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Full text of "Reports of Cases Decided in the Appellate Court of the State of Indiana"

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HARVARD L.Vv7 SCHOOL I 
LIBRARY 




r^ 



REPORTS 



OF 



CASES DECIDED 



IN 



Appellate Court 



or THB 



STATE OF INDIANA, 



WITH TABLES OF CASES REPORTED AND CITED, TEXT-BOOKS 

CITED. STATUTES CITED AND CONSTRUED, AN INDEX 

AND NOTES TO THE REPORTED CASES 



Philip Zoercher, 

Official Reporter 
Norman E. .Patrick, Assistant Reporter 



VOL. 51 



containing cases decided at THB MAY TERM. 1912, NOT 

REPORTED IN VOLUME 50. AND CASES DECIDED 

AT THE NOVEMBER TERM, 1912. 



INDIANAPOLIS: 

WM. B; BUBVOBO, PBDfmB TO THB BTATB 
lOU 



Copyright, nineteen hundred fourteen, 

BY THE STATE OF INDIANA, 

In the office of the Librarian of CongreaB at Waahingt<m, D. C. 



MAY 21 1^':' 



CASES REPORTED 



Abbitt, Masters v 429 

Abbot, Teflgue v 604 

Aetna Indemnity Co. v. Clin- 
ton Paving Brick Co 704 

V. Indiana Fuel, etc., O). 

702 

Alifbpe! Hali v! . . '. . . ! ! . ! ! ." . .387 

Anderson y. Leimard 14 

Andree, Laatsch v 242 

Angemeier, Walter A. Wood, 

etc., Mfg. Co. V 258 

Arms, Carmichael v 680 

Atkinson, Pittsburgh, etc., R. 

Co. V 315 

Atlas Engine Works y. First 

Nat. Bank 703 

B 

Baker, Sharpe v 547 

Baltimore, etc., R. Co. v. Kei- 

ser 58 

Barker v. Chicago, etc., R. Co. 

669 

Barnes v. Stock 640 

Bartholomew v. Grimes 614 

Beeson v. Pierce 201 

Bell, Ohio Fanners Ins. Co. v.377 

Benbow v. Studebaker 450 

Bishop, Reed v 187 

Blair V. City of Fort Wayne. .652 
Blessing, Huber Mfg. Co. v. . . 80 

Board, etc., v. Hall 475 

Bragg V. Eagan 513 

Brashears t. Perry County, 

etc., Ins. Co 8 

Brown, Weaver v 379 

Burley Tobacco Society v. Gil- 

laspy 583 

Bnmet-Lewis Lumber Co., 

Hubbard r 97 



Cadle V. Mcintosh 365 

Calahan v. Dunker 430 

Carmichael v. Arms 689 

Catholic Order of Foresters v. 

Collins 285 

Chicago^ etc, R Oo., Barker 

V 669 



Citizens Nat. Bank, Houk v.. 628 
City of Bloomington, Moore v. 

145 

City of Evansville v. Plfer. . .646 
City of Fort Wayne, Blair v. .652 
Clark, Cleveland, etc., R. Co. 

V 392 

<:iendenin v. Pickett 283 

Cleveland v. Emerson 339 

Cleveland, etc., R. Co. v. Clark 

392 

V. Colson 225 

V. Dixon 658 

V. Griswold 497 

V. Jones 245 



Clinton Paving Brick Co., 

Aetna Indemnity Oo. v 704 

Collins, Catholic Order of 

Foresters v 285 

Colson, Cleveland, etc., R. Co. 

V 225 

Continental Ins. Co. v. Gue. .232 

Cooper V. Cooj^er 374 

Craig, Goff v 461 

Craney, Rutherford School 

School Tp. V 236 

Crawley, Indianapolis Trac- 
tion, etc., Co. V 357 

Crone, Southern R. Co. v.... 300 

D 

Daugherty, United Goal Min- 
ing Co. V 165 

Dixon, Cleveland, etc., R. Co. 
V 658 

Drimmle v. Hendrickson 198 

Duling, Indiana, etc.. Oil Co. 
V 59(? 

Dunker, Calahan v 436 

E 

Eagan, Bragg v 513 

Bastridge, Tucker v 632 

Emerson, Cleveland v 839 



F. Bimel Co. v. Ilarter 267 

Federal hite Ins. Co. v. Lilli- 

bridge 704 

First Nat Bank, Atlas Engine 

Works T 703 



/ 



(iii) 



IV 



CASES REPORTED. 



G 

Gaffield, Morton v 28 

German Fire Ins. Co. v. 

Greenwald 469 

Gilchrist, Princeton Coal, etc., 

Co. V 216 

Glllaspy, Btirley Tobacco So- 
ciety V 5a3 

Goff V. Craig 461 

Gorman, H. A. McCowen & 

Co. V 523 

Greenwald, German Fire Ins. 

Co. V 469 

Greer-Wilkinson Lumber Co., 

Snider v 348 

Grimes, Bartholomew v 614 

Griswold, Cleveland, etc., R. 

Co. V 497 

Grove, Shirley v 17 

Gue, Continental Ins. Co. v. .232 

H 

Hall V. Allfree 387 

, Board, etc., v 475 

H. A. McCowen & Co. v. Gor- 
man 523 

Harrod v. Littell 418 

Harry Joseph, etc., Co., Out- 
cault Advertising Co. v. . . . 55 

Harter. F. Bimel Co. v 267 

Hendrickson, Drimmle v 198 

Henry v. Prendergast 43 

Houk v. Citizens Nat. Bank.. 628 
Hubbard v. Burnet-Lewis 

Lumber Co 97 

V. Reilly 19 

Huber Mfg. Co. v. Blessing.. 89 

Huffman v. Huffman 330 

Hurst v. Mann 466 



Indiana, etc., Oil Co. v. Du- 

llng 596 

Indiana Fuel, etc., Co., Aetna 

Indemnity Co. v 702 

Indianapolis, etc., Traction 

Co., Schilling v 131 

Indianapolis, etc., Transit Co. 

V. Reeder 533 

Indianapolis Foundry Co. v. 

Lackey 175 

Indianapolis Southern R. Co. 

V. Tucker 480 

V. Wycoff 150 

Indianapolis Traction, etc., 

Co. V. Crawley 357 



Jones, Cleveland, etc., R. Co. 

V 245 

Judy V. Woods 325 

K 

Keiser, Baltimore, etc., R. Co. 

V 58 

Krieg V. Palmer Nat. Bank.. 34 



Laatsch v. Andree 242 

«Lackey, Indianapolis Foundry 

Co. V 175 

Lake Erie, etc., R. Co. v. 

Moore 110 

Larrance v. Lewis 1 

Lawrence ^v. Oliver Type- 
writer Co 434 

Lawson, Wilhelm v 387 

liconard, Anderson v 14 

Lewis, Larrance v 1 

Lillibridge, Federal Life Ins. 

Co. V 704 

Littell, Harrod v 418 

Loesch, Wheeler v 262 

M 

McConnell v. Ryan 56 

Mcintosh, Cadle v SGSy 

Malott V. Weston 572 

Mann, Hurst v 466 

Marion Light, etc., Co. v. 

Vermillion 677 

Mariotte, Marks v 281 

Marks v. Mariotte 281 

Masters v. Abbitt 429 

Model Automobile Co. v. Ster- 
ling 78 

Moore v. City of Bloomington 

145 

, Lake Erie, etc., R. Co. 

V 110 

Morton v. Gaffleld 28 

N 

Norman v. State, ex rel 425 



Ohio Farmers Ins. Co. v. Bell 
377 

Oliver Typewriter Co., Law- 
rence V 434 



CASES REPORTED. 



Outcault Advertising Co. v. 
Harry Joseph, etc?., Co ES 



Palmer Xat. Bank, Krieg v.. 34 
Perry County, etc., Ins. Co., 

Brashears v 8 

Pickett, Olendenln v 283 

Pierce, Beesou v 201 

Pifer, City of Evansvllle v. . .64G 
Pittsburgh, etc., R. Co. v. At- 
kinson • 315 

Prendergast, Henry v 43 

Princeton Coal, etc., Co. r. 

Gilchrist 210 

Princeton Window Glass Co., 
Rexing V 121 

R 

Reed v. Bishop 187 

Reeder, Indianapolis, etc.. 

Transit Co. v 533 

Reilly, Hubbard v 19 

Hexing v. Princeton Window 

Glass Co 124 

Richardson, Wlllan v 102 

Rouutree, Stimson v 207 

Rutherford School Tp. v. 

Craney 236 

Ryan, 3IcConneU v 56 



s 



Schilling T. Indianapolis, etc., 

Traction. Oo 131 

Scott V. 'Scott lOi 

Shari>e v. Baker 547 

Shirley v. Grove 17 



Snider v. Greer-Wilkinson 

Lumber Co 348 

Southern R. Co. v. Crone, . . .300 

State, Wheeler v 622 

State, ex rel., Norman v 425 

Sterling, Model Automobile 

Co. V 78 

Stimson v. Rountree 207 

Stock, Barnes v .*. .640 

Studebaker, Benbow v 450 



Teague v. Abbot 604 

Tucker v. Eastridge 632 

, Indianapolis Southern R. 

Co. V 480 

u 

United Coal Mining Co. v. 
Daugherty 165 



Vermillion, Marion Light, etc., 
Co. V 677 

w 

Walter A. Wood, etc., Mfg. Co. 

V. Angemeier 258 

Weaver v. Brown, ,,, 379 

Weston, Malott v 572 

W^heeler v. Loesch 262 

V. State 022 

Wilhelm v. Lawson 387 

Wlllan v. Richardson 102 

Woods, Judy v 325 

Wycoff, Indianapolis Southern 

R. Co. v 159 



CASES CITED 



Abrams v. Smith, 8 Blackf. 

95 371 

Abshire v. Williamson, 149 

Ind. 248 234 

Adams v. Davis, 109 Ind. 10 

306,380 

Advisory Board, etc., v. State, 

ex rel., 1G4 Ind. 295 240 

Aetna Indemnity Co. v. In- 
dianapolis, etc., Fuel Co., 

178 Ind. 70 703.704 

Aetna Ins. Co. v. Myers, 63 

Ind. 238 13 

Aetna Life Ins. Co. v. Bock- 
ting, 39 Ind. App. 586 

13,14,297 

V. Stryker, 38 Ind. App. 

312 445 

V. , 42 Ind. App. 57. . 6 

Ahlendorf v. Barkous, 20 Ind. 

App. 057 614 

Albany Land Co. v. Rickel, 

102 Ind. 222 70 

Albaugh Bros., etc., Co. v. 

Lynas, 47 Ind. App. 30 

91,93,621,643 

American Car, etc., Co. v. 

Vance, 177 Ind. 78 273,277 

American Cent Life Ins. Co. 

v. Rosenstein, 46 Ind. App. 

537 14 

American, etc., Ins. Co. v. Ber- 
tram, 163 Ind. 51 444,474 

American Express Co. v. Pat^ 

terson, 73 Ind. 430 669 

American Pin Co. v. Wright, 

60 N. J. Eq. 147 694 

American Surety Co. v. Lau- 

ber, 22 Ind. App. 326 357 

American Tin-Plate Co. v. 

