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error. After finding that on the 29th of No, do not find it necessary to determine. The vember, 1890, the stock of the defendants error of the court in regard to the legal was sold and passed to the company, and status of the parties and property is sufdefendants ceased to be stockholders, it ficient to warrant a reversal. The judgment found that there was but one ditch, and that of the court will be reversed, and cause re defendants, by reason of their ownership manded for a new trial upon the basis abore in the original ditch, were liable to assess- indicated. ment to keep the whole system in repair. As a physical fact, there was but one ditch; legally, there were two,-two distinct legal entities, that had never merged or become STATE ex rel. BYWATER . COOK, State identical. See Nichols V. McIntosh, (Colo.

Auditor. Sup.) 34 Pac. Rep. 278. By the decree of (Supreme Court of Montana. Nov. 27, 1893) the district court establishing priorities from WARRANT ON REWARD FUND-CLOSE OF FISCAL Kannah creek, it was declared that the

YEAR-EFFECT. Brown & Campion ditch was entitled to

Where, during a certain fiscal year, the priorities Nos. 5 and 8; that priority No. governor offers a reward for the arrest and 5 belonged to Joseph Simineo, Dennis Sulli

conviction of certain criminals, and thes are

arrested during such year, but not coprica van, John J. McKay, and Daniel W. Col.

till the following year, after the unused funds lard, and was in quantity 8.6 cubic feet of appropriated for rewards for such prerions water per second; and that priority No. 8 be- year have been transferred by the state tra

urer to the general fund, as required by law, longed to defendant in error and other par

the state auditor cannot be compelled to issue ties, naming them, having a subsequent a warrant, in favor of the person entitled to right to 22 feet per second. No action was such reward, on the fund appropriated for re taken consolidating the interests; both re

wards for such previous year. mained separate and distinct, and, as far Application on the relation of Stephen Bs. as priority was concerned, the new ditch water for a writ of mandate to compel A. was subservient, being able to take water B. Cook, state auditor, to issue to relator a only in excess of the prior appropriation. warrant for the amount of a reward ofIf there was but one ditch, I am at a loss fered by the governor for the arrest and to know why it should be the second, in- conviction of certain criminals. Writ de stead of the first, and by what process the nied. original became absorbed in the second, and

Ella L. Knowles, for relator. Ales. C. lost its identity. The statute provides that Botkin, for respondent. to prevent multiplicity of ditches, when practicable, water shall be carried in a for

PEMBERTON, C. J. The affidavit in this mer ditch. This was done here. Repairs

case states that on the 29th day of Novelliupon the new ditch from the terminus of

ber, 1892, the passenger train of the Great the old were no more legally chargeable to

Northern Railway Company was stoppei. the other proprietors than the putting in

and held up, and the express and baggage and harvesting a crop. The keeping the car attached to said train was robbed of head gate and ditch to its original terminus

valuable goods, etc., by three masked men, in repair was the duty of both sets of own

near Malta, in this state; that on the 3ith ers, the expense to be adjusted upon an

day of November, 1893, Hon. J. K. Toole, equitable basis. Beyond this the first pro

the then governor of the state, by proclamaprietors had no interest and owed no duty.

tion of that date, published and offered a The error of the court was in not regarding

reward of $500 for the apprehension and de the enterprises as two separate and distinct livery to the sheriff of Dawson county of the legal entities, with only an interest in com

person or persons guilty of said offense; that mon to the extent of the original ditch for

on the 1st day of December, 1892, affiant purposes of repair. The right to levy as

procured the arrest of one of the parties sessments by the defendant in error could

guilty of said offense, and after that day only, if at all, be legally predicated upon one other of said parties; that said guilty ownership of stock. When plaintiffs, by act parties were thereafter duly convicted of of the company, ceased to be stockholders,

said offense, and sentenced to the peniten. neither they nor their associates in the orig- tiary of the state; that the legislature bad inal ditch, by reason of such ownership, could theretofore appropriated the sum of $2.000 in any way be made liable for repairs be- for each of the fiscal years ending, respeo yond the limits of the ditch as originally tively, on the 1st day of December, 1891, and constructed. If plaintiffs and associates fail- the 1st day of December, 1892, for rewards; ed to contribute their proper proportion to that there were in the hands of the state maintain the ditch from the head to the treasurer on the 1st day of December, 1892, original terminus, no doubt an action for $2,000, subject to the payment of said re contribution would lie. Beyond that they ward offered by the governor; that in the owe no duty, legal or equitable. Several months of December, 1892. and January, errors are assigned and are discussed in 1893, the state board of examiners notified briefs and arguments of counsel which we the state auditor and state treasurer of the

