Grant v. Nihill

ME. CHIEF COMMISSIONEE LENTZ prepared the opinion for the court. Plaintiff obtained a judgment for $15,000 for injuries received on May 24, 1917, from being run over by a traction plow which was operated on defendant’s farm near Moore, Montana. Defendant has appealed from the judgment and from an order overruling his motion for a new trial. The complaint alleges, among other things, negligent failure on the part of the defendant to provide plaintiff with a safe place to work and failure to warn him of the hazards incident to his employment. Defendant’s answer admits the employment and the injury, denies the other material averments of the complaint, and as a special defense alleges that plaintiff assumed the risks incident to the employment. The plowing outfit consisted of ten mold board plows pulled by a steam traction engine. Two levers were attached to each of the ten plows, making twenty levers in all. One lever was used in regulating the depth, and the other in raising the plow off the ground. In front of or over the plows, and resting on steel girders and stringers, was a wooden platform about three or four feet wide and ten or twelve feet long, in three sections, each section consisting of boards two inches thick resting in and on an angle iron frame and bolted to the steel framework below. The angle iron in which the boards rested extended around the entire outer edge of the board platform of each section and almost or quite flush with the upper surface of the boards. The individual boards of each section were attached together so that the wooden part of the platform if removed from the angle iron frame would have to come out as one piece. The wooden portion of each section was fastened to the stringers below by means of bolts, which, if in — 429 — proper order, held the platform rigid. It was plaintiff’s duty to stand upon this platform with his back to the engine, and operate the plows by means of the levers regulating the depth and lifting the plows out of the ground while making turns or when otherwise necessary, and also to keep the plow greased and change the plow points. The engine was operated by one Harrison Boner, with the assistance of a helper who usually did the steering, and who acted under Boner’s orders. On the occasion of the injury, plaintiff, in making the turn at the corner of the field was lifting the plows from the ground by means of the levers, when he lost his balance and fell from the platform in front of or under the plows and was run over. He testified that a rock got under the platform and raised the wooden portion out of the angle iron frame seven or eight inches, causing him to fall beneath the plows. Plaintiff further testified that he started to work for the defendant, Nihill, the fore part of May, 1917; that he was employed and assigned to work on the plow by one Bert Bar-rick, who was defendant’s foreman and manager; that he told Barrick he had had no experience with this kind of a plow, but was willing to learn; that he had formerly operated a disc traction plow, but had had no experience with the mold board variety of plow; that when he started to work Barrick spent several hours showing him how to regulate the levers and work the plow, and came out at different times afterward and showed him other things about running it; that Barrick told him Harrison Boner was to have charge of the outfit, and he would take his orders from Boner, and that thereafter Boner did give him orders, telling him when to go to work in the morning and when to quit; that he had operated the plow for about six days prior to the morning of the accident and had encountered no trouble with it; that, when he first started working, the ground was level and without rocks, but on the afternoon before the accident they began plowing in ground that was very rough and rocky; he had seen rocks underneath, but none large enough to tip the platform over; on that afternoon he first noticed that the wooden portion of — 430 — the rear section of the platform was not securely fastened down; there were two bolts for the purpose of holding down the wooden portion of this section; on one of these bolts the threads were worn off so that the nut, which was on the under side, could not be screwed tight; the other was just a spike or little old bolt about the size of a twenty-penny nail, which, was not threaded and had no nut on it, and as a consequence, when running over the rough ground, the platform would not go steady, but worked up and down; that on the afternoon before the accident plaintiff told Boner to get some bolts and bolt the platform because it was shaky; that Boner said-the platform was all right, it was not anything to be afraid of, it would not come out, it would stay down in the frame and would not tip over; that Boner said he would have the foreman get some bolts, he (Boner) did not have any that would fit; they were all too big to fit the holes; that plaintiff was inexperienced and did not appreciate the danger and relied upon the statement made by Boner; that at all times while engaged upon said plow outfit he exercised due care for his own safety; that