Williams, 30 Ind. App. 46. ,175 
Ames v. Ames, 46 Ind. App. 

597 32 

V. Nonnan, 4 Sneed 

(Tenn.) ♦OSS 555,557 

Anderson v. Leonard, 51 Ind. 

App. 14 467 

Andrus v. National Sugar 

Refining Co., 93 App. Div. 

377 510 

Atchison, etc., R. Co. v. Mc- 

Kee, 37 Kan. 592 170 



Atkinson v. Van Cleaye, 25 

Ind. App. 508 662 

Atlas Engine Works v. First 

Nat. Bank, 50 Ind. App. 

549 703 

Atwater v. Morning News 

Co., 67 Conn. 504 371 

Aurora, etc.. Turnpike Co. v. 

Niebniggee, 25 Ind. App. 

567 661 

Avery v. Aklns, 74 Ind. 283. .459 
Aydelott v. Collins, 144 Ind. 

602 244 

Bailey v. New Haven, etc., 
Co., 107 Mass. 496 403 

V.Troy, etc., R. Co.. 57 

Vt 252 155 

Baisley v. Baisley, 113 Mo. 
544 220 

Baldwin v. Runyan, 8 Ind. 
App. 344 93 

V.Sutton, 148 Ind. 591.. 260 

Bales V. Hunt, 77 Ind. 355.. 444 

Ballard v. Scruggs, 90 Tenn. 
585 570,571 

Baltimore, etc., R. Co. v. Da- 
vis, 44 Ind. App. 375 307 

V. I^eathers, 12 Ind. App. 

544 a"), 66, 71, 75 

V. Quillen, 34 Ind. App. 



330 319,505 

— V.Roberts, 161 Ind. 1... 71 

— V. Rosborough, 40 Ind. 
App. 14 229 

— V. Slaughter, 167 Ind. 330 
72,409 

— V. Volgt, 176 U. S. 498. . .591 
v.Walborn, 127 Ind. 142.117 



Balzer v. Waring, 176 Ind. 

585 411,529 

Bank of Westfleld v. Inman, 

133 Ind. 287 433 

Barber v. Barber, 74 Iowa 

301 337 

Barkhausen v. Chicago, etc., 

R. Co., 142 Wis. 292 509 

Bamett v. Glutlng, 3 Ind. 

415 308,310 

V. Juday, 38 Ind. 86 568 

Bamett & Record Co. v. 

Schlapka, 208 111. 426 75 



(▼i) 



CASES CITED. 



Vll 



Basket y. Hassell, 107 U. S. 
602 612 

Bass Y. Doerman, 112 Ind. 
390 127,130 

Bauer v. Sampson Lodge, 
etc, 102 Ind. 262 10 

Beach v. Hollister, 3 Hnn 519 
555 

Beahler v. Clark, 32 Ind. 
AFf>. 222 31 

Beddtngfield v. Estill & New- 
man, 118 Tenn. 39 554 

Bedford v. Spilman, 11 Ind- 
App. 684 490 

r. Terhune, 30 N. Y. 453 

^..602 

Bedford Qnarries Co. v. Tur- 
ner, 38 Ind. App. 552 87 

Beinlein y. Johns, 102 Ky. 
570 510 

Beinent v. May, 135 Ind. 664. 92 

Benbow y. Garrard, 139 Ind. 
571 ^ ^ ^ .234 

Bennett y. Child, 19 Wis,' ♦362 

555 

Berry v. Borough of Sugar 

Notch, 191 Pa. St 345 404 

Sever v. Bever, 144 Ind. 157. .445 

V. North, 107 Ind. 544. . . 5 

Be^in t. Cline's Admr., 21 

Ind. 37 556,557 

Bigelow y. Calumet, etc., 

Mln. Co., 167 Fed. 721.... 591 
BiUman v. Indianapolis, etc., 

R. Co., 76 Ind. 166 83, 84 

Bird V. St. John's E}piscopal 

Church, 154 Ind. 138 588 

Bishop y. Redmond, 83 Ind. 

157 338 

Blair v. Whittaker, 31 Ind. 

App. 664 5 

Blanchard y. Childs, 7 Gray 

(Mass.) 135 518 

Blaney v. Postal, 10 Ind. App. 

131 327 

Block V. State, 100 Ind. 357.. 660 
Blue V. Capital Nat. Bank, 

145 Ind. 518 327,321^ 

Blunie V. State, 154 Ind. 343. .640 
Board, etc., v. Davis, 136 Ind. 

423 



503. 



-, V. Eaton, 38 Ind. App. 30 



,390 

-, V. Hall, 70 Ind. 469 423 

-,y. I^ggett* 115 Ind. 544.490 
-, y. Motchler, 137 Ind. 140 
, 401 



— , y. Sisson, 2 Ind. App. 
.•511 402 



Boering v. Chesapeake Beach 

R. Co., 193 U. S. 442 575 

Bonham v. Doyle, 39 Ind. 

App. 434 6 

Booth y. Fitzer, 82 Ind. G6. . .613 
Borst v. Town of Sharon, 48 

N. Y. Supp. 996 656 

Bower v. Bowen, 139 Ind. 31.630 

v. Peate, 1 Q. B. D. 321. .135 

V. Thomas, 22 Ind. App. 

505 479 

Bo wins V. Phenix Ins. Co., 133 

Ind. 106 472,613 

Boyce y. Fitzpatrick, 80 Ind. 

526 486 

Bozeman y. Kale, 139 Ind. 

187 235 

Bradford v. School Town of 

Marion, 107 Ind. 280 7 

Bradley y. Andrews, 51 Vt 

530 157 

Brandon y. Gulf City, etc., 

Mfg. Co., 51 Tex. 121 404 

Braxton v. State, 157 Ind. 

213 72 

Brink y. Kansas City, etc., R. 

Co., 17 Mo. App. 177 403 

Brinkmeyer v. City of Evans- 

ville, 20 Ind. 187 148 

Broadstreet v. Hall, 32 Ind. 

App. 122 668 

Brook v. Burlington, etc., R. 

Co., 101 U. S. 443 130 

Brooks v. Morgan, 36 Ind. 

App. 672 • 423 

Brosnan v. Sweetser, 127 Ind. 

1 544 

Brown v. Bernhamer, 159 Ind, 

538 211 

v. Brown,133 Ind. 470. . . 

401,435 

v. , 168 Ind. 054 2:J4 



— v. Budd, 2 Ind. ^442 094 

v. Follette, 155 Ind. 316 

444,445 

V. Markland, 22 Ind. App. 

652 352 

Bruce v. Osgood, 154 Ind. 375 

10 

Brumfleld y. Carson, 33 Ind. 

W 161 

Brummlt v. Fumess, 1 Ind. 

App. 401 409 

Bruuson y. Henry, 152 Ind. 

310 290,538 

Bryson v. McCreary, 102 Ind. 

1 130 

Buehner Chair Co. v. Feulner, 

164 Ind. 368 362 



Vlll 



CASES CITED. 



Bull V. Bank of Kasson, 123 

U. S. 105 39 

Buiitin V. Kose, 16 Ind. 209.. 488 
Burns v. Galvtn, 118 Ind. 320 

205 

V. Smith, 29 Ind. App. 

181 C39 

V. Trustees, etc., 31 Ind. 

App. 640 235 

Butler University v. Conard, 

94 Ind. 353 7 



Cabanne v. Skinker, 56 Mo. 

357 103 

Okmiron v. Sexton, 110 111. 

App. 381 694 

Campbell v. New England, 

etc., Ins. CJo., 98 Mass. 381 

292,293 

V. Routt, 42 Ind. 410 329 

Cannon v. Cleveland, etc.. R. 

Co., 157 Ind. 082 249 

Capital City Dairy Co. v. 

Plummer. 20 Ind. App. 408.568 
Capital Nat Rank v. Reid, 154 

Ind. 54 435 

Carey v. Sheets, 00 Ind. 17. .345 
Carnahan v. State, ex rel., 

155 Ind. 156 108 

V. Tousey, 93 Ind. 561... 352 

Oarpcnter v. Providence 

Washington Ins. Co., 16 

Pet. ♦495 ^ 474 

Carr v. First Nat. Bank, 35 

Ind. App. 216 17 

Carthaj2:e Turnpike Co. v. 

Andrew©, 102 Ind. 138 496 

Carver v. Carver, 97 Ind. 497 

449 

_11 V. Smith, 90 Ind. 222. . . .557 

Case V. Case, 51 Ind. 277 211 

V.Owen, 139 Ind. 22 552 



Chandler v. Cheney, 37 Ind. 

391 557, 559, 563 

Chapman v. Barnes, 29 111. 

App. 184 666 

Cheney v. Unroe, 166 Ind. 550 

384 

C^iicago Edison Co. v. Moren, 

185 III. 571 75 

Chicago, etc.. It Co. v. Bar- 
ker, 169 Ind- 670 671 

v. Barnes, 164 Ind. 143. .485 

V. Bester, 47 Ind. App. 

141 305 

V. Bills, 104 Ind. 13 310 

V. Daily, 18 Ind. App. 308 

328 

v.Dinius, 170 Ind. 222.. 

82,83,410,411 

V. Hedges, 118 Ind. 5 144 

V. Hostetter, 171 Ind. 465 

486 

V. Johnson, 45 Ind. App. 

162 319,321 

V. , 116 111. 206 66 



Qitalanl v. Oitalani. 124 Ind. 

54 444 

Cates V. bates, 135 Ind. 272.. 265 
Caylor v. C^aylor's Estate, 22 

Ind. App. 600 609 

Center School Tp. v. State, ex 

rel., 150 Ind. 108 42 

Central, etc., R. Co. v. Wind- 
ham, 126 Ala. 552 505, 506 

Central R., etc., Co. v. Pettus, 

113 V. S. 116 224 

Cervs V. State Ins. Co., Tl 

Minn, 338 293 

Chandler v. Beal, 132 Ind. 

596 383,385 



— V. I^achman, 161 Ind. 
512 680 

— V. McCandish, 167 Ind. 
CAS 227 

— V. McEwen, 35 Ind. App. 
251 580 

— V. Newkirk, 48 Ind. App. 
349 243 

— V. Pritchard, 168 Ind. 398 
410 

— V. Smith, 6 Ind. App. 
262 446 

— V.Smith, 111 111. 363... 503 

— V. Spilker, 134 Ind. 380 
72,496 

— V. Turner, 33 Ind. App. 
264 117 

— V. Vandenberg, 164 Ind. 
470 307, 495, 602 

— V. Vester, 47 Ind. App. 
141 537 

V. Wysor Land Co., 163 



Ind. 288 93,621 

Chicago Furniture Co. v. 

Cronk, 35 Ind. App. 591... 638 
Chicago Terminal, etc., R. Co. 

V. Walton, 165 Ind. 253... 

16,91,243,244 

Choctaw, etc., R. Co. v. Stro- 

ble, 80 Ark. 68 75 

Christian v. State, ex rel., 7 

Ind. App. 417 478, 470 

Cincinnati, etc., R. Co. v. 

