Ball v. Gussenhoven
| Decision Date | 06 January 1904 |
| Citation | 74 P. 871,29 Mont. 321 |
| Parties | BALL v. GUSSENHOVEN. |
| Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District Court, Choteau County; Jno. W Tattan, Judge.
Action by Jessie Ball against Joseph Gussenhoven. From a judgment for plaintiff, defendant appeals. Affirmed.
Geo. H Stanton, for appellant.
J. N Booth and H. S. Greene, for respondent.
This was an action brought by plaintiff to recover damages against defendant for a personal injury. The defendant was the proprietor of a steam laundry, and plaintiff was employed therein. Her hand was injured by being caught between the rollers of a mangle or ironing machine used in the laundry, at which she was put to work by defendant's foreman. The negligence upon which the recovery is sought is a failure on the part of defendant to provide plaintiff with reasonably safe machinery to work upon and to maintain it in a reasonably safe condition. In the answer defendant admits that plaintiff was in his employ, and sustained injury to one of her hands by being caught in the mangle; then denies any negligence on the part of defendant as alleged, and alleges that the plaintiff was guilty of contributory negligence. The replication denies all the new matter set forth in the answer. The case came on for hearing before the court and a jury, and the defendant immediately objected to the introduction of any evidence on the part of the plaintiff on the ground "that the complaint fails to state facts sufficient in law to entitle the plaintiff to the relief sought, and does not state facts sufficient to constitute a cause of action." This objection was overruled, and the defendant reserved an exception. Immediately after the close of plaintiff's evidence counsel for defendant moved for a nonsuit, which was overruled, and to which defendant also saved exception. Defendant then introduced his proof, and at the close of all the testimony moved the court to direct the jury to return a verdict for defendant, which motion was also overruled, and defendant excepted. The case was given to the jury, which returned a general verdict in favor of plaintiff for the sum of $2,000. In addition to the general verdict, there were 10 special findings submitted to the jury by defendant, all of which were found in favor of plaintiff and against the defendant.
The defendant gave notice of intention to move for a new trial, settled a bill of exceptions, and on the 29th day of June, 1901, filed a stipulation signed by the attorneys for the respective parties, which was in the following language: So far as disclosed by the record on this appeal, no motion for a new trial was ever made, and the appeal before the court is from the judgment.
The question as to whether a bill of exceptions settled for use on the hearing of motion for a new trial can be considered by this court on an appeal from a judgment when no motion for a new trial has been made in the court below, and no decision thereon is appealed from, has not been presented in this appeal, and therefore it is not considered or decided. This court is left somewhat in doubt as to the actual position of appellant's counsel on the questions of assumed risk and contributory negligence of the plaintiff. In the brief filed counsel makes the assertion that the case is to be tested by the question as to whether or not plaintiff assumed the risks of the employment, and states that the question of contributory negligence is not in the case. Upon his oral argument to the court he announced that the above statement contained in his brief was not correct, and that he did rely on the contributory negligence of the plaintiff, and the first point he argued to the court was that the complaint in the case did not state facts sufficient to constitute a cause of action, because it contained no allegation negativing the existence of contributory negligence. The defenses of contributory negligence and assumption of risk are entirely inconsistent with each other, and do not rest upon the same principles; and the existence of one necessarily excludes the existence of the other. 1 Bailey, M. & S. § 938 et seq.; Miner v. Connecticut River R. R. Co., 153 Mass. 398-403, 26 N.E. 994; Texas P. Ry. v. Bryant (Tex. Civ. App.) 27 S.W. 825; Mundle v. Manufacturing Co., 86 Me. 400, 30 A. 16. If the defense of the assumption of risk is maintained, the question of the existence of contributory negligence does not arise, because, if plaintiff assumed the risks of the employment, he cannot recover, even if he exercised the highest degree of care. We recognize the rule that a defendant is entitled to plead in the same answer as many defenses as he may wish to present, even though they are inconsistent with each other, and is entitled to present and rely upon any of such defenses upon the trial of the case; subject, however, to proper instructions to the jury as to their proper effect in each case. We do not wish to be understood as deciding whether the defense of the assumption of risk must be pleaded specially, as such question is not involved in this case; this defense being pleaded, These questions, however, are not material to this case, as both the defenses of contributory negligence and assumption of risk were pleaded, presented to the jury, and found against the appellant.
1. The first question raised by the appellant is that the complaint does not state facts sufficient to constitute a cause of action, in that it does not allege that the plaintiff acted with due and ordinary care in the operation of the mangle by which she was injured; in other words, that the complaint does not negative the existence of contributory negligence. This question, we think, is answered by this court in the case of Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 P. 852. Mr. Justice Piggott, speaking for the court, said: . It cannot be said that this complaint "showed the proximate (or a proximate) cause of the injury to have been the act of plaintiff." The existence of contributory negligence is a matter of defense, and the appellant in this case must have so understood it, because he alleged in his answer that the plaintiff was guilty of contributory negligence. This question was tried, and the jury, upon a submission by defendant of a request for a special finding thereon, found that the plaintiff could not have avoided the injury which she sustained by the use of ordinary care. No other objection is made to the sufficiency of the complaint, and, it having been treated as otherwise sufficient upon the trial, this court will so consider it upon this appeal.
2. The appeal was taken from the judgment alone, and no motion for a new trial was ever heard, although the record discloses that notice of intention to move for a new trial was given, and that the bill of exceptions (which is brought up with the judgment roll) was settled for the plaintiff's presentation to the court below on the motion for a new trial. This is shown by the stipulation found in the record hereinabove recited. In assignment of error No. 11 appellant insists that the evidence is insufficient to justify the verdict in certain particulars. The respondent insists that the appellant cannot raise this question on an appeal from the judgment, but that such question must be presented to the court below on motion for a new trial. It therefore becomes necessary to determine whether this question can be raised upon an appeal from a judgment when a bill of exceptions setting forth all the evidence and containing specifications of the insufficiency of the evidence to support the verdict is a part of the record on appeal. Appellant relies on the case of Emerson v. Eldorado...
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