Boner said the next forenoon he had sent for bolts, and the foreman did not get the right size; that Boner did not try any bolts to see if they would fit; that the •foreman was “out there” about half an hour or so before plaintiff got hurt and “had some bolts”; that plaintiff was busy changing the plow points, and said nothing to the foreman about the loose bolts then or at any other time; that no bolts were placed in the platform before the accident; that at the time of the accident about 9 or 10 o’clock in the forenoon he was lifting the plows to make a turn at the corner of the field; he had lifted seven or eight plows, beginning at the front, and while he was standing on the rear section of the platform a rock two or three times the size of a man’s hat got under the end of the platform on which he was standing and lifted the wooden portion of it up, and he was thrown over backward beneath the plows and sustained the injuries alleged in the complaint. — 431 — Boner testified that immediately after the injury plaintiff announced that while he was starting to operate one of the levers a plow encountered an obstruction, causing another lever to fly up and strike him in the face, and that the blow knocked him off the platform. He denied that he had charge of the outfit or ever at any time gave orders to plaintiff. Both Barrick and Boner testified that the matter of bolts was never mentioned to or by either of them, and both denied any knowledge of the alleged defect either before or after the accident. Barrick denied that he ever placed Boner in charge of the outfit or told plaintiff to take orders from him. He did testify, however, that nothing could go unless he (Boner) ran the engine, and “of course he [Boner], was the main man. ’ ’ There is nothing in the record to show that the defendant, Nihill, gave Barrick direct authority to place Boner in charge of the outfit or to place the plaintiff under Boner’s orders. Nihill testified that he did not give Barrick any such authority. The record further shows that Boner did some repairing on “the machinery,” and that he was the only one who actually did any repairing on the machinery. It does not appear whether this repairing was done on the plow or the engine, or both. There is some testimony in the record to show that, if anything went wrong, anyone on the outfit who knew how “was supposed to fits it.” The record further shows that Barrick was defendant’s foreman in his farming operations, with general authority to direct the work and to hire and discharge the émployees; that defendant was then operating four farms, consisting in all of about 4,700 acres. Three of these farms were not far from Moore, while the fourth was about five miles away. Barrick’s duties in superintending the work were such that he did not always visit each farm every day. He traveled in an automobile and tried to visit each farm every day. There is nothing in the record to show that defendant personally superintended any of the actual farming operations. — 432 — The first contention is that the complaint does not state a cause of action. The sufficiency of the pleading was attacked by general demurrer, by objection to the introduction of evidence, and by motions for nonsuit and for a directed verdict. Besides the allegation of the employment and of the damages resulting from the injury, the material averments of the complaint are as follows: “I. * * * That plaintiff was not familiar with the work he was set to do, to-wit, the regulation depths, etc., of the plows; that he has never done such work before, and that defendant and his agents were familiar with said work and the hazards incident thereto; that plaintiff was put to work by defendant on the plows, regulating the depth thereof, and in so doing had to stand and work upon a platform immediately over the said plows; that the said platform was insecurely fastened over the said plows; that the said platform was insecurely fastened and was loose and likely to rock and tilt, making the footing of the plaintiff unsafe and hazardous; that plaintiff complained to defendant and his foreman about the condition of the said platform, and was assured by the defendant and his said foreman that the said plows and platform were in a perfectly safe condition, and that no harm or injury could befall him by reason of the then condition of the said platform and of said plow outfit;, that plaintiff was unfamiliar with the saíne and had no previous experience of the working or operation of such an outfit, and relied solely on the knowledge and ability of defendant and his foreman, ’ and believed implicitly in their statement that the platform and outfit were in all respects safe, and constituted a safe place for plaintiff to work. “II. That the platform was an unsafe place for plaintiff to work, and plaintiff did not possess sufficient knowledge to know whether or not the same was safe or unsafe, and that plaintiff relied implicitly upon the statement of defendant and defendant’s foreman and agent that the said platform was a safe place upon which to work thereon; that on or about the said twenty-fourth day of May, 1917, the said