in that case, was only the lien of a first subContractor. We observe that decisions and text writers have construed that case as holding that subcontractors of all degrees have a lien. While there may be language in the opinion indicating that view, the facts of the case do not extend the decision that far.

We will start in this consideration with the declaration of law, as clearly set forth in Merrigan v. English, that the first subcontractor has a lien. The inquiry, then, is, does our law also extend the lien to contractors under the first subcontractor. Appellants' counsel has made a very able argument against that position. We will not restate the history and the law as found in Merrigan v. English, but simply refer to that opinion. Counsel calls our attention to the fact, as noted in that case, and as discussed generally in the decisions and by text writers, that two systems of mechanics' liens are adopted in the different states of the Union,-one, the New York or subrogation system; the other, the Pennsylvania or direct lien system. The system of this state up to 1887 was that of New York. Since the legislation of that year it has been that of Pennsylvania. See the subject fully developed in Merrigan v. English. Counsel then points out that in states holding the New York system a subcontractor of a subcontractor had no lien, citing Kirby v. McGarry, 16 Wis. 70; Harbeck v. Southwell, 18 Wis. 439; Wood v. Donaldson, 17 Wend. 550; Turcott v. Hall, 8 Ala. 525; Stephens V. Stock-Yard Co., 29 Ohio St. 227; Rothgerber v. Dupuy, 64 Ill. 452; Berkowsky v. Sable, 43 Ill. App. 411. Counsel next argues that, on the reasoning of the decisions in these states, it should also be held that there was no lien to a subcontractor of a subcon tractor in this state prior to the law of 1887. But, under both the old law and the new, there is a lien, at least to the first subcontractor. Merrigan v. English, supra. It is also held in Merrigan v. English that the change made in the law in 1887, in discarding the New York system and adopting the Pennsylvania system, did not change the classes of persons to whom a lien was given in this state, but changed only the method by which such persons could secure their liens.

But the question now arises, was there not a lien to a subcontractor of a subcontractor under the old law? In the cases which counsel cites from states practicing under the New York system, he does not point out, nor do we find, a statute similar to section 815 of our law prior to 1887, which is the same as section 1391 of the law since that date. That section is as follows: "All persons furnishing things, or doing work, as provided for by this chapter, shall be considered subcontractors, except such as have therefor contracts directly with the owner or proprietor, his agent or trustee." Comp. St. div. 5, § 1391.

The cases which counsel cites do not construe such a section as this. Those decisions reason upon the applicability of their own statutes, as they find them. There is absent from the decisions of those states a direct statutory declaration as to who subcontractors are; but such declaration we find in our statute, as just quoted. It being conceded under the authority of Merrigan v. English that a subcontractor had a lien under the old law, as well as the new, who is a subcontractor? The statute answers. While it is held by the authorities that, to give a subcontractor of a subcontractor a lien, the declaration of such intention must be very plain and specific, we are of opinion that the declaration of our statute is perfectly clear, and that its meaning cannot be doubted. "All persons furnishing things or doing work" is the language. A subcontractor in the second, third, or any degree is one of the persons "furnishing things or doing work." Looking further at this statute, the language is "furnishing things, or doing work, as provided for by this chapter." As provided for by this chapter is: "Every mechanic, builder, lumberman, artisan, workman, laborer or other person, who shall do or perform any work or labor upon, or furnish any material, machinery or fixtures for any building, erection, bridge, flume, canal, ditch, mining claim, quartz lode, ranch, city or town lots, or other improvements upon land, or for repairing the same, upon complying with the provisions of this chapter, shall have for his work or labor done. or material, machinery, or fixtures furnished, a lien upon such building, bridge, flume, canai, ditch, mining claim, quartz lode, ranch, city or town lots or other improvements, to secure the payment of such work or labor done, or material, machinery, or fixtures furnished.' Rev. St. 1879, § 820. Therefore, all persons furnishing things or doing work as provided by that chapter are subcontractors. A subcontractor of a subcontractor may furnish things or do work as provided for in the chapter. Therefore, a subcontractor of a subcontractor is included by the statute (section 845) as simply a subcontractor.

