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to, and guarded against, he must be held to The defendant was charged by information have waived the point. Flesher v. Hale, 22 with having kept and maintained “a certain W. Va. 44; Davis v. Allen, 11 Pick. 468; house of ill fame, commonly called a 'bawdy Thomp. Trials, $ 2725.

house,' open to the public night and day for The trial judge, in the exercise of his ju- common bawdry, then and on said other days dicial discretion, and sitting as a chancellor, and times, there situate on Sixth street, in adopted the verdict, which was only ad- the city of Miles City, county of Custer, and visory, and made special findings in plain- state of Montana, and then and on said other tiff's favor. We therefore decline to hold days and times, by her, the said Fannie that the exercise of that discretion in sustain- French, kept and used as a house of ill fame, ing the verdict was unwise; and in the ab- and then and on said other days and times sence of a showing of misconduct of the jury there resorted to for the purpose of prostituwhich did or could, under all the circum- tion and lewdness; and the said Fannie stances, have affected the rights of the de- French, in said house, and for her own lucre fendant, public policy alone does not require and gain, certain evil-disposed persons, whose that the case be remanded for a new trial. names to said informant aforesaid as yet The order denying the motion for a new trial are not known, as well as men and women of is affirmei.

evil name and fame, and of dishonest conver

sation, do frequent and come together, did PEMBERTON, O. J., and DE WITT, J., then and on said other days and times there concur

unlawfully and wickedly cause, permit, and

procure, and said men and women in said (15 Mont. 194)

house, as well in the day as in the night, then STATE v. HENDRICKS.

and on said other days and times, there did (Supreme Court of Montana. Jan. 21, 1895.)

suffer and permit to be and remain whoring, KEPING BAWDY House-SUFFICIENCY OF INDICT

to the common nuisance of all good citizens, MENT-BILL OF PARTICULARS-EVIDENCE -REPUTATION.

then and on said other days and times there 1. Where the information charged that de

resided, passing, and being, and an evil exfendant had at a certain time and place kept ample to all others in like case, offending and a house of ill fame, open to the public day and against the peace and dignity of the state of night for common bawdry, and resorted to for

Montana." The defendant was tried to a the purpose of prostitution and lewdness; and that defendant, for her own gain, and men and jury, and convicted. A judgment of fine women of ill fame, did there frequent, and did and imprisonment was entered against her. at said time there unlawfully procure and remain whoring, to the common nuisance of good

By proceedings on writ of certiorari, the judgcitizens there passing.-it was proper to refuse

ment of the district court was modified by to require the state to furnish defendant a bill striking out that part of the judgment of the of particulars as to the facts relied on to prove

district court imprisoning the defendant. the charge. 2. Where the information charges defend

See State v. Seventh Judicial District Court, ant with having kept a bawdy house on "Sixth" 14 Mont. 452, 37 Pac. 9. A motion for a new street, and the proof shows the street to be trial was made in the district court, and over"North Sixth," the variance is immaterial.

ruled. Defendant appeals. 3. On the trial of one charged with keeping a bawdy house, evidence of the general reputation of the women who frequented the house,

Middleton & Light, for appellant. Henri including defendant, is admissible, as bearing

J. Haskell, Atty. Gen., and Ella L. Knowles upon the character of the house and its inmates and C. H. Loud, for the State. and the intent of the keeper.

4. On a prosecution for keeping a bawdy house, where the court charged that the use HUNT, J. (after stating the facts). The of the house for prostitution must be shown be

errors relied on will be noticed as presented yond a reasonable doubt to justify a conviction, it was not prejudicial error to charge that

by the briefs. Defendant moved the court whether defendant was the actual "keeper" of to require the county attorney to give her a said house cannot be proved by reputation, and bill of particulars; that is, “a more specific that they must be satisfied beyond a reasonable doubt that she was the "keeper" before finding

statement of facts or evidence upon which her guilty.

