error. After finding that on the 29th of November, 1890, the stock of the defendants was sold and passed to the company, and defendants ceased to be stockholders, it found that there was but one ditch, and that defendants, by reason of their ownership in the original ditch, were liable to assessment 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 identical. See Nichols v. McIntosh, (Colo. Sup.) 34 Pac. Rep. 278. By the decree of the district court establishing priorities from Kannah creek, it was declared that the Brown & Campion ditch was entitled to priorities Nos. 5 and 8; that priority No. 5 belonged to Joseph Simineo, Dennis Sullivan, John J. McKay, and Daniel W. Col. lard, and was in quantity 8.6 cubic feet of water per second; and that priority No. 8 belonged to defendant in error and other parties, naming them, having a subsequent right to 22 feet per second. No action was taken consolidating the interests; both remained separate and distinct, and, as far as priority was concerned, the new ditch was subservient, being able to take water only in excess of the prior appropriation. If there was but one ditch, I am at a loss to know why it should be the second, instead of the first, and by what process the original became absorbed in the second, and lost its identity. The statute provides that to prevent multiplicity of ditches, when practicable, water shall be carried in a former ditch. This was done here. Repairs upon the new ditch from the terminus of the old were no more legally chargeable to the other proprietors than the putting in and harvesting a crop. The keeping the head gate and ditch to its original terminus in repair was the duty of both sets of owners, the expense to be adjusted upon an equitable basis. Beyond this the first proprietors had no interest and owed no duty. The error of the court was in not regarding the enterprises as two separate and distinct legal entities, with only an interest in common to the extent of the original ditch for purposes of repair. The right to levy assessments by the defendant in error could only, if at all, be legally predicated upon ownership of stock. When plaintiffs, by act of the company, ceased to be stockholders, neither they nor their associates in the original ditch, by reason of such ownership, could in any way be made liable for repairs beyond the limits of the ditch as originally constructed. If plaintiffs and associates failed to contribute their proper proportion to maintain the ditch from the head to the original terminus, no doubt an action for contribution would lie. Beyond that they owe no duty, legal or equitable. Several errors are assigned and are discussed in briefs and arguments of counsel which we do not find it necessary to determine. The error of the court in regard to the legal status of the parties and property is suf ficient to warrant a reversal. The judgment of the court will be reversed, and cause re manded for a new trial upon the basis above indicated. STATE ex rel. BYWATER ▾. COOK, State Auditor. (Supreme Court of Montana. Nov. 27, 1893) WARRANT ON REWARD FUND-CLOSE OF FISCAL YEAR-EFFECT. Where, during a certain fiscal year, the governor offers a reward for the arrest and conviction of certain criminals, and they are arrested during such year, but not convicted till the following year, after the unused funds appropriated for rewards for such previous year have been transferred by the state treas urer to the general fund, as required by law. the state auditor cannot be compelled to issue a warrant, in favor of the person entitled to such reward, on the fund appropriated for rewards for such previous year. Application on the relation of Stephen Bywater for a writ of mandate to compel A. B. Cook, state auditor, to issue to relator a warrant for the amount of a reward offered by the governor for the arrest and conviction of certain criminals. Writ de nied. Ella L. Knowles, for relator. Alex. C. Botkin, for respondent. PEMBERTON, C. J. The affidavit in this case states that on the 29th day of Novem ber, 1892, the passenger train of the Great Northern Railway Company was stopped. and held up, and the express and baggage car attached to said train was robbed of valuable goods, etc., by three masked men. near Malta, in this state; that on the 30th day of November, 1893, Hon. J. K. Toole, the then governor of the state, by proclamation of that date, published and offered a reward of $500 for the apprehension and de livery to the sheriff of Dawson county of the person or persons guilty of said offense; that on the 1st day of December, 1892, affiant procured the arrest of one of the parties guilty of said offense, and after that day one other of said parties; that said guilty parties were thereafter duly convicted of said offense, and sentenced to the penitentiary of the state; that the legislature had theretofore appropriated the sum of $2,000 for each of the fiscal years ending, respec tively, on the 1st day of December, 1891, and the 1st day of December, 1892, for rewards: that there were in the hands of the state treasurer on the 1st day of December, 