existence of this claim; that on the 7th day viction of these parties might not have been of January, 1893, this afflant presented his secured for five or ten years. In such case, claim for said reward to the state board of could this reward be held to be a demand examiners, and demanded the payment against the reward fund for the year 1892, thereof; that subsequently thereto the state and the auditor be required to draw his treasurer transferred the whole of the ap- warrant on that fund for that year, merely propriation for rewards for said year into because a reward was offered in that year? ti general fund of the state; that on the We think not. We think this case very 22d day of June, 1893, the state board of different from a case where a specific approexaminers, upon proper proofs and showing, priation has been made for a certain year allowed and approved of said claim of said for the erection of a state building, and such affiant for said reward, in the sum of $500, building has not been completed within the and ordered the same paid out of the ap- fiscal year for which the fund has been appropriation for rewards for the year 1892; propriated. In such case, we think the fund that on the same day the state board of has been, in contemplation of law, put to use, examiners notified the state treasurer, in or virtually expended, when the authorized writing, to transfer to the fund designated state agents have contracted for the conas rewards the sum of $500, out of any money struction of such building, although said in the treasury not otherwise set apart, to state agents may in fact hold the fund apthe credit of the reward fund, for the pur- propriated, or a part thereof, in the hands pose of paying this claim; that the respond- of the treasurer, to secure the fulfillment of ent is the auditor of the state; that on said the contract for the erection and completion 22d day of June, 1893, this claim was duly of the same. We see no good grounds for presented to said auditor, who refused to the alarm expressed by counsel in this draw his warrant therefor, but returned it case as to the effect the holding in this case indorsed, “Returned. No funds. A. B. Cook, will or may have on the unexpended funds of State Auditor;" that said auditor still re- any specific appropriation remaining in the fuses to draw said warrant; that there is treasury at the expiration of any fiscal year. now in the hands of the state treasurer the It will be time enough to determine the fate of sum of $500 to pay said reward.

these appropriations when an occasion shall From the foregoing statement, it will be arise for so doing. The writ of mandate is seen that the relator seeks to compel the denied. state auditor, by writ of mandate, to issue his warrant on the fund appropriated for HARWOOD and DE WITT, JJ., concur. rewards for the fiscal year 1892 for the payment of this claim. From the affidavit in this case, it appears that when the fiscal year of 1892 expired the affiant had no legal de

WATTS v. HART, mand against the state. No liability on the (Supreme Court of Washington. Nov. 15, part of the state accrued to pay this reward

1893.) until after the conviction of the parties for

Dissenting opinion. For report of mawhose apprehension and delivery to the au

jority opinion, see 34 Pac. Rep. 423. thorities the reward was offered. Section 287, div. 4, Comp. St. 1887. It appears from DUNBAR, C. J. I dissent. In my judgthe affidavit herein that such conviction was

ment, there is no question of fellow servant not had until after the expiration of the fis

in this case. The appellant was all the time cal year 1892. The affiant's claim was not

working under the direction of a superior allowed by the state board of examiners

whose directions it was his primary duty until the 22d day of June, 1893. At that

to obey, and on whose judgment he had a time the reward fund for the year 1892 had

right to rely, in the absence, of course, of been transferred to the general or unused

apparent danger. Smith, the foreman, who fund by the state treasurer, as required by

was certainly the alter ego of the lumber law. We think this was not a claim charge

company, placed him at the disposal of Kel. able to the reward fund appropriated for the ly, and Kelly eventually sent him to work year 1892, which expired on the 1st day of under the direction of the engineer. He December of that year, and therefore are of could not presume to direct the engineer, the opinion that the auditor cannot be legally but the engineer did presume to, and had required to draw his warrant on said fund undoubted authority to, direct him; and, in for the year 1892. When the fiscal year obeying such direction or instruction, be 1892 expired, the relator had only a contin- was injured. His primary duty was to obey, gent or conditional demand upon the state and, in the absence of any apparent danfor this reward. His claim depended upon ger, his absolute duty was to obey. The only the apprehension and conviction of the par- question then, is, was the company, through ties guilty of the crime for which the reward this engineer, guilty of negligence in movwas offered. These conditions were not ful- ing the cars in the way in which it did filled and complied with until after the ex- inove them? It was clearly proven that the piration of the fiscal year 1892. The con- method adopted, of moving the cars with a