the plaintiff will rely in the trial of said 5. On the trial of one charged with keeping

cause." We think the court correctly overa bawdy house, the character of the house may

ruled this motion. The information was sufbe proved by reputation, where there are other facts in connection therewith to satisfy the jury ficiently specific in its facts, and the charge that the house is actually used for purposes of was so plainly stated that the particular evi. prostitution and lewdness.

dence which the state intended to produce Appeal from district court, Custer county; was properly withheld from defendant until George R. Milburn, Judge.

trial. Fannie Hendricks, informed against as As will be observed by the information, the Fannie French, was convicted of keeping a house is alleged to be situate on Sixth street, house of ill fame, and judgment of fine and in the city of Miles City. On the trial, the imprisonment entered against her. On writ state's witnesses swore that the street was of certiorari the judgment of imprisonment Sixth, and was known as Sixth, but the dewas stricken out. 37 Pac. 9. From an order fendant introduced a plat of Miles City, denying a motion for a new trial, defendant showing that the house was on North Sixth appeals. Affirmed

streetGranting that this was a variance, it was an immaterial one, and could not preju- of common repute. See Sparks v. State, 59 dice the rights of defendant.

Ala. 82, and State v. Brunell, 29 Wis. 435. Upon the trial, witnesses were asked as The court charged the jury, by instruction to the general reputation of the women who No. 11, as follows: “It is competent for the lived in the house,---whether they were virtu- state to prove by reputation the character of ous or not. The same question was asked in the house, and of the inmates, and of those relation to defendant herself.

These ques

who frequented the house, for the purpose of tions were all objected to as incompetent.proving the character of the house kept; but We are of opinion that the better reasoning whether or not the defendant was the actual sustains the ruling of the court in permitting keeper of said house cannot be proven by repproof of the general reputation for prostitu- utation. You must be satisfied by other tion and lewdness of the persons, inmates of proofs, beyond a reasonable doubt, that she the house. It tends to prove the character of was the keeper, before you can find her persons who resort to the place, and the in- guilty.” The use of the house being material, tent of the keeper, and the general character the appellant argues that this statement of of the house itself. The illicit acts which the law by the court was error. She contends establish a woman's character as a prostitute that even if the court holds that the reputaare very difficult to prove; and of necessity, tion of the inmates of a bawdy house may in order to place suflicient facts before a jury, be legally proved to be bad, for purposes herefrom which they may draw common-sense in discussed, nevertheless the character of the and legitimate inferences, there are a few house itself may not be so proved, but that classes of cases, of which this is one, where, positive evidence must be adduced for that to develop truth, character may be affirma- purpose.

There are a few cases which detively proved by the prosecution, and by cide that, where the house has the reputation hearsay evidence of general reputation. Com. of being bawdy, the jury may find as a fact, v. Gannett, 79 Am. Dec. 693; Com. v. Kim- from such evidence alone, that it is a bawdy ball, 7 Gray, 329; 2 Bish. Cr. Law, $ 112; house, and is used as such; but we are of State v. Hull (R. I.) 26 Atl. 191; Whart. Cr. opinion that, the use of the house for evil Ev. § 261; State v. Brunell, 29 Wis. 435; purposes being a material fact, there should State v. McDowell, Dud. (S. C.) 3f6; Terri- be proof of such actual use, and that reputatory v. Stone (Dak.) 4 N. W. 697; Drake v. tion alone, without such proof, is insufficient. State (Neb.) 17 N. W. 117. This view being Such was evidently the theory of the county supported by the weight of authority, it is attorney in the conduct of this case, because difficult to see why the reputation of any par- he carefully avoided the introduction of any ticular inmate of the bawdy house should not testimony pertaining to the reputation of the be inquired into because such inquiry may house, and relied entirely upon proof of facts involve the defendant herself. The principle of a most positive nature. We do not hold of law that the character of a defendant may that the state must prove the reputation of not be attacked by the state unless she puts the house, as do some cases (Cadwell v. State, her character in issue by her defense cannot 17 Conn. 467), but that, while evidence of its be said to be violated because the evidence of general reputation is competent as bearing her reputation is not admitted to prove that, upon its character, yet there must be some inasmuch as the defendant is a prostitute, testimony of its actual use as a house of ill she is therefore a bad woman, and thus fame (State v. Smith (Minn.) 12 N. W. 524; would be more likely to commit the crime State v. Boardman, 64 Me. 523; Toney v. charged against her, but as bearing upon a State, 60 Ala. 97; State v. Lee, 80 Iowa, 75, material issue in the information; that is, 45 N. W. 515). This proof may be made by the character of the inmates of the house, of showing, as was done in this case, the gathwhich she may happen to be one, and the ering at the place of men and women for illicharacter of the house, and the intent of the cit commerce of the sexes, by the lewd conkeeper. For these purposes we hold that, in duct of such persons, by their obscene lancases like the one at bar, such evidence is guage and profanity, or by other facts and competent and proper, particularly when lim- circumstances from which may be deduced ited by an instruction to the jury as to its ap- the conclusion that the house was in fact plicability. A woman may live as the sole used for purposes of prostitution and lewdinmate and keeper of a bawdy house; yet, if

