dismiss an action, or show cause why it should not be dismissed. Demurrer to the petition sustained, and proceedings dismissed. Chas. R. Leonard and Gunn & Rasch, for relator. Breen & Hogevoll, for respondents.

law involved in the case, presented upon such appeal, and necessary to the final determination of the case." It is argued for the relator that, as no new trial was ordered, it is apparent that this court did not contemplate that another trial should be had, for otherwise it would have passed upon and deterSMITH, J. At some time during the year mined all questions of law involved in the 1908 an action was begun in the district case. The truth is, however, that this court court of Silver Bow county by Sadie A. Mon- was of opinion, and properly so, that there son, as administratrix of the estate of John was no necessity for, or propriety in, deterMonson, deceased, against the La France Cop- mining other questions of law involved in a per Company, the above-named relator, to re- record which disclosed that the plaintiff had, cover damages on account of the death of as a matter of law, failed to make out a case John Monson, her husband, while in the em- sufficient to go to the jury, because, of necesploy of the relator as a pumpman. At the sity, in case of a retrial the record would not close of plaintiff's case, the defendant inter- be the same, and different questions must necposed a motion for a nonsuit, on the ground essarily arise. We confess, also, that we asamong others that the evidence did not show sumed that the plaintiff had, as she should what was the cause of Monson's death. This have done, introduced all of the evidence motion was denied. The plaintiff had verdict which she could procure, and that a failure to and judgment. The defendant made a mo- prove so vital a matter as the cause of her tion for a new trial, which was overruled, husband's death was due to inability to do whereupon it appealed to this court from the so, rather than neglect to offer evidence which judgment and order. See Monson v. La it was in her power to produce. Any other France Copper Co., 39 Mont. 50, 101 Pac. 243. conclusion would be a reflection upon counThis court on appeal considered but one ques- sel, in which we should be loath to indulge. tion, viz., whether the motion for a nonsuit While it has been customary to dispose of should have been granted. It was held that cases substantially as indicated in section it should have been, for the reason that the 6253, supra, the latter portion of that proviplaintiff's evidence failed to show how de- sion of the Code is not binding upon this ceased came to his death. The conclusion court. The conclusion court. "The Legislature can no more require and mandate of this court were expressed as this court to state the reasons of its decisions follows: "The court [below] was in error in than this court can require, for the validity denying the motion for a nonsuit. This con- of the statutes, that the Legislature shall acclusion renders it unnecessary to consider company them with the reasons for their enother grounds of the motion or alleged errors actment." Field, J., in Houston v. Williams, based upon the refusal of the court to submit 13 Cal. 24, 73 Am. Dec. 565. certain instructions. The judgment and order are reversed." Upon the remittitur being filed in the district court of Silver Bow county, the cause was again set for trial, whereupon the relator objected to a retrial, and moved the court for a judgment "dismissing said action in compliance with the mandate of the Supreme Court." The objection and motion were overruled, and the relator thereupon sued out of this court an alternative writ of mandate requiring the district court and the Honorable John B. McClernan, a judge thereof, to either dismiss said action or show cause why it should not be dismissed. The respondents have filed a general demurrer to the petition. The matter has been argued, and submitted for decision.

The question presented is somewhat difficult of solution. Section 6253, Rev. Codes, reads, in part, as follows: "The Supreme Court may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had. The decision of the court must be given in writing, and a syllabus thereof must be prepared by the court and filed with the opinion; and in giving its decision, if a new trial be granted, the court must

!

Again, it is urged by counsel for the relator that if the lower court had either sustained the motion for a nonsuit or directed a verdict for the defendant, as it should have done, the judgment would have been affirmed by this court, and such affirmance would have ended the case. There is considerable force in this suggestion, but it does not necessarily solve the problem. There can be no doubt that the question presented on a motion for a nonsuit is one of law (Emerson v. Eldorado Ditch Co., 18 Mont. 247, 44 Pac. 969), and the ruling of the court may be reviewed on appeal from the judgment as well as upon appeal from an order denying a new trial. We think, however, that this court, in determining whether dismissal of a case should be ordered, under circumstances similar to those disclosed here, ought not to be influenced by the fact that the defendant has also appealed from an order refusing to grant a new trial. We are of opinion, however, that the court below may properly take that fact into consideration in cases which have been reversed and remanded without specific directions as to a retrial.