1892, $2,000, subject to the payment of said re ward offered by the governor; that in the months of December, 1892, and January, 1893, the state board of examiners notified the state auditor and state treasurer of the existence of this claim; that on the 7th day of January, 1893, this afflant presented his claim for said reward to the state board of examiners, and demanded the payment thereof; that subsequently thereto the state treasurer transferred the whole of the appropriation for rewards for said year into the general fund of the state; that on the 22d day of June, 1893, the state board of examiners, upon proper proofs and showing, allowed and approved of said claim of said affiant for said reward, in the sum of $500, and ordered the same paid out of the appropriation for rewards for the year 1892; that on the same day the state board of examiners notified the state treasurer, in writing, to transfer to the fund designated as rewards the sum of $500, out of any money in the treasury not otherwise set apart, to the credit of the reward fund, for the purpose of paying this claim; that the respondent is the auditor of the state; that on said 22d day of June, 1893, this claim was duly presented to said auditor, who refused to draw his warrant therefor, but returned it indorsed, "Returned. No funds. A. B. Cook, State Auditor;" that said auditor still refuses to draw said warrant; that there is now in the hands of the state treasurer the sum of $500 to pay said reward. From the foregoing statement, it will be seen that the relator seeks to compel the state auditor, by writ of mandate, to issue his warrant on the fund appropriated for 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 demand against the state. No liability on the part of the state accrued to pay this reward until after the conviction of the parties for whose apprehension and delivery to the authorities the reward was offered. Section 287, div. 4, Comp. St. 1887. It appears from the affidavit herein that such conviction was not had until after the expiration of the fiscal year 1892. The affiant's claim was not allowed by the state board of examiners until the 22d day of June, 1893. At that time the reward fund for the year 1892 had been transferred to the general or unused fund by the state treasurer, as required by law. We think this was not a claim chargeable to the reward fund appropriated for the year 1892, which expired on the 1st day of December of that year, and therefore are of the opinion that the auditor cannot be legally required to draw his warrant on said fund for the year 1892. When the fiscal year 1892 expired, the relator had only a contingent or conditional demand upon the state for this reward. His claim depended upon the apprehension and conviction of the parties guilty of the crime for which the reward was offered. These conditions were not fulfilled and complied with until after the expiration of the fiscal year 1892. The con viction of these parties might not have been secured for five or ten years. In such case, could this reward be held to be a demand against the reward fund for the year 1892, and the auditor be required to draw his warrant on that fund for that year, merely because a reward was offered in that year? We think not. We think this case very different from a case where a specific appropriation has been made for a certain year for the erection of a state building, and such building has not been completed within the fiscal year for which the fund has been appropriated. In such case, we think the fund has been, in contemplation of law, put to use, or virtually expended, when the authorized state agents have contracted for the construction of such building, although said state agents may in fact hold the fund appropriated, or a part thereof, in the hands of the treasurer, to secure the fulfillment of the contract for the erection and completion of the same. We see no good grounds for the alarm expressed by counsel in this case as to the effect the holding in this case will or may have on the unexpended funds of any specific appropriation remaining in the treasury at the expiration of any fiscal year. It will be time enough to determine the fate of these appropriations when an occasion shall arise for so doing. The writ of mandate is denied. HARWOOD and DE WITT, JJ., concur. WATTS v. HART. (Supreme Court of Washington. Nov. 15, 1893.) Dissenting opinion. For report of majority opinion, see 34 Pac. Rep. 423. DUNBAR, C. J. I dissent. In my judgment, there is no question of fellow servant in this case. The appellant was all the time working under the direction of a superior whose directions it was his primary duty to obey, and on whose judgment he had a right to rely, in the absence, of course, of apparent danger. Smith, the foreman, who was certainly the alter ego of the lumber company, placed him at the disposal of Kelly, and Kelly eventually sent him to work under the direction of the engineer. He could not presume to direct the engineer, but the engineer did presume to, and had undoubted authority to, direct him; and, in obeying such direction or