33 Mont. 464 | Mont. | 1906
Lead Opinion
delivered the opinion of the court.
This action was brought to recover damages for personal injury caused by the alleged'negligence of the defendant. For the purposes of this decision, a sufficient statement of the ease will be found in the opinion delivered by this court on the former appeal. (Nord v. Boston & Mont. C. C. & S. M. Co., 30 Mont. 48, 75 Pac. 681.) Upon another trial the jury found in favor of the plaintiff. The present appeal is from the judgment rendered upon the verdict, and from an order overruling defendant’s motion for a new trial.
Counsel for plaintiff makes the contention that the order denying the motion for a new trial cannot be considered upon the merits, for the reason that counsel for defendant failed to .make legal, timely, or sufficient service of their statement in support of the motion in the district court, and therefore that the record embodying the matters relied on is not properly before this court. If this contention is sustained, we must, in reviewing the case, confine our discussion to such questions only as arise from teh judgment-roll. Counsel for defendant insist that such service as made of the statement was legal, timely, and sufficient, but, if not, that counsel for respondent waived all defects and irregularities in the proceedings, and may not now be heard to object to a review of this appeal on its merits. We shall first notice these contentions.
The undisputed facts touching the service and settlement of the statement are the following: The verdict was rendered on June 14, 1904. On the 16th, by stipulation by counsel, the time for the preparation and service of the statement on motion for new trial was extended for sixty days from June 24th. On August 19th, by a like stipulation, the time was again ex
On October 21st Mr. Cooper, one of counsel for defendant, wishing to serve the statement, went to Mr. Gormley’s office with it. He found the office closed and locked. Having made inquiry for the whereabouts of Miss Bennett and being told that she was at “the Democratic headquarters,” in a building across the street, he went in search of her and found her there. She was at that time regularly employed as stenographer by the Democratic central committee. There is some controversy as to what statement she made to Mr. Cooper, but assuming the latter’s statement to be correct, she told him upon inquiry that she was authorized to accept service for Mr. Gormley; at any rate, she did accept service and promised to notify Mr. Gormley, but did not, in fact, do so, because telephone connection could not be had with him. At that time Mr. Cooper told her that he would extend the time, if desirable, in which Mr. Gormley might propose amendments to the statement. On November 4th, and before she had seen Mr. Gormley and without his knowledge, she stipulated with Mr. Cooper, for Mr. Gormley, for an
On November 5th Mr. Gormley was in his office for a short time. He was found there by Mr. Cooper, who desired to know whether Mr. Gormley would repudiate the stipulation made by Miss Bennett in his behalf. At that time Mr. Gormley, as he says, questioned the service of the statement. Mr. Cooper insists that he questioned it only with reference to the time of it, Dut said nothing as to the authority of Miss Bennett to accept service. The record is somewhat indefinite as to what was said exactly; it is not controverted, however, but that Mr. Gormley stated that he had been too busy in the campaign to think about law business; that “there was question about that service,” and that he “would take a little time to think it over before agreeing-to anything.” Mr. Cooper told him that he could have time to propose amendments if he desired it.
On November 9th, Mr. Cooper having concluded, apparently, that Mr. Gormley did not intend to recognize Miss Bennett’s stipulation, submitted the statement to the judge'for settlement; the paper containing the written submission reciting that “whereas, more than ten days have elapsed since the service of said proposed statement on motion for a new trial as aforesaid and no amendments having been proposed thereto or served upon counsel for defendant, and the time of the said plaintiff within which to propose amendments to said statement on motion for a new trial having elapsed, ’ ’ etc. In the meantime, on November 7th, Mr. Gormley obtained from the judge time in which to propose amendments “without waiving,” as the order recited, “any rights to object to defendant’s statement on the ground that the same was not served or filed in time, or for any other reason, the plaintiff reserving any and all rights to object to said statement, ’ ’ etc.
Finally the statement came on for settlement on December 8th. Counsel for plaintiff had in the meantime submitted cer
Evidence was introduced showing the manner and time of service as above narrated. The court settled the statement “without prejudice to plaintiff’s said objections.” When the motion came on for hearing, objection to its consideration was made as follows: “Before proceeding with the hearing of the defendant’s motion for a new trial, the plaintiff renews the objections heretofore made to any order granting a new trial, and asks that said motion be denied on the ground and for the reason that no legal, timely, or sufficient service * ® * was ever made '* # ” and plaintiff appears at the hearing * i;= * without waiving any of his said objections.” In its order denying the motion, all objections were overruled by the court, but no reason was assigned therefor.