platform, while the — 433 — said plow was being drawn across rough and irregular land, tilted and pitched, and threw plaintiff therefrom and underneath the plows; that plaintiff had no opportunity to cry out; and that the plows were not stopped, but were dragged across plaintiff injuring plaintiff in his legs, arms, spine, and spinal column, and particularly. * * * “IV. That said injury was caused solely by the carelessness and negligence of defendant, his agents, servants, and employees, in not providing a safe place in which plaintiff could work, and in failing to warn plaintiff of the hazards incident to his employment; that plaintiff was, at the time of his said injury, and at all times while engaged upon said plow outfit, exercising due care for his own safety, and in no ways contributed to his said injury as above set forth.” It will be noticed that it is alleged that the platform was defective because it was likely to rock and tilt, and that this defective condition was due to the fact that it was insecurely fastened and loose. In paragraph II it is alleged that the platform, while being drawn across rough and irregular land, did tilt and pitch so as to throw the plaintiff off. Defendant contends that the court will take judicial notice that a platform or any piece of machinery will tilt and pitch while being drawn across rough and irregular land, and that it does not necessarily follow that, because the platform did tilt and pitch in going over rough or irregular ground, this was due to the fact that the platform was insecurely fastened or was loose; that, in the absence of some direct allegation that the tilting or pitching of the platform was caused or occasioned by its unfastened condition, the complaint does not state a cause of action. It will also be noted, however, that in the fourth paragraph the complaint contains the general allegation: ‘ ‘ That said injury was caused solely by the carelessness and negligence of defendant, his agents, servants and employees, in not providing a safe place in which plaintiff could work, and in failing to warn plaintiff of the hazard incident to his employment.” Plaintiff contends that this allegation is sufficient to establish — 434 — the causal connection between tbe negligence alleged and bis injury. To state a cause of action for damages resulting from negligence, tbe complaint, of course, must allege tbat tbe injury resulted proximately from tbe negligent act charged. In Ecclesine v. Great Northern R. Co., 58 Mont. 470, 194 Pac. 143, tbis court said: “Actionable negligence arises only from a breach of legal duty, and, to state a cause of action for damages resulting from negligence, it is necessary tbat the complaint disclose tbe duty, tbe breach, tbe resulting damages, and tbat tbe breach of duty was a proximate cause of tbe injury.” Again, in Barry v. Badger, 54 Mont. 224, 169 Pac. 34, tbis court said: “It is elementary tbat, when the plaintiff seeks recovery for actionable negligence, bis complaint must allege facts showing these three elements: (1) Tbat tbe defendant was under a legal duty to protect him from tbe injury of which be complains; (2) tbat the defendant failed to perform tbis duty; and (3) that tbe injury was proximately caused by defendant’s delinquency. All of these elements combined constitute tbe cause of action; and if tbe complaint fails to disclose, directly or by fair inference from tbe facts alleged, the presence of all of them, it is insufficient, for it fails to state tbe facts constituting a cause of action.” Of like effect are the declarations of tbis court in Fusselman v. Yellowstone Valley Irr. Co., 53 Mont. 254, Ann. Gas. 1918B, 420, 163 Pac. 473; Ellinghouse v. Ajax Livestock Co., 51 Mont. 275, L. R. A. 1916D, 836, 152 Pac. 481; Stones v. Chicago, M. & St. P. Ry. Co., 59 Mont. 342, 197 Pac. 252. “In tbe construction of a pleading, for tbe purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between tbe parties.” (Sec. 9164, Rev. Codes 1921.) “Tbe court must, in every stage of an action, disregard any error or defect in tbe pleadings or proceedings which does not affect tbe substantial rights of'tbe parties, and no judgment shall be reversed or — 435 — affected by reason of such error or defect.” (See. 9191, Rev. Codes 1921.) In determining the issues of law presented by a general demurrer to the complaint or by an objection to the introduction of testimony, matters of form will be disregarded, as well as allegations that are irrelevant or redundant, and, if the allegations of the complaint warrant a recovery in any amount and upon any admissible theory, the pleading will be sustained. (Hurley v. Great Falls Base Ball Assn., 59 Mont. 21, 195 Pac. 599; Hicks v. Rupp, 49 Mont. 40, 140 Pac. 97; Wheeler etc. Mer. Co. v. Moon, 49 Mont. 307, 141 Pac. 665.) This is necessarily so for the reason that, under the practice established by the Code in this state, ambiguity, unintelligibility and uncertainty in a complaint must be taken advantage of by demurrer, pointing out specifically the particular defect relied upon, and, if this is not done, the defendant must be deemed to have waived such defect. (Secs. 9131, 