151 P. 1051 | Mont. | 1915
Lead Opinion
delivered the opinion of the court.
Action for personal injuries. The complaint was filed May 21, 1913. It recites the capacity of the defendant, its possession, control, and supervision of the streets, sidewalks, etc., of the city, and alleges: “That the defendant * * i:' did negligently, carelessly, and knowingly allow and permit on the 25th
To this complaint a demurrer was interposed attacking the complaint generally, and also asserting it to be indefinite, uncertain and ambiguous, because “it does not state whether the plaintiff fell by reason of snow on the walk, or by reason of snow on the ice, or by reason of the slipperiness of the ice, or by reason of the roughness of the ice, or by reason of the ice being ridged, or by reason of the ice being rounded, or by reason of the ice being uneven, or by reason of the ice being slanting.”
The demurrer being overruled, the defendant answered, admitting the corporate character of the City of Butte, denying all the other allegations of the complaint, and pleading: “That on the 27th day of January, 1913, the plaintiff commenced an action No. A — 4809 against the defendant in the district court of the second judicial district of the state of Montana in and for the county of Silver Bow, in which said action the said plaintiff sued the said defendant upon the same and identical alleged and pretended cause of action that is sued upon herein; that in said action the said plaintiff demanded the same relief as is demanded against this defendant in the above-entitled action; * * * that in said action No. A — 4809 a judgment in the sum of $8 in favor of the defendant and against the plaintiff was duly given, made, rendered and entered, and the same has not been paid or satisfied; that the said action No. A — 4809 is now pending in the district court of the second judicial district of the state of Montana in and for the county of Silver Bow.”
The plaintiff replied, denying that the judgment pleaded in the answer had not been satisfied, and alleged that it had been fully paid and duly satisfied of record.
Trial was to a jury, who returned a verdict for plaintiff in the sum of $1,000. Judgment was entered accordingly, and a motion for new trial was denied; hence these appeals.
1. "We think the complaint definite enough to apprise the
2. The plea of another action pending was a plea in [2] abatement. (Peterson v. City of Butte, 44 Mont. 129, 120 Pac. 231.) Its essential was an unsatisfied judgment which defendant averred and the plaintiff denied. The defendant therefore was not entitled to prevail upon the pleadings, nor upon the evidence, because the duty of maintaining such a plea is on the pleader (Croft v. Bain, 49 Mont. 484, 143 Pac. 960; 1 Corpus Juris, 107, sec. 165), and the record entirely fails to show an unsatisfied judgment in the other action.
3. The offer of proof which the trial court rejected was to the
4. The instructions the refusal of which is now urged as error
Concerning instruction 20A it will suffice to say that similar ones have been repeatedly condemned by this court. (State v. Lee, 34 Mont. 584, 87 Pac. 977; State v. Penna, 35 Mont. 535, 90 Pac. 787; State v. Tracey, 35 Mont. 552, 90 Pac. 791; State v. Z>e Lea, 36 Mont. 531, 93 Pac. 814.) The manner in which the
An inspection of the record discloses that the court fully and fairly instructed the jury upon the substantive law applicable to cases of this character; and whatever there was of value in instructions 23A and 25A is covered by the instructions which were given to the jury.
5. Instruction No. 3 is claimed to have been prejudicially erroneous under the decision of this court in McEnaney v. City of Butte, 43 Mont. 526, 117 Pac. 893, but we think that, taken in connection with the other instructions, notably 6A, it is not open to the objection urged against it.
6. Challenging the sufficiency of the evidence, the defendant insists that there is no proof of the filing or presentation of the notice required by the statute, and that the case otherwise made by the plaintiff does not establish any liability on the part of the defendant. As to the latter specification, the argument
The contention upon the notice is that the description of the
The judgment and order appealed from are reversed, and the cause is remanded for a retrial.
Reversed and remanded.
Rehearing
On Motion for Rehearing.
delivered the opinion of the court.
Counsel for respondent so entirely misconceives, and thereby suggests that others may misunderstand, the purport of the foregoing opinion that we deem it proper to take more than formal notice of his motion for rehearing. He assumes this court to have held that the giving of the notice required by Code section 3289, cannot be shown by the indorsement of the city clerk, or, if it can, that the signature of the city clerk is necessary to prove such indorsement. In view of the statement in the opinion that no one testified to the filing, presenting or receiving of the notice, and that there was no evidence to show when, by whom, or under what circumstances the so-called indorsement was made, this assumption must be characterized as wholly gratuitous. There cannot be the slightest
Motion for rehearing denied.