Aorea, 42 Ind. App. 127... 410 






CASES CITED. 



IX 



Cindnnatl, etc., R. Ca y. 

Grames, 136 Ind. 39 117 

V. McDougall, 108 Ind. 

179 446 

T. McMuIlen, 117 Ind. 

439 495 

V. Sampson's Admr^ 97 

Ky. 65 76 

Citizens Ins. Ga v. Hoffman, 

128 Ind. 370 291 

Citizens St R. Co. v. Clark, 

33 Ind. App. 190 305,306 

V. Willoeby, 134 Ind. 563 

230 

City of Anderson v. Fleming, 

160 Ind. 597 150 

City of Bedford v. Woody, 23 

Ind. App. 401 544 

City of Bluffton v. McAfee, 23 

Ind. App. 112 186 

City of Crawfordsvllle v. 

Johnson, 51 Ind. 397 687 

City of Delphi v. Lowery, 74 

Ind. 520 668 

r. Startzman, 104 Ind. 

343 •.. 19 

City of Franklin v. Smith, 175 

Ind. 236 655,656 

City of Indianapolis v. Cook, 

99 Ind. 10 362 

V. Doherty, 71 Ind. 5. . . 

149,151 

V. Huffer. 30 Ind. 235. . .156 

V. Marold, 25 Ind. App. 

428 150 

City of Lafayette v. James, 

92 Ind. 240 25 

V. Tlmberlake, 88 Ind. 

330 148 

City of Logansport v. Dick, 

70 Ind. 65 149 

V. Humphrey, 106 Ind. 

146 290,537 

V. Kihra, 159 Ind. 68.... 84 

v.Uhl. 99 Ind. 531 137 

V.Wright, 25 Ind. 512... 148 



City of Michigan City v. 

Leeds. 24 Ind. App. 271.... 92 
City of 'New Albany v. Slider, 

21 Ind. App. 392 154 

V. White, 100 Ind. 206.. 92 

City of South Bend v. Turner, 

156 Ind. 418 328, 686 

City of Valparaiso v. Moffltt, 

12 Ind. App. 250 154 

City of Warsaw v. Dunlap, 

112 Ind. 570 153 



Clark y. City of Boston, 179 
Mass. 409 354 

V. Helm, 130 Ind. 117... 211 

■^v.Lillle, 39 Vt. 405 354 



Claypool V. Wigmore, 34 Ind. 

App. 35 403 

Clear Creek Tp. v. Rlttger, 12 

Ind. App. 355 260 

Cleveland, etc., R. Co. v. 

Carey, 33 Ind. App. 275. . . . 

120,496 

V. DeBolt, 10 Ind. App. 

174 638 

V. Dixon, 51 Ind. App. 

658 ...184,314 

V. Doan, 47 Ind. App. 322 

502 



— V. Gossett, 172 Ind. 525. .676 

— V. Haas, 35 Ind. App. 
626 71 

— V. Hadley, 170 Ind. 204. .251 

— V. Harrington, 131 Ind. 



426 117,158 

— V. Harvey, 45 Ind. App. 
153 528 



V. Johnson, 7 Ind. App. 

441 490 

V. Miles, 162 Ind. 640... 120 

V.Miller, 149 Ind. 490. .252 

V. Newell, 104 Ind. 264.. 228 

V. Osgood, 36 Ind. App. 

34 661 

V. Patterson, 37 Ind. App. 

617 403 

V. Perkins, 171 Ind. 307. .227 

V. Powers, 173 Ind. 105.. 019 

V. Smith, 177 Ind. 524... 502 

V. Wynant, 134 Ind. 681 

401 

Cobb V. Covenant, etc., Assn., 

153 Mass. 176 293 

Colt V. Planer, 4 Abb. Prac. 

(N. S.) 140 002 

Coleman v. Parker, 114 Mass. 

30 610 

Collins V. Catholic Order of 

Foresters, 43 Ind. App. 549 

288,296 

V. Tnlted Express Co., 27 

Ind. 11 435 

— v.Wilber, 173 Ind. 3(;l.. 91 

Colter V. Lower, 35 Ind. 285. .345 

Commonwealth v. Hodges, 137 
Ky. 233 593 

Compton V. Benham, 44 Ind. 

App. 51 671 

Conger v. Miller, 104 Ind. 502 

327 



CASES CITED. 



Conner t. Andrews Land, etc., 

Co., 162 Ind- 338 87 

Connolly v. St Jos^h, etc. 

Print. Co., 16G Mo. 447 170 

Consolidated Stone Co. t. 

Morgan, IGO Ind. 241 640 

V. Redmon, 23 Ind. App. 

:]19 277.400 

V. Summit, 152 Ind. 297 

52,298 

Continental Ins. Co. v. Munns, 

120 Ind. 30 474 

Conwell V. Pumphrey, 9 Ind- 

135 39 

Cook V. Howe, 77 Ind. 442 371 

Cooper V. Cooper, 43 Ind. App. 

620 192 

Oopeland v. Summers, 138 

Ind. 219 265 

Cottrell V. Aetna Life Ins. Co., 

97 Ind. 311 137 

V. Cottrell, 126 Ind. 181 

662,663 

Cowdrey v. Galveston R. Co., 

1 Woods (U. S.) 331 49 

Cox V. Albert, 78 Ind. 241 61 4 

V. Stout, 85 Ind. 422 631 

Crawford & McCrlmmon Co. 

V. Gose, 172 Ind. 81 83,411 

Cree v. Bristol, 33 N. Y. Supp. 

19 353 

Crist V. Wajme, etc., Assn., 

151 Ind. 245 234 

Criswell V. Riley, 5 Ind. App. 

496 472 

Cromer v. State, 21 Ind. App. 

502 73 

Crosby v. Jeroloman, 37 Ind. 

2C4 568 

Culbertson v. Knight, 152 Ind. 

121 505 

Curme, Dunn & Co. v. Rauh, 

100 Ind. 247 440 



Daniels v. Ballantlne, 23 Ohio 

St. 532 404 

Daubenspeck v. Daubenspeck, 

44 Ind. 320 91 

Davidson v. Koehler, 76 Ind. 

398 260 

V. Old Peoples Mut, etc., 

Society, 39 Minn. 303 10 

Davis V. Clark, 20 Ind. 424.. 55.") 
V. Mercer Lumber Co., 

1G4 Ind. 413 186,410,671 

Dawson v. Overmeyer, 141 
Ind. 438.. 445 



Debinson v. Emmons, 158 

Mass. 592 610 

Deeter t. Sellers, 102 Ind. 

458 614 

Delaware, etc., TeL Co. v. 

Fiske, 40 Ind. App. 348 

308,530 

Demetz v. Benton, 35 Mo. 

App. 559 665 

Denbo v. Wright, 53 Ind. 226 

385 

Denke- Walter v. Loeper, 142 

Ind. 657 99,235 

Denman v. McMiihin, 37 Ind. 

241 92,196 

Devol V. Dye, 123 Ind. 321. . . 

609,610 

Diamond Block Coal Co. v. 

Cuthbertson, 166 Ind. 290. .530 
Dickson y. Waldron, 135 Ind. 

507 300,308 

Diezi V. G. H. Hammond Co., 

156 Ind. 583 671 

Diggs V. Way, 22 Ind. App. 

617 306,386 

Ditton V. Hart, 175 Ind. 181. .698 
Doe V. Rowland, 8 Cowen (N. 

Y.) ♦277 556 

Doherty v. Holliday, 137 Ind. 

282 385 

Dolphin Y. Plumley, 167 Mass. 

167 75 

Doney v. Laughlin, 50 Ind. 

App. 38 32 

Dooley v. Town of Sullivan, 

112 Ind. 451 153 

Doucrherty v. Ilerzog, 145 Ind. 

255 618 

Dowell V. Gutherie, 99 Jilo. 

653 157 

Drake v. Markle, 21 Ind. 433 

38,39 

DrlscoU V. Drlscoll, 143 Cal. 

528 611 

Dufour V. Dufour, 28 Ind. 421 

213 

Duncan y. State, 171 Ind. 444 

666 

Dunlap y. Eden, 15 Ind. App. 

575 25 



Eacock V. State, 169 Ind. 488 
665 

East Hill Cemetery Co. v. 
Thompson, 53 Ind. App. . . . 
618,619 

Eastes v. Eastes, 79 Ind. 363.375 



CASES CITED. 



XI 



Edwards v. Johnson, 105 Ind. 

5W 130 

Efroymson v. Smith, 29 Ind. 

App. 451 345 

Elkhart Paper Co. v. Fulker- 

son, 36 Ind. App. 219 530 

Ellis T. City of Hammond, 157 

Ind. 267 661 

V. City of Kearney, 80 

\eb. 51 656 

Elmore y. Symonds, 183 Mass. 

321 694 

Emmons v. Gordon, 140 Mo. 

490 198 

V. Harding, 162 Ind. 154 

265 

Enochs V. Pittsburgh, etc., R. 

Co., 145 Ind. 635 403 

Erwin t. Central Tnlon Tel. 

Co., 148 Ind. 365 404 

V. Scotten, 40 Ind. 389. . .568 

Estate of Eichelberger, 7 Pa. 

Super. Ct 401 211 

EvansvlUe, etc., R. Co. v. Al- 
len, 34 Ind. App. 636 403 

V. Duel, 134 Ind. 156 52 

T. Lavender, 7 Ind. App. 

655 435 

V. Marsh, 57 Ind. 505. . . .445 

Eransrille Ice, etc., Co. v. 

Winsor, 148 Ind. 682 190 

Everett v. Fouts, 26 Ind. Appw 

658 235 

Ex parte Hopkins, 104 Ind. 

157 571 



Falley v. Gribling, 128 Ind. 

110 630 

Paris T. Hoberg, 134 Ind. 209 

253 

Farman v. Laumun, 73 Ind. 

568 346 

Farmers, etc.. Bank v. Greg- 

or>% 49 Barb. (N. Y.) 155. .555 
Farmers, etc., Ins. Co. v. HJll, 

45 Ind. App. 605 13,14 

Farmers Loan, etc., Co. v. 

Canada, etc., R. Co., 127 

Ind. 250 130 

Farmers Mut Fire Ins. Co. 

V. Jaokman, 35 Ind. App. 1.473 
Fau;:ht v. Faught, 98 Ind. 470 

214 

Faulkner t. City of Aurora, 

85 Ind. 130 148 

F. B!mel Co. v. Harter, 51 Ind. 

App. 267 



Feder v. Field, 117 Ind. 386. . 42 
Federal Life Ins. Co. v. Petty, 

177 Ind. 256 704 

Fee V. Moore, 74 Ind. 319 19 

Feedler v. Schroeder, 59 Mo. 

364 220 

Feighner r. Delaney, 21 Ind. 

App. 36 305 

Fellenzer v. Van Valzah, 95 

In4. 128 435 

Ferguson v. Hull, 136 Ind. 

339 613 

Fero V. Ruscoe, 4 N. Y. 162. . .371 
Fetrow v. Wiseman, 40 Ind. 