Another argument advanced by the relator is that it ought not to suffer prejudice

We have taken the opportunity to comment thus at length upon the matters presented by the petition of the relator, for the reason that we believe the time has come when this court should exercise its undoubted authority to take the initiative in disposing of litigation as expeditiously as possible, and with the, least expense to suitors. So far as we are advised, the point has never before been squarely raised and argued in this state.

trial court in refusing to grant its motions; lects to bring the fact to our attention, that
and there can be no doubt that in theory the court presumed that no competent evi-
this is true, especially as regards its motion dence was rejected. When a judgment for
for a directed verdict. But this court is not the plaintiff is reversed for error in refusing
always able to determine from the record to direct a verdict for the defendant, after
whether a defendant has suffered a real the former has had full opportunity to in-
prejudice because of the fact that his motion troduce all of his evidence, and it appears
for nonsuit has been overruled. His evi- that his case is not supplemented by the de-
dence may have cured the defects in that of fendant, we apprehend that, even in actions
the plaintiff. See Yergy v. Helena Light at law, the instances must be rare in which
& Ry. Co., 39 Mont., 102 Pac. 310; T. C. this court will hereafter feel justified in re-
Power & Bro. v. Stocking, 26 Mont. 478, 68 fusing to make a final disposition of the
Pac. 857; Alderson v. Marshall, 7 Mont. 288, cause. And, on like principle, the court will
16 Pac. 576. On appeal from a judgment, not hesitate to order a judgment for the
supplemented by a bill of exceptions incor- plaintiff when the defendant's case, as made
porating only the plaintiff's case, this court in the court below, no prejudicial error hav-
would hesitate to say that a final disposition ing been committed against him, shows that
of the cause would be proper. Of course, if he has no defense to the action.
the plaintiff's case shows affirmatively and
conclusively that he has no cause of action,
final disposition may be made by the trial
court or by this court; as, for example, if
the plaintiff confesses that some essential
precedent condition has not been performed
by him. The case of Roach v. Rutter, re-
cently decided, is illustrative of a situation
where the plaintiff might have been proper-
ly and permanently nonsuited if his own tes-
timony had clearly disclosed the fact that
he was in the employ of some one other The relator asks for a writ of mandate to
than the defendant. But, where the defect compel the respondents to dismiss the ac-
in the plaintiff's case consists merely in an tion against it, but its prayer cannot be
omission to prove an allegation which may granted, for this obvious reason: As no spe-
or may not be susceptible of proof, the case cific direction either to retry or to dismiss
is altogether different. We conclude, there- was contained in the mandate of this court,
fore, that no general rule may be laid down the district court was vested with a legal
to determine when this court will, upon de- discretion to take such action, not incon-
ciding that a plaintiff should have been non- sistent with the order of this court, as seem-
suited, order his action to be dismissed. ed wise and proper under the circumstances.
This court undoubtedly has the power, in all 3 Cyc. 481. In view of the practice hereto-
proper cases, to make such an order; and fore followed, we find no abuse of discre-
in future the authority will be exercised, tion. To warrant the issuance of manda-
with a view to putting an end to litigation, mus, the relator must show a clear, legal
when the parties have had one fair oppor- right to have a particular act or duty per-
tunity to try the issue between them.
A formed by the defendant. State ex rel.
superficial examination of the reports of the Breen v. Toole, Governor, 32 Mont. 4, 79
decisions of this court leads to the conclu- Pac. 403. The right to exercise discretion
sions that heretofore the practice has been is inconsistent with the idea of absolute
to afford the parties an opportunity to retry duty. The district court did not, therefore,
all reversed causes at law. We, however, owe any duty to dismiss the action against
believe that the practice should be modified the relator, and cannot be coerced by man-
in this regard. No reason occurs to us why damus. State ex rel. Lott v. District Court,
a plaintiff, having had one fair opportunity 33 Mont. 356, 83 Pac. 597. We prefer to
to make out his cause of action, should be base our decision upon the ground just men-
accorded the privilege, after the defects in tioned, although it was directly held by the
his case have been pointed out by this court, Supreme Court of California in Steen v.
of supplying the deficiency by evidence Hendy, 107 Cal. 54, 40 Pac. 386, a case ap-
which presumptively was not in existence parently identical with this, that the effect
when the first trial was had. These remarks of an unqualified reversal is to remand the
have no reference to the case of Monson
cause for a new trial.
against the relator, but are merely made by
way of argument. Since by virtue of the
provisions of sections 6792, 7118, Rev. Codes,
the exceptions of both parties may now be
incorporated in the record, the party prevail-
ing in the court below is always in a posi-
tion to inform this court that he has not
been permitted to introduce all of his evi-

The demurrer to the petition is sustained, and, the matter having been submitted for final determination, it is ordered that the proceedings be, and they are hereby, dismis

sed.

Dismissed.