"

At this point we notice that counsel for appellants argue, with some reason, that, if the subcontractor of a subcontractor had a lien under the old law, other sections of the chapter on liens seem to be addressed peculiarly to the method of securing and enforcing lens by original contractors and first subcontractors. Whatever force there may be in this suggestion, we are of opinion that it cannot offset the separate and plain and specific definition in the statute of who a subcontractor is. In fact, we cannot intelligently read section 845 of the old law or section 1391 of the new law in any other manner than a declaration that all persons who furnish the things or do the work are to be considered subcontractors. If we give the construction which counsel contends for to this section, then it would read: "All persons furnishing things or do

ing work, except second and third and later subcontractors, shall be considered subcontractors, except, again, the original contractor with the owner." But all persons furnish. ing things, etc., except the second and third subcontractors and the original contractor or contractors, need no definition to define them, for they are first subcontractors without definition. Counsel's interpretation of the section would simply reduce it to reading that subcontractors are subcontractors. We cannot consent to this construction. We cannot hold any other opinion but that under the old law a lien was given to subcontractors of lower degree than the first. It is then important to note that this section 845 was carried into the new laws enacted in 1887, and appears in the identical language as section 1391 of the Compiled Statutes of 1887.

It may be pertinent to observe that section 1391 was enacted by our legislature after many decisions had been made by courts interpreting lien laws to the effect that, to extend the lien to subcontractors inferior to the first, there must be a plain statutory declaration. It would seem that our legislature undertook to make such plain declaration. As noted above, Merrigan v. English held that the change made by the law of 1887 was simply from one method of lien to another, and not a change in the classes of persons to whom the lien was given. Therefore, it seems to be clear that subcontractors later than the first are now entitled to a lien under the laws of this state. In this respect there was no error in the district court.

As to the practicable application of such statutes as ours, we note the following from 2 Jones, Liens, § 1305: "Under such statutes, the burden is upon the owner to protect himself from the liens that may be incurred by the person with whom he contracts. It thus becomes incumbent upon him to see that the contractor is financially responsible for the contracts he may make in the prosecution of the work. His rights are affected only so far as is necessary for the security of those who are presumed to have added something to the value of the owner's property. The owner may always protect himself by withholding from the contractor such part of the contract price as will be sufficient to protect the property from all liens for work or materials. That the owner has paid the contractor before the expiration of the time for filing liens by subcontractors is no defense to such liens if they are filed in due time. The subcontractor is bound to give no other notice of his claim than that required by the lien law." We also append the following remarks from the case of Manufacturing Co. v. Falls, 90 Tenn. 466, 16 S. W. 1045: "It is true that a lien is provided for persons with whom the owner is supposed to have no direct contractual relations, but that fact alone does not invalidate the act; for the owner must be held to a knowledge of the existing law on the subject, and to the presumption that he employed the

original contractor, and gave out his work with reference to that law. The right of lien to subcontractors and material men is, by operation of law, incorporated into and made a part of the owner's contract, as much as if expressly included and written therein. He contracts about a subject in which the law declares certain advantages to all persons concerned, whether by direct contract with him or by the employment of his contractor. The law declares that a lien shall exist in favor of the subcontractor and material man in certain contingencies; hence the owner who makes the contemplated contract cannot justly complain of the legal result, especially when he receives the benefit of the labor and material of those for whom the lien is provided, and who often have no other means of compensation. The enforcement of this law does not necessarily result in loss to the owner, nor take from him something for nothing. The second criticism, involving the proposition that the owner may be compelled to pay the subcontractor and material man after he has already paid the original contractor, is true literally, but it is not true in the 'sense that it ascribes to the statute a purpose of enforcing double payment. In other words, it is a fact that an owner who pays the original contractor within thirty days after the completion of the work, building, or machinery may, upon notice given within that period, be forced to pay the subcontractor and material man whom the original contractor unjustly fails or refuses to pay; but double payment does not follow as a necessary legal consequence in any case. In every instance the owner may fully protect himself by withholding the whe or a sufficiency of the price agreed upon from the original contractor until after the expiration of the thirty days, or he may see to it that the subcontractor and material man are paid as the work progresses, or he may indemnify himself by bond, as prescribed in the third section of this act. It may be truthfully said that it will be inconvenient for the owner to adopt any one of these expedients; yet inconvenience of parties affected is never al lowed to defeat a statute. The constitutionality of the act of the legislature cannot de successfully impeached upon the ground that it involves the citizen in mere inconvenience. Much more than inconvenience is involved for the subcontractor and material man. Without the protection of such a law, they would be constantly exposed to the danger of an entire loss of labor and material. Hence, as a matter of pure wisdom and justice, there could be but little difficulty in choosing between the situation with such a law and that which would exist without it. A policy that would involve one class of citizens in mere inconvenience for the pecuniary safety of another class is far more wise and just than that which would suffer loss to the latter class rather than entail inconvenience on the former." But, notwithstanding these views, we should be inclined to say, if we belonged to

the legislative instead of the judicial department of this state, that section 1391 of our lien law, which we have considered, is not wise legislation.