148 314 

Fidelity Ins., etc., Co. v. Nlv- 

en, 5 Houat. (Del.) 416 193 

Field V. Xoblett, 154 Ind. 357.443 
Fifth Ave. Sav. Bank v. 

Cooper, 19 Ind. App. 13.. 65, 661 
First Nat. Bank v. Gibbons, 

7 Ind. App. 629 622 

v. Hartford Fire Ins. Co., 

95 r. S. 673 292 

r. Savin, 47 Ind. App. 

266 91 

V. Stapf. 105 Ind. 162.38, 39 



Flanagan v. Reitemier, 20 Ind. 

App. 243 327, 329 

Fleek v. Zillhaver, 117 Pa. St 

213 555 

Flutter V. New York, etc., R. 

Co., 27 Ind. App. 511 684 

Fordice v. Lloyd, 27 Ind, App. 

414 459 

Fort AYayne Iron, etc., Co. v. 

Parsell, 49 Ind. App. 565. . . 

290, 538 

Foster v. Gaston, 123 Ind. 06. 

24, 25, 20 

Fox V. Hale & Xoroross, etc.. 

Mining Co., 108 Cal. 475. . .224 
Frank v. New York, etc., R. 

Co., 122 N. Y. 197 002 

Franklin Ins. Ca v. WolflP, 23 

Ind. App. 549 474 

Frants v. Brown, 17 Serg. & 

R. (Pa.) 287 563 

Freeman v. Hutchinson, 15 

Ind. App. 639 230 

Frost V. Atwood, 73 Mich. 07.690 
Fuller ▼. Fuller, 3:3 Kan. 582.337 



Gammon Theological Semi- 
nary V. Robbius, 128 Ind. 85 



,(;iu 



Xll 



CASES CITED. 



Oarrick v. Chamberlain, 100 

111. 476 687 

V. Garrlck, 43 Ind. App. 

585 6 

Gass V. State, ex rel., 34 Ind. 

425 428 

Gay V. City of Cambridge, 128 

Mass. 387 656 

Geisen v. Reder, 151 Ind. 529.435 
Gelss V. Franklin Ins. Co., 123 

Ind. 172 473 

Gerow v. Castello, 11 Colo. 

5G0 5 

GIbbs V. Potter, 166 Ind. 471.457 
Gibson V. Stone, 43 Barb. (N. 

Y.) 285 695 

Gllman v. McClatchy, 111 Cal. 

606 371 

Givan V. Masterson, 152 Ind. 

127 444 

Glenn v. Lake Erie, etc., R. 

Co., 165 Ind. 659 492 

V. Reed, 74 Md. 238 194 

Glens Falls Ins. Co. v. Mich- 
ael, 167 Ind. 659 14, 297 

Goelz V. People's Sav. Bank 

31 Ind. App. 67 609 

Gold V. Pittsburgh, etc., R. 

Co., 153 Ind. 232 423 

Goodwin V. Daniels, 89 Mass. 

(7 Allen) 61 371 

Goodwine v. Cadwallader, 158 

Ind. 202 318 

Gourley v. Embree, 137 Ind. 

82 235 

Grace v. Globe Stove, etc., Co., 

40 Ind. App. 326 530 

Graft V. Graft, 76 Ind. 136. . .375 
Graham v. Smith, 1 Blackf. 

♦414 569 

Grand Rapids, etc., R. Oo. v. 

King, 41 Ind. App. 701 308 

Grand Trunk, etc., R. Ca v. 

Melrose, 166 Ind. 658 55 

V. Stevens, 5 Otto 655. . . 

580, 582 

Grass v. Fort Wayne, etc.. 

Traction Co., 42 Ind. App. 

395 140 

Graves v. State, 121 Ind. 357.385 
Gray v. Case School, etc., 62 

Ohio St. 1 211 

V. Elzrothy 10 Ind. App. 

587 ..638 

V. Su[)reme Lodge, etc., 

118 Ind. 293 10 

Green v. American Car, etc., 

Co. 163 Ind. 135 276 



Green v. Stobo, 118 Ind. 332.. 17 
Greenawaldt v. Lake Shore, 

etc., R. Co., 165 Ind. 219. . . 6 
Greene v. McDonald, 75 Vt. 

93 697 

Greenfield Gas Oo. r. Trees, 

165 In^. 209 227 

Greenfield Lumber, etc., Co., 

V. Parker, 159 Ind. 571 353 

Gregg V. Union County Nat. 

Bank, 87 Ind. 238 38 

Gregory v. Armes, 48 Ind. 

App. 562 5 

V. Cleveland, etc., R. Co., 

112 Ind. 385 671 

i V. Perdue, 29 Ind. 66 222 

V. Smith, 139 Ind. 48. . . .234 



Gribben v. City of Franklin, 
175 Ind. 500 655, 656 

GrlflSn V. Mayor, etc., 9 N. Y. 
456 148 

V. Spence, 69 Ala. 393. . .222 

Grim v. Griffith, 34 Ind. App. 
r^r^o 44^ 



Grover v. Grover, 24 Pick. 

(Mass.) 261 612 

Grusenmeyer v. City of Lo- 

gansport, 76 Ind. 549 423 

Guggenheim v. Lake Shore, 

etc., R. Co., 66 Mich. 150. . .123 
Gulf, etc., R. Co. V. Brentford, 

79 Tex. 619 170 

Guthrie v. Carpenter, 162 Ind. 

417 25, 26 

Gwinn v. Wright, 42 Ind. App. 

597 355 

Gwinnup v. Shies, 161 Ind. 

500 384 

Hackett v. Brown, 2 Heisk. 

(Tenn.) 264 371 

Iladley v. Hill, 73 Ind. 442. . .2^4 
Hagan v. Hendry, 18 Md. 177.371 
Hagemann v. Hagemann, 90 

111. App. 251 610, 612 

Hall V. McDonald, 171 Ind. 9.100 

V. Stephens, G5 Mo. 670 . . 555 

Halstead v. Woods, 48 Ind. 

App. 127 40 

Hamilton v. Downer, 152 111. 

651 694 

V. Elkins, 46 Ind. 213... 92 

V. I^ve, 152 Ind. 641 531 

Ilammerquist v. Swensson, 44 

111. App. 627 353 

Hhmmond, etc., R. Co. v. 

Spyzchalskl, 17 Ind. App. 

7 »*. 522 



CASES CITED. 



xiu 



Hanlon v. Doherty, 109 iDd. 

37 445 

Hardison v. Mann, 20 Ind. 

App. 404 91 

Harmony School Tp. v. Moore, 

80 Ind. 276 239 

Harness r. Steele, 159 Ind. 

286 346 

Haq^er t. Harper, 10 Bush 

(Ky) 447 371 

Harrer v. Wallner, 80 111. 197.557 
Harrold v. Fuenfstueck, 31 

Ind. App. 275 92 

Haskell & Barber Car Co. v. 

Przeasdziankowskl, 170 Ind. 

1 55 

Haskett v. Maxey, 134 Ind. 

182 459 

Havens v. Home Ins. Co., Ill 

Ind. 90 473 

Hawkins v. Globe Printing 

Co., 10 Mo. App. 174 371 

T. State, 136 Ind. 630... 72 

Hawthorn r. State, ex rel., 57 

Ind- 286 478 

Hay V. Bash, 37 Ind. App. 

167 272 

Hayes v. Horton. 46 Or. 597. .557 
Haymaker v. Schneck, 160 

Ind. 443 235 

Hays T. Peck, 107 Ind. 380. . .104 
Hazlett V. Sinclair, 76 Ind. 

488 5 

Heaston v. Gallagher, 41 Ind. 

App. 20 308 

Heath v. Sheetz, 104 Ind. 605.307 
Helberp v. Hammond Bldj?., 

etc., Assn., 31 Ind. App. 58. 91 
Henderson v. Henderson, 165 

Ind. 666 173 

Henneger v. Lomas, 145 Ind. 

287 3.35, 838 

Henry v. Epstein, 50 Ind. 

App. 600 231 

^ V. Heeb, 114 Ind. 275 308 

V. Moberly, 6 Ind. App. 

490 370, 372 

Herron v. Herron, 91 Ind. 278 01 
lless V. Sparks, 44 Kan. 470. .371 
Hifks V. Reigle. 32 Ind. 360. . 91 
lligglns V. Eagleton, 34 N. Y. 

Snpp. 225 353 

Hildrnp v. Town of Windfall 

City. 29 Ind. App. 592 154 

Ililker v. Kelley, 130 Ind. 

356 or> 

Hill V. Board, etc., 72 N. C. 

55 148 



Hill V. City of Boston, 122 

Mass. 344 148 

HInkle v. State, 174 Ind. 276. 91 
Hirsch v. Norton, 115 Ind. 341 42 
Hofferbert v. Williams, 32 

Ind. App. 593 7 

Hoffman v. Hendry, 9 Ind. 

App. 324 205 

Hohenstein-Hartmetz, etc., Ca 

V. Matthews, 46 Ind. App. 

616 410 

Holcomb V. Norman, 47 Ind. 

App. 87 272 

Holderbaugh v. Turpin, 75 

Ind. 84 206 

Holderman v. Wood, 34 Ind. 

App. 519 235 

Holliday v. Anheier, 174 Ind. 

729 16, 91, 467 

Holthouse V. State, ex rel., 49 

Ind. App. 178 391 

Home Ins. Co. v. Boyd, 19 Ind. 

App. 173 12 

Hopson V. Fowlkes, 92 Tenn. 

697 557 

Horn V. Indianapolis Nat. 

Bank, 125 Ind. 381 445 

Howard v. Adkins, 167 Ind. 

184 32 

Hudelson v. Hudelson, 164 

Ind. 694 643 

Hunt V. Conner, 26 Ind. App. 

41 72 

V. Standart, 15 Ind. 33.. 41 

Hutchinson v. Wenzel, 155 

Ind. 49 662 

Hutts V. Martin, 131 Ind. 1 . . . 

235,433 

Ice V. Ball, 102 Ind. 42 164 

I. F. Force Handle Co. v. 
Hisey, 52 Ind. App. ..272 

Illinois Cent. R. Co. v. Cheek, 
152 Ind. 663 87, 186 

V. Griffln, 80 Fed. 278... 250 

In re Kimble v. Dailey, 127 
Iowa 655 457 

In re Owen's Estate, 30 Utah 
351 194 

In re Taxpayers of Town of 
Greene, 38 How. Pr. (N. Y.) 
515 100 

Indiana Car Co. r. Parker, 
100 Ind. 181 230 

Indiana, etc., Gas Co. v. Long, 
27 Ind. App. 219 298 

Indiana, etc., Ins. Co. v. Run- 
dell, 7 Ind. App. 426 292 



Xiv 



CASES CITED. 



Indiana, etc.. Oil Co. v. 

O'Brien, 1(50 Iiid. 286 384 

Indiana, etc., R. Co. v. Adam- 
son, 114 lud. 282 308, 310 

V. Allen. 300 Ind. 409 502 

V. Bundy, 152 Ind. 590. . 

70, 74 

v.C<x)k, 102 Ind. 133.... 631 

V. Ditto. 158 Ind. 669 64 

V. Williams, 22 Ind. 198.222 

Indiana, etc., Traction Co. v. 

