The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-04-14
Judge Fleisoher Holds That Gross
C~arelessness or Agreement
Must be Shown.
An Important Ruling on the Rela-
lions of Master and
Servant.
Tho Purport of = Decision In the Case OF
j. II. Tister Against s. +.
Whalen.

ing the relations of employer and employe
was handed down by Judge Fleischer yes
terday. Its substance is that no reco very
can be made by an employer for damages
by breakage where the employee has exer-
cised ordinary care; and that whore a mar
engaged in outdoor work n hired by the
month, is laid off IN account OF bad wealth
err, the nero order of the employer to that
effect does not terminate the contract be-
tween the parties. Under this decision there
can be no docking of wages for broken
crockery, nor for merchandise ruined in
handling unless gross carelessness can be
shown. In other words ordinary care is ali
that can be required of an employee. The
decision was rendered in the case of j, +.
Fister against s. F. Whalen.
TIL suit was brought to recover the sum
of 500. (, a balance due for lalor performed
by Fistsr for Whalen during the month OF
February last. Whalen in his answer de-
MED the indebtedness, and said that on
February 20, he had a full and final settle
/ ment with Fister and paid the balance
due to him, which Fister accepted in full
of all demand. In an amended answer
Whalen set up by way of affirmative matter.
that Flster was indebted to him, in the
sum of $50. so, as follows: Cash overpaid in
settlement S2.5o damages for breaking a
employ of Whalen by negligent handling,
$50. He asked Judgment for $02.O and
costs of suit.
Judge Fleischer. in his decision says:
''The court finds that Fister was hired as a
teamster by Whalen. Among other work,
Fister had to haul finished cut stone
(%granite) on a wagon from a stone quarry
to the High school building and while I'M
loading these cut stones, some of them got
broken, one of them being of a large
size. 1t has been shown that
the stone was damaged to a certain extent.
but it has in no way been shown that the
breaking was caused by gross negligence of
Foster. He had been hired as a teamster
to haul these stones He did not claim to
be an expert for loading and unloading cut
stones. Testimony by defendant has been
introduced to show that j. Grant could
unload any stone in the building without
breaking it. This, l think. is too far off.
l hold that in order to hold a servant liza
BILE for damages caused while engaged by
the master to do certain work, such as
hauling stone, gross negligence on the part
of the servant must be shown, unless a
q warrant for safe delivery exists. Neither
has it been shown to what amount defend
ant sustained damages. l think the de-
PENDANT should have shown a detnl loss
something for the court to go by in assess
ing damages. But this is not material, in.
asmuch as defendant has in the first place
not proved the plaintiff liable for dam
ages.
"Whalen also claims to have had a settle
ment with Fister on February %, and over
paid him $3.50. The testimony shows thu
following facts: Monday, February 1G, j
4. Fister had harnessed the horses read,
to start out with them. S. F. Whalen tells
him it is rather stormy and he had not bet
ter start out, but should lay off during the
storm. Now Whalen claims that these
words were an annullment OF the contrac
under which Fister was hired at $65 PEI
month, and were sufficient to appraise hin
of the annullment of the contract existing
between the parties. Fister, however, ha'
shown that he was still in the employ o.
Whalen; that he worked cleaning harnes!
and doing chores about tile house; that or
different occasions he was ordered to TAXI
the team out, and unload and haul two car
loads of iron beams from the railroad depot
ut does not appear from the testimony
that Fister had been hired for the solt
purpose OF hauling finished cut stone. L
rather appears that he did anything in the
line of work of teamster that MAJ have
come before him from Feb. 16 to Feb. %
Fister worked about the stable and doing
chores, and Walten knew Fister was a,
work for him and had ample time to stol
him if he SO desired. No person can make
another his debtor against that others will
by an offer of work or service. But if thai
other accepted what is thus offered d, an6
retains the benefit of it, the law will
generally imply or presume that it was
offered at the request of that other party,
and will also imply his promise to pay fol
it and will enforce the promise. If any
work is rendered to one, or for one, and he
requested the service, it is good considera-
ton for a promise. The law will imply the
promise; that is, it will suppose that he has
made it, and will not permit him to deny
it. "tister had received for his work al
teamster $50 every two weeks, this being al
the rate of $65 per month. That contract
in the opinion of the court, has not beer
annulled by the words, we lay off in tina,
Storm Whalen having accepted the work
plaintiff did that day, and asked him or
other days to drive the team and to dc
other jobs for him. l therefore hold that
Fister is entitled to the wages agreed upon,
$40 for two weeks. 1t appears that Fistel
received on Feb. % the sum of $40 and &
balance due him, $3.50 from a former
month, amounting to $3.50. This would
leave Whalen indebted to Fister in the SUR
of 500. As to the allegation of a settle
ment having been had in full on Feb. e
1t was not meant by Fister as a settlement
offered that Fister intended it to be a set.
Element in full"
Judgment is given for plaintiff for so
and costs of suit.
worth Sis. 10y"