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further specification of the negligence than that the same was committed "by the defendants and their servants," is wholly insufficient, for the reason that from this allegation it does not appear that the plaintiff himself was not the servant whose negligence caused the accident: Schreiner v. Grant Brothers, 3 Cal. App. 661, 662, 86 Pac. 912, (to recover personal damages for negligence).

4. The defense of assumption of risk is affirmative in character, and must be pleaded specifically before it can be availed of by the defendant: Coulter v. Union Laundry Co., 34 Mont. 590, 87 Pac. 973; Nord v. Boston etc. Co., 33 Mont. 464, 84 Pac. 1116, 89 Pac. 647; Longpre v. Big Blackfoot M. Co., 38 Mont. 99, 99 Pac. 131, 132.

5. Assumption of risk and contributory negligence are separate defenses, and while it frequently happens that there is no practical importance in distinguishing the two where the same state of facts would make out a defense, whether called by the one name or the other, yet they rest upon different bases, and each should be approached from a different viewpoint. Of course, where the danger is obvious the two defenses are tested by the same standard in that particular, and the differences are more theoretical than practical: Johnson v. Mammoth Vein Coal Co., 88 Ark. 243, 114 S. W. 722, 724, 123 S. W. 1180; Choctaw etc. R. Co. v. Jones, 77 Ark. 367, 92 S. W. 244, 4 L. R. A. (N. S.) 837, 7 Am. & Eng. Ann. Cas. 430; St. Louis etc. R. Co. v. Mangan, 86 Ark. 507, 112 S. W. 168, 13 Ark. Law Rep. 545; Narramore v. Cleveland etc. R. Co., 37 C. C. A. 499, 96 Fed. 298, 48 L. R. A. 68.

6. Risk, when deemed assumed.-The risk where obvious is deemed to have been assumed by the plaintiff: Jones v. Pioneer Cooperage Co., 134 Mo. App. 324, 114 S. W. 94, 96; Knorpp v. Wagner, 195 Mo. 637, 93 S. W. 961; Beasley v. Linahan Transfer Co., 148 Mo. 413, 50 S. W. 87; Bradley v. Railway, 138 Mo. 293, 39 S. W. 763; Lee v. Railroad, 112 Mo. App. 372, 87 S. W. 12.

7. Burden of proof as to assumed risk. -Where the defendant pleads assumpion of risk by the plaintiff because of his alleged continuance in a place of danger while in the defendant's employ, and pleads plaintiff's knowledge of the risk,

the burden is upon the defendant to establish by a preponderance of the evidence that the plaintiff knew and appreciated the peril to which he was exposed: Cinkovitch v. Thistle Coal Co., 143 Iowa, 595, 121 N. W. 1036, 1038, citing upon the point that knowledge and appreciation of the risk are always essential elements in the servant's assumption of risks arising from his alleged negligence: Long v. Johnson, 134 Iowa 336, 111 N. W. 984; Cushman v. Carbondale Co., 116 Iowa 618, 88 N. W. 817; Vohs v. Shorthill, 124 Iowa 471, 100 N. W. 495; Calloway v. Agar, 129 Iowa 1, 104 N. W. 721; Mace v. Boedker, 127 Iowa 721, 104 N. W. 475; Gorham v. Stockyards Co., 118 Iowa 749, 92 N. W. 698; Huggard v. Glucose Co., 132 Iowa 724, 109 N. W. 475.

8. An instruction based upon an assumed risk in an action to recover damages for negligence is improper where the defense of assumed risk is not pleaded: Lewis v. Texas etc. R. Co. (Tex. Civ. App.), 122 S. W. 605, 606, citing International etc. R. Co. v. Harris, 95 Tex. 346, 67 S. W. 315; Missouri etc. R. Co. v. Jones, 35 Tex. Civ. App. 584, 80 S. W. 852.

9. Negligence of fellow servant.-By a Missouri statute, the defense based upon negligence of a fellow-servant is taken away where the conditions and circumstances are such as the statute provides: Lewis v. Wabash R. Co., 142 Mo. App. 585, 121 S. W. 1091, 1092.

10. Negligence of a helper or fellowservant is a defense of the same nature as that of assumption of risk, and can be availed of, if at all, only by special allegation: Longpre v. Big Blackfoot M. Co., 38 Mont. 99, 99 Pac. 131, 132. See Duff v. Willamette Steel Works, 45 Ore. 479, 78 Pac. 363, 668; Laying v. Mt. Shasta M. S. Co., 135 Cal. 141, 67 Pac. 48; Ell v. Northern Pacific R. Co., 1 N. Dak. 336, 48 N. W. 222, 26 Am. St. Rep. 621, 12 L R. A. 97.

11. Liability of servant to master for acts of servant's minor children.-The liability of a parent for the act of a minor child is held to rest upon the same basic facts as the liability of a master for the acts of his servant, and does not result from the fact of the tort or act being purposely or wilfully done, but from its being done in doing the master's or servant's business. Hence, in an ac

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Form No 869. Against attorney, for negligent prosecution of
suit.

1461

Form No. 870. Against attorney, for negligent defense of an

action.

1462

Form No. 871. Against an agent, for carelessly selling to an

insolvent

• ....

1463

Form No. 872. Against an agent, for negligent delay in the
sale of goods

Form No. 873. Against negligent bailee

1463

......

1463

Form No. 874. Against a physician, for malpractice.

Form No. 875. Against a surgeon, for malpractice.

Form No. 876. For negligence of a dentist......

1464

1464

1465

explosive

animal

Form No. 877. For negligence of grocer in selling a dangerous

Form No. 878. By servant, for damages caused by vicious

Form No. 879. To recover damages against abstracters of title
for negligence in reporting upon title to real
property.