Jacobs, 167 Ind. 85 

531.665.666 

Indiana Ins. Co. v. Hart well, 

123 Ind. 177 472, 473 

Indiana Iron Co. v. Cray, 19 

Ind. App. 565 170 

Indiana Trust Co. v. Flnitzer, 

160 Ind. 647 384 

Indiana Union Traction Co. 

r. Benadum, 42 Ind. App. 

121 446 

V. Pring, 50 Ind. App. 

566 290, 537 

Indianapolis, etc., R. Co. v. 

Beaver, 41 Ind. 493 492 

V Bennett, 39 Ind. App. 

2^2 ,, 544 

V. McLin, 82 Ind. 435! ! ! !l20 

V. Smythe, 45 Ind. 322. . . 91 

V.Watson, 114 Ind. 20. .532 

Indianapolis, etc., Transit Co. 

V. Foreman, 162 Ind. 85... 86 
V. Reeder, 42 Ind. App. 

520 535. 541, 542, 546 

Indianapolis Foundry Co. v. 

Bradley, 45 Ind. App. 530. . 

177, 178, 180, 185 

Indianapolis Gas Co. v. Shu- 
mack, 23 Ind. App. 87 684 

Indianapolis St R. Co. v. 

O'Donnell, 35 Ind. App. 

312 302 

V. Ray, 167 Ind. 236 404 

V. Schmidt, 163 Ind. 360. 

228, 496 

V. , 35 Ind. App. 202.140 

V. Schomberg, 164 Ind. 

Ill 119 

V. Slifer, 35 Ind. App. 



700 305, 362 

Indianapolis Traction, etc., 

Co. V. Iloltzclaw, 40 Ind. 

App. 311 100 

V.Miller, 43 Ind. App. 

717 651 

Indianapolis I'nlnn R. Co. v. 

Waddingtou, 169 Ind. 448. .407 



Inhabitants of Winslow v. In- 
habitants of Troy, 97 Me. 
130 335 

Inland Steel Co. v. Smith, 168 
Ind. 245 298 

Inman v. Vogel. 141 Ind. 138.235 

International, etc., Loan Assn. 
V. Watson, 158 Ind. 508 42 

International, etc., R. Co. v. 
Seln, 89 Tex. 63 666 

Ireland v: State, ex rel., 165 
Ind. 377 106 

Ir\in V. Buckles, 148 Ind. 389.459 

Irvin V. Lowe, 89 Ind. 540. . .428 

Isanogle v. Russey, 174 Ind. 
245 100 

Isham V. Bow's Estate, 70 Vt 
588 409 

Jackson r. Jackson, 149 Ind. 

238. 479, 480 

V. Myers, 120 Ind. 504. . .469 

V. Stevens, 16 Johns (N. 

Y.) ♦no 556 

Jaqua v. Headington, 114 Ind. 

309 588 

Jeffersonville R. Ca v. Rog- 
ers, 38 Ind. 116 313 

Jeffersonville Water Supply 

Co. V. Riter, 146 Ind. 521.. 384 
Jewett V. Lawrenceburgh, etc., 

R. Co.. 10 Ind. 539 308 

J. I. Case, etc., Mach. Co. v. 

Souders, 48 Ind. App. 503. .589 
Johnson v. Brown, 130 Ind. 

534 93 

V. , 13 W. Va. 71 371 

V. City of New York. 186 

X. Y. 139 154, 3.">(5, 158 

V. Gwinn, 100 Ind. 466. .588 

V.Johnson, 156 Ind. 592.468 

V.Tyler, 1 Ind. App. 

387 660 

Jones V. Chandler, 40 Ind. 

588 557 

V. Loveless, 99 Ind. 317. .266 

V. Smith, 123 Ind. 585. . .614 

V. State. 1(50 Ind. 537 638 

V. State, ex rel., 153 Ind. 

440 428 

Judson V. Romaine, 8 Ind. 

App. 390 352,630 

Kalker v. Iledden, 72 N. J. L. 

239 75 

Kammerliug v. Grover, Ind. 

App. iV2H 510 

Karmuller v. Krotz, 18 Iowa 

302 500 



CASES CITED. 



XV 



Karr v. Board, etc., 170 Ind. 

OTl 425 

Keesling t. Doyle, 8 Ind. App. 

43 93 

V. Keesling, 42 Ind. App. 

361 643 

Kelcham v. Barbour, 102 Ind. 

576 58 

Keller y. GasklU, 20 Ind. App. 

502 290 537 

Kelly" v! Keily, 54 Mich. 30. .'.697 
Kelsey v. Kelsey, 57 Iowa 

383 457 

Kemp V. MitdheU, 36 Ind. 249 

445 

Kennard v. Carter, 04 Ind. 31.568 
Kennedy v. City of Lansing, 

99 Mich. 518 148 

Kentucky, etc., Bridge Co. v. 

Eastman, 7 Ind. App. 514 . . 86 
Kemochan v. Whiting, 42 N. 

Y. Super, Ct. 490 602 

Kerrigan v. Chicago, etc., R, 

Co.. 86 Minn. 407 170 

Klefer v. Klinsick, 144 Ind. 

46 42 

r. Troy School Tp., 102 

Ind. 279 239 

Kimble v. Board, etc., 32 Ind. 



App. 



O—' 



224 



King T. DowTiey, 24 Ind. App. 

262 352 

V. Inland Steel Co., 177 

Ind. 201 410, 273 

Klrkpatrick v. Keeves, 121 

Ind. 280 297 

Klauss T. CMtizens Nat Bank, 

46 Ind. App. 083 343 

KnickerlK)cker Ice Co. v. 

Gray, 165 Ind. 140 16, 91 

Knight & Jillson Co. v. Castle, 

172 Ind. 97 352 

Kniss V. Holbrook, 16 Ind. 

App. 229 443 

Knott V. Shepherdstown Mfg. 

Co.. 30 W. Va. 790... .a<>i, 695 
Knouff V. City of Logansport, 

2*5 Ind. App. 202 403 

Korrady v. Lake Shore, etc., 

U. Co., 131 Ind. 261 362 

Kothe V. Krag-Keynolds Co., 

20 Ind. App. 293 699 

KraU V. City of New York, 60 

N. Y. Supp. 661 656 

Kramer v. Knauff, 12 III. App. 

115 510 

Krom V. Vermillion, 143 Ind. 

75 449 



Lake Erie, etc., R. Co. v. Flke, 
35 Ind. App. 554 485 

v.Hilfiker, 12 Ind. App. 

280 504, 506 

V. Moore, 42 Ind. App. 32.113 

V. Stick, 143 Ind. 449. . . .252 



Lake Lighting Co. v. Lewis, 

29 Ind. App. 164 448 

Lake Shore, etc., R. Co. v. 

9rown, 41 Ind. App. 435. . .120 
V. Teeters, 166 Ind. a*]5. . 

491, 579 

Landau v. City of New York, 

180 N. Y. 48 154, 157 

Landers v. Fisher, 2 Ind. App. 

64 478 

Lane v. Atlantic Works, 111 

Masa 136 404 

Lankford v. State, 144 Ind. 

428 631 

Laporte Carriage Co. v. Sul- 

lender, 165 Ind. 290 

86, 179, 180, 227 

Lash V. Lash, 58 Ind. 526 557 

Lawrence v. Leathers, 31 Ind. 

App. 414. 662, 667 

Leach v. Rains, 149 Ind. 152.. 327 
Lee V. Mozingo, 143 Ind. 667.234 
Lefever v. Johnson, 79 Ind. 

554 44<3 

Leiter v. Jackson, 8 Ind. App. 

98 92 

Leonard v. Honisfager, 43 Ind. 

App. 607 18, 19 

Levering v. Shockey, 100 Ind. 

5r>S 163 

Lewis V. Masters, 8 Biackf. 

244 614 

Libby, McNeil & Libby v. 

Banks, 209 III. 109 72 

LlUie V. Trentman, 130 Ind. 

16 7 

Lilly V. Somerville, 142 Ind. 

298 235 

Lime City BIdg., etc., Assn. 

V. Black, lao Ind. 5-14 87 

Lingenfelser v. Simon, 49 Ind. 

82 56S 

Linton V. Potts. 5 Biackf. 396.221 
Little V. City of Madison, 42 

Wis. 643 152 

V. Dusenberry, 46 N. J. 

L. 614 49, 50 

Long V. Straus, 107 Ind. 94.. 38 
Loudon V. Robertson, 5 Biackf. 

276 205 

Louisville, etc., 11. Co. v. 

Blsch, 120 Ind. 549 48i; 



XVI 



CASES CITED. 



LoulsvDle. etc., R. Co. v. East I Malott v. Shinier, 153 Ind. 35. 73 
Tenn., etc., R. Co. 60 Fed. I Manley v. Tow, 110 Fed. 241. 5 



993 140 

— V. Falvey, 104 Ind. 409.. 410 

— V. Fay lor, 126 Ind. 126.. 

228, 577 

■— - V. Hendricks, 128 Ind. 
462 123 

— V.Jones, 108 Ind. 551... 123 

— V. Keefer, 146 Ind. 21. . ,577 

— V. Kelly, 92 Ind. 371 311 

— V. Kemper, 147 Ind- 561. 86 

— V. , 153 Ind. 61S 

305, 363, 537 

— V. Rush, 127 Ind. 545 

54^^ 542 

— V. Smith, 91 Ind! 119. . .\401 

— V. rtz, 133 Ind. 265 72 

— V. Williams, 20 Ind. App. 
576 175,362 

— V. Wood, 113 Ind. 544. . . . 
230, 410 

V. Wright, 115 Ind. 378.. 75 



Louisville, etc.. Traction Co. 

V. Snead, 49 Ind. App. 16.. 251 
V.Worrell, 44 Ind. App. 

480 70 

Love V. Blair, 72 Ind. 281 571 

Lowden v. Pennsylvania Co., 

41 Ind. App. 614 220 

Luntz v. Greve, 102 Ind. 173.459 
Lupton V. Coffel, 47 Ind. App. 

446 211 

Lyon V. City of Logansport, 9 

Ind. App. 21 150 

Lyster's Appeal, 54 Mich. 325.696 

McCardle v. McGinley, 86 Ind. 

538 435 

McClary v. Sioux City, etc., 

R. Co., 3 Neb. 44 404 

McCormick v. Mitchell, 57 

Ind. 248 588 

M'Coy V. Elder, 2 Blackf. 

*183 569 

^— v. Kokomo R., etc., Co., 

158 Ind. 662 297 

McFadden v. Ross, 14 Ind. 

App. 312 58 

McGuffey v. McClaln, 130 Ind. 

327 93 

McKee v. Root, 153 Ind. 314.235 
Ma her v. Boston, etc., R. Co., 

158 Mass. 36 75 

Mahogany v. Ward, 16 R. I. 

479 403 

Malott V. Hawkins, 150 Ind. 

127 117, 407 

V. Sample, 164 Ind. 645.. 228 



Marlon Bond Co. v. Mexican 
Coffee, etc., Co., 160 Ind. 

