(58 Mont. 214) SANBORN CO. v. POWERS et al. (No. 4150.) (Supreme Court of Montana. June 25, 1920.) 1. Appeal and error 1053 (2)—Withdrawal of evidence and instruction to disregard held sufficient to avoid error. In an action against alleged partners, where evidence of reputation of being partners, consisting mainly of impressions largely gained from conduct of the defendant not appealing, was admitted on the unfulfilled condition that knowledge would be brought home to appellant, the court's striking testimony and admonishing the jury not to consider it was sufficient, since it did not come under the exception to the general rule embracing evidence so impressive that in the opinion of the appellate court its effect could not be so removed. 3. Partnership 55-Evidence held sufficient to establish. Evidence held sufficient to establish a partnership, under Rev. Codes, §§ 5466, 5467. 4. Appeal and error 1002-Verdict on conflicting evidence conclusive. Where there is substantial conflict in the evidence, the Supreme Court will not reverse for alleged insufficiency to support the verdict. an order denying his motion for a new trial, this appeal is prosecuted. [1] The first eight assignments of error are predicated on the admission of evidence of the reputation of Powers and Black as copartners in the community in which they operated as wheat growers; the remaining assignments, on the alleged insufficiency of the evidence to establish an actual partnership. It is contended that the admission of the evidence of reputation constituted a material variance from the allegations of the existence of an actual partnership. 1. While this might be true, the testimony objected to was admitted only provisionally on the statement of counsel that he would bring knowledge of the alleged reputation home to Powers. It was later admitted that this had not been done, and all of the evi dence was by the court stricken from the record, and the court thereupon orally admonished the jurors not to consider such evidence in any way in arriving at their verdict, explaining to them the reason for striking it from the record. It is conceded that, under the general rule, this was sufficient to take the matter from the jury, but counsel contends that an exception is recognized "where the testimony so permeates the record that its exclusion cannot be said to fairly remove the impression which must have been created by it," citing 38 Cyc. 1443. The exception noted in Cyc., however, is: "Where the evidence is so impressive that, in the opinion of the appellate court, its effect is Appeal from District Court, Gallatin Coun- not removed from the minds of the jury by ty; Ben. B. Law, Judge. its subsequent withdrawal, or by an instruction of the court to disregard it." The testimony consists mainly of impressions, evidently gained largely from the conduct of Black alone; it was admitted only on the assurance of counsel that it would be connected up, and the court at the outset, in overruling counsel's objections, stated: "He [Powers] might be held out as a partner without his knowledge; no matter what the reputation is there, if Mr. Powers had no knowledge of it, he is not bound by it; it must be connected with some act or knowledge of his." The jurors are presumed to be reasonable men, and, hearing the evidence complained of with this declaration of the court in mind, followed, at the close of the testimony, by the order of the court striking the entire matter from the record, must have clearly understood that they were not to consider the evidence in any manner in arriving at their verdict. We are therefore of the opin MATTHEWS, J. The plaintiff brought this action on an open account for goods, wares, and merchandise alleged to have been sold and delivered to the defendants as copartners. Defendant Black failed to enter his appearance, and his default was duly entered. Powers answered, denying generally all the allegations of the complaint. On the trial he did not dispute the correctness of the account, but contended that no partner-ion that the action of the court comes within ship agreement existed between himself and Black, and that Black alone was liable to plaintiff. The jury found in favor of plaintiff. From the judgment on the verdict, and the general rule stated, and not within the exception thereto. [2] Some complaint is made that the court instructed the jury on the subject of osten (190 P.) sible partnerships, but no objection was interposed on the settlement of the instructions, and no error is, nor could be, predicated on this ground. Rev. Codes, § 6746; Stokes v. Long, 52 Mont. 470, 159 Pac. 28; Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673; Forquer v. North, 42 Mont. 272, 112 Pac. 439. [3] 2. Appellant contends that the evidence is insufficient to warrant a verdict requiring a determination that an actual partnership existed. Black, called as a witness for the plaintiff, testified in effect that, in the year 1915, he leased a certain section 9 from Powers; that Powers had control of the adjoining