which it should be done. I sometimes spoke to Vaughn about matters concerning the protecting of the property and driving the boys off. Whenever I saw the boys running about the cars, either when being driven or standing idle, I chased them away. I don't remember that I told the drivers to keep them away, but I remember telling him one day to skin them with his whip. There might have been other times that I gave these orders, but I don't remember any particular date. Whenever I saw the boys, if the driver was around, I would speak to the driver, but I always made it a point to see Mr. Vaughn about it, and Vaughn and myself very frequently went over. We chained the cars once or twice to keep the boys away." Under these facts the district court held that Vaughn was an independent contractor, and that the defendant was not liable for his negligence.

To draw the distinction between independent contractors and servants is often difficult, and the rules which courts have undertaken to lay down on this subject are not always simple of application. A rule as often quoted as any is stated' in the syllabus of the case of Bibb's Adm'r v. Railroad Co., 87 Va. 711; 14 S. E. 163, after an able review of the authorities, as follows: "Independent contractor is one who renders service in the course of an occupation, and represents the will of his employer only as to the result of his work, and not as to the means whereby it is accomplished, and is usually paid by the job." Brackett v. Lubke, 4 Allen, 138, is also a leading case. The opinion states as follows: "The distinction on which all the cases turn is this: If the person employed to do the work carries on an independent employment, and acts in pursuance of a contract with his employer by which he has agreed to do the work on certain specified terms, in a particular manner, and for a stipulated price, then the employer is not liable. The relation of master and servant does not subsist between the parties, but only that of contractor and contractee. The power of directing and controlling the work is parted with by the employer, and given to the contractor. But,

on the other hand, if the work is done under a general employment, and is to be performed for a reasonable compensation, or for a stipulated price, the employer remains liable, because he retains the right and power of directing and controlling the time and manner of executing the work, or of refraining from doing it, if he deems it necessary or expedient. This distinction is recognized in the cases adjudged by this court. Sproul v. Hemmingway, 14 Pick. 1; Stone v. Codman, 15 Pick. 299; Hilliard v. Richardson, 3 Gray, 349; Linton v. Smith, 8 Gray, 147." In 2 Thomp. Neg. p. 909 et seq., we find the following: "In every case the decisive question is, had the defendant the right to control, in the given particular, the conduct of the person doing the wrong? On this question the

contract under which the work has been done must speak conclusively in every case, reference being had, of course, to surrounding circumstances. This being so, the mere fact that the agent who did the injury carried on a separate and independent employment will not absolve his principal from liability. Brackett v. Lubke, 4 Allen, 138; Sadler v. Henlock, 4 El. & Bl. 570. 'If such were the rule, a party would be exempt from responsibility even for the negligent acts of his domestic servants, such as his cook, coachman, or gardener.'" Section 35. "Perhaps the most usual test by which to determine whether the person doing the injury was a servant or an independent contractor is to consider whether he was working by the job or at stated wages,-so much per day, week, or month. Schuler v. Railroad Co., 38 Barb. 653. A person who works for wages, whose labor is directed and controlled by the employer, either in person or by an intermediate agent, is a servant, and the master must answer for the wrongs done by him in the course of his employment. A person who, for a stated sum, engages to perform a stated piece of labor in which he is skilled, the proprietor of the work leaving him to his own methods, is an independent contractor. The proprietor does not stand in the relation of superior to him, and is not answerable for the wrongs done by him or his servants in the prosecution of the work, unless special circumstances exist making him so. Morgan v. Bowman, 22 Mo. 538. The rule has been applied so as to exempt a railway company from liability for the negligence of a contractor who had engaged to do a piece of filling at twenty cents per yard, although the company furnished track, trestle, cars, mules, and drivers. Railroad Co. v. Grant, 46 Ga. 417. The fact that the employé was hired, not for a definite time, but to perform a particular job, does not, however, of itself negative the relation of master and servant, for under such a contract the employer may well retain full control over him; and it must be constantly borne in mind that the power to control, on the part of the employer, is the essential fact establishing the relation." Section 39. We also find it stated in Shearman & Redfield on Negligence (sections 76 and 77) as follows: "Although, in a general sense, every person who enters into a contract may be called a 'contractor,' yet that word, for want of a better one, has come to be used with special reference to a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons, without submitting himself to their control in respect to all the petty details of the work. It is not altogether easy to give an accurate definition of the word 'contractor' as it is used in the reports, and as we shall use it hereafter; but we think we have approximated to accuracy. The true test, as it seems to us, by which to determine whether one who renders service to another does so as

