Volume 68 — Montana Reports

. Original application for writ of mandamus by the State, on the relation of Wellington D. Rankin, Attorney General, against Ed. J. Harrington, to compel respondent, as County Assessor of Silver Bow County, to assess for taxation certain shares of stoek owned by W. D. Thornton, intervener.

<p>Appeal from District Court, Lewis and Clark County; W. H. Poorman, Judge.</p> <p>Action by Mabel Himmelbauer against the United Bank and Trust Company and Ed. J. Majors, Sheriff. Judgment for defendants and plaintiff appeals.</p>

<p>Promissory Notes — Mortgages With Acceleration Clause of Due Date of Note — Comaker not Signing Mortgage — Premature Action on Note — Complaint—Insufficiency.</p> <p>Promissory Notes — Acceleration of Due Date Under Mortgage not Signed by Comaker — Premature Action.</p> <p>1. A husband and wife gave a bank their promissory note, and thereafter the husband, without the knowledge or consent of the wife, executed a chattel mortgage to secure it. Under the terms of the mortgage unsigned by the wife, the bank could upon the happening of certain conditions accelerate the due date of the note. This it did and after sale of the property brought suit against the makers for the deficiency. Held, that in the absence of an allegation that the wife was bound by the acceleration clause though she did not sign the mortgage because the giving of the note and the execution of the mortgage constituted one transaction the purpose of which she knew and consented to, the action was premature as to her.</p> <p>Pleading — Complaint—Essential Allegations.</p> <p>2. All elements essential to make out a cause of action must be alleged in the eomplaint.</p>

Felt, Judge. From a Decree settling the final account of E. W. Thomas, executor of the estate of Patrick Rodgers, deceased, William Rodgers and wife appeal. The trial court adopted the novel theory that an executor could use the trust funds for himself and for his own business if it was not shown he made a profit on the investment. Thomas violated the provisions of sections 7888 and 7889, Revised Codes of 1921, and should be required to pay interest.

Original application for writ of mandamus by the State, on the relation of W. L. Chileott, against the District Court of the Thirteenth Judicial District in and for the County of Carbon, and Robert S. Stong, a Judge thereof. California and Utah are the only states we have found that have the same provisions of the Code as has Montana, upon the question of security of costs by a nonresident plaintiff.

<p>Personal Injuries — Master and, Servant — Complaint — Sufficiency — General Demurrer — Technical Defects — Proximate Cause of Injury — Conflict in Evidence — Verdict Conclusive —Excessive Verdicts.</p> <p>Personal Injuries — Negligenee—Causal Connection — General Demurrer— Complaint — Sufficiency.</p> <p>1. Complaint in an action for personal injuries sustained by plaintiff in falling into an elevator shaft on his employer’s premises, alleging that the elevator was dangerous, that its doorway was left unguarded, that the eorner where it was located was dark, that there was no deviee or lock to keep it from creeping upward, thus leaving a dangerous opening between the bottom of the cage and the floor at which it was stopped, and that defendant was negligent in these particulars, was sufficient as against a general demurrer interposed on the ground that no causal connection between the injury and the negligence had been shown, it being reasonably inferable from the allegations that the injury would not have occurred but for the negligence alleged.</p> <p>Same — Notice of Defect in Appliance — Complaint—Sufficiency.</p> <p>2. In the absence of a demand for more specific information, the recital in the complaint that the elevator apparatus had been in substantially the same dangerous condition it was in at the time of the accident for more than ten years to defendant’s knowledge and that all the facts and conditions with relation thereto were or should have been known to him, was not open to the objection raised by general demurrer that it failed to state within what time the defendant knew or should have* known of the dangerous condition.</p> <p>Same — Complaint—Technical Defects — When Insufficient for Reversal of Judgment.</p> <p>3. Where defendant was not misled by any allegations or lack of allegations in the complaint but was fully prepared to defend the aetion upon the merits, the judgment in favor of plaintiff will not be reversed for mere technical defect in the pleading raised by general demurrer.</p> <p>Same — Conflict in Evidence — Verdict Conclusive.</p> <p>4. Where the evidence on every material point in a personal injury aetion was in conflict, the verdict will not be disturbed on appeal even if the appellate court upon an inspection of the record should he of opinion that the jury might well have found in favor of appellant.</p> <p>1. Private action for violation of statute as to guarding elevator shaft, see note in L. B>. A. 1915E, 541.</p> <p>Liability of master for injuries to servant due to insufficiently lighted shaft, see note in 30 Ann. Cas. 9.</p> <p>Same — When Defendant’s Negligence Proximate Cause of Injury.</p> <p>5. Where the primary cause of a personal injury was pure accident occasioned without the fault of the injured party, and the accident would not have occurred hut for the negligent act of defendant, his negligence is the proximate cause of the accident for which plaintiff may recover damages.</p> <p>-Same — Verdict Held not Excessive.</p> <p>6. Seld, that a verdict for $5,000 awarded to plaintiff, a man twenty-two years of age at the time of the accident, who for a period of about twenty-seven months prior thereto had been employed as a miner or laborer earning man’s wages, whose right wrist, hand and fingers were permanently weakened, impairing his earning capacity, and who had been otherwise injured, had lost employment for a number of months, etc., was not excessive.</p> <p>6. Excessiveness of verdicts in actions for personal injuries other than death, see notes in Ann. Cas. 1915D, 488; Aim. Cas. 1916C, 916; L. E. A. 1916F, 30.</p>

