Fearon v. Mullins

• Decision Date: 20 February 1907
• Parties: FEARON v. MULLINS.
• Court: Montana Supreme Court

88 P. 794

35 Mont. 232

FEARON v. MULLINS.

Supreme Court of Montana

February 20, 1907

Appeal from District Court, Silver Bow County; Jno. B. McClernan Judge.

Action by Sarah Fearon against Patrick Mullins. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

John F Davies, for appellant.

Mackel & Meyer, for respondent.

BRANTLY C.J.

The plaintiff brought this action to recover a judgment for damages for a personal injury alleged to have been caused by the negligence of the defendant. The complaint, after alleging that defendant is the owner and occupant of a residence known as No. 623 West Granite street, in the city of Butte, proceeds: "That on or about the 29th day of August, A. D. 1904, plaintiff was employed by the defendant as a domestic, and during said time worked in and about the said hereinbefore mentioned premises, and that it then and there became and was the duty of the defendant to furnish the plaintiff a reasonably safe place in which to work. That the defendant negligently and carelessly failed and neglected to furnish the plaintiff with a reasonably safe place in which to work, and that the facts with reference thereto are as follows: That at the rear of said house and on the porch thereof, there is a large opening in the said porch, and that below said opening there is an excavation many feet deep, to wit, over six (6) feet deep. That on or about the 29th day of August, A. D. 1904, the defendant covered, and permitted the said opening to be covered, with a number of light boards and other matter so that the said opening could not be seen by the plaintiff. That the plaintiff did not, and could not know that the said opening was at the said place, but that the defendant then and there knew that the said opening was there. That the plaintiff, acting under the orders and direction of the defendant, while performing the duties required of her, went upon the said rear porch and stepped upon the said light boards and other matter covering the said opening, and that the said boards and other matter gave way and the plaintiff was violently thrown down upon the said floor. That as a result of being so violently hurled to the floor and coming violently in contact with the said floor plaintiff received a severe strain to her spine, and received a number of severe wounds and bruises on her body, and also sustained a displacement of her womb. That, as a result of the displacement of her womb, severe inflammation and excessive hemorrhages resulted; that the plaintiff was greatly weakened in body, and, because of the said injuries, was compelled to, and did, undergo an operation known as the 'curettement."' Then follow allegations setting forth the extent of plaintiff's suffering, her consequent permanent disability, and the expense incurred in procuring medical treatment. Judgment is demanded for $7,250. The answer admits the employment as alleged, but denies generally all the other allegations of the complaint. The jury found for the plaintiff. The defendant has appealed from the judgment and an order denying his motion for a new trial.

1. The first contention made by appellant is that the complaint does not state facts sufficient to constitute a cause of action. It is said that it does not state sufficient to show that the relation of master and servant existed between the parties, or that the plaintiff, at the time of her injury, was acting within the scope of her employment, or that the defendant knew, or should have known, of the dangerous condition of the ventilator, and failed to exercise ordinary care to make it safe.

As to the first two of these objections it is sufficient to say that it appears with reasonable clearness and certainty, not only that the plaintiff was in the employ of the defendant at the time of the injury as a domestic servant, but that she was, under his direction, engaged in the performance of her duties as such. To be sure, the allegation as to the particular work she was then doing...