It is said by counsel for plaintiff that the service was not timely, for the reason that the statute authorizing extensions of time in such cases (Code of Civil Proc., see. 1897, amended by Session Laws, 1903, p. 38, Chap. XXVII), gives no power to the court or judge to grant an extension for a longer time than ninety days without the consent of the adverse party, and that since the order of September 17th was without his consent, service made during the time granted by it was not effectual. There is no merit in this contention. If the parties extend the time by stipu
The next question for consideration, then, is: Was the service upon Miss Bennett sufficient? If not, did counsel, by anything he did thereafter, ratify her acceptance of service or waive his right to object to the statement because of her want of authority? The statute controlling the service of notices and other papers in the conduct of litigation is section 1831 of the Code of Civil Procedure. Under it service may be made upon the attorney of the adverse party, (first) personally, by delivery to the attorney of the notice or paper; or, (second) constructively by leaving the notice or paper in the office of the attorney, during his absence, with his clerk therein or with a person in charge thereof; or, (third) when there is no person in the office, by leaving the paper or notice in the office in a conspicuous place, between 8 A. M. and 6 P. M.; or, (fourth) if the office be not open, by leaving the paper or notice at the attorney’s residence with a person of suitable age and discretion; or, (fifth) if the residence of the attorney be not known, by putting the notice or paper inclosed in an envelope, into the postoffice, directed to the attorney.
In this case, constructive service upon the attorney was attempted by delivery of the statement to Miss Bennett, his alleged clerk. The facts clearly show that Miss Bennett was not his clerk, nor was she in the office or in charge of it. She was not in the employ of Mr. Gormley in any capacity. From no point of view was this service, as made, sufficient, or any service at all. The fact that Miss Bennett had theretofore been
Did Mr. Gormley, by any act done on November 5th or afterward, ratify her acceptance of service or waive his right to object to the proceeding upon the motion? If so, such ratification or waiver was made in the conversation with Mr. Cooper on November 5th, or by the securing of the order of the 7th, granting time to propose amendments. Nothing in the conversation of the 5th justifies the inference of waiver or ratification; for, though Mr. Gormley did not repudiate anything that Miss Bennett had done, nor say that she was not his clerk, yet he did refuse to agree to anything until he had time to think the matter over, thus clearly refusing to be bound by anything that had occurred up to that time as between Mr. Cooper and Miss Bennett. Mr. Cooper’s purpose in going to Mr. Gormley’s office was to ascertain if he would repudiate the stipulation made in his behalf by Miss Bennett on November 4th. Under the circumstances, Mr. Gormley was not bound to say whether he would or would not repudiate it. No inquiry having been made of him as to whether or not Miss Bennett was his clerk at the time she accepted service, he was not bound to repudiate any thing she had done. No adverse inference from his silence upon this subject is proper; for, as the record shows, he was then not fully informed of what had transpired during his absence, and it is not to be inferred that he was guilty of double dealing, as counsel for defendant seem to think, because he refused to agree to anything, or because he kept silent.
Nor did he ratify the act of Miss Bennett by obtaining the order of November 7th. He did not rely upon the stipulation made by Miss Bennett on November 4th and get an extension of time, but, so far as the record shows, obtained the grant of time upon the theory that the new trial proceedings had lapsed entirely, and in order that, if he should be mistaken, a correct
The mode of procedure in the settlement of statements and bills of exception, where the service has not been timely, is discussed at length in Beach v. Spokane Ranch & Water Co., 25 Mont. 367, 65 Pac. 106, with citation of cases decided by this court as well as by the California court. It is there held that it is proper for the judge, upon presentation of the statement for settlement, when objection is made that service has not been timely, either to decline to settle it, or settle it after incorporating in it the objections with the matter offered in support of the objections, and also anything to show waiver on the part of the objecting party, if a waiver is alleged; and that if it appears that service has been out of time and there has been no waiver, the motion should be denied. It is also held that the mere form of the expression or language in which the objections are couched is unimportant, provided it clearly appears what the objections are. The same rule must, perforce, apply where there has been no service at all, as was the ease here; and we think with reference to the order of November 7th the same rule should apply.