stick, is a dangerous one, but the majority in which the work should be done, and cosay that the men engaged in moving the car sequently could not realize the danger de were not compelled to adopt the method pro their employment or guard against it, and vided. But I insist that the appellant was that the forem:in in charge was equally incompelled to obey orders, or lose his em- competent and ignorant, conclusively estab ployment, and his orders came from the lished the grossest kind of negligence. It agent of the company accredited with the was the imperative duty of the company to authority to exercise his judgment as to the have some one in command of that work manner of moving the cars. It is true, as who did understand it. Had it done so, tti the majority say, that it was simply a mat- accident, in all probability, would have been ter of choice which was the better or safer averted. There is no showing, whaterer, method to pursue; but the choice was to be any contributory negligence on the part of made solely by the engineer under whose the appellant, and the judgment, in any instructions this appellant was working. opinion, should be reversed, and the jury be It was the engineer who decided upon allowed to assess the damages. the method, and who selected the mate rial for putting the method into practice, and who directed the appellant to use that particular material. The case of Sayward v.

MORGAN et al. v. CARBON HILL COAL Carlson, 1 Wash. St. 38, 23 Pac. Rep. 830,

CO. is cited as sustaining the theory that appellant should be bound by the action of the

(Supreme Court of Washington. Nov. 13

1893.) engineer, as the acts of a fellow servant. In my judgment, they are not by any means

Dissenting opinion. For report of major parallel cases, as there was no question of ity opinion, see 34 Pac. Rep. 152. authority in that case. I did not sit in the case of Sayward v. Carlson, but, from an DUNBAR, C. J. I dissent. I think, b examination of it since, I cannot Indorse it, the first place, that the negligence of the for, while the general argument is good, the respondent was clearly proven. Not galt conclusion announced is not, in my judgment, the statutory law, but the common law al a logical deduction. It will not do to allow the law of common justice, imposed una the master to escape responsibility by the the respondent the duty of protecting is assertion made in the majority opinion that, employes from any danger which prudeox “there is no evidence showing that the re- could prevent. The testimony shows that tte spondent, Hart, gave any direction or au- ventilating fan which forced the air into the thority to the appellant to assist in moving | mine, and which air found egress by p. the cars, or th:t he knew that he would through a gangway, had not been opent be so employed." The appellant went from from Saturday evening until Sunday nidt. one place to another, each time under the immediately preceding the explosion Voedirection of some one who had authority to day morning. It is clear, to my mind, tha: send him; and under the system which Hart if this fan had been kept in constant opet had adopted, and which is necessary for the tion, the gangway in which the plaiatt successful and orderly operation of a large stood at the time of the accident a business, with a varied class of employment, have been clear of gas, and the esplosios he was practically sent to move the cars by could not have occurred. The duty of the Hart, as much as though he had personally company, did not end with operating this directed him to go. The establishment of fan six days in the week; its duty must any other rule would render it practically operate it as long as it was necessary to impossible for the servant, in employment of properly ventilate the mine. There is this kind, to fasten the responsibility of his weak attempt to make it appear that it to employment upon the master. In any event, necessary to stop the fan one day out of the pertinent fact is that the appellant was seven for repairs, but the testimony ghee actually there at the time, working under lutely fails on this point, and would ex the direction of the engineer; that he ac- amount to a defense if it were true; ft. cepted his services; and that appellant was if it becomes necessary to stop a fan for injured while performing such services; and, 24 hours for repairs, the work must stro if nothing more, it was an employment at until such repairs are made, and the ne that time. But, says the majority, “the evi. again made safe for occupancy by the pas dence discloses that, at the time appellant

The mine must be kept ventilated was injured, none of the men there, includ- all hazards. I do not mean, of course, tai ing the foreman in charge, knew anything the mine owners are absolute insurers at about the business of 'staking' cars.” This that they should be held responsible for : announcement, it seems to me, very nearly avoidable accidents, which no human approaches a confession of judgment. The dom can perceive, or for accidents vs very fact that the company would place the highest degree of human skilled meu to work, in a concededly dangerous em- caution cannot avert; but I do say that the ployment, who had no knowledge of the way commodity of simple convenience or edo

ers.