<p>Master md Servant — Contract of Employment — Breach—Evidence — Sufficiency—General Verdict — Effeót.</p> <p>Master and Servant — Breach of Contract of Employment — Hiring for Y ear — Evidence—Sufficiency.</p> <p>1. In an action for breach of eontraet of employment, evidence held to show that the employment was for one year and not from month to month, and that defendant was not justified in discharging plaintiff at the end of six months because of alleged inefficiency in his work as a farm laborer.</p> <p>1. Bight of master to discharge servant under contract for definite period providing services are satisfactory, see notes in 11 Aim. Cas. 840; Ann. Cas. 191-5A, 749.</p> <p>Same — Work “the Tear Round” — Uncertainty of Meaning — Burden of Removing Uncertainty on Party Causing It.</p> <p>2. Where defendant in offering employment to plaintiff by letter and subsequently in employing him stated orally that he would give him work “the year round” at a compensation of $75 a month, the burden of removing any uncertainty as to the meaning of the term “the year round” was upon defendant as the party who by its use caused the uncertainty to exist, and his failure to do so warranted the jury in finding that the employment was to be from the beginning to the end of the contract year.</p> <p>Trial — General Verdict- — Effeet.</p> <p>3. A general verdict is a finding in favor of the prevailing party upon all the issues presented.</p> <p>Master and Servant — General Verdict for Plaintiff — When Verdict not Contrary to Law.</p> <p>4. Where plaintiff in an action for breach of contract of employment had pleaded that he was ready, able and willing to perform his part of the contract, and the jury by its general verdict impliedly found that his work was satisfactory, the verdict was not contrary to the law as declared in the court’s instructions to the effect that defendant employer would be justified in dismissing him in ease of his habitual neglect of duty, continued incapacity to perform it, etc.</p>