9132, 9136, Rev. Codes 1921; Didriksen v. Broadview Hardware Co., 58 Mont. 421, 193 Pac. 63.) It is equally well settled that, as against an attack for lack of substance, and in the absence of a special demurrer or motion, whatever is necessarily implied in, or is reasonably to be inferred from, an allegation, is to be taken as directly averred. (Woodward v. Melton, 58 Mont. 594, 194 Pac. 154; Gauss v. Trump, 48 Mont. 92, 135 Pac. 910; County of Silver Bow v. Davies, 40 Mont. 418, 107 Pac. 81; Willoburn Ranch Co. v. Yegen, 49 Mont. 101, 140 Pac. 231; secs. 9164, 9191, Rev. Codes 1921.) In Gauss v. Trump, supra, this court, speaking through Mr. Justice Sanner, said: “Argumentative and inferential averments are, it is true, as obnoxious to good pleading as are conclusions of law, but their value is not the same. Copclusions of law, unsupported by the essential averments of fact, are always ineffective; but, as against an attack for lack of substance, the allegations of a pleading are to be liberally construed, with a view to substantial justice between the parties — 436 — (Rev. Codes, sec. 6566), and whatever is necessarily implied in, or is reasonably to be inferred from, an allegation is to be taken as directly averred (County of Silver Bow v. Davies, 40 Mont. 418, 107 Pac. 81). Where the inferential allegations of a pleading are not attacked by special demurrer or motion, as may be appropriate, we know of no modern authority which denies the right of the pleader to make proof under them.” The pleading is objectionable for lack of definiteness and certainty, and a special demurrer or appropriate motion seasonably interposed raising that question would no doubt have been sustained. As against an attack for lack of substance, the complaint states a cause of action, and defendant’s objections to it were properly overruled. Defendant further insists that his motion for a directed verdict should have been granted. He contends that the evidence adduced, taken as a whole, shows conclusively as a matter of law that the plaintiff not only knew of the alleged defect or dangerous condition, but that he also fully appreciated the danger, and, after acquiring such knowledge and with such appreciation of the danger, he voluntarily continued in the alleged dangerous situation whereby he was injured, and that he thereby assumed the risk; that he was not relieved from such assumption of the risk by the statements made to him by Boner, the engineer. Keeping in mind the well-established rule that upon a motion for a directed verdict the court must deem every fact proved which the evidence adduced tends to prove, and that a case should not be withdrawn from the jury unless it follows as a matter of law that recovery cannot be had upon any view of the evidence, including legitimate inferences to be drawn from it (Koerner v. Northern Pac. R. Co., 56 Mont. 511, 186 Pac. 337), and also remembering the presumption of law that a person exercises ordinary care for his own safety (sec. 10606, Rev. Codes 1921), let us examine the record to determine whether it shows that plaintiff as k matter of law assumed the risk. — 437 — Several questions are involved: (a) Did the plaintiff know of the defective condition? (b) Knowing the defective condition, did he actually appreciate the danger, or should he, acting as a reasonable person, have appreciated the danger? If (a) and (b) are answered in the affirmative, then (c) was he justified m continuing to work in the dangerous situation under the promise of Harrison Boner, 'the engineer, to repair the defect and his assurance that there was no danger? In other words, if plaintiff was induced to continue working in the dangerous situation by the statements and promises of Boner, did this absolve him from the legal liability of assuming the risk? The answer to question (c) will depend upon the result of one further inquiry, and that is: (d) In the act of making these statements and promises, did Harrison Boner bear the relation of vice-principal to plaintiff, or was he a fellow-servant? In the solution of (d) several questions are involved. Was Boner created a vice-principal by direct authorization of defendant? If not, did the position in which defendant permitted plaintiff and Boner to be placed, the character and mágnitude of the work and the duties inherently devolving upon each, and the very nature and necessity of the situation created by defendant make Boner plaintiff’s vice-principal in the act of making the statements and promises upon which plaintiff relied? A servant by the act of entering the service of his master assumes all the usual and ordinary risks attendant upon his employment, not including risks arising from the negligence of the master, and he assumes the latter as well if he knows of the defects from which they arise and appreciates the dangers which flow from such defects. (Sec. 7758, Rev. Codes 1921; Fotheringill v. Washoe Copper Co., 43 Mont. 485, 117 Pac. 86.) Here it will be noted that there are two elements, to-wit, knowledge of the defect and that which is of equal importance, an appreciation of the risk resulting therefrom. Plaintiff, of course, admits