In Phillips on Mechanics' Liens, in discussing the matter of extending liens to subcontractors of subcontractors (in the absence of a direct statute, such as ours, accomplishing such result), the author says, citing authorities: "There is no policy that would extend its construction to this latter class. If such were the case, the multiplication of liens would become an intolerable nuisance, by allowing distant subcontractors to thus incumber property. It would be intolerable, not only to persons having houses built, but to mechanics themselves; for no prudent man would, with such a law, venture to employ any but rich mechanics about his building, without getting security against liens, which they might multiply with so much facility. How distant, then, may the claimant stand from the contract between the owner and builder before there is no lien? Certainly there must be a limit somewhere. The carpenter may undertake with the builder for finishing all his kind of work, including all the nails, screws, etc. Can he transmit the right of lien to all deal. ers and artisans in these kinds of business? If he can, then the lien rights against any house may be entirely indefinite. The bricklayer, the stonemason, etc., may multiply them in the same way, until the costs of liens may exceed the value of the house. What, then, is the limit of these lien rights?

*

It is

** This would soon be felt as intolerable. To increase the risks materially, as to extend them to journeymen, would be seriously to interfere with the growth and improvement of our cities and towns, by interposing obstacles to the march of meritorious enterprise, and thus eventually to injure the workman himself. For the introduction of such a rule a distinct manifesta. tion of legislative will is necessary. far better for all parties to leave the journeyman operative to the security he most commonly relies on,-the personal responsibility of his employer." Section 60. The policy of the legislation in this state has been strongly towards the protection of laboring men, but it is a serious question whether the law in the matter which we are considering has not overreached its object, and injured instead of benefiting the laborer. There is much force in the following remarks on this subject, found in Phillips on Mechanics' Liens: "It would be unsafe in that case for the principal contractor to make any payments or advances to the subcontractors who had undertaken to do particular portions of the work, until their several jobs were completed, and they had furnished to him conclusive evidence that all the journeymen and laborers employed by them, respectively, had been paid in full; and the various subcontractors would have

to raise money some other way to pay such journeymen and laborers, or those who actually did the work would have to wait until the subcontract was fulfilled, so that they and the subcontractor could be paid off by the original contractor at the same time, the probable effect of which would be to suspend the payments of the daily pittance which the journeyman frequently, wants for the immediate use of himself and his family, or to compel the great mass of industrious and enterprising mechanics in our cities, who have as yet acquired no capital and but little credit, to become the mere journeymen of a few wealthy contractors, by placing them in a situation by which it would be impossible for them to obtain subcontracts for a part of the work." Section 49. But with the enactment of laws we have not to do. We commend the subject to the wisdom of the legislature.

Appellants contend that the complaint does not allege that the materials furnished went into and were used in the building. But the complaint, in the body thereof, alleges that the material was furnished to be used in the building, and the notice of lien, which is made part of the complaint, sets forth the fact that the material was used in the construction of the building. The defendants answered this complaint, and made no issue upon this matter, and thereupon went to trial. They, therefore, cannot raise that question now. Hershfield v. Aiken, 3 Mont. 442; Murphy v. Phelps, 12 Mont. 531, 31 Pac. 64.

The same answer may be made to appellants' objection that the complaint does

not show at what time the materials were furnished. This is fully shown by the no

tice of lien.

Again, appellants contend that the complaint does not sustain the judgment, because Wortman was not made a party defendant. But there was no demurrer to the complaint on this ground, and defendants went to trial without any such objection. Code Civ. Proc. § 87; Parchen v. Peck, 2 Mont. 571.

The only error that we find in the case is in the judgment, which was prepared by plaintiffs' counsel, and entered. Almost as far as that document is intelligible it is wrong. We will not detail its remarkable characteristics, but will set it aside, and remand the case to the district court, with instructions to enter a judgment against the Helena Co-Operative Granite & Sandstone Company for the sums found to be due, as set forth in the present judgment, and the further judgment as provided in section 1383 et seq., Comp. St. As respondents have insisted that the judgment as entered is correct, it is ordered that the costs be taxed against the respondents. Remanded.

PEMBERTON, C. J., concurs. HUNT, J., deeming himself disqualified, did not sit in this case.

(16 Mont. 164) JOHNSON v. BOSTON & M. CONSOLIDATED COPPER & SILVER

MIN. CO.