sections 15 and 21, belonging to one Wilson; that Powers suggested that they borrow the money, necessary to crop these sections, from Wilson, Black to do the work and Powers to pay one-half of the value thereof, and they each to pay one-half of the expense for supplies, seed, labor, etc.; that they give Wilson, for the use of the land, one-fifth of the crop; and that they then divide the profits or share equally in the loss es. He further testified that they mutually agreed to the arrangement, gave their joint note to Wilson, and deposited the proceeds in the name of Powers, and thereafter he (Black) paid the running expenses by checks on this account, signed "G. R. Powers, by J. W. Black." He further testified that when the wheat was threshed he hauled it to the elevator, and by the direction of Powers deposited it in the name of "Powers & Black," and thereafter it was taken out and disposed of by Powers. While Powers held a mortgage on Black's interest in the grain, he did not follow the procedure for foreclosing a mortgage, but disposed of the grain as partnership property, and Black testified that the mortgage was given solely at the suggestion of Powers, to protect Black's interest from seizure by his creditors. lieved, to establish a partnership in this jurisdiction. It tends to establish "the association of two or more persons, for the purpose of carrying on business together, and dividing its profits between them" (Rev. Codes, § 5466), "by the consent of all the parties thereto" (section 5167); a "partnership business, the funds for investment partnership funds, the property purchased partnership property; and the profits if any, partnership profits" (Beasley v. Berry, 33 Mont. 477, 84 Pac. 791). There was "such a community of interest as empowers each party to make contracts, incur liabilities, and dispose of the property." Weiss v. Hamilton, 40 Mont. 99, 105 Pac. 74. It was a business venture for profit. Croft et al. v. Bain et al., 49 Mont. 484, 143 Pac. 960. It tends to establish "the interchangeable relation of principal and agent, which is indispensably necessary to constitute a copartnership" (Parchen v. Anderson, 5 Mont. 438, 5 Pac. 588, 51 Am. Rep. 65), and that there was an agreement not only to share profits, if any, but losses as well. [4] True, Powers denied each of the statements made; but it was for the jury to determine which version they would accept, and the rule that, where there is a substantial conflict in the evidence, the Supreme Court, on appeal, will not reverse the judgment of the trial court on the ground of alleged insufficiency of the evidence is too well settled in this state to require the citation of authorities. The judgment and order of the district court are affirmed. Affirmed. BRANTLY, C. J., and HOLLOWAY, HURLY, and COOPER, JJ., concur. (58 Mont. 116) One Brandley testified that he sold two binders to Powers on an open account for use STATE ex rel. BREEN v. MAYOR OF CITY in harvesting the grain, and that, at the time, Powers told the witness that he and Black were partners, but that he wanted to get rid of Black. Plaintiff's credit man related a conversation over the telephone, in which he advised Powers that Black was purchasing goods of plaintiff; that they were charged to "Powers & Black"; he stated, "I asked him if it was all right, and he said it was all right." The witness further testified that, after the account sued on was due and payable, he requested payment from Powers, who raised no objection to the bill, but stated that he would take it up with Black, and that Powers made no objection to payment until after the account was placed in the hands of an attorney. While the evidence canvassed above is not entirely satisfactory, it is sufficient, if be OF BUTTE. (No. 4541.) (Supreme Court of Montana. June 1, 1920.) 1. Appeal and error 781 (7) Dismissed where appellant has complied with order appealed from. If an assistant city jailer in the police department has been restored to his position by the mayor acting within his authority and in obedience to a peremptory writ of mandamus, the motion of the jailer in the mandamus proceedings for dismissal of the mayor's appeal should be sustained, and the appeal dismissed. 2. Municipal corporations 185(4)-Though statute requires dismissal for cause and after hearing, council can retire policemen to eligible list. Though under Rev. Codes, §§ 3306, 3308, a member of the police department of a city cannot be dismissed except for cause and after a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes hearing or trial, the city council has authority to retire a member or any number of members of the police department to the eligible list on a good-faith determination that their services are not required. 