It is clear that it was the intention of Mr. Gormley not to waive anything. The fact that he obtained time can no more be treated as a waiver than may an appearance of counsel under the same circumstances, at the settlement of the statement or at the hearing of the motion, provided at each step, prior to such appearance, he preserves his right to object; and the matter
It is argued by counsel for defendant that the district court found upon conflicting evidence against the contention of the counsel for plaintiff, and that its finding thereon may not be disturbed. From our point of view the evidence gives room for but one inference, and this supports the contention of plaintiff.
' "We are of the opinion that the contention of counsel for plaintiff must be sustained; that no service of the statement was ever made, and that counsel for defendant has failed to sustain the burden of showing that this lack of service was waived by any act done by Mr. Gormley. The court should have denied the motion on the ground that the statement was not before it. This conclusion disposes of the legal questions urged with a great
The other errors assigned in the brief challenge the correctness of the action of the court in submitting certain instructions to the jury and in refusing to submit others requested by the defendant. Upon careful attention to these, however, we fail to perceive that the court committed any prejudicial error. The instructions submitted fully and fairly cover all the issues in the case and, we must presume, were justified by the facts before the court in the evidence. The criticisms of some of them are not well founded, and of others are exceedingly technical. For illustration we refer to paragraph 8 of the charge: ! ‘ The burden of proving by a preponderance of the testimony that the defendant was negligent in the particulars charged in the complaint, and that the injury to the plaintiff was the direct result of such alleged negligence, is upon the plaintiff, Nord. The burden is upon the defendant to show by a preponderance of the testimony that the plaintiff was guilty of contributory negligence at the time of the accident, and likewise to show that plaintiff assumed the risks and danger of the accident complained about.” It is said of it that it imposed upon the defendant, in order to escape liability, the burden of proving both the defenses, contributory negligence and assumption of risk, whereas it would have been sufficient to establish either. If the paragraph should be read apart from the rest of the charge, this criticism might, perhaps, be just, but, reading the charge as a whole, we do not think the jury could possibly have misunderstood that their verdict should be for the defendant in case either defense was established by a preponderance of the evidence.
It is also said of it that it is erroneous in that it east upon the defendant the burden of proof as to either of these defenses. So far as concerns the defense of contributory negligence, this criticism is based upon the defendant’s theory of the case that
Most of the instructions requested and refused were formulated on defendant’s theory of the case, and, upon the record before us, were properly refused. The others refused are fairly embodied in those given; there was, therefore, no error in refusing them.
The judgment and order are affirmed.
Affirmed.
Rehearing
On Motion for Rehearing..
delivered the opinion of the court.
Appellant has submitted a petition for a rehearing herein, in which contention is made that the conclusions of the court are wrong, for the reasons (1) that it makes an erroneous application of the law of agency, and (2) that its construction of the language used by counsel of defendant in reserving his right to object to a settlement of the statement on motion for a new trial is clearly unwarranted.
Miss Bennett was never the agent of Mr. Gormley for any purpose, so far as the record shows, except to receive service of papers while she was in his employ and in his office or in charge of it. She had no power to enter into stipulations for him for any purpose, and, under the express terms of the statute pointing out how constructive service may be made (Code of Civil Procedure, section 1831), she had not any authority whatever except during office hours, or, at any rate, while she was engaged in her duties in the office. Strictly speaking, she was, under the statute, but the passive agent by virtue of her employment to receive and acknowledge service in the office. She could not do anything actively to bind her employer. At the time of the alleged service she was not in the office nor in charge of it. Therefore, under any circumstances, her power to bind Mr. Gormley, if it. existed at all, existed by virtue of some other relation than her employment as his clerk. So that, when Mr. Cooper came to deal with her in the “Democratic headquarters,” in another building across the street, he did so with full knowledge that she was not Mr. Gormley’s agent for the purpose of the business then in hand, unless specially authorized to transact it, and therefore he was bound at his peril to ascertain whether in fact she was so authorized.
2. As to the second contention, we deem it unnecessary to add anything to what has already been said. The construction of the language of the order of November 7th and of the statement of reservations accompanying the amendments, we think is fair and reasonable, and excludes the idea of waiver by Mr. Gormley or his ratification of anything done by Miss Bennett. A rehearing is denied.
Denied.
