such evidence of the reputation which satisfy the jury, beyond a reasonable doubt, that the house is not only one of ill fame, but is used for purposes of prostitution and lewdness. But that portion of instruction No. 11 just examined was inapplicable to the case at bar for the reason, as stated before, that there was no testimony at all introduced by the state to

prove the reputation of the house in question. The charge was not pertinent, and, although by itself incomplete, yet defendant cannot complain, provided the jury could not have been misled, and provided, further, the law was fully and correctly stated elsewhere in the charge.

We have made a most careful examination of the entire instruction given to the jury in this case, and our conclusion is that the law was correctly stated. By instruction No. 4, the court, after telling the jury that a person might be convicted of the crime charged if she knowingly permitted any of the inmates of her house to use any portion thereof for the purposes of prostitution and lewdness, expressly charged them, among other things, that such a use was necessary to justify conviction. The language given was as follows:

64

✦✦ And you further find from the evidence, beyond a reasonable doubt, that said house was so used and occupied,

then the defendant would be guilty of the crime charged in the information." The sentence quoted was a correct statement of the law predicated upon the evidence. It told the jury what must be proved, and, upon the point under consideration, was a fair statement of the whole law applicable to the testimony adduced on the trial. But, again, the jury was told, in instruction No. 18, that, to constitute a nuisance, the house must be kept as a place of public prostitution. This was also proper, and, when considered with instruction No. 4, required the jury to be satisfied by the evidence, beyond a reasonable doubt, that the house was both used and kept for bawdy purposes. In the light of these instructions, and the overwhelming weight of testimony to support the verdict, the jury could not have been misled in their deliberations. Moreover, the court did not assume in instruction No. 11 to state all the facts necessary to sustain a conviction; and, inasmuch as the essential elements of the offense were properly charged in other instructions based on the testimony, the defendant could not have been injured by an incomplete, but wholly applicable, statement of law. Bird v. State, 107 Ind. 154, 8 N. E. 14; Thomp. Trials, 2407. The judgment heretofore modified by this court is sustained.

PEMBERTON, C. J., and DE WITT, J.,

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rately, the proper remedy is by motion to re quire plaintiff to make his complaint more definite by stating the causes separately, and not by motion to strike out.

2. Improper remarks of counsel to the jury cannot be reviewed unless they appear in the record.

3. Error in admitting evidence against appellant's objection is not cured by the court's subsequent statement that he will strike it out on motion, where appellant, preferring to stand on his exception, declines to make the motion.

4. In an action against plaintiff's employer for injuries due to the negligence of the physician furnished by defendant to dress a broken leg received by plaintiff while riding on defendant's engine through its mines, it is error to admit evidence that the engine was running at a high rate of speed at the time of the injury.

5. Where a hospital is maintained by a mining corporation for the sole purpose of relieving injured employés, without any intention of profit to the corporation, the corporation is not liable to employés, for the malpractice of the physician employed, provided it used ordinary care in selecting him, though the hospital is supported by the contributions of the employés.

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by Albert W. Richardson against the Carbon Hill Coal Company to recover for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

John P. Judson, for appellant. Crowley, Sullivan & Grosscup and C. W. Seymour, for respondent.

ANDERS, J. The appellant is a corporation, and in the year 1890, and for some years prior thereto, it owned and operated certain coal mines at Carbonado, in this state. It was also the owner of a narrowgauge railroad, which it constructed and used for the purpose of transporting its coal to a station on the Northern Pacific Railroad, about three-quarters of a mile distant from its mines. On or about the 24th day of January, 1890, the respondent was employed by the company to assort or clean coal at its coal bunkers, with the understanding that he should work whenever required, and be paid by the day when engaged at said work. On April 15, 1890, the respondent, while riding through a tunnel on a brake beam in front of one of the company's engines, was struck by a projecting rock, and thereby seriously injured. He was taken to the house of his brother-in-law, and there treated by Dr. Garner, a physician and surgeon, who had been theretofore employed to treat professionally all persons who might be injured while in the service of the company. Upon examination the doctor found that the respondent's left leg was broken about eight inches from the hip joint, but did not discover any other injury in or about the hip. The doctor treated this fracture until about the middle of July, at which time he deemed the respondent cured, the fractured bones being then united. Subsequently the re spondent instituted an action against the coal company to recover damages for the injury sustained while riding upon the locomotive

engine, and also for further injury by reason of negligent and unskillful treatment by Dr. Garner. The cause proceeded to trial, and at the close of the plaintiff's testimony, on motion of the defendant (which motion was in form a motion for a nonsuit), the court directed the jury to find a verdict for the defendant. From this order and judgment the plaintiff appealed.