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$370. COMPLAINTS [OR PETITIONS].

FORM No. 869—Against attorney, for negligent prosecution of a suit.

[Title of court and cause.]

The plaintiff complains of the defendant, and alleges:

1. That the defendant is, and at the times hereinafter mentioned was, an attorney of the court of this state; that the plaintiff

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on or about the defendant as such attorney, to prosecute and conduct a certain action in the court of the county of

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on behalf of this plaintiff, against one L. M., for the recovery of

Jury's Pl.-93.

$9

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due from him to this plaintiff; that the defendant then and there accepted and entered upon such retainer and employment, and undertook to prosecute said action in a proper, skilful, and diligent manner, as the attorney of the plaintiff.

day of

day of

2. That the defendant might, in case he had prosecuted said action with due diligence and skill, have obtained final judgment therein for this plaintiff before the , 19, but not regarding his duty or employment, he so negligently and unskilfully conducted said action, that by his negligence, delay, and want of skill, he did not obtain judgment until the 19, and that meanwhile the said L. M. had become insolvent; whereby the plaintiff was hindered and deprived of the means of recovering said sum of money; that the same has not, nor has any part thereof, been recovered or made by the plaintiff, to his damage in the sum of $ [Concluding part.]

FORM No. 870-Against attorney, for negligent defense of an action. [Title of court and cause.]

The plaintiff complains of the defendant, and alleges:

1. [Allegation of employment of attorney to defend, etc. For general averments see paragraph 1, preceding form.]

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2. That such proceedings were had in such action that afterwards. to wit, on the day of 19, it became and was the duty of the defendant, under and by virtue of his said retainer and his said promise and undertaking [to interpose a proper and sufficient answer to the complaint therein], but he wholly omitted and neglected so to do, and by reason thereof, and by and through the neglect and default of the said defendant in that behalf [judgment by default was obtained in the said action against plaintiff, and by reason thereof plaintiff was compelled to pay the said L. M. $ the sum so recovered by him], and also, by reason of the premises, plaintiff was put to costs and charges in and about his endeavoring to defend the said action, amounting in the whole to a large sum of money, to wit, $ and has lost and been deprived of the means of recovering the same back from the said L. M., to the damage of the plaintiff in the sum of $

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[Concluding part.]

FORM No. 871-Against an agent, for carelessly selling to an insolvent.

[Title of court and cause.]

The plaintiff complains of the defendant, and alleges:

1. That on the

day of

19 at

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the defendant undertook with and for the plaintiff, as his agent, and for compensation to be paid by him, to sell goods belonging to the plaintiff, to wit, [designating goods,] of the value of $ and thereupon received

the same from him for that purpose.

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2. That the defendant did not use due diligence in the sale of the same, but carelessly and negligently sold the said goods for the plaintiff to a person who was then and ever since has been, insolvent, defendant then well knowing said person's financial condition, and without receiving the price therefor, or taking security for the payment thereof; whereby the plaintiff has lost said goods and the value. thereof, to the damage of the plaintiff in the sum of $ [Concluding part.]

FORM No. 872-Against an agent, for negligent delay in the sale of goods. [Title of court and cause.]

The plaintiff complains of the defendant, and alleges:

1. [Averment as to employment.]

2. That the defendant failed to use due diligence to sell said goods, but, on the contrary, unreasonably delayed so to do, by reason whereof the same were afterwards sold by the defendant for the plaintiff, and produced $ less than the same would have produced had the defendant used due diligence in selling the same; that by reason of defendant's said negligence the plaintiff incurred expenses in storing the same, to plaintiff's damage in the total sum of $

$

[Concluding part.]

FORM No. 873-Against negligent bailee.

[Title of court and cause.]

The plaintiff complains of the defendant, and alleges:

1. That the plaintiff, on or about the

day of

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, at the special instance and request of the defendant, caused to be delivered to defendant [a certain piano], the property of the

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2. That the defendant undertook and then and there agreed with the plaintiff to take due and proper care of the said [piano] for the plaintiff, and to redeliver the same to the plaintiff, to wit, at

3. That the defendant, not regarding his duty in that behalf, did not take due or proper care of the said [piano], nor did he, when he was so requested as aforesaid, or at any time, redeliver the same to the plaintiff; that by and through the carelessness, negligence, and improper conduct of the defendant, the said [piano] became and was wholly lost to the plaintiff [or damaged, as the case may be], to plaintiff's damage in the sum of $

[Concluding part.]

FORM No. 874-Against a physician, for malpractice.

[Title of court and cause.]

The plaintiff complains of the defendant, and alleges:

day of

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1. That on the 19 , the defendant being then a physician, the plaintiff, at defendant's request, employed the defendant as such physician for a reward, to attend on and administer medicines to, and endeavor to cure the plaintiff of a malady from which he then suffered.

2. That the defendant then entered upon such employment, but did not use due and proper care or skill in endeavoring to cure the plaintiff of the said malady, in this [state wherein the want of skill was, and the acts of negligence].

3. That by reason of the premises the plaintiff was injured in his health and constitution, suffered great pain, and was unable to attend his business for months, and has been greatly injured in health, and was obliged to incur an expense of $ in endeavor

ing to be cured of said sickness, which was prolonged and increased by said negligence and improper conduct of the defendant, to the damage of the plaintiff in the sum of $

[Concluding part.]

FORM No. 875—Against a surgeon, for malpractice.

[Title of court and cause.]

The plaintiff complains of the defendant, and alleges:

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fractured the bones of his right leg, and on the said day, the defendant, holding himself out as a surgeon, the plaintiff employed him as

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