instruction, he was injured. His primary duty was to obey, and, in the absence of any apparent danger, his absolute duty was to obey. The only question then, is, was the company, through this engineer, guilty of negligence in moving the cars in the way in which it did move them? It was clearly proven that the method adopted, of moving the cars with a stick, is a dangerous one, but the majority say that the men engaged in moving the car were not compelled to adopt the method provided. But I insist that the appellant was compelled to obey orders, or lose his employment, and his orders came from the agent of the company accredited with the authority to exercise his judgment as to the manner of moving the cars. It is true, as the majority say, that it was simply a matter of choice which was the better or safer method to pursue; but the choice was to be made solely by the engineer under whose instructions this appellant was working. It was the engineer who decided upon 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. Carlson, 1 Wash. St. 38, 23 Pac. Rep. 830, is cited as sustaining the theory that appellant should be bound by the action of the engineer, as the acts of a fellow servant. In my judgment, they are not by any means parallel cases, as there was no question of authority in that case. I did not sit in the case of Sayward v. Carlson, but, from an examination of it since, I cannot indorse it, for, while the general argument is good, the conclusion announced is not, in my judgment, a logical deduction. It will not do to allow the master to escape responsibility by the assertion made in the majority opinion that, "there is no evidence showing that the respondent, Hart, gave any direction or authority to the appellant to assist in moving the cars, or that he knew that he would be so employed." The appellant went from one place to another, each time under the direction of some one who had authority to send him; and under the system which Hart had adopted, and which is necessary for the successful and orderly operation of a large business, with a varied class of employment, he was practically sent to move the cars by Hart, as much as though he had personally directed him to go. The establishment of any other rule would render it practically impossible for the servant, in employment of this kind, to fasten the responsibility of his employment upon the master. In any event, the pertinent fact is that the appellant was actually there at the time, working under the direction of the engineer; that he ac cepted his services; and that appellant was injured while performing such services; and, if nothing more, it was an employment at that time. But, says the majority, "the evidence discloses that, at the time appellant was injured, none of the men there, including the foreman in charge, knew anything about the business of 'staking' cars." This announcement, it seems to me, very nearly approaches a confession of judgment. The very fact that the company would place men to work, in a concededly dangerous employment, who had no knowledge of the way in which the work should be done, and coosequently could not realize the danger of their employment or guard against it, and that the foreman in charge was equally in competent and ignorant, conclusively established the grossest kind of negligence. It was the imperative duty of the company to have some one in command of that work who did understand it. Had it done so, this accident, in all probability, would have been averted. There is no showing, whatever, of any contributory negligence on the part of the appellant, and the judgment, in my opinion, should be reversed, and the jury be allowed to assess the damages. MORGAN et al. v. CARBON HILL COAL CO. (Supreme Court of Washington. Nov. 13 1893.) Dissenting opinion. For report of majority opinion, see 34 Pac. Rep. 152. DUNBAR, C. J. I dissent. I think, in the first place, that the negligence of the respondent was clearly proven. Not only the statutory law, but the common law and the law of common justice, imposed up the respondent the duty of protecting is employes from any danger which prudence could prevent. The testimony shows that the ventilating fan which forced the air into the mine, and which air found egress by pass.ne through a gangway, had not been operated from Saturday evening until Sunday night, immediately preceding the explosion Moday morning. It is clear, to my mind, that if this fan had been kept in constant oper tion, the gangway in which the plaintif stood at the time of the accident would have been clear of gas, and the explosion could not have occurred. The duty of the company, did not end with operating this fan six days in the week; its duty was to operate it as long as it was necessary to properly ventilate the mine. There is weak attempt to make it appear that it wi necessary to stop the fan one day out of seven for repairs, but the testimony abse lutely fails on this point, and would not amount to a defense if it were true; fœ if it becomes necessary to stop a fan for 24 hours for repairs, the work must stop until such repairs are