that he discovered the particular defect which caused the injury before the accident, but he insists that he was ignorant and inexperienced, and there — 438 — fore did not realize or appreciate the danger of continuing to work after the discovery, and that therefore defendant is liable for failing to provide him a safe place to work and in failing to warn him. This contention cannot be sustained. His statements that, when they got on rough and stony ground, the platform would not go steady, but worked up and down, and that he asked Boner to fix it, show that he did realize and appreciate that there was danger. What had previously caused the platform to raise up? It requires only ordinary intelligence to realize that in plowing among stones they will roll, and that a stone or anything else rolling beneath a loose platform may raise it up. When plaintiff testified that he relied upon Boner’s assurance that he would repair the platform, and that there was no danger, it was no hasty or inadvertent statement upon his part. The record shows that after plaintiff’s direct examination had closed and a recess had been taken his counsel asked for and was given permission to recall plaintiff to the stand to testify to this single point, and a fair interpretation of the record seems to show that one theory upon which the case was tried was grounded upon a promise to repair after discovery that the defect was dangerous, and thus relieving plaintiff of assuming the risk by continuing in the employment thereafter. If he thought the matter over and then asked for, received and relied upon assurances of repair which induced him to continue in an employment which he might otherwise have abandoned, he, of course, appreciated that there was danger. Actual knowledge of the risk is not necessary in order that he assume it. If the circumstances are such that a reasonably prudent man ought to have known of the danger, he will be charged with the knowledge. (Molt v. Northern Pac. R. Co., 44 Mont. 471, 120 Pac. 809.) In the case of .an adult servant of sound mind, where the dangers of the employment are visible, so that a man of ordinary intelligence, though not an expert, could not fail to see and comprehend them, an employer is under no obligation to warn the servant of their existence. (Thompson on — 439 — Negligence, see. 4061; Masich v. American Smelting Co., 44 Mont. 36, 118 Pac. 764.) In Sorenson v. Northern Pac. Ry. Co., 53 Mont. 268, 163 Pac. 500, this court, speaking through Mr. Chief Justice Brantly, said: “It is true that actual ignorance of the particular risk will not relieve the servant; that his ignorance must be excusable; that he is bound to use his senses, and cannot allege ignorance of a hazard which is obvious to any one of ordinary intelligence and understanding; and that, though he does not appreciate the extent of the hazard or does.not know precisely the injury he may incur, the risk is his. (Bailey on Personal Injuries, 2d ed., sec. 376.)” In 3 Labatt’s Master and Servant, section 1209, it is said: “On general principles, it is plain that, where there can be no reasonable doubt that a person in the servant’s position, who knew of the defect in question, must also have understood the resulting risk, it may be ruled as a matter of law that, for the purpose of the defense, his information was complete.” But, conceding that plaintiff did know of the defective condition and appreciated the danger, if he was assured by the defendant that the defect would be repaired, plaintiff could continue in the employment for a reasonable length of time thereafter without assuming the risk, unless the danger was so great that a reasonably prudent man would not have continued at work. (3 Labatt’s Master and Servant, sec. 1197.) So, likewise, the rule seems to be settled that a servant can rely upon his employer’s direction to do an act as being safe unless the danger is so apparent that one of ordinary prudence would observe it and would refuse obedience. (Cox v. Wilkeson Coal & Coke Co., 61 Wash. 343, 112 Pac. 231.) In so far as giving notice of the defect to Barrick as foreman the alleged statement of Boner that he told the foreman to get bolts is hearsay, which was erroneously admitted over defendant’s objection. So that there is nothing properly in the record to show that either defendant, Nihill or Barrick, — 440 — his foreman, ever knew of the defect, except plaintiff’s statement that Barrick “had some bolts” on the morning of the accident, and there is no showing that either Nihill or Barrick made any promise that it would be repaired. The only promise was that made by Boner, the engineer. Were the statements of Boner imputable to the defendant, Nihill, so as to make him legally responsible to plaintiff for them? In other words, was Boner’s promise to repair in legal effect the promise of the defendant? The solution of this problem depends upon the answer to question (d) above, as to whether Boner was a vice-principal in his relations to plaintiff or a fellow-servant. Whether one acts as a fellow-servant or as a representative of the master under a given state of facts is a question of law for the