Walter v. Mitchell

• Citation: 65 P. 5,25 Mont. 385
• Parties: WALTER v. MITCHELL.
• Decision Date: 03 May 1901
• Court: United States State Supreme Court of Montana

65 P. 5

25 Mont. 385

WALTER v. MITCHELL.

Supreme Court of Montana

May 3, 1901

Appeal from district court, Deer Lodge county; Theo. Brantly, Judge.

Action by Martha Walter against A. H. Mitchell for negligently causing the death of her husband. Judgment for defendant. Plaintiff appeals. Affirmed.

Rodgers & Rodgers, for appellant.

T. J Walsh, Wm. H. De Witt, and Ed. Scharnikow, for respondent.

MILBURN J.

This cause is an appeal from a judgment, and heard on motion to dismiss on the ground that the action has abated by reason of the death of the defendant. The case came before the district court on demurrer to the amended complaint on the ground of want of substance. The demurrer was sustained, and plaintiff abided her complaint. Judgment was thereupon rendered for the defendant. Since the appeal the defendant has died and his executrix has been substituted. We shall not consider the motion to dismiss. It is apparent that the court was right in its ruling on the demurrer, and the judgment must be sustained.

Several reasons are set forth by defendant's counsel why the complaint does not state a cause of action. It will be sufficient to pass upon one ground only. It is attempted to charge the defendant with responsibility for the death of the husband of plaintiff; the law invoked being section 579 of the Code of Civil Procedure: "When the death of one person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or, if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section such damages may be given as under all the circumstances of the case may be just." It is averred in the plaintiff's pleading that defendant, being charged by the terms of his contract with the state of Montana with the duty of keeping, caring for, maintaining properly treating, and restraining at the insane asylum at Warm Springs, Mont., all persons adjudged insane within the state, one James Roads was, on the 19th day of March, 1896 while the defendant was charged with the duty aforesaid, "an insane person, and so insane and deranged in mind as to be dangerous to life, persons, and property, and was on said day so declared by a court of competent jurisdiction within the state of Montana to be an insane person, and sufficiently deranged in his mind to endanger life, person, and property, and was duly committed to the said insane asylum at Warm Springs, in the county of Deer Lodge, state of Montana, and was so an inmate thereof at the time said Mitchell and Mussigbrod undertook and entered into said contract, and was committed and came into their hands as an insane person, and under their contract they undertook to keep, provide for, maintain, and restrain said Roads at said insane asylum at Warm Springs, county of Deer Lodge, state of Montana."

To establish, prima facie, the duty of the defendant to keep the alleged insane person in his custody, and not to permit him to be at large, it was necessary to allege, or state facts to show, that the insane person was turned over to the defendant under a commitment such as the law required, from a competent tribunal, stating the name and style of the court, and that the person had been found...