Mulville v. Pacific Mutual Life Insurance

19 Mont. 95 | Mont. | 1897

Buck, J.

The district judge, in granting the motion for a new trial in this case, considered the following alleged errors : First, the refusal to direct a verdict for the defendaut when, at the beginning of the trial, plaintiff declined to offer any evidence, upon the ground that the burden of proof under the pleadings was upon the defendant; second, the exclusion of the probate order and receipt of compromise; third, the exclusion of evidence as to the deceased having made á practice of jumping upon the train which killed him while in motion; fourth, the admission of evidence as to the space between the cars and the track, for the purpose of showing that it was impossible for the deceased to have been between the cars and the track without being' crushed to pieces; fifth, the admission in evidence of the written and subscribed testimony of one of the witnesses previously taken at the coroner’s inquest; sixth, the court’s refusal to give instructions numbered 8 and 15 requested by the defendant. There were other assignments of error, but they are substantially embraced in the one above numbered, “third.”

Inasmuch as it does not appear from the record that the district judge, in setting aside the verdict of the jury, assigned any special grounds therefor, it becomes necessary to pass upon all the questions involved in these alleged errors. It is the law of this state that contributory negligence is a matter of defense. (Higley v. Gilmer, 3 Mont. 90; Wall v. Railway Co. 12 Mont. 44, 29 Pac. 721; Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905.) It is true, in the plaintiff’s complaint, it is alleged that, at the time he was injured, he was “using due diligence for his personal safety.” Such an allegation, however, was unnecessary, and no proof of the same was required of plaintiff in making out a prima faeie case. (Higley v. Gilmer, supra.) There was no error, therefore, in the trial court holding that the burden of proof was upon the defendant to establish contributory negligence on the part of the deceased.

Nor was there any error in excluding evidence as to the deceased having made a practice of jumping on the train while in motion. Upon this we cite, with approval, the language of the supreme court of Pennsylvania, in the case of Baker v. Irish, 172 Pa. St. 531, 33 Atl. 558. The court said: “Defendant proposed to prove that Baker had made a practice of jumping from the elevator while in motion. * * * What Baker had done before would warrant no inference, or one so remote, that he had done the same on the day of the accident, that the evidence was inadmissible. ’ ’

Again, the trial court committed no error in allowing evidence as to the space between the cars and the track. It had been stated by a witness that he had found the wounded man between the rails of the track. This evidence, tending as it did, to establish that it was a physical impossibility for the. man to have been between the cars and the track without being more crushed, was clearly admissible in rebuttal. This follows as a corollary of the proposition that the burden of proof as to the alleged contributory negligence was upon the defendant.

We find no error in the admission of the sworn and subscribed testimony of a witness before the coroner’s jury in order to contradict him. The main ground of defendant’s objection was that it did not appear whether all the testimony given by the witness before the coroner had been taken down. • In the absence of any showing to . the contrary, it should be presumed that it had been.

Instruction No. 8, requested by defendant, was properly refused. As appellant contends, no rules of the railroad company which defendant claims to have been violated had been introduced in evidence. • Instruction No. 15, requested by the defendant, was also properly refused. It was too sweeping in its terms.

In the exclusion of the probate order and receipt of compromise, however, we are satisfied the lower court erred, and that it was on this ground alone the district judge granted a new trial. The authorities are to the effect that an administrator has authority to compound or compromise with a debtor of his decedent, when it is to the interest of the estate, irrespective of any statutory power conferred upon him. (See Jeffries v. Insurance Co., 110 U. S. 305, 1 Sup. Ct. 8; Moulton v. Holmes, 57 Cal. 337. Whether this be the law of Montana, where, judging from the general tenor of the probate acts, the legislature seems to have intended to expressly define the duties and powers of executors and administrators^ it is unnecessary to determine, because section 232, Probate Practice Act, Compiled Statutes, 1887 (section 2737, Code of Civil Procedure, 1895), expressly confers this power upon administrators. It is as follows: “Whenever a debtor of a decedent is unable to pay all his debts, the executor or administrator, with the approbation of the probate court or judge may compound with him and give him a discharge upon receiving a fair and just dividend of his effects. A compromise may also be authorized when it appears to be just and for the best interest of the estate. ’ ’

Appellant urges that section 232 aforesaid contemplates that the approbation of the probate judge or court must be obtained to a compromise upon terms which have been definitely ascertained by the administrator and presented for approval. We cannot agree with this construction of the statute, at least so far as applicable to this case. In the order before us it appears that, after the determination of the necessity for a compromise under the statute authorizing it, the j udge directed the administrator to settle upon the best terms he could obtain. This was equivalent to giving his approbation to a definite agreement for a compromise. So far as this record discloses, no evidence having been introduced in regard to plaintiff’s charge in the replication that the compromise between the public administrator, Pascoe, and defendant was the result of bad faith, the presumption is that both the public administrator and the probate judge discharged their duties to the dead man’s estate, in the matter of the alleged compromise, as honest and careful officers should. Unassailed, and considered by itself, the presumption attaching to this order would be that, before signing it, the probate judge was fully informed both as to the circumstances rendering a compromise proper and expedient under the law, and the proposed terms upon which the administrator intended to settle. The statutes in force prescribed no formal method in which the administrator should obtain the approbation of the court or judge to the compromise he contemplated, nor did they require any notice to be given of the application for it. Evidently what the law had mainly in view in such a case was that the administrator should consult with the probate judge, as a conservator of the estate of decedents, and obtain his assent as such to any compromise he proposed to make. The order might well have been more definite in its recitals, and have set forth carefully the facts upon which it was based, and the terms within which the judge’s approbation was given to the proposed settlement. But while, no doubt, this order is open to criticism for informality, we nevertheless cannot hold it invalid.

Appellant claims there is a distinction between a compromise effected by a public administrator and one brought about through an administrator appointed to take charge generally of the affairs of an estate. Under section 350, Probate Practice Act, Compiled Statutes 1887 (section 4528, Political Code, 1895), the public administrator had the same powers as administrators and executors. Section 350 is as follows : ‘ ‘ When no direction is given in this chapter for the government or guidance of a public administrator in the discharge of his duties, or for the administration of an estate in his hands, the provisions of the preceding chapters of this title must govern.” Entertaining this view of the law, we are of opinion that the order, and, as a necessary consequence, the receipt, should have been admitted in evidence on the trial. The order appealed from is affirmed.

Affirmed.

Pemberton, C. J., and Hunt, J., concur.