court. (Yates v. McCullough Iron Co., 69 Md. 370, 16 Atl. 280; Donnelly v. San Francisco Bridge Co., 117 Cal. 417, 49 Pac. 559; Callan v. Bull, 113 Cal. 593, 45 Pac. 1017.) Plaintiff earnestly contends that Boner was defendant’s vice-principal, and in that connection he lays much stress on the fact that Barrick, the foreman, had placed Boner in authority over plaintiff. But this is not the true test. Superior position or authority alone does not necessarily make him a vice-principal. In determining who is a vice-principal, the question is whether the person whose status is in controversy has been intrusted with, and authorized to perform, any nondelegable duty required of the master. The master’s liability in cases of vice-prineipalship does not depend upon who performs the duty, but upon the character of the act done or services performed, and the existence of the duty itself, there being certain duties which he cannot delegate to a fellow-servant, and absolve himself from liability for their nonperformance. It is not a question of grade or rank, and the employee’s place or grade of service is not material. Whenever a master delegates to any officer, servant, agent or employee, high or low, the performance of any duty which really devolves upon the master himself, then such officer, — 441 — servant, agent or employee stands in the place of the master •and becomes a substitute for the master, or, in other words, a vice-principal, and the master is liable for his acts or his negligence to the same extent as though the master himself had performed the acts or was guilty of the negligence. These nondelegable duties are, among others, that of exercising reasonable care to provide the servant with a safe place to work, reasonably safe implements and materials to work with, and with reasonably competent fellow-servants. This was the rule laid down in Atchison, Topeka & Santa Fe R. Co. v. Moore, 29 Kan. 632. The same principle was announced in Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 37 L. Ed. 772, 13 Sup. Ct. Rep. 914 [see, also, Rose’s U. S. Notes], and has been adopted as the rule of law in this state in Goodwell v. Montana C. Ry. Co., 18 Mont. 293, 45 Pac. 210, Gregory v. Chicago, M. & St. P. R. Co., 42 Mont. 551, 113 Pac. 1123, McAllister v. Rocky Fork Coal Co., 45 Mont. 433, 123 Pac. 696, and Morelli v. Twohy Bros. Co., 54 Mont. 366, 170 Pac. 757. Plainly, then, Boner was performing a nondelegable act, i. e., the act of a vice-principal when he promised to get bolts and repair the defect and assured plaintiff there was no danger, since his act involved that of providing plaintiff a safe place to work. The remaining question to be answered, then, is as to whether defendant .either directly authorized Boner to be his vice-principal in doing the acts in question, or, in the absence of direct authorization, defendant created a situation where authority was implied or the exigencies of the occasion devolved upon Boner the duties and authority of a vice-principal. The record shows without contradiction that Barrick had no authority from defendant to make Boner his subforeman and place him in command over plaintiff or to delegate to him the sole duty of repairing. And from a careful review of the whole record we are unable to find where the general situation, the nature and magnitude of the work, required one of the two servants to be superior to the other, or that, under the — 442 — particular circumstances of this case, the sole duty of repairing necessarily devolved upon one of them to the exclusion of the other. So far as the record shows, both plaintiff and Boner were men of ordinary intelligence. It does not appear that plaintiff was too ignorant or was forbidden to make the repairs if he had had bolts. No reason appears why plaintiff himself could not have asked the foreman to bring bolts instead of telling Boner. Barrick was present half an hour or so before the accident, and plaintiff said nothing to him about bolts. Plaintiff was at that instant working on the plow changing plowshares, and thus taking out and putting in bolts. The task of putting bolts in the platform could not have been very different from that of putting bolts in the plows. In order to prove a cause of action, plaintiff contends that, although plaintiff greased, ran, and operated the plows and removed the bolts from the points, the general situation created by defendant, the nature and magnitude of the work, caused the duty of fixing the platform to thereby devolve solely upon Boner. This contention cannot be sustained. Rehearing denied November 22, 1922. The record, taken as a whole, discloses that plaintiff and Boner were fellow-servants. Being a fellow-servant Boner did not represent defendant when he promised repairs and assured plaintiff there was no danger. Plaintiff assumed the risk, and the motion for a directed verdict should have been sustained. We therefore recommend that the judgment and order be reversed, with directions to dismiss the complaint. Per Curiam : For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed and the cause is remanded, with directions to dismiss the complaint. Reversed.