558 698 

Maria v. Masters, 31 Ind. App. 

235 32 

Marsh v. Bower, 151 Ind. 356.435 
Martin v. McCullough, 136 

Ind. 331 609 

Massey v. Massey, 40 Ind. 

App. 407 375 

Masten v. Indiana Car, etc., 

Co., 25 Ind. App. 175 17 

Matchett v. Cincinnati, etc., 

R. Co., 132 Ind. 334 495 

V. Knisely, 27 Ind. App. 

664 ...444 

Matlock V. Todd, 19 Ind. 130.444 
Mane v. Erie R. Co., 198 N. Y. 

221 65, 75 

Maxwell v. Board, etc., 119 

Ind. 20 423 

May V. Dobbins. 166 Ind. 331 . 449 
Mazelln v. Rouyer, 8 Ind. 

App. 27 307, 002 

Memphis, etc.. Packet Co. v. 

Pikey, 142 Ind. 804 92 

Merlca v. Burget, 36 Ind. App. 

453 580 

Meridian Life, etc., Co. v. 

Eaton, 41 Ind. App. 118. . . .530 
Merrell v. Springer, 123 Ind. 

485 42 

Mesker v. Fitzpatrick, 48 Ind. 

App. 518 43(5 

Messenger v. State, 152 Ind. 

227 661 

Metropolitan Life Ins. Co. v. 
Johnson, 49 Ind. App. 233. 

14, 202, 297 

V. McTague, 49 N. J. L. 

587 293 

Metzger v. Franklin Bank, 119 

Ind. 359 ;03, (531 

I^Ieyer v. Qulggle, 140 Cal. 

495 004 

Michigan Mut Life Ins. Co. 

v. Frankel, 151 Ind. 534... 2:U 
Middletown v. Greeson, 10(5 

Ind. 18 120 

Midland R. Co. v. St. Clair. 

• 144 Ind. 363 2.35 

Miedreich v. Frye, 41 Ind. 

App. 317 01 

Mllbnrn v. Phillips, 136 Ind. 

680 440 

Miller v. Kimberly & Clark 
Co., 137 Wis. 138 529 



CASES CITED. 



xvii 



Miller Y. Mutual, etc., Ins. Co., 

31 Iowa 216 293 

V. Noble, 86 Ind. 527 459 

V. St. Louis, etc., R. Co., 

90 Mo. 389 403 

V. Smith, 98 Ind. 226. . . .456 

V. State, ex rel., 106 Ind. 

415 129 

Mllliken v. Ham, 36 Ind. 166. 92 
Mills V. City of Broolslyn, 32 

N. Y. 489 148 

V. Kuykendall. 2 Blackf. 

47 206 

Mills Lamp Chimney Co. v. 

Erie Fire Ins. Co., 164 Ind. 

181 474 

Minot T. Mitchell, 30 Ind. 228.664 
Modern Woodmen, etc., v. 

Vincent, 40 Ind. App. 711.. 

•: 13, 14 

Mondamln, etc., Dairy Co. v. 

Brudi, 163 Ind. 642 588 

Monnett v. Turple, 132 Ind. 

482 130 

Monongahela River, etc., Co. 

V. Hardsaw, 169 Ind. 147.. 668 
Monteith v. Kokomo, etc., Co., 

159 Ind. 149 179 

Moody V. Shaw, 85 Ind. 88. . .205 
Moore v. Moore, 112 Ind. 149. 41 
Morford v. Chicago, etc., R. 

Co., 158 Ind. 494 684 

Morgan town Mfg. Co. v. 

Hicks. 46 Ind. App. 623 

404, 532 

Morrison v. Davis & Co., 20 

Pa. St 171 404 

Morrow v. Sholjer, 19 Ind. 

App. 127 698 

Mortgage Trust Co. v. Moore, 

150 Ind. 465 93, 26G 

Moulor V. American Life Ins. 

Co., Ill U. S. 335 292 

Moulter v. City of Grand Rap- 
ids, 155 Mich. 165 656 

M. S. Huey Co. v. Johnston, 

164 Ind. 489 93 

Mueller v. Brigham, 53 Wis. 

173 5 

Munele Pulp Co. v. Hacker, 

37 Ind. App. 194 

177, 178, 179, 185 

Mutual Ben. Life Ins. Co. v. 

Miller, 39 Ind. 475. . . .292, 293 
Mutual Ins. Co. v. Tweed, 7 

Wall. 44 404 

Mutual Reserve Life Ins. Co. 

T. Ross, 42 Ind. App. 621. . . 17 
Myers v. Caun, 95 Ga. 383. . .194 



National Drill Co. v. Myers, 

40 Ind. App. 322 180 

National State Bank v. Riug- 

el, 51 Ind. 393 39 

Needham v. Wright, 140 Ind. 

190 220 

Nelson v. St. Paul Plow 

Works, 57 Minn. 43 170 

New V. German Ins. Co., etc., 

5 Ind. App. 82 474 

V. Jackson, 50 Ind. App. 

120 661 

New England Structural Co. 

V. Everett Distilling Co., 189 

Mass. 145 510 

New Jersey, etc., R. Co. v. 

Tutt, 168 Ind. 205 502 

New York, etc., R. Co. v. 

Doane, 115 Ind. 435 486 

V. Hamlin, 170 Ind. 20.. 

82, 84 

V. Jones, 94 Md. 24 506 

V. Lockwood, 17 Wall. 

357 579, 580, 582 

Newsom v. Board, etc., 103 

Ind. 520 478 

Nichols & Shepard Co. v. 

Bernlng, 37 Ind. App. 109. .443 
Nlckey v. Steuder, 104 Ind. 

189 403 

Niles V. Board, etc., 8 Blackf. 

158 213 

Norris v. Casel, 90 Ind. 143.. 314 

v. Scott, 6 Ind. App. 18. .469 

Northern Pac. R. Co. v. Ad- 
ams, 192 U. S. 440...' 575 

Northwestern, etc., Ins. Co. v. 

Hazelett, 105 Ind. 212 292 

Norwalk Gas Light Co. v. 

Borough of Norwalk, 63 

Conn. 495 155 

Nutter V. Hendricks, 150 Ind. 

605 6 

Ochs V. M. J. Caniahan Co., 

42 Ind. App. 157 352 

Oghorn v. Hoffman, 52 Ind. 

439 701 

Oglebay v. Tippecanoe Loan, 

etc., Co., 41 Ind. App. 481 . . 57 

V. Todd, 166 Ind. 250 5 

Ohio, etc., R. Co. v. Dickerson, 

59 Ind. 317 492 

. V. Hemberger, 43 Ind. 

462 92 

.v.Nickless, 71 Ind. 271. 

577, 579 

v. Selby , 47 Ind. 471 

492, 576. 578, 579 



XVlll 



CASES CITED. 



Olcott V. McClure, 50 Ind. 

App. 79 31 

Oloson V. Lake Shore, etc., R. 

Co., 143 Ind. 405 363, 407 

Oliver Tyi)ewriter Co. v. 

Vance, 48 -Ind. App. 21.25. 328 
Oolitic Stone Co. v. Ridge, 

1G9 Ind. 639 306, 386 

Over V. Byram Foundry Co., 

37 Ind. App. 452 594 

V. Dehne, 38 Ind. App. 

427 643 

Oi^-en V. DreBbach, 154 Ind. 

392 235 

V. Williams, 114 Ind. 179.265 

Owen County, etc., Society v. 

Brumback, 128 Ky. 137 593 

Palys T. Jewett, 32 N. J. Eq. 

302 49, 50 

Park V. Board, etc., 3 Ind. 

App. 536 150 

Parkinson v. Thompson, 164 

Ind. 609 643 

Parry v. Botkln, 15 Ind. App. 

as 235 

Pan-In v. Wimberg, 130 Ind. 

561 428 

Pasteno v. Adams, 49 Cal. 87.403 
Patton V. Rankin, 68 Ind. 245.557 
Paxton V. Tyler, 20 Ind. App. 

455 

V. Vincennes Mfg. Co., 20 

Ind. App. 253 220 

Payne v.Terre Haute, etc., R. 

Co., 157 Ind. 616 575, 577 

Pearcy v. Michigan Mut. Life 

Ins. Co., Ill Ind. 59 660 

Peelle v. State, ex rel., 118 

Ind. 512 213 

Peerless Stone Co. v. Wray, 

143 Ind. 574 86 

Pein V. Miznerr, 170 Ind. 

059. 83 

Pence v. Long, 38 Ind. App. 

63 459 

Pendergast v. Yandes, 124 

Ind. 159 127 

Pennsylvania Co. v. Cougdon, 

134 Ind. 226 83,84 

v. Marion, 104 Ind. 239. . 

85, 544 

v. Ronev, 89 Ind. 453 6r>4 

V. Woddlo, 100 Ind. 138. 

662. 667, 609 



People V. Stewart, 7 Cal. 140.257 
People, ex rel., v. District 
Court, etc., 26 Colo. 386. . .687 



Perry v. Pemet, 165 Ind. 67. 7 
Peter v. Wright, 6 Ind. 183.. 444 
Ptister v. Gerwig, 122 Ind. 

567 10 

P. H. & F. M. Roots Co. T. 

Meeker, 165 Ind. 132... 83, 410 
Phillbrook v. Emswiler, 92 

Ind. 590 25 

Phinney v. State, ex rel., 36 

Wash, 236 610 

Phoenix Ins. Co. v. Benton, 87 

Ind. 132 293 

Picquet V. M'Kay, 2 Blaekf. 

4(J5 094 

Pittsburgh City v. Grier, 22 

Pa. St. 54 403 

Pittsburgh, etc., R. Co. v. 

Foust, 52 Ind. App. . . .610 

V. Hall, 46 Ind. App. 219.480 

-v. Higgs, 365 Ind. 694... 228 

V. Lightheiser, 163 Ind. 



247 273, 618 

— V. Lynch, 43 Ind. App. 
177 120 

— V. Mahoney, 148 Ind. 196.577 

— V.Martin, 157 Ind. 216.. 274 

— V. O'Conner, 171 Ind. 686 
06G 



V. Peck, Km Ind. 537 227 

V. , 172 Ind. 19 655 

V. , 172 Ind. 562 65(5 

V. , 44 Ind. App. 62.. 050 

V. Simons, 168 Ind. 333. .250 

V. Sudlioff, 173 Ind. 314. 

410. 411 

V.Terrell, 177 Ind. 447.. 120 

V. Warrum, 42 Ind. App. 

179 87 

V. Wise, 36 Ind. App. 59.486 

Port Huron Engine, etc., Co. 

V. Smith, 21 Ind. App. 233. 

96, 97 

Posey County Fire Assn. v. 

Ilagan, 37 Ind. App. 573... 378 
Presbyterian Mut. Assur. 

Fund V. Allen, 106 Ind. 593.291 
Price V. Walker, 43 Ind. App. 

519 31 

Princeton Coal, etc., Co. v. 

Gilmore, 170 Ind. 366 218 

V. ■ , 76 N. E. (Ind. 

App.) 787 218 

V. Roll, 162 Imi. 115 6S0 



Proctor V. Jennings, 6 Xev. 