(Supreme Court of Montana. May 13,
1895.)

INJURY TO EMPLOYE-DEFECTIVE BOILER-DEGREE
OF CARE.

1. The ordinary care required by an employer in furnishing a steam boiler is relative to the work to be done by the boiler, and the capacity of such an instrument for harm as well as good.

2. In an action for the death of an employé by the explosion of a boiler, an instruction that the defendant "is required to supply its employés with safe and suitable machinery" is not erroneous, when qualified by subsequent instructions that defendant is not liable if the explosion was caused by a "latent" defect, which defendant could not discover by exercising "ordinary care," and that "in this case, if defendant furnished such a boiler as a reasonably prudent man would furnish, then plaintiff cannot recover."

3. Defendant, on the opinion of an engineer that a boiler could be repaired for temporary use, had it repaired and used it for six months, when defendant's engineer, knowing of its defective condition, placed it in a position where the service was more severe. Held that, on explosion of the boiler, defendant was liable for an employé killed thereby.

Appeal from district court, Silver Bow county; J. J. McHatton, Judge.

Action by Charles M. Johnson, administrator, against the Boston & Montana Consolidated Copper & Silver Mining Company for the death of his intestate. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by Charles M. Johnson, as administrator of the estate of William O'Connor, deceased, against the Boston & Montana Consolidated Copper & Silver Mining Company, a corporation operating mines at Butte, to recover damages for the alleged negligence in using a boiler, which exploded in November, 1888, and killed the plaintiff's Intestate. There was a trial before the court and jury, resulting in a verdict and judgment in favor of plaintiff for $2,500. The defendant Hoved for a new trial, and from the order verruling the same, and from the judgment, his appeal is taken. The complaint alleges that the defendant owned and used, in the oncentration of ores, the old Colusa concenrator works at Meaderville, in Silver Bow ounty; that the deceased, about November 19, 1888, was in the employ of defendant at aid concentrator as a boss carpenter; that it became the duty of the defendant to proure good and secure boilers with which to generate the steam usually required and necessary to propel and work the engine and machinery used in the said concentrating works; that the defendant carelessly, negligently, and unskillfully provided and used at said works, at said time and place, an unsafe, defective, and insufficient boiler, of all of which it had notice prior to the time of using the same; that for want of due care and attention to its duty in that behalf, on the said

19th of November, 1888, while the said boiler was in use, the said William O'Connor was called upon, in the line of his duty as boss carpenter, to enter the boiler room to inspect certain carpenter work, and that, while he was in said boiler room so inspecting sald carpenter work, one of the boilers therein, connected with the engine aforesaid of said works, and in use for generating steam therefor, by reason of its unsafeness, defectiveness, and insufficiency, exploded, whereby said William O'Connor was fatally injured.

The defendant denied any negligence on its part, as alleged, or that it used in the said concentrating works any unsafe, defective, or insufficient boiler, or machinery of any kind, or that, by reason of any carelessness or negligence on its part, plaintiff's intestate was killed. The defendant further answered, and averred that the boilers used to generate steam to run the concentrator were good, safe, and scund, and in every respect proper to be used in the works for which they were used at the time the explosion occurred, and were in safe and serviceable condition, and that the engineers in charge were competent, but that, if the deceased was killed by the negligence of any one, it was by the negligence of the engineer in charge at the time the accident occurred, who was a fellow servant of the deceased, and not an agent or vice principal of the defendant, and that if there was any defect of any kind in the boilers defendant had no notice thereof, and was not aware of the same, and such defect, if any, was latent. and could not have been detected or exposed by the most careful and critical examination by competent and skilled engineers and boiler makers.

The replication of plaintiff simply denied that the engineer was the fellow servant of the deceased.

On the trial the plaintiff, to sustain the issues of his complaint, offered evidence tending to prove the following facts: The boiler which exploded had been used at the Colusa mine about four years before the explosion. The defendant moved the boiler out of the Colusa mine house, and put in another boiler instead. After the removal the boiler laid outside of the building for a while, it is difficult to tell just how long. but about 10 months before the explosion the general manager and chief engineer of the defendant company employed a competent boiler engineer to repair it. The object of the repairs was stated to be to run the pump from the creek. The boiler maker, a mechanic of skill and 33 years' experience, whose name was Sloan, said he thought the boiler could be repaired for the purposes suggested, and asked Heimbach, the machinist and engineer of the defendant, how much steam would be required. Heimbach told him about 60 or 65 pounds would run the pump. Sloan told him that there were a couple of sheets that would