1

ness.

tional gain or profits must not be put in and skill with which each other shall perthe scale to weigh against the safety, health, form his appropriate duty, each is an obor lives of the operators.

server of the conduct of the others, can give It is a well-established principle of law, notice of any misconduct, incapacity, or negbased on plain common sense, that the care lect of duty, and leave the service if the demanded of the employer must be ade common employer will not take such precauquate to the nature of the business and the tions, and employ such agents, as the safety employment; the more dangerous the em- of the whole party may require. By these ployment, the greater the degree of care de- means the safety of each will be much more manded. It needs no testimony to bring the effectually secured than could be done by fact to the attention of the court that coal a resort to the common employer for an mining is an exceedingly dangerous busi- indemnity in case of loss by the negligence

It is a matter of common knowledge, of each other." The reasons given here, it forced upon the mind of every person of seems to me, would apply equally as well ordinary intelligence by the too frequent oc- to any other risk. The employe could as currence of appalling disasters, so horrible well leave the employment in any case in their details, and so direful in their ef- where, in his judgment, the employer did fects, that their mere contemplation, even not take such precautions as the safety of by strangers, who are not directly affected, all parties required. The trouble with this is sickening in the extreme. In a business, doctrine is that it does not take into considthen, where such results are possible, the eration the very essential and controlling very highest degree of care must be expected, | fact that the workman is made responsible and every means and every precaution look- for the conduct of a person whom he does ing towards the prevention of these disas. not employ, and over whom he can exerters must be rigidly employed. The legisla- cise no authority or control whatever. He ture, not only of this state, but of nearly can neither employ, discharge, nor direct. All every state in the Union where coal mines that is left for him, according to the docare operated, has taken legislative notice trine of the learned judge, is to become a of the extraordinary perils and dangers inci- spy upon the actions of his fellow servant, dent to this character of business, and have and reporter of his delinquencies; and in passed the most stringent laws for the pro 99 cases out of 100 he knows nothing about tection of the lives of the operators, and the the neglect of his colaborer until the acci. courts ought not to relax the rule prescribed dent has occurred, and it is too late to comby the legislative department. It also ap- plain. On the other hand, every established pears plainly to me that Jones, the fire boss, principle of agency enters into the relation was guilty of gross negligence in not test- between the master and the servant whose ing the gangway before he opened his lamp neglect precipitates the accident, and is the which caused the explosion. It cannot but cause of the damage. In the first place, the be admitted in this case that Jones was service is rendered for the benefit of the negligent; but the defense is that he was a master. He is the recipient of the profits fellow servant of Morgan's, and therefore accruing from such service. He employs the the company is not responsible for his negli. servant, and pays him for the service rengence. This doctrine of "fellow servants" dered. He can discharge him at will. He has, in my humble judgment, been carried can advise, direct, and absolutely control to a ridiculous extreme by the courts, and him in the performance of his duty. It is they have been too quick to aid employers | he who examines the servant when he apin escaping from responsibilities which every plies for the position, and he alone who has principle of justice demands they should the opportunity or right to inquire into or respond to. This rule is a modern one in pass upon his qualifications. Surely, if the our jurisprudence, and is founded on the rule were founded, as it should be, on the theory that the employe takes the risk of expediency of placing the risk upon the the negligence of his fellow servant when party who can best guard against it, it takes be accepts the employment; but why he but a limited intelligence to discern the fact should be supposed to have contracted with that the master is the directing mind who reference to the acceptance of this risk any controls the risk. But all these universally more than a risk incident to defective ma- received tests of agency are brushed aside chinery, or many other risks incident to his before the nebulous theory that the servant employment, I have not been able to ascer- impliedly agrees, when he applies for work, tain, though many attempts have been made to take the risk of the neglect and unskillby courts and text writers to explain it. ful acts of those with whom he is not acOne of the reasons most often quoted in quainted, and over whose actions he has, sustaining this rule is that announced by and can have, no control; and this agreeChief Justice Shaw in Farwell v. Railroad ment, which he never made, nor had any inCo., 4 Metc. (Mass.) 49: "Where several tention of making, is imported into his conpersons are employed in the conduct of one tract by the arbitrary authority of the common enterprise or undertaking, and the courts,-a purely fictitious contract, which safety of each depends much on the care exists only in the judicial imagination.