By the instruction above quoted, the several of the cases cited by appellant cor- jury were told that the character of the rectly state the law, although the reputation house could be proved by reputation. This is of the inmates of a bawdy house is a proper the law, provided there are other facts or subject of investigation, still there could be circumstances in connection with such evino testimony offered to prove the fact that dence of the reputation which satisfy the jury, she was by reputation a prostitute, simply be- beyond a reasonable doubt, that the house is cause she was the person charged with the not only one of ill fame, but is used for puroffense. We think such a distinction is not poses of prostitution and lewdness. But that well founded, and prefer to lay down the portion of instruction No. 11 just examined rules fixed in those cases which put the de- was inapplicable to the case at bar for the fendant keeper, if an inmate, on a plane with reason, as stated before, that there was no the others, whose characters become matters testimony at all introduced by the state to

ness.

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 it 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:

• 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. als, 2407. The judgment heretofore modified by this court is sustained.

rately, the proper remedy is by motion to require 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

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

(10 Wash. 648) RICHARDSON V. CARBON HILL COAL

CO.1 (Supreme Court of Washington. Jan. 14, 1895.) PLEADING -COMPLAINT — JOINDER OF CAUSES OF

ACTION REMARKS OF Courses ERROXEOUS ADMISSION OF EVIDENCE WBEN CURBD -ACTION AGAINST EMPLOYER INJURY TO EMPLOYE - MALPRACTICE OF PHYSICIAN.

1. Where the compliant sets out two causes of action, which may properly be joined in the same paragraph, instead of stating them sepa

i Rehearing pending

engine, and also for further injury by reason joined, without separately stating them, as of negligent and unskillful treatment by Dr. required by the Code, the proper remedy is a Garner. The cause proceeded to trial, and motion to require plaintiff to make his comat the close of the plaintiff's testimony, on plaint more definite and certain by stating motion of the defendant (which motion was separately his several causes of action. Pom. in form a motion for a nonsuit), the court Code Rem. $ 447; Boone, Code Pl. § 206. directed the jury to find a verdict for the And, besides, the paragraphs sought to be defendant. From this order and judgment stricken out are all essential allegations in the plaintiff appealed.