Upon the trial here this court determined that the plaintiff was not entitled to recover for the injury sustained in the tunnel, because it was apparent from the record that he was himself guilty of contributory negligence. As to the first cause of action, the ruling of the trial court was, therefore, sustained. But, although we found the proof too uncertain and meager to determine satisfactorily what were the rights of the plaintiff under his cause of action for injuries sustained on account of alleged negligent and unskillful surgical treatment, we came to the conclusion that the evidence upon that branch of the case should have been submitted to the consideration of the jury, and accordingly remanded the cause for a new trial, with leave to file new pleadings. See 6 Wash. 52, 32 Pac. 1012. The plaintiff thereupon filed an amended complaint, stating, but not sepa rately, the same causes of action which were set up in his original complaint. The defendant moved the court to strike out certain paragraphs and portions of the complaint, on the ground that the same were irrelevant, immaterial, and redundant. This motion was overruled, and the defendant excepted. Thereafter the defendant answered, and the cause was tried, resulting in a verdict and judgment for plaintiff.

It appears that the appellant corporation, in conducting its business, usually employed several hundred men; and the proof shows that it was the custom of the paymaster of the company to retain one dollar per month from the wages of each employé, and that the money so realized was kept as a special fund for the payment of the expenses of the hospital and the salary of the physician employed to attend and treat sick and disabled employés and their families, and was disbursed by him whenever required for those purposes. None of the money was used by the company in transacting its business, nor did it in any way derive any profit from it. The respondent paid one dollar per month (which was charged to his account as "Hospital") out of his wages while in the service of the company, without objection, and without asking for any information as to the purpose for which it was to be used; but he seems to have understood from others that it was to be applied towards the payment of the doctor in case of sickness or injury of employés. We think the court committed no error in refusing to strike out portions of the complaint on the ground stated in the motion. Where a complaint sets forth two causes of actions, which may properly be

joined, without separately stating them, as required by the Code, the proper remedy is a motion to require plaintiff to make his complaint more definite and certain by stating separately his several causes of action. Pom. Code Rem. § 447; Boone, Code Pl. § 266. And, besides, the paragraphs sought to be stricken out are all essential allegations in the only cause of action stated in the complaint which, according to the claim of appellant, has not already been determined by this court. The paragraphs objected to could not be stricken out without giving the motion the effect of a general demurrer, for, without them, the complaint would state no cause of action for surgical malpractice. This case was tried by the court below upon the theory that the complaint states two causes of action, and that the first cause of action, based upon the alleged negligence of the defendant, by reason of which plaintiff was injured, had been determined adversely to the plaintiff by this court. It was the rule contended for by counsel for the defendant, and he here insists, that the court erred in permitting counsel for the plaintiff, in opening his case, to state to the jury, over defendant's objection, certain facts and circumstances which he expected to prove to sustain the first cause of action, and in permitting the plaintiff to introduce evidence before the jury to prove the facts therein alleged. Just what the remarks of counsel were to which objection was made by the defendant we are unable to ascertain, as they do not appear in the record, and we are therefore unable to determine whether they were improper and prejudicial or not. But we think it was error, under the circumstances, to permit evidence to be introduced showing the rate of speed at which the engine upon which the plaintiff was seated when he was injured was driven into the tunnel by defendant's underground foreman, and the outcry of the plaintiff when he was thrown to the ground, and other like matters. All such testimony was clearly irrelevant to the issues which were finally sub'mitted to the jury, and must have been prejudicial to the defendant. Indeed, the learned trial judge seems to have come to the conclusion that this evidence was all irrelevant, for he said: "Before going to the jury on the case, counsel for the defendant may move to have all this testimony stricken out on his motion, so far as this court can see now." But counsel did not choose to move to strike it out, and thereby, if successful, waive his exceptions, but preferred to stand upon his exceptions, as he had a perfect right to do. It is by no means certain that, if this evidence had been stricken out, the impression produced by it upon the minds of the jury would have been removed. It is far easier to produce an impression upon the mind than it is to eradicate it, and for that reason, if for no other, courts should spare no pains to prevent illegal testimony from going to the jury. Of course, it was proper

-perhaps necessary-for the plaintiff to show the character and extent of the injuries which Dr. Garner undertook to treat, and also where he was, and what he was doing, when he was injured, as those were evidently pertinent and relevant matters.