made, and the mixe again made safe for occupancy by the ma ers. The mine must be kept ventilated at all hazards. I do not mean, of course, that the mine owners are absolute insurers, et that they should be held responsible for un avoidable accidents, which no human ws dom can perceive, or for accidents whs the highest degree of human skill or caution cannot avert; but I do say that the commodity of simple convenience or add tional gain or profits must not be put in the scale to weigh against the safety, health, or lives of the operators. It is a well-established principle of law, based on plain common sense, that the care demanded of the employer must be adequate to the nature of the business and the employment; the more dangerous the employment, the greater the degree of care demanded. It needs no testimony to bring the fact to the attention of the court that coal mining is an exceedingly dangerous business. It is a matter of common knowledge, forced upon the mind of every person of ordinary intelligence by the too frequent occurrence of appalling disasters, so horrible in their details, and so direful in their effects, that their mere contemplation, even by strangers, who are not directly affected, is sickening in the extreme. In a business, then, where such results are possible, the very highest degree of care must be expected, and every means and every precaution looking towards the prevention of these disas ters must be rigidly employed. The legislature, not only of this state, but of nearly every state in the Union where coal mines are operated, has taken legislative notice of the extraordinary perils and dangers incident to this character of business, and have passed the most stringent laws for the protection of the lives of the operators, and the courts ought not to relax the rule prescribed by the legislative department. It also appears plainly to me that Jones, the fire boss, was guilty of gross negligence in not testing the gangway before he opened his lamp which caused the explosion. It cannot but be admitted in this case that Jones was negligent; but the defense is that he was a fellow servant of Morgan's, and therefore the company is not responsible for his negligence. This doctrine of "fellow servants" has, in my humble judgment, been carried to a ridiculous extreme by the courts, and they have been too quick to aid employers in escaping from responsibilities which every principle of justice demands they should respond to. This rule is a modern one in tour jurisprudence, and is founded on the theory that the employe takes the risk of the negligence of his fellow servant when he accepts the employment; but why he should be supposed to have contracted with reference to the acceptance of this risk any more than a risk incident to defective machinery, or many other risks incident to his employment, I have not been able to ascertain, though many attempts have been made by courts and text writers to explain it. One of the reasons most often quoted in sustaining this rule is that announced by Chief Justice Shaw in Farwell v. Railroad Co., 4 Metc. (Mass.) 49: "Where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity, or neg lect of duty, and leave the service if the common employer will not take such precautions, and employ such agents, as the safety of the whole party may require. By these means the safety of each will be much more effectually secured than could be done by a resort to the common employer for an indemnity in case of loss by the negligence of each other." The reasons given here, it seems to me, would apply equally as well to any other risk. The employe could as well leave the employment in any case where, in his judgment, the employer did not take such precautions as the safety of all parties required. The trouble with this doctrine is that it does not take into consideration the very essential and controlling fact that the workman is made responsible for the conduct of a person whom he does not employ, and over whom he can exercise no authority or control whatever. He can neither employ, discharge, nor direct. All that is left for him, according to the doctrine of the learned judge, is to become a spy upon the actions of his fellow servant, and reporter of his delinquencies; and in 99 cases out of 100 he knows nothing about the neglect of his colaborer until the accident has occurred, and it is too late to complain. On the other hand, every established principle of agency enters into the relation between the master and the servant whose neglect precipitates the accident, and is the cause of the damage. In the first place, the service is rendered for the benefit of the master. He is the recipient of the profits accruing from such service. He employs the servant, and pays him for the service rendered. He can discharge him at will. He can advise, direct, and absolutely control him in the performance of his duty. It is he who examines the servant when he applies for the position, and he alone who has the opportunity or right to inquire into or pass upon his qualifications. Surely, if the rule were founded, as it should