<p>Injunction — Cities and Towns — Special Improvements — Protests — Sufficiency — Plow Determined — Powers of. Council— Discretion — Burden of Proof.</p> <p>Cities and Towns — Special Improvements — Protests—City Owned Property to be Considered in Determining Sufficiency.</p> <p>1. In determining whether forty per eent of the owners of property affeeted by a proposed special improvement have filed protests against it, the city or town council is authorized by section 5229, Revised Codes of 1921, as amended by Chapter 135, Laws of 1923, to take into consideration property owned by it and included in the district, such property being subject to assessment therefor the same as privately owned property.</p> <p>1. Liability of municipal property to special assessment, see notes in 16 Ann. Cas. 888; Ann. Cas. 1917D, 849.</p> <p>Same — Protests—Sufficiency—What Property Council may Take into Consideration.</p> <p>2. Where a railway company had conveyed to a city a strip of land for park purposes under an agreement with the city that the company in consideration of the conveyance should be released from payment of special improvement taxes upon another tract owned by it fronting an unimproved street and included in a proposed district, the city council properly considered such property in determining whether sufficient protests had been filed to defeat the improvement, the city being liable under the contract for assessments levied against the property, and therefore the contention that, it being relieved from payment of assessments, the tract should not have been considered has no merit.</p> <p>Same — Boundaries of Improvement District — Powers of Council.</p> <p>3. Under section 5227, Revised Codes of 1921, a city has the power to fix the boundary of a special improvement district at any distance from the front line of a street and is not required to include the whole platted area of each lot.</p> <p>Same — Special Benefits to Lots' — When Determination by Council conclusive — ¡When not.</p> <p>4. Whether the construction of a special improvement will result in special benefit to the various lots and parcels of land embraced in the district is primarily a question for determination by the city council with which courts will not interfere except upon the ground of fraud or such manifest abuse of discretion as amounts to arbitrary action.</p> <p>Same — Creation of District — What not Abuse of Discretion.</p> <p>5. In an action to set aside the proceedings of a city council had in the creation of a special street improvement district and to enjoin the carrying out of a paving contract entered into, on the grounds that the city had joined in one district property abutting on several streets, that the character of work to be done on one street was different from that to be done on others, and that property on several streets would not be benefited by the paving on another, proceedings reviewed and held, under the above rule and in view of the power lodged in the city council by section 5227 to include in one district and in one contract any number of streets, any kind of work, etc., that the council did not abuse its discretion.</p> <p>Same — Construction of Pavement — Benefit to Lots on Connecting Street.</p> <p>6. Since the value and benefit of a street pavement depend upon its extent, the paving of a street crossing the main street of a city may be of special benefit to lots along the latter street included in the same improvement district and in the same contract providing for the paving of the former and the resurfacing of the latter.</p> <p>2. Assessment of railroad right of way for street improvements, see notes in 2 Ann. Cas. 587; 12- Ann. Cas. 635; Ann. Cas. 1916E, 597.</p> <p>3. Right to subdivide private owner’s land for purpose of assessment for public improvements, see note in 23 L. R. A. (n. s.) 405.</p> <p>6. Assessment of cost of improving street intersection, see note in 21 Ann. Cas. 635.</p> <p>Same — Special Improvements — Injunction—Burden of Proof.</p> <p>7. A party seeking to enjoin the city council from proceeding under a contract for the construction of a special improvement has the burden of showing that the council in creating the district and proceeding to have the work done exceeded its authority or acted in an arbitrary manner.</p>

E. Comer, Judge. Proceeding by tbe State, on the relation of Wellington D. Rankin, Attorney General, against Frank H. Martin to declare the forfeiture of a ferry franchise. Judgment for plaintiff and defendant appeals.

C. Spencer, Judge. Action by John Fox against Carrie Hacker, individually and as administratrix of the estate of F. T. Hacker, deceased. Judgment for defendants and plaintiff appeals.

Jackson, Judge. Action by the State against 0. Rouleau and John Turner and certain intoxicating liquors. Judgment for defendants and plaintiff appeals. Where an officer acts under a naked statutory power with a view to divest, upon certain contingencies the title or right of a citizen, the regularity of the proceedings will not be presumed, but it is incumbent upon the person claiming by virtue of them to show that every preliminary step required by law has been taken. .

<p> Appeal from District Court, Fergus County; Rudolf Von Tobel, Judge. </p> <p>Action by the Midland National Bank of Minneapolis against T. E. Hegna. Judgment for plaintiff and defendant appeals.</p>

Action by Elsie Burnett against W. C. Burnett. Judgment for plaintiff and defendant. appeals.