After the plaintiff had rested, the defendant moved for a nonsuit as to the first cause of action, on the ground of contributory negligence on the part of plaintiff. A nonsuit was denied, but the court thereupon ruled that the defendant was called upon to answer that part of the case only which pertained to the treatment of plaintiff's injuries. Subsequently the court charged the jury to disregard entirely the first cause of action, but, as they were not instructed to disregard all or any particular portion of the evidence which had been introduced to sustain that part of the case, we hardly think that the objectionable evidence can be said to have been thereby fully withdrawn from the consideration of the jury. In our opinion, this charge of the learned judge was too general to convey to the minds of the jury, with any degree of certainty, what was really intended by the court. In fact, by its terms, it left the jury to determine for themselves what evidence they were to disregard, instead of pointing it out to them, and was, therefore, liable to confuse and mislead.

It is contended on the part of appellant that the verdict and judgment cannot be sustained (1) because the evidence fails to show that the respondent's injuries were negligently or unskillfully treated by Dr. Garner; (2) because it clearly appears from the evidence that the appellant never employed or agreed to employ the doctor to treat said injuries; and (3) because the proofs show no liability on the part of appellant for the injuries complained of, even if it were shown that the doctor was employed by it, and was negligent in the discharge of his professional duties towards the respondent. As already stated, Dr. Garner's treatment of the respondent was directed solely to the fracture of the femur; and it does not appear from the evidence that the fracture itself was either negligently or unskillfully treated. The ordinary appliances were used, and the result was a union of the broken bone, without deformity of the limb, so far as the testimony discloses. But it is claimed by the respondent that his hip was dislocated by the same accident which broke his leg, and that the dislocation was so apparent that nothing but gross negligence or incompetency could have prevented the doctor from discovering it. That respondent's hip was dislocated at the time of the trial was not disputed, even by Dr. Garner himself. Nor was it disputed that the dislocation was permanent, and incurable. The head of the femur had been torn from its socket, and pushed upwards and backwards, producing a lump on the hip, which was easily discernible, and which the respondent and those v.39p.no.1-7

who attended him say was there when Dr. Garner was treating him, and that the doctor's attention was several times called to the fact that respondent's hip was painful; but that he never examined it, but always said the pain was caused by the broken bone. The doctor testified that the lump spoken of was not present while he was treating the patient, because, if it had been, he could not have failed to see it when he applied the splints to the broken leg. His conclusion was that the dislocation must have been caused by the respondent falling upon the sidewalk when he was walking on crutches, and one of them broke and threw him down. The testimony, however, of those who saw him fall, shows pretty clearly that his hip was not seriously injured, if at all, at that time. We therefore conclude that there was sufficient evidence to justify the jury in finding the doctor guilty of negligence.

It is conceded in this case that no express contract was made between the company and the respondent in relation to his treatment or care in case he became sick or was injured; and it therefore follows that, if the appellant was bound to furnish a surgeon to treat respondent's injuries, it was by virtue of such a contract as the law implies from the acts of the parties, and the surrounding circumstances. In this case the one dollar per month was deducted from respondent's wages with his consent, or at least without his objection, and appeared charged on the statement of his account as "Hospital," and nothing whatever was said concerning it by either party to the other. What was the contract? Was the respondent to be furnished with hospital accommodations and medical attendance? The respondent says he understood that he was to have the services of a doctor if needed, and that he relied on the appellant to furnish him medical or surgical attendance in case of sickness or injury. He knew that there was a doctor at appellant's mines, and some kind of a hospital, and had no doubt learned that both were for the benefit of those employed there; and from these facts he concludes that the company contracted to furnish him the privileges of a hospital, and the services of a physician. And he introduced evidence tending to prove that it was the general understanding among the miners at Carbonado that Dr. Garner was the company's physician. On the other hand, appellant produced positive testimony to the effect that when the respondent was hurt, and while he was being treated, it had no physician in its employment, and maintained no hospital, and that the doctor was actually employed by the hospital committee, which was appointed by the employés themselves, and that the hospital was un der the control of the same committee. But, suppose the contention of the respondent to be true that the appellant so conducted itself that it caused the respondent to believe that

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