8:^ 404 

Provident Trust Co. v. Dar- 

rough, 168 Ind. 29 31 



CASES CITED. 



XIX 



Qnackenbosfl v. Clarke, 12 
W«id, (X. Y.) •SoS 602 

Randel v. Brown, 2 How. 

♦406 695 

Rassier y. Grimmer, 130 Ind. 

219 423 

Ray T. Baker, 165 Ind. 74. . . . 

444, 643 

Rector v. Dmley, 172 Ind. 

302 283 

Uedfield v. Marvin, 7S Conn. 

704 211 

Reed v. State, 141 Ind. 116.. 630 
Reeves v. Hayes, 95 Ind. 521. 69D 
Reeves & Co. v. Gillette, 47 

Ind. App. 221.... 244, 378, 650 
Bebman v. New Albany, etc., 

R. Co., 8 Ind. App. 200 503 

Reid V. Reid, 149 Ind. 274. . .436 
Beilly v. Hannibal, etc., R. 

Ca, 94 Mo. 600 184, 660 

Reliance Mfg. Co. v. Langley, 

41 Ind. App. 175 82. 8^5 

Renihan r. Wrlgbt, 125 Ind. 

536 701 

Replogle V. American Ins. Co., 

132 Ind. 360 473 

Republic Iron, etc., Co. v. 

State, 160 Ind. 379 591 

Rice V. Dwight Mfg. Co., 2 

Cnsb. (Mass.) 80 354 

Ricliardson v. Pate, 93 Ind. 

423 432 

Ricbcreek v. Russell, 34 Ind. 

App. 217 445 

RicUmond v. Bennett, 205 Pa. 

St. 470 510 

r. Dubuque, etc., R. Co., 

33 Iowa 422 591 

Richmond St., etc., R. Co. v. 

Beverley, 43 Ind. App. 105.528 
Richter v. Irwin, 28 Ind. 26. .161 
Klehwine v. Presbyterian 

Church, 135 Ind. 80 7 

Riehl v. Evansville Foundry 

As«n., 104 Ind. 70 385 

Riley v. Kepler, 94 Ind. 308. .205 
Rivers v. City Council, etc., 

65 Ga. 376 148 

Roach V. Baker, 145 Ind. 330 

235 

Robb V. State, 144 Ind. 569.. 630 
Roberts v. Trammell, 19 Ind. 

App. 709 435 

V. Wolfe, 165 Ind. 199. . .328 

Robertson v. Ford, 164 Ind. 

538 228, 527, 530, 618 



Robinson v. City of Evans- 
ville, 87 Ind. 334 148 

V. Glass, 94 Ind. 211 444 

v.Thrailkill, 110 Ind. 117 

161 

Robinson & Co. v. Hathaway, 

150 Ind. 679 390 

Rogers v. Chicago, etc., B. Co., 

65 Minn. 308 170 

V. Leyden, 127 Ind. 50. .362 

V. Phenix Ins. Co., 121 

Ind. 570 292 

Root V. Woolworth, 150 U. S. 

401 222 

Rose V. Cash, 58 Ind. 278 614 

V. Owen, 37 Ind. App. 

125 432 

V. President, etc., 15 Ind. 

292 41 

Ross V. Thompson, 78 Ind. 

90 330 

Roushlange v. Chicago, etc., 

R. Co., 115 Ind. lOG. . .503, 506 
Rush V. Coal Bluff Mln. Co., 

131 Ind. 135 158 

Russell V. Pittsburgh, etc., R. 

Co., 157 Ind. 305 577 

V.Russell, 122 Mo. 235.. 557 

Ryan v. Currau, 64 Ind. 345.153 
Ryder v. Horsting, 130 Ind. 

104 423 

St. Clair v. Marquell, 161 Ind. 

56 265 

St. Louis, etc., R. Co. v. An- 
derson, 62 Ark. 3G0 50G 

Salem Stone, etc., Co. v. Grif- 
fin, 139 Ind. 141 685 

Sallenberger v. Town of Line- 

ville, 141 Iowa 203 656 

Salmon v. Norris, 81 N. Y. 

Supp. 802 5 

Sauxay v. Hunger, 42 Ind. 

44 500 

Sasse v. Rogers, 40 Ind. App. 

197 662 

Saul & Ilensinger v. Geist, 1 

Woodw. (Pa.) 30f) 560 

Scanlon v. Wedger, 156 Mass. 

462 157 

Schlichter v. Taylor, 31 Ind. 

App. 164 7 

Schlungger v. State, 113 Ind. 

295 7 

Schmidt V. Brown, 226 111. 

590 161 

y. German Mut. Ins. Co., 

4 Ind. App. 340 10 



XX 



CASES CITED. 



Schmidt v. Zahrndt, 148 Ind. 

447 327 

Schnell v. Nell. 17 Ind. 29... 391 
Schrader v. Myers, 48 Ind. 

App. 36 021 

Schumaker y. St. Paul, etc., . 

R, Co., 4G Minn. 39 410 

Scott V. Board, etc., 101 Ind. 

42 665 

V. Hunter, 46 Pa. St. 192.403 

V. Runner, 146 Ind. 12. . .222 

Seale v. Gulf, etc., R. Co., 65 

■1. 6a. ^i'X......... ••.•..••« fzvr'X 

Second Nat Bank v. Glbbon- 

ey, 43 Ind. App. 492 70 

Secor V. Skiles. 100 Ind. 98. .308 
Sell V. Keiser, 49 Ind. App. 

101 335 

Sellech v. City of Janesville. 

104 Wis. 570 546 

Selvage v. Talbott, 175 Ind. 

648 31 

Sewell V. Drake, 85 S. W. 

(Ky.) 748 696 

Shadford v. Ann Arbor St. R. 

Co., 121 Mich. 224 75 

Shafer v. Bronenberg, 42 Ind. 

89 92 

Shaffer v. Milwaukee Mei'han- 

ics' Ins. Co., 17 Ind. App. 

204 472 

V. Watkins, 7 Watts & S. 

(Pa.) 219 509 

Shaul V. Rinker. 139 Ind. 163.460 
Shoi)ley V. Smith, 162 Ind. 

520 638 

Shewaltor v. Hamilton Oil 

Co., 28 Ind. App. 312 93 

Shirk V. North, 138 Ind. 210. 42 
Shores v. Shores, 23 Ind. 546.375 
Shiuuan v. Collis, 144 Ind. 

333 99 

Sills V. Lawson, 133 Ind. 137. 4 
Skillem V. Phillips, 23 Ind. 

229 371 

Slinjirerland v. Norton, 59 

Minn. 351 100 

Smith V. Bowman, 32 Utah 

33 355 

v.Dennison, 101 111. 657.687 

V. Fairfield, 157 Ind. 491 

235 

r. Harris, 70 Ind. 104... 571 

V. Michigan Cent. R. Co., 



Snedeker y. In re Sims Spe- 
cial Drainage Dlst, 124 111. 

App. 380 109 

Snyder v. Sponable, 1 Hill (N. 

Y.) 567 555 

Society of Shakers y. Watson, 

68 Fed. 730 096 

Sohl V. Eyans, 29 Ind. App. 

OS-i 235 

South Bend Iron Works r. 

Larger, 11 Ind. App. 367. . . 

618, 620 

South Shore Gas, etc., Oo. v. 

Ambre, 44 Ind. App. 435. . . 70 
Southern Ind. Gas Oo. y. T^- 

ner, 49 Ind. App. 475 251 

Southern Ind. R, Co. y. Mc- 

Carrell, 163 Ind. 469 401 

y. Railroad Com., etc., 

172 Ind. 113 423 

Southern R. Co. y. Crone, 51 

Ind. App. 300 386,537 

y. Elliott, 170 Ind. 273. . . 99 

• y. Roach, 38 Ind. App. 

211 492 

y. Slttasen, 166 Ind. 257. 83 



-V. Utz, 52 Ind. App. 



35 Ind. App. 1S8 54. 680 

y. Wabash R. Co., 141 



Tnd. 92 407 

Smythe v. Boswell, 117 Ind. 
365 433 



.297 
Speir y. City of Brooklyn, 139 

Spencer y. Robbins, 106 Ind. 

580 264, 457 

y. Spencer, 31 Ind. App. 

321 456 

Spldell y. Johnson, 128 Ind. 

235 214 

Spitzer y. Miller, 35 Ind. App. 

116 260 

Sprague y. Beamer, 45 111. 

App. 17 457 

Springer y. Orr, 82 111. App. 

558 665 

Stahl y. Illinois Oil Co., 45 

Ind. App. 211 6 

Standard Oil Co. y. Helmick, 

148 Ind. 457 409 

State y. Berdetta, 73 Ind. 185 

154 

State Bank, etc., y. Backus, 

im Ind. 082 4 

State Bldg., etc., Assn. y. 

Brackin, 27 Ind. App. 677. . 8 
State, ex rel., y. Board, etc., 

104 Ind. 123 343 

y. . 170 Ind. 595.... 343 

y. Crossley, 69 Ind. 208. .211 

y. District Court, etc., 

107 Minn. 437 343 



CASES CITED. 



XXX 



state, ex rel., v. Emmonds, 

99 Ind. 452 571 

V. Geib, 66 Minn. 266... 100 

T. Hall, 173 Ind. 145. ,. . 6 

y. Petersen, 36 Ind. App. 

2»59 336 

V. Scott, 171 Ind. 349... 139 

T. Thomas, 111 Ind. 515 

447 

— V. Walters, 31 Ind. App. 

77 478 

— V. Webster, 157 Ind. 508 
468 

V. Wheeler, 127 Ind. 451 

336 

J^tejAens v. American Car, 

etc., Co., 38 Ind. App. 414. .529 
7. Lawson, 7 Blackf. 275 

385,460 

Stefihenson v. King, 81 Ky. 

425 610 

Stewart v. Goodrich, 9 Mo. 

App. 125 385 

Stlmson V. Roundtree, 168 

Ind. 169 208 

St^iddard v. Johnson, 75 Ind. 

20 19 423 

Stone T.' Harris, 146 Cal. 555'.694 

V. Lewman, 28 Ind. 97. . .701 

Stoner v. Bro\ni. 18 Ind. 464. 42 

V.Swift, 164 Ind. 652.. -327 

Stoat V. Board, etc., 107 Ind. 

343 129 

T.Rayl, 146 Ind. 379 265 

StoFall V. Cogging Granite 

Co., 116 Ga. 376 510 

Stoj V. Lonlsrilley etc., R. 

Co., 160 Ind. 144 117, 229 

Straus v. Yaeger, 48 Ind. App. 

448 695 

Strode v. Strode, 3 Bush 

(Ky.) 227 337 

Strong V. Iowa Cent R. Co., 

W Iowa 380 65,75 

Stronp T. Stroup, 140 Ind. 

179 265 

Stults V. Gibler, 146 Ind. 501.235 

Snmmers v. Tamey, 123 Ind. 
5(50 544 

Supreme Lodge, etc., v. 

Knight 117 Ind. 489 10 

Supreme Tent, etc., v. Eth- 

ridge, 43 Ind. App. 475.... 11 
Sjfers r. Keiser, 31 Ind. App. 