the only cause of action stated in the comUpon the trial here this court determined plaint which, according to the claim of appelthat the plaintiff was not entitled to recover lant, has not already been determined by this for the injury sustained in the tunnel, be- court. The paragraphs objected to could not cause it was apparent from the record that be stricken out without giving the motion the he was himself guilty of contributory negli- effect of a general demurrer, for, without gence. As to the first cause of action, the them, the complaint would state no cause of ruling of the trial court was, therefore, sus- action for surgical malpractice. This case tained. But, although we found the proof too was tried by the court below upon the theory uncertain and meager to determine satisfac- that the complaint states two causes of actorily what were the rights of the plaintiff tion, and that the first cause of action, based under his cause of action for injuries sus- upon the alleged negligence of the defendant, tained on account of alleged negligent and by reason of which plaintiff was injured, had unskillful surgical treatment, we came to the been determined adversely to the plaintiff by conclusion that the evidence upon that branch this court. It was the rule contended for by of the case should have been submitted to counsel for the defendant, and he here inthe consideration of the jury, and according- sists, that the court erred in permitting counly remanded the cause for a new trial, with sel for the plaintiff, in opening his case, to leave to file new pleadings. See 6 Wash. 52, state to the jury, over defendant's objection, 32 Pac. 1012. The plaintiff thereupon filed certain facts and circumstances which he an amended complaint, stating, but not sepa- expected to prove to sustain the first cause rately, the same causes of action which were of action, and in permitting the plaintiff to set up in his original complaint. The de- introduce evidence before the jury to prove fendant moved the court to strike out certain the facts therein alleged. Just what the reparagraphs and portions of the complaint, on marks of counsel were to which objection the ground that the same were irrelevant, was made by the defendant we are unable to immaterial, and redundant. This motion was ascertain, as they do not appear in the record, overruled, and the ' defendant excepted. and we are therefore unable to determine Thereafter the defendant answered, and the whether they were improper and prejudicial cause was tried, resulting in a verdict and or not. But we think it was error, under judgment for plaintiff.

the circumstances, to permit evidence to be It appears that the appellant corporation, in introduced showing the rate of speed at conducting its business, usually employed which the engine upon which the plaintiff several hundred men; and the proof shows was seated when he was injured was driven that it was the custom of the paymaster of into the tunnel by defendant's underground the company to retain one dollar per month foreman, and the outcry of the plaintiff when from the wages of each employé, and that he was thrown to the ground, and other like the money so realized was kept as a special matters. All such testimony was clearly irfund for the payment of the expenses of the relevant to the issues which were finally subhospital and the salary of the physician em- mitted to the jury, and must have been prej. ployed to attend and treat sick and disabled udicial to the defendant. Indeed, the learnemployés, and their families, and was dis- ed trial judge seems to have come to the bursed by him whenever required for those conclusion that this evidence was all irrelepurposes. None of the money was used by vant, for he said: "Before going to the jury the company in transacting its business, nor on the case, counsel for the defendant may did it in any way derive any profit from it. move to have all this testimony stricken out The respondent paid one dollar per month on his motion, so far as this court can see (which was charged to his account as "Hos- now.” But counsel did not choose to move pital") out of his wages while in the service to strike it out, and thereby, if successful, of the company, without objection, and with- waive his exceptions, but preferred to stand out asking for any information as to the pur- upon his exceptions, as he had a perfect pose for which it was to be used; but he right to do. It is by no means certain that, seems to have understood from others that if this evidence had been stricken out, the it was to be applied towards the payment of impression produced by it upon the minds of the doctor in case of sickness or injury of the jury would håve been removed. It is employés. We think the court committed no far easier to produce an impression upon the error in refusing to strike out portions of the mind than it is to eradicate it, and for that complaint on the ground stated in the mo- reason, if for no other, courts should spare tion. Where a complaint sets forth two no pains to prevent illegal testimony from causes of actions, which may properly be going to the jury. Of course, it was proper -perhaps necessary-for the plaintiff to show who attended him say was there when Dr. the character and extent of the injuries which Garner was treating him, and that the Dr. Garner undertook to treat, and also doctor's attention was several times called where he was, and what he was doing, when to the fact that respondent's hip was painhe was injured, as those were evidently per- ful; but that he never examined it, but altinent and relevant matters.