no

Courts should approach the duty of import duty of the master to furnish a fire boss ing implications into contracts with great who was qualified to rightly perform the caution, lest construction be supplanted by duties of his office, as upon the duty of the manufactury, and a contract be made for master to furnish suitable and safe machinthe parties essentially different from the one ery. It was the duty of the fire boss to in. they made for themselves. If the knowl- spect the mine for gas, and direct the men edge of the negligence of a fellow servant with reference to their work as affected by can be brought home to the laborer, and, in the presence or absence of gas. It was the the face of a known danger, he proceeds duty of the men, of course, to submit to his with his employment, then, by the same direction. Morgan had submitted to it, and principle that governs in cases of apparent | had gone into the gangway where he was injury, of course he should not recover, for directed. Whether he was talking about the every man should make use of his ordinary business of the mine, or about his own prifaculties in protecting himself from injury; vate business, at the time of the accident, and if, in seeing the danger, he sees it to is of consequence whatever; he was rush into it, or obstinately or carelessly rightfully in the place designated by the shuts his eyes when his duty is to observe, company, awaiting until his chute should be he has no ope to blame but himself, and relieved of gas. must suffer the consequence; but, from ep- So far as any question of contributory neg. ery consideration of justice, I insist that no ligence is concerned, the testimony is con. man should be held responsible for the acts | Alicting, and the jury have weighed the tesof those over whom he has no direction, au- timony, and found there was none; and there thority, or control. But, diverse as opin- being no undisputed facts which, as a mations of courts are upon the question of who ter of law, would constitute contributory neg. are fellow servants, I think very few, if ligence, I think the judgment should be afany, have carried the doctrine to the extent firmed. that has been announced by the majority opinion in this case. Fellow servants are they who are employed in a common occupation, by a common master, and must, in MECHANICS' MILL & LUMBER CO. 5. my judgment, have equal authority. When

DENNY HOTEL CO. OF SEATTLE. one employed has authority to direct and

WESTERN MILL CO. v. COOPER, control another, the relation of fellow serv.

CLARK-HARRIS CO. et al. HATFIELD ant cannot exist. It is not only contrary

v. DENNY HOTEL CO. OF SEATTLE et

al. to the plain and obvious meaning of the ex

HUTTIG BROS. MANUFG CO. et al.

V. SAME. SPRING HILL WATER CO. pression, but it is repugnant to our sense of

V. SAME. HUTTIG BROS. MANUFG justice, that a person should be held respon

Co. v. POTVIN et al. MARSH et al. T. sible for the faults of one, not only whom

SAME. DINES v. MCDOUGAL et al. he cannot control, but who has authority to control and direct him, and to whose judg

(Supreme Court of Washington. Nov. 6,

1893.) ment it is his duty to defer, and whose or

MECHANIO'S LIEN-FOR WHAT OBTAINED - MATEders it is his duty to obey; one who is em

RIAL NOT Used. ployed by the master as an agent because

Subcontractors who furnish materials of superior qualifications, receiving better specially designed and made for a building, and wages on account of such superior qualifi. necessary for its completion, are not entitled

to a lien therefor where such material was not cations, who stands in the place of the mas

used because the contractor suspended work or ter, especially commissioned to carry the for other reason. Per Dunbar, c. J., dissentwill of the master into effect,-in every ing. sense an alter ego or vice master. In this Dissenting opinion. For report of majorcase, Morgan, the common laborer, had not

ity opinion, see 32 Pac. Rep. 1073. the same authority as Jones, the fire boss. Morgan was a common miner, and received DUNBAR, C. J. I dissent. I think the the wages of a common miner, while Jones only theory upon which the constitutionality held the superior and more responsible posi- of the lien law can be sustained is the theory tion,-a position which Morgan could not, of the benefit to the property upon which in any probability, have attained to. It was the work is done or material furnished; and, a position requiring a certain degree of this material never having been put into the technical knowledge, and, while it may be building, the building should not respond to that Morgan, when he applied for the posi- a lien for its value. It makes no difference tion of miner, may be held to have con- to my mind why the material was not used tracted with reference to his qualifications in the house, whether on account of the conas a competent miner, upon what principle tractor having suspended work or for any of law or ethics can he be held to have con- other reason. The fact is they were not tracted with reference to the qualifications used, and this is the fact in which the owner of Jones, whose duties were entirely dis- is interested. I think in all things the tinct? He had as much right to rely on the judgment should be reversed.

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