BRANTLY, C. J., and HOLLOWAY, J.,

O'BRIEN V. CORRA-ROCK ISLAND MIN- showed that decedent was not negligent, though

In an action for the death of a miner caused County; Geo. M. Bourquin, Judge. by the explosion of dynamite in which the eviAction by John T. O'Brien, as administradence made it a jury question whether defend-tor of Daniel O'Brien, deceased, against the

Corra-Rock Island Mining Company and to himself, and the motion was granted. others. From a judgment for plaintiff against defendant named, and from an order denying a motion for new trial, it appeals. Affirmed.

Chas. R. Leonard and Gunn & Rasch, for appellant. Maury & Templeman, for respondent.

HOLLOWAY, J. This is an action for damages resulting from the death of Daniel O'Brien. The complaint, after setting forth the fact of O'Brien's death, the appointment of the plaintiff as administrator of his estate, alleges: That during the lifetime of O'Brien he had contributed to the support of his mother and other relatives. That on May 12, 1905, he was employed by the defendants Corra-Rock Island Mining Company, James Neill, and Alfred Frank as a miner and was working on the 1,500-foot level of the Corra mine; that on that day and on the 1,500-foot level, and about 40 feet from where O'Brien was working by direction of the defendants, "the defendants had negligently and wrongfully stored and were keeping negligently a large and dangerous quantity of dynamite, to wit, about five hundred (500 lbs.) pounds. That on said day, while the defendants knew that they were negligently storing and keeping the said dynamite in said large and dangerous quantity on said level in said mine, the same exploded and killed said Daniel O'Brien. That the death of the said Daniel O'Brien was caused proximately by the said defendants having thus stored negligently the said large and dangerous quantity of dynamite." The comThe complaint then alleges that during his lifetime O'Brien was a sober, industrious, and frugal man, 25 years of age, capable of earning, and actually earning, $3.50 per day as a miner, and by reason of his death his estate and dependent relatives have been damaged in the sum of $10,000, for which amount judgment was demanded.

A

like motion made on behalf of the defendant mining company was overruled, and that company then introduced its evidence. When the evidence was concluded, the defendant mining company moved the court for a directed verdict, which motion was denied. The jury returned a verdict in favor of the plaintiff and against the defendant mining company, and from the judgment rendered thereon and entered, and from an order denying it a new trial, that defendant appealed. The specifications of error relate to the refusal of the trial court to grant the mining company's motion for a nonsuit, its motion for a directed verdict, and its requests for certain instructions.

From the entire record certain facts are gathered-facts about which there is not any dispute, and some of which are useful only to illustrate the situation at the time of the accident. Extensive mining operations were carried on in the Corra mine. On the 1,200-foot level there was a powder magazine from which explosives were distributed to the different levels. At the 1,500-foot level a station had been cut, and from this a crosscut had been run for 800 feet or more until the vein was intersected; and then from the point of intersection there was drifting on the vein east and west, and many men were employed in the work. To the east there were 10 or 11 floors in the stopes, and on the fifth floor Daniel O'Brien was working as a shoveler. A month or more before the accident the defendant had constructed a sort of improvised magazine, called by the miners the "new magazine," on the sill floor in the east drift, by placing shelving upon which boxes of dynamite were stored. Caps were also distributed from the magazine on the 1,200-foot level. The dynamite and caps were taken to the different levels in the original packages-the caps in tin boxes containing about 100 caps each, the dynamite in 50-pound wooden boxes, each containing about Apparently there was not any service of 100 sticks of dynamite. It was a rule in process upon defendant Neill. The mining the mine that dynamite and caps were not company and Alfred Frank filed an answer, to be stored together. Prior to the time the in which the death of O'Brien, while em- new magazine was placed in this east drift, ployed by the mining company and as the it had been located at or near the station on result of an explosion of dynamite on the the same level, and from 800 to 1,000 feet 1,500-foot level of the Corra mine, is admit- from where the men were at work. Appar ted. The answer also admits the corporate ently the work on the sill floor was advanced existence of the defendant company and the sufficiently and this new magazine so located representative capacity of the plaintiff, but that O'Brien's place of work on the fifth denies that O'Brien was employed by, or was floor was almost directly above and some 40 in the employment of, the defendant Frank. feet from the magazine. Machine drills There is then a general denial of all the al- were employed, and five or six sticks of dynalegations of the complaint not specifically mite were placed in each hole for blasting. admitted or denied, and pleas of contributory The day shift on the 1,500-foot level went negligence and assumption of risk. The al-off work at 4 o'clock in the afternoon. The legations of these special pleas were put in issue by a reply. The cause' was tried to the court sitting with a jury. At the conclusion of plaintiff's case, the defendant

machine men working east and those working west of the point of intersection completed their drilling about 3 p. m., procured dynamite from the new magazine, and also