have to come out, and the flues would have to come out, and be welded and put back. Heimbach told Sloan that all that the boiler would be required to do was to run the pump from the creek. Couch, the general manager, spoke to Sloan about the boiler, and, when told what was necessary to be done, said that if the boiler would run for six months or a year he would get a new boiler put on the pump. The repairs were greater than were expected, whereupon Heimbach told Sloan to do the best he could, and after they ran it awhile they would get a new boiler. The iron was old and crystalized. Its tensile strength was partly gone, and there was a scale all the way from 1/16 to 3/16 of an inch, which would weaken the iron in its capacity to resist pressure. Sloan took the scale out of the boiler. The thickness of the iron was 1/4 of an inch. But this was reduced by the scale, which had cut through from % to 1/16 of an inch. The diameter of the boiler was 40 or 42 inches. Its capacity was 40 horse power. Its length 14 feet. It was single riveted, and 6 to 8 per cent. weaker than a double riveted boiler. The boiler, after several months' use at a pump, was placed between two larger boilers in the concentrating works. The other boilers were 5/16 iron, and their capacity nearly double that of the one which subsequently exploded. An examination of the boiler after the explosion showed that it was torn to pieces, the old iron sticking to the new sheets which Sloan put in, the new iron not being torn. The boiler was lying between the two larger boilers. Patches had been put upon the boiler prior to the time that Sloan repaired it. These were not visible after the explosion, by reason of the condition of the boiler.

Sloan testified that the cause of the explosion was that the iron in the boiler was not good enough to stand the pressure the defendant wanted to put on it; that the boiler was not fit for the place where it was put; that the explosion might have occurred by turning on the steam; and that the boiler was not good enough to go alongside of such boilers as the other two were. When the boiler had been repaired in the December previous to the explosion, it was tested with water, merely to see if it was tight, and was perfectly tight. The general manager was then told that the boiler was good for 60 or 65 pounds of steam. It further appeared that if the steam from the two new boilers was turned into this old boiler suddenly it would cause evaporation, and a strain equal to the pressure in the boilers on either side, and the old boiler would have to give way because the other boilers were 80 much larger, or, if the steam from the other boilers was turned on quickly, the old boiler would explode. When the repairs were made on the old boiler, punched in

This fact

stead of drilled holes were made. also tended to slightly bend the fibers of the iron between the holes, which would not have occurred had the holes been drilled. Sloan says also that the work was to be done "as quick as possible, and as cheap as possible," and he was to be directed in part by Heimbach. Sloan testified, further, that when he told the agents of the company that the boiler was good for 60 or 65 pounds, he meant that as a maximum pressure which the boiler would stand, and that the agent said that 55 or 60 pounds would do to run the pump, and for that pressure he considered it perfectly safe. When Sloan finished repairing the boiler it was set up in a pump house, and used to run a pump of compound low pressure, requiring between 50 and 60 pounds of steam. It did not leak while used for pumping purposes, and while it was so used it showed no signs of weakness.

The principal witness for the defendant was A. Heimbach, an employé of defendant, and an expert machinist of 35 years' experience, and, according to his evidence, the boiler was thoroughly repaired by Sloan, and pronounced by Sloan to be "all right." It was tested before it was used for pumping purposes, and after it had served its purpose in that capacity, and, before it was put into the concentrating works, it was again tested, and showed no defects, "more than any boiler would have that was used the same number of years." When Sloan commenced to repair it, it was not in a condition to be used for any purpose whatever, and Sloan was directed to cut out what was poor. The last test made, within 30 days before the boiler was put into the concentrating works, was made with cold water, 120 pounds pressure to the square inch, and with a hammer. It was perfectly tight, and the witness thought it capable of doing the work in the concentrator. The test was not made as to its capacity. He further said that there were boilers in the works as old as the one in question, and that this boiler did the same work that they are doing, as far as its capacity went. "I knew," said the witness, "by the steam connection on the other boilers that it had to be necessarily con nected with the same steam pipe, and had been used in the same way as this boiler." The witness denied that he ever told Sloan that if this boiler lasted six months he would get a new boiler. After the hammer and water test had been made by the defendant's agents, the boiler was never used until the day it exploded. Before the boiler was set up in the concentrating works it was scraped out with a scraper, and washed, in the manner usual in cleaning boilers. One gauge only was used in the test.

One witness, an experienced engineer, said that his rule for determining how much a boiler would stand to the square inch was to multiply the thickness of the iron by 56, if