ways said the pain was caused by the broAfter the plaintiff had rested, the defend- ken bone. The doctor testified that the lump ant moved for a nonsuit as to the first cause spoken of was not present while he was of action, on the ground of contributory neg- treating the patient, because, if it had been, ligence on the part of plaintiff. A nonsuit he could not have failed to see it when he was denied, but the court thereupon ruled applied the splints to the broken leg. His that the defendant was called upon to an

conclusion was that the dislocation must swer that part of the case only which per- have been caused by the respondent falling tained to the treatment of plaintiff's injuries. upon the sidewalk when he was walking on Subsequently the court charged the jury to crutches, and one of them broke and threw disregard entirely the first cause of action, him down. The testimony, however, of but, as they were not instructed to disregard those who saw him fall, shows pretty clearall or any particular portion of the evidence ly that his hip was not seriously injured, if which had been introduced to sustain that at all, at that time. We therefore conclude part of the case, we hardly think that the that there was sufficient evidence to justify objectionable evidence can be said to have the jury in finding the doctor guilty of neg. been thereby fully withdrawn from the con- ligence. sideration of the jury. In our opinion, this

It is conceded in this case that no express charge of the learned judge was too general contract was made between the company to convey to the minds of the jury, with and the respondent in relation to his treatany degree of certainty, what was really in- ment or care in case he became sick or was tended by the court. In fact, by its terms, injured; and it therefore follows that, if the it left the jury to determine for themselves appellant was bound to furnish a surgeon to what evidence they were to disregard, in- treat respondent's injuries, it was by virtue stead of pointing it out to them, and was, of such a contract as the law implies from the therefore, liable to confuse and mislead. acts of the parties, and the surrounding cir

It is contended on the part of appellant cumstances. In this case the one dollar per that the verdict and judgment cannot be month was deducted from respondent's sustained (1) because the evidence fails to wages with his consent, or at least without show that the respondent's injuries were his objection, and appeared charged on the negligently or unskillfully treated by Dr. statement of his account as "Hospital," and Garner; (2) because it clearly appears from nothing whatever was said concerning it by the evidence that the appellant never em- either party to the other. What was the conployed or agreed to employ the doctor to tract? Was the respondent to be furnished treat said injuries; and (3) because the proofs with hospital accommodations and medical show no liability on the part of appellant for attendance? The respondent says he underthe injuries complained of, even if it were stood that he was to have the services of a shown that the doctor was employed by it, doctor if needed, and that he relied on the and was negligent in the discharge of his pro- appellant to furnish him medical or surgical fessional duties towards the respondent. As attendance in case of sickness or injury. already stated, Dr. Garner's treatment of He knew that there was a doctor at appelthe respondent was directed solely to the lant's mines, and some kind of a hospital, fracture of the femur; and it does not ap- and had no doubt learned that both were pear from the evidence that the fracture it- for the benefit of those employed there; and self was either negligently or unskillfully from these facts he concludes that the comtreated. The ordinary appliances were used, pany contracted to furnish him the privileges and the result was a union of the broken of a hospital, and the services of a physician. bone, without deformity of the limb, so far And he introduced evidence tending to prove as the testimony discloses. But it is claimed that it was the general understanding among by the respondent that his hip was dislocat- the miners at Carbonado that Dr. Garner ed by the same accident which broke his leg. was the company's physician. On the other and that the dislocation was so apparent hand, appellant produced positive testimony that nothing but gross negligence or incom- to the effect that when the respondent was petency could have prevented the doctor hurt, and while he was being treated, it had from discovering it. That respondent's hip no physician in its employment, and mainwas dislocated at the time of the trial was tained no hospital, and that the doctor was not disputed, even by Dr. Garner himself. actually employed by the hospital commit. Nor was it disputed that the dislocation was tee, which was appointed by the employés permanent, and incurable. The head of the themselves, and that the hospital was un femur had been torn from its socket, and der the control of the same committee. But, pushed upwards and backwards, producing suppose the contention of the respondent to a lump on the bip, which was easily dis- be true that the appellant so conducted itself cernible, and which the respondent and those that it caused the respondent to believe that

v.39p.no.147

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