a contractor or not, is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished." Section 76. "One who has an independent business, and generally serves only in the capacity of a contractor, may abandon that character for a time, and become a mere servant or agent, and this, too, without doing work of a different nature from that to which he is accustomed. If he submits himself to the direction of his employer as to the details of the work, fulfilling his wishes not merely as to the result, but also as to all the means by which that result is to be attained, the contractor becomes a servant in respect to that work. And he may even be a contractor as to part of his service, and a servant as to a part. Whether he works as a contractor or as a servant is a question of mingled law and fact, which it is scarcely possible to decide by any fixed rule which will accurately govern those cases where the one occupation borders closely upon the other. In most instances the distinction is easily observed." Section 77. Applying the principles of the decisions to the facts of the case at bar, we canI not hold that Vaughn was an independent contractor.

The question raised by the appellant as to whether the railroad people could, under their charter, delegate the running of their cars to another, is not necessary to discuss, for the reason that we are of opinion that Vaughn was not in the relation of an independent contractor. Neither the franchise, the roadbed, nor the rolling stock were leased to Vaughn or given into his control. He was simply employed by the month to run a car one trip a day. We cannot understand that his position differed materially from that of a driver employed to drive a car 10 trips or 20 trips a day. All drivers are employed to perform certain services, and to some extent they perform them in their own way, as does one's cook, his gardener, or his coachman, as remarked in the case of Brackett v. Lubke, supra. Referring again to the rule as laid down in Bibb's Adm'r v. Railroad Co., supra, the respondent argues that Vaughn represented the will of his employer only as to the result of his work, and not as to the manner of 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 day by his own methods. But so it might be argued that one's coachman contracts to produce the result of conveying his master from his house to his office, or wherever he may wish to go; or one's cook contracts to produce the result of placing before his master his daily food. But such is not the sense in which the word "result" is used in the rule. We think the word "result," as so used, means a production or product of some sort, and not a service. One may contract to produce a house, a ship or a locomotive and such house,

or ship or locomotive produced is the "result." Such "results" produced are often, and probably generally, by independent contractors. But we do not think that plowing a field, mowing a lawn, driving a carriage or a horse car for one trip or for many trips a day is a "result" in the sense that the word is used in the rule. Such acts do not result in a product. They are simply a service.

In addition to these views mentioned, we have the fact in this case that the railway people did not part with the possession or the right of possession or control of the railway plant. It would perhaps be difficult to draw a clear distinction between the relations which Mr. Gregg held to the railway property and the drivers, and that of any person admittedly having supervision over them. No superintendent assumes control over every minute detail of an employe's work. In all work which demands sufficient intelligence to require a man instead of a machine, the man must be left to direct his own movements to some extent. But it is clear, from our review of Mr. Gregg's testimony, that he did not consider the driver of the car as the servant of a contractor independent of the railway people. See his testimony cited above. Mr. Gregg qualified his statement somewhat by an attempt to disclaim any supervision of the actual moving of the car, but we think that his testimony as a whole did not place Vaughn in the position of an independent contractor. After stating any rule which is to determine whether one is an independent contractor or a servant, it is very easy, by a little casuistry, to construe any person who performs a service to be an independent contractor. We have endeavored to point out such dangers. We think that the district court fell into just such a mistake. If Vaughn, in this case, is an independent contractor, a very few steps further in the same direction of construction would make all servants independent contractors. We are wholly satisfied that Vaughn was not an independent contractor, but, on the contrary, stood in the relation of an employé for wages of defendant in this case. The judgment is therefore reversed, and the case is remanded for a new trial. Reversed.

HUNT, J., concurs.

(16 Mont. 8)

ANACONDA MIN. CO. v. SAILE. Supreme Court of Montana. April 8, 1895.) JUDGMENT BY DEFAULT-VACATION - CONDITIONS. 1. Where defendant's attorney, relying on information received from the clerk that no business would be transacted by the court until after a certain date, gave no further attention to his demurrer then pending until such date, and it was overruled, and default entered, defendant's negligence was excusable, and the default properly opened.

2. In opening a default against a defendant upon the ground that his negligence was excusable, it was not error to refuse plaintiff's re

quest that, as a condition of opening the default, the defendant be denied the right to plead the statute of limitations.

Appeal from district court, Deer Lodge county; Theodore Brantley, Judge.

Action by the Anaconda Mining Company against Raimond Saile. From an order setting aside a judgment against defendant by default, plaintiff appeals. Affirmed.