3. Municipal corporations 185(4)-Council may not remove assistant city jailer and appoint another without charges and hearing. Under an ordinance of the city of Butte, No. 823, adopted in 1908 in conformity with the Metropolitan Police Law, creating the office of city jailer and two assistant city jailers, city council was without authority to remove an assistant jailer from his office and to place another in his stead, on the ground that his services were not required, and not on charges and after hearing, in compliance with Rev. Codes, §§ 3306, 3308. was without authority to direct the restoration of the officer, and it is at least questionable whether the signing of salary warrants by the mayor, while the appeal was pending, would constitute a ratification of the return of the officer to his position. The question may be raised at any time; and, if this appeal is dismissed without a determination on the merits, further litigation would result or the legal status of the respective parties be left in doubt. We deem it proper, therefore to pass, without determining the question presented by the motion, to a consideration of the case on its merits. The undisputed facts are that plaintiff was a duly appointed and qualified member of the police department of the city of Butte, and, having served the probationary period of six Appeal from District Court, Silver Bow months, under the Metropolitan Police Law, County; John V. Dwyer, Judge. Mandamus by the State, on the relation of Peter T. Breen, against the Mayor of the City of Butte, William T. Stodden, incumbent. From judgment awarding peremptory writ, defendant appeals. Affirmed. as assistant city jailer, that he was, on the 16th day of April, 1919, permanently appointed by the defendant to that position; and that he thereupon gave his bond in the sum of $2,500 for the faithful performance of his duties. On May 28, 1919, the mayor, finding the shrinkage in the city's finances, through Robert L. Clinton, E. D. Elderkin, and C. discontinuance of the liquor licenses, amountF. Juttner, all of Butte, for appellant. Maloney & Andrew, of Butte, for respond ent. MATTHEWS, J. Respondent Breen, here after for convenience called the plaintiff, instituted proceeding in mandamus against appellant, hereafter referred to as the defendant, to compel his restoration as assistant city jailer in the police department of Butte. This appeal is from the judgment of the district court awarding the peremptory writ, filed and entered September 14, 1919. The bill of exceptions herein was settled October 14, 1919. On March 25, 1920, plaintiff filed in this court a motion to dismiss the appeal on the ground that defendant had fully complied with the writ and satisfied the judgment. In support of this motion he filed, on May 25, 1920, affidavits to the effect that on September 14, 1919, the very day of the issuance of the writ, R. L. Clinton, city attorney and counsel for defendant, notified plaintiff to return, and instructed the city jailer to return plaintiff to his position, which was done, and he has ever since retained the position and received his monthly warrants signed by the defendant mayor. [1] If plaintiff was restored to his position by the mayor, acting within his authority and in obedience to the peremptory writ, the matter comes within the rule laid down in the case of In re Black's Estate, 32 Mont. 51, 79 Pac. 554, the motion should be sustained, and this appeal dismissed. However, neither the record nor the motion papers show a return of the writ or any action taken by the defendant in obedience thereto; the city attorney ing to some $65,000 per annum, increase in wages and cost of materials, made retrenchment imperative, and that, owing to the closing of the saloons and, perhaps, other causes, the city could well dispense with practically one-third of the police force, recommended to the council the placing of 20 members of the police department on the eligible list, without pay until reinstated by the council. council accepted the recommendation, and passed a resolution to that effect, embodying their reasons for so doing in the resolution, and placing on the list the 20 men last appointed to the police department, among them, the plaintiff. The [2] While it is true that under our statute (Rev. Codes, § 3306), a member of the police department cannot be dismissed except for cause and after a hearing or trial (section 3308; State ex rel. Quintin v. Edwards, 40 Mont. 287, 106 Pac. 695, 20 Ann. Cas. 239), there can be no doubt at this time of the authority of the city council to retire a member, or any number of the members, of the police department to the eligible list, on a determination, in good faith, that the necessities of the city do not require their services. The city council has control over the affairs of the city, and has not only authority, but it is its duty, to see that those affairs are economically administered, and that there shall be no useless expenditure of the city's funds. It can be readily understood that, in many instances, especially in those cities dependent largely for their prosperity and population on mining operations, and where, consequently. the needs as to police protection fluctuate frequently, the officials upon whom rests this duty to protect the city's finances must, of (190 P.) necessity, be vested not