be, on the expediency of placing the risk upon the party who can best guard against it, it takes but a limited intelligence to discern the fact that the master is the directing mind who controls the risk. But all these universally received tests of agency are brushed aside before the nebulous theory that the servant impliedly agrees, when he applies for work, to take the risk of the neglect and unskillful acts of those with whom he is not acquainted, and over whose actions he has, and can have, no control; and this agreement, which he never made, nor had any intention of making, is imported into his contract by the arbitrary authority of the courts,-a purely fictitious contract, which exists only in the judicial imagination. Courts should approach the duty of importing implications into contracts with great caution, lest construction be supplanted by manufactury, and a contract be made for the parties essentially different from the one they made for themselves. If the knowledge of the negligence of a fellow servant can be brought home to the laborer, and, in the face of a known danger, he proceeds with his employment, then, by the same principle that governs in cases of apparent injury, of course he should not recover, for every man should make use of his ordinary faculties in protecting himself from injury; and if, in seeing the danger, he sees fit to rush into it, or obstinately or carelessly shuts his eyes when his duty is to observe, he has no one to blame but himself, and must suffer the consequence; but, from every consideration of justice, I insist that no man should be held responsible for the acts of those over whom he has no direction, authority, or control. But, diverse as opinions of courts are upon the question of who are fellow servants, I think very few, if any, have carried the doctrine to the extent 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 my judgment, have equal authority. When one employed has authority to direct and control another, the relation of fellow servant cannot exist. It is not only contrary to the plain and obvious meaning of the expression, but it is repugnant to our sense of justice, that a person should be held responsible for the faults of one, not only whom he cannot control, but who has authority to control and direct him, and to whose judgment it is his duty to defer, and whose orders it is his duty to obey; one who is employed by the master as an agent because of superior qualifications, receiving better wages on account of such superior qualifications, who stands in the place of the master, especially commissioned to carry the will of the master into effect,-in every sense an alter ego or vice master. In this case, Morgan, the common laborer, had not the same authority as Jones, the fire boss. Morgan was a common miner, and received the wages of a common miner, while Jones held the superior and more responsible position, a position which Morgan could not, in any probability, have attained to. It was a position requiring a certain degree of technical knowledge, and, while it may be that Morgan, when he applied for the position of miner, may be held to have contracted with reference to his qualifications as a competent miner, upon what principle of law or ethics can he be held to have contracted with reference to the qualifications of Jones, whose duties were entirely distinct? He had as much right to rely on the duty of the master to furnish a fire boss who was qualified to rightly perform the duties of his office, as upon the duty of the master to furnish suitable and safe machinery. It was the duty of the fire boss to inspect the mine for gas, and direct the men with reference to their work as affected by the presence or absence of gas. It was the duty of the men, of course, to submit to his direction. Morgan had submitted to it, and had gone into the gangway where he was directed. Whether he was talking about the business of the mine, or about his own private business, at the time of the accident, is of no consequence whatever; he was rightfully in the place designated by the company, awaiting until his chute should be relieved of gas. So far as any question of contributory negligence is concerned, the testimony is conflicting, and the jury have weighed the testimony, and found there was none; and there being no undisputed facts which, as a matter of law, would constitute contributory negligence, I think the judgment should be affirmed. MECHANICS' MILL & LUMBER CO. v. DUNBAR, C. J. I dissent. I think the only theory upon which the constitutionality of the lien law can be sustained is the theory of the benefit to the property upon which the work is done or material furnished; and, this material never having been put into the building, the building should not respond to a lien for its value. It makes no difference to my mind why the material was not used in the house, whether on account of the contractor having suspended work or for any other reason. The fact is they were not used, and this is the fact in which the owner is interested. I think in all things the judgment should be reversed. |