The defendant's demurrer to the plaintiff's complaint was submitted to the court, and overruled October 8, 1892. Defendant was

granted 10 days to answer. No answer was filed. Default was entered October 20th, and judgment was rendered for plaintiff, November 26th. Defendant moved to set aside the judgment and the default. The motion was granted. Plaintiff appeals. The motion was on the ground of mistake, surprise, and excusable neglect. An answer was also tendered with the motion. Defendant's attorney, F. Adkinson, upon the motion, filed his affidavit, by which it appeared that on September 30, 1892, Attorney Adkinson went to the clerk's office in the town of Deer Lodge, where the court was held, at which time and place he ascertained that the demurrer was still pending, and the clerk informed him that no business would be transacted by the court until after the general election, which was to be held in November, and that he (the clerk) was then preparing notices to send to jurors that their attendance would not be required until November 14th. Said Attorney Adkinson, depending upon this information, did not then further appear in the case until after the default. In opposition to the motion, the clerk filed his affidavit, in which he admits that he stated to said Adkinson that there would be no business in said court until after November 14th. The clerk said that he did not state that there would be no motions or demurrers until after November 14th, and he did not intend or suppose that he was conveying the idea to Adkinson that no demurrers would be heard. With the motion defendant tendered an answer. The action was in the nature of ejectment. The answer denied the allegations of the complaint, and further pleaded the statute of limitations. The plaintiff requested that, if the default were opened, the court impose as a condition that the defendant be not allowed to plead the statute of limitations. The court refused to impose this condition, and opened the default generally, upon payment of the costs.

Geo. W. Winston, M. Kirkpatrick, and W. W. Dixon, for appellant. F. Adkinson and Brazelton & Scharnikow, for respondent.

DE WITT, J. (after stating the facts). We are of opinion that the district court did not err in holding that the negligence of defendant was excusable. The defendant allegesand it is not denied-that the clerk told him on September 30th that there would be no

business transacted by the court until November 14th. Hearing a demurrer was business of the court. The clerk modified his statement by saying, further, in his affidavit, that he did not intend to convey the idea that no demurrers would be heard. But the fact is that he said that no business would be done, and the idea certainly was conveyed to Mr. Adkinson that hearing demurrers was a part of the business which would not be transacted until after November 14th. Long prior to November 14th the demurrer was heard and overruled, and defendant's default entered. We think Adkinson was excusable in relying upon the information which the clerk gave him. The clerk was the ministerial officer of the court. We think that an attorney had perfect right to rely upon the statement of such a court officer that no business would be done until a certain time. It is not as if this information came from a sheriff, or a bailiff, or some attendant upon the court. The clerk had the records of the court, and knew its business. It is not, as suggested by appellant, as if the clerk had told an attorney that the court would take a certain action in a case, that he would overrule or sustain a demurrer, or do some other judicial act. Perhaps an attorney would not be excused in relying upon the statement of the clerk as to some judicial act which the court was to do, but be certainly was justified in relying upon the statement of the clerk simply that no business was to be transacted by the court. We do not think that an attorney could ordinarily be expected to go further, and inquire of the judge as to such a matter, which was surely reasonably within the knowledge of the clerk. This case is readily distinguishable from City of Helena v. Brulo (this term) 39 Pac. 456. In that case the attorney had no apology whatever for his negligence. He simply stated that he was not advised as to the ruling upon his demurrer. It did not appear that it was any one's duty to advise him.

It has been suggested in this case that defendant's attorney was inexcusably negligent, in that on the 30th of September he did not withdraw his demurrer, and file an answer, for the reason that it appears there was no merit to his demurrer. It is probably true that the demurrer was not well taken, for, if it had been, defendant would doubtless have appealed from the judgment entered after overruling his demurrer. But we cannot say that it was negligence not to withdraw the demurrer, and file an answer, on September 30th. It certainly is a practice not to be commended to file frivolous demurrers, but no penalty heretofore has ever been imposed by statute or by practice upon such action. We cannot say that, in consideration of the law and practice in that respect, it was negligence not to withdraw an unmeritorious demurrer, as long as the party had the right under the law to file it,

and have it remain on record until disposed of by an order of the court in the ordinary course of practice.