only with power to (58 Mont. 121) increase the police force to meet either grow- TUTTLE v. PACIFIC MUT. LIFE INS. CO. ing or sudden demands, but to thereafter reduce the force, with a decrease of the de mands, by retiring to the eligible list those members of the force last appointed and whose services are no longer needed. This question has been fully disposed of in the cases of State ex rel. Rowling v. Mayor of Butte, 43 Mont. 331, 117 Pac. 604, and State ex rel Dwyer v. Duncan, 49 Mont. 54, 140 Pac. 95. It is therefore clear that, if the plaintiff was merely a patrolman and one of the number thus, for economical reasons, retired to the eligible list, he has no just cause of complaint, even though his particular work is performed by some member of the force still retained. The position of jailer is one which might, we assume, be filled by any patrolman, and the council might properly have provided that a certain number of patrolmen be from time to time assigned to act as jailers, just as they are to the "plain clothes squad," the traffic force, or any particular beat. This, however, was not done, but the council, in 1908, in conformity with the Metropolitan Police Law, established the police department, with all its divisions and offices, by special ordinances, among which we find Ordinance 823, which reads in part as follows: "The offices of city jailer and two assistant city jailers are hereby created and each of them are hereby constituted as members of the police department." [3] Thus we have the creation of three distinct "offices" within the police department; no one of these offices was vacated by the council by its resolution of retrenchment; but we find from the record that immediately upon the retirement of plaintiff, a patrolman, older in point of service, was called in to take his office. This being the condition of affairs in the police department of the city of Butte, the council was without authority of law to remove plaintiff from his office and place another in his stead. Again, the question presented is disposed of by the opinion in State ex rel. Dwyer v. Duncan, supra. We see no distinction between the position of a lieutenant of police and an assistant city jailer, where each position is created and denominated an "office" by the ordinance. While the office might be vacated for economic purposes, it cannot, under the civil service principle of the Metropolitan Police Law, be continued in operation, the incumbent removed therefrom, and another placed in charge. The judgment of the district court of Silver Bow county is affirmed. Affirmed. (No. 4167.) (Supreme Court of Montana. June 25, 1920.) I. Insurance 535-Accident policy held to require notice of accident, though mode of death unknown. While under Rev. Codes, § 5047, time is never considered as of the essence of a contract unless by its terms expressly so provided, and any succinct and intelligent statement, giving the information called for in a provision of the insurer upon inquiry, to determine whether the policy requiring notice, is sufficient to put he is liable, the beneficiary of an accident policy must, where she was convinced that insured was dead as a result of accident, but did not know of the manner of his death, give notice in accordance with the stipulation that claimant must deliver immediate written notice of any accident with full particulars. 3. Insurance 539 (6) Where insured disappeared while hunting notice of the accident necessary, though mode of death not known. Where it was believed that because of his failure to return to camp, insured had met his written notice of accident as required by the death in the mountains, the claimant must give accident policy, even though there could be no determination of the cause of insured's death, until discovery of his body, the giving of notice and the forwarding of affirmative proof of death being separate and distinct obligations, so there can be no recovery where for a long period of time the claimant utterly failed to give any written notice of the accident. 4. Insurance 556(1)-Provision as to waiver is information that there could be no waiver by agent. A provision that no waiver should be valid unless signed by the president or vice president, also the secretary or assistant secretary of insurer, is information to the insured's beneficiary under an accident policy that provisions as to notice could not be waived by an agent. Letters from the home office of an accident insurer, stating that it was not liable because the mode of death could not be shown, and denying liability on the further ground that the requirements as to notice were not met, cannot be deemed a waiver of the policy provisions as to notice, disregarding the fact that they BRANTLY, C. J., and HOLLOWAY, HUR- were not signed by the president or vice presLY, and COOPER, JJ., concur. ident, etc., so as to constitute a waiver; the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes letters expressly stating that no waiver was intended. 6. Insurance 646 (6)-Claimant under accident policy has burden of showing accidental death. In an action on an accident policy insuring against death from external, violent, and accidental means, if death shall result within 90 days, independent of other causes, the beneficiary seeking recovery has the burden of showing that the insured's death was the result of an accident within the terms of the policy, and occurred within the 90 days. 7. Insurance 455-To recover on accident policy, death must be shown to result from accidental means; "accident." To recover on an accident policy insuring against death resulting from injuries caused solely by external, violent, and accidental means, it must be shown, not only that death was an accidental result, but that the cause itself was external, violent, and accidental; the word "accident" in such policy meaning an event which takes place without one's foresight or expectation. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Accident.] 8. Insurance 646(6)—Presumption against suicide does not create presumption of accidental death. Where insured, while hunting, met his death in the mountains, and his body was not found until long thereafter, at which time it was impossible to determine the cause of his death, and a rifle which he was carrying when he left camp was not with the body, although an automatic pistol was, the mere proof of death, and that insured, who went out in a storm, was never again seen alive, will not support recovery on a policy insuring against death resulting from external, violent, and accidental means; for while there is no presumption of suicide, etc., there can be no presumption that the death was the result of accidental means. 9. Appeal and error 1010(2)—Findings unsupported by evidence. The undisputed facts are as follows: In 1908 Ora Tuttle was insured by defendant company "against the effects of bodily injuries sustained during the term of this policy and caused solely by external violent accidental and * means. And if death shall result from such injuries within ninety days, independent of all other causes, the company will pay the principal sum of fifteen hundred dollars." The policy was in full force and effect throughout the year 1910. In November of that year, Ora Tuttle, his brother R. S. Tuttle, and three other young men went into the park district in Gallatin county on a hunting trip, and established a camp at Grayling. On the morning of the 21st Ora Tuttle left camp alone on the trail of an elk; it was then snowing hard, and a man could not be distinguished at a hundred yards. The storm continued throughout the day and night, the temperature remaining slightly below the freezing point, not cold enough to freeze a person out in the storm. The next day was fairly pleasant, but squally, and 10 to 12 inches of snow had then fallen. The second day a heavy storm broke, and continued for 8 or 10 days, and the snow then appeared to be several feet deep. On leaving camp, Tuttle took with him a rifle, an automatic pistol, and provisions sufficient for the day. As night approached and he did not return, his companions instituted a search for him, building signal fires and discharging their rifles, but without receiving any response. The search was continued until the following February, but no trace of the missing man was found. On October 2 or 3, 1913, his remains were found in a small park about two miles from the location of the camp. A small canyon intervened, necessitating a detour, requiring one to travel approximately five miles from the camp to the place where the remains were found. R. S. Tuttle identified the clothing and shoes as those of Ora Tuttle. His Judgment, unsupported by evidence, will watch was still in the vest pocket and his be reversed. Appeal from District Court, Jefferson County; Joseph C. Smith, Judge. Action by Mattie A. Tuttle against the Pacific Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to enter judgment for defendant. Day & Mapes, of Helena, for appellant. D. M. Kelly, of Butte, and J. E. Kelly, of Boulder, for respondent. MATTHEWS, J. This action was brought by plaintiff on an accident policy carried by her son, Ora Tuttle. The case was tried to the court sitting without a jury, and resulted in a judgment in favor of the plaintiff for the amount of the policy. automatic in the trousers pocket; the rifle was nowhere in the vicinity. Only the larger bones of the body remained; most of these were with the clothing. The skull, however, was found in a shallow gulch some 30 feet distant and the shoes Tuttle had worn were found near the skull. There was no cliff or other point from which deceased could have fallen to his death. The remains were taken to Whitehall, and on the 9th day of October, 1913, were buried. The plaintiff testified that shortly after the disappearance of Ora Tuttle, she had a conversation with the local agent of the company and that "I asked him if the boy was dead if I would have to write the company for proofs-for blanks anyway. He said No, he would attend to that himself. And then I asked him if I |