Again, it is urged that the court erred in opening the default without imposing the terms that the defendant should not be allowed to plead the statute of limitations. It is argued by appellant that, as the defendant is asking to be relieved from his own negligence, he should not be allowed to hold plaintiff to the results of its negligence by virtue of its not commencing its action within the period of the statute of limitations. But defendant's negligence, we have determined, was excusable, while as to whether the plaintiff's negligence in letting the statute of limitations run was excusable is not a question. The statute of limitations is a defense to which all men are entitled as a right. The views of courts, since statutes of limitation were first considered, have changed. Originally, it was regarded as a statute of repose, and not one of presumption. This view changed, and the statute was regarded as one of presumption, and not of repose. The views changed again, and

the modern doctrine is that it is a statute of repose. 3 Pars. Cont. c. 6. We quote from that chapter as follows: "And at length, through a series of decisions, going to show that the statute is intended for the relief and quiet of defendants, the law reached the conclusion justly and forcibly expressed by Mr. Justice Story in the case to which we have before referred. He says: 'I consider the. statute of limitations a highly beneficial statute, and entitled, as such, to receive, if not a liberal, at least a reasonable construction, in furtherance of its manifest object. It is a statute of repose, the object of which is to suppress fraudulent and stale claims from springing up at great distances of time, and surprising the parties or their representatives, when all the proper vouchers and evidence are lost, or the facts have become obscure from the lapse of time or the defective memory or death or removal of witnesses. The defense, therefore, which it puts forth, is an honorable defense, which does not seek to avoid the payment of just claims or demands, admitted now to be due, but which encounters, in the only practicable manner, such as are ancient and unacknowledged, and whatever may have been their original validity, such as are now beyond the power of the party to meet, with all the proper Vouchers and evidence to repel them. The natural presumption certainly is that claims which have been long neglected are unfounded, or, at least, are no longer subsisting demands. And this presumption the statute has erected into a positive bar. There is wisdom and policy in it, as it quickens the diligence of creditors, and guards innocent persons from being betrayed by their igno rance or their overconfidence in regard to transactions which have become dim by age. Yet I well remember the time when courts of

law exercised what I cannot but deem a most unseemly anxiety to suppress the defense; and when, to the reproach of the law, almost every effort of ingenuity was exhausted to catch up loose and inadvertent phrases from the careless lips of the supposed debtor, to construe them into admission of the debt. Happily, that period has passed away; and judges now confine themselves to the more appropriate duty of construing the statute, rather than devising means to evade its operation.' The respondent also cites the following cases, which are in point: Freem. Judgm. (4th Ed.) § 108, citing Ellinger's Appeal, 114 Pa. St. 505, 7 Atl. 180, and Mitchell v. Campbell, 14 Or. 454, 13 Pac. 190; Herman v. Rinker, 106 Pa. St. 121: Sossong v. Rosar, 112 Pa. St. 197, 3 Atl. 768; Gourlay v. Hutton, 10 Wend. 595.

We are therefore of opinion that the district court exercised a proper discretion in opening this default, and, it so being determined that the negligence of defendant was excusable, he had the right to interpose the defense of the statute of limitations, and the court did not err in refusing to impose the terms that he be not allowed to plead that defense. The judgment is affirmed.

PEMBERTON, C. J., and HUNT, J., con

cur.

(16 Mont. 14)

CABBAGE v. SCHULTZ. (Supreme Court of Montana. April 8, 1895.) APPEAL-REVIEW OF FINDINGS OF FACT.

A verdict in an action involving issues of fact only, upon which the evidence is conflicting, will not be disturbed on appeal.

Appeal from district court, Silver Bow county; J. J. McHatton, Judge.

Action by John Cabbage against Mary Schultz on an account for work and labor performed by plaintiff on defendant's mining claim, and for money expended at de fendant's request. From a judgment for Affirmed. plaintiff, defendant appeals.

F. T. McBride, for respondent.

PEMBERTON, C. J. This is an action on account, for work and labor done and performed by plaintiff on the mining claim of defendant, at her instance and request; for money expended at her request, and for her use and benefit; and for the amount of an account assigned to plaintiff, which it is alleged was due and owing from defendant to one James W. Cabbage. The answer of defendant denies all the allegations in the complaint. The case was tried by a jury, and a verdict rendered on the full amount of the account. Judgment was rendered in accordance with the verdict. The defendant filed her motion for a new trial, which was denied by the court. From the judgment and the order denying a new trial, defendant appeals.

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 sufficient 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.

(16 Mont. 1)

LOEBER v. BUTTE GENERAL ELECTRIC

CO.

(Supreme Court of Montana. April 8, 1895.) CITIES ERECTION OF ELECTRIC LIGHT POLESABUTTING 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 an unreasonable use of his easement in the alley, against which injunction would lie.

Appeal from district court, Silver Bow county; William O. 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 interfere 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

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 inconvenience, 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 council 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 sidewalk 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 areaway 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 hall, and become dangerous, and because such a position would bring the poles closer together than 90 feet, which is prevented by ordinance. The de