6 17 

Sweeney v. Merrill, 38 Kan. 
216 410 



Talbott V. Town of New 

Castle, 169 Ind. 172 

244,378,651 

Tansel v. Smith, 49 Ind. App. 

263 2(55 

Taylor v. Canaday, 155 Ind. 

671 49,283 

Tcachont v. Capital Lodge, 

etc., 128 Iowa 380 510 

Terre Haute, etc., R. Co. v. 

Brunker, 128 Ind. 542 175 

V. Buck, 96 Ind. 346 403 

V. Salmon, 34 Ind. App. 

564 119 

V. Sheeks, 155 Ind. 74... 228 

Tewksbury v. Howard, 138 

Ind. 103 32 

Thlele v. McManus, 3 Ind. 

App. 132 618, 619 

Thieme & Wagner Brew. Co. 

V. Kessler, 47 Ind. App. 284 

621 

Thomas v. Safe Deposit, etc., 

Co., 73 Md. 451 457 

V. Town of Butler, 139 

Ind. 245 343 

Thomas' Admr. v. Lewis, 89 

Va. 1 610 

Thompson v. Henry, 153 Ind. 

56 459 

V. Lowell, etc., St. R. Co., 

170 Mass. 577 155 

Thorp V. Hanes, 107 Ind. 324 

459 

Toledo, etc., R. Co. v. Grush, 

67 111. 202 250 

V. Mylott 6 Ind. App. 438 

330 

Torrey v. Field, 10 Vt 353. . .371 

V. Torrey, 14 N. Y. 4.30. .555 

Touhey v. City of Decatur, 

175 Ind. 98 655, 65(5, 057 

Town of Montlcello v. Ken- 

nard, 7 Ind. App. 135 150 

Town of Rennselaer v. Leo- 
pold, 10<5 Ind. 29 320 

Town of Windfall City v. 

First Nat Bank, 172 Ind. 

679 00 

V. State, 174 Ind. 311 657 

Traders Ins. Co. v. Cassell, 24 

Ind. App. 238 473 

Traylor v. Richardson, 2 Ind. 

App. 452 224 

Trost V. City of Casselton, 8 

N. Dak. 534 650 

Trustees v. Greenough, 105 U. 

S. 527 224 



XXll 



CASES CITED. 



Turple V. Lowe, 114 Ind. 37. . 

444,445 

Tyson v. Tyson, 94 Wis. 225. .467 

Uline v.,New York Cent, etc., 

R. Co., 101 N. Y. 98 320 

Un^er v. Mel linger, 37 Ind. 

App. 639 643 

L-nion Cent Life Ins. Co. v. 

Ilnjrhes' Adnir., 110 Ky. 26.665 
Union Traction Co. r. Pfell, 

39 Ind. Ai)p. 51 503 

United Brethren, etc., Society 

V. O'llara, 120 Pa. St. 256. .296 
United States v. McDowell, 21 

Fed. 563 354 

V. Trans-Missouri Freight 

Assn., 166 U. S. 290 590 

United States Cement Co. v. 

(V)oper, 172 Ind. 599... 273, 276 
United States, etc., Ins. Co. 

V. Clark, 41 Ind. App. 345 . . 

14,297 

United States, etc.. Paper Co. 

V. Landers, 47 Ind. App. 315 

488 



V.Moore, 35 Ind- App. 



684. 



.643 



United States Express Co. v. 
Rawson, 106 Ind. 215 328 

United States Fidelity, etc., 
Co. V. American Blower Co., 
41 Ind. App. 620 352 

Vandalla R. Co. v. Keys, 46 

Ind. App. 353 93 

Vanderbilt v. Central R. Co., 

43 N. J. Eq. 660 49 

Vordt^rmark v. Wilkinson, 142 

Ind. 142 234 

Voss V. Capital City Brewing 

Co.. 48 Ind. App. 476 391 

V. Eller, 109 Ind. 260 445 

V. State, ex reL, 9 Ind. 

App. 294 631 

Wabash, etc., R. Co. v. Locke, 
112 Ind. 404 409 

Wabash Pai)er Co. v. Webb, 
146 Ind. 303 277 

Wabash R. Co. v. Dellart, 32 

Ind. App. 62 401 

V. Savape, 110 Ind. 156.. 305 



Wagner v. Winter, 122 Ind. 



57 



5 



Wallace v. Central Vt. R. Co., 
138 N. Y. 302 65, 66 

Walsh V. Brockway, 13 Ind. 
App. 70 235 



Walter v. Hartwig, 106 Ind. 

123 699 

Walters v. Walters, 168 Ind. 

45 283 

Warbritton v. Demorett, 129 

Ind. 346 405 

Ward V. Bateman, 34 Ind. 110 

92 

Ware v. State, ex rel., 74 Ind. 

181 478 

Warner v. Marshall, 166 Ind. 

88 32- 

Warren v. Sohn, 112 Ind. 213 

130 

Warren Construction Co. v. 

Powell, 173 Ind. 207 256 

Warrum v. Derry, 14 Ind. 

App. 442 25 

Warwick v. Ely, 59 N. J. Eq. 

44 211 

Waterman v. Morgan, 114 Ind. 

2.';7 352 

Watson V. Adams, 32 Ind. 

Ai)p. 281 465 

Watson Cut Stone Co. v. 

Small, 80 111. App. 328 666 

Watts V. Sweeney, 127 Ind. 

116 130 

Webb V. John Hancock, etc., 

Ins. Co., 162 Ind. 616 42 

V. Jones, 163 Ala. 637 510 

V. Sweeney, 32 Ind. App. 

54 385 

V. Wi.::^ht & Weslosky 

Co., 112 Ga. 432 522 

Weik V. Pugh, 92 Ind. 382 93 

Welnhandler v. Eastern Brew- 
ing Co.,, 89 N. Y. Supp. 1(5. .602 
Weir Plow (^o. v. Walmsley, 

110 Ind. 242 24 

Welch V. State, ex rel., 164 

Ind. 104 64,65 

Werner v. Werner, 59 Kan. 

399 337 

Western Union Tel. Co. v. 

Buchanan, 35 Ind. 429 701 

Wheaton v. Fay, 62 N. Y. 275 

354 

Wheeler v. City of Fort 

Dodge, 131 Iowa 566 152 

V. City of Plymouth, 116 

Ind. 158 153 

White V. Chicago, etc., B. Co., 

122 Ind, 317 503 

V. Provident Sav., etc., 

Society, 163 Mass. 108 293 

V. Redenbaugh, 41 Ind. 

App. 580 445, 448 



CASES CITED. 



3LX111 



White SewlBg Mach. Co. v. 

Rlchter, 2 Ind. App. 331... 409 
Whiteley, etc.. Castings Co. v. 

Wishon, 42 Ind. App. 288.. 186 
Whlteaell v. Strlckler, 167 

Ind. 602 479, 7 

Wlutmore t. Supreme Lodge, 

etc.. 100 Mo. 36 665 

Whitney r. New York, etc., 

R, Co., 102 Fed- 850 581 

Wilber v. Scherer, 13 Ind. 

App. 428 631 

WiJttJX T. Monday, 83 Ind. 

335 2a4 

Wilkins V. Young, 144 Ind. 1.552 
Williams v. Grooms, 122 Ind. 

391 17 

V. Markland, 15 Ind. 

App. 669 352 

r.Perrin, 73 Ind. 57 191 

V. St Louis, eta, R. Co., 

119 Mo. 316 65, 74 

V. Vanderbilt, 145 111. 238 

697 

V. Woodard, 2 Wend. (N. 

I.) •487 .602 

Wilson T. Carrico, 140 Ind. 

533 265 

V. Vance, 55 Ind. 584. . . .688 

Wines t. Woods, 109 Ind. 291 . 5 
Window V. Green, 155 Ind. 

368 456 

Wolfe V. McMillan, 177 Ind. 

r>S7 071 

T. Peirce, 24 Ind. App. 

tiSO 274 



Wood V. elites, 140 Ind- 472. .235 

V. Ostram, 29 Ind. 177. . . 42 

Woodruflf V. Bowen, 136 Ind. 

431 409 

V.Mississippi, 162 U. S. 

291 39 

Woods V. Harris, 5 Blackf. 

585 701 

Wooiery v. Louisville^ eta, R. 

Co., 107 Ind. 381 486 

Wright V. Chicago, etc., R. 

Co., 160 Ind. 583 

70,528,680,686 

Wyble V. McPheters, 52 Ind. 

393 609 

Wyman v. Prosser, 36 Barb 

(N. Y.) 368 474 

Wynkoop v. Ludlow Valve 

Mfg. Co., 196 N. Y. 324.... 527 
Wynne v. Cornelison, 52 Ind. 

312 479 



Yocum V. Town of Trenton, 
20 Mo. App. 489 403 

Young V. Harvey, 16 Ind. 314 
409 

V.Montgomery, 161 Ind. 

68 638 



Ziegler T. Ziegler, 89 Ind. 

App. 21 458 

Zimmerman v. Zehendner, 164 

Ind. 466 32 

Zumpfe V. Gentry, 153 Ind. 

219 200 



Statutes Cited and Construed 



Constitution, Art. 1, §23 655 

Constitution, Art 4, §19 655 

Constitution U. S., 14tli amendment 655 

Section 259 Burns 1908 457 

Sections 291-293 Burns 1908 284 

Section 295 Burns 1908 478 

Section 302 Burns 1908 479 

Section 324 Burns 1908 570 

Section 325 Burns 1908 568 

Section 344 Burns 1908 458 

Section 362 Burns 1908 620 

Section 400 Burns 1908 465 

Section 403 Burns 1908 465 

Section 40i Burns 1908 465 

Section 405 Bums 1908 465 

Section 502 Burns 1908 630 

Section 558 Burns 1908, subd. 5 344 

Section 585 Burns 1908 92 

Section 657 Burns 1908 282 

Section 6G7 Burns 1908 435, 468 

Section 672 Burns 1908 433 

Section 674 Burns 1908 233, 234 

Section 081 Burns 1908 432, 438 

Section 690 Burns 1908 435, 468 

Section 696 Burns 1908 260 

Section 698 Burns 1908 57, 642 

Section 700 Burns 1908 119, 465, 545 

Section 704 Burns 1908 687, 688 

Section 716 Burns 1908 569 

Section 718 Burns 1908 560 

Sections 1059, 10<30 Burns 1908 334 

Section 1357 Burns 1908 570 

Section 1394 Burns 1908 218 

Section 1418 Burns 1908 687 

Section 1035 Burns 1908 623 

Sections 1042, 1643 Burns 1908 625 

Section 1645 Burns 1908 623, 625, 626 

Section 2737 Burns 1908 190, 192 

Section 2742 Burns 1908 192 

Section 2743 Burns 1908 191, 192 

Section 2746 Burns 1908 192, 193 

Section 2814 Burns 1908 190 

Section 2816 Burns 1908 190 

Section 2874 Burns 1908 204 

Sections 2001, 2902, 2903, 2904 Burns 1908 212 

Section 3052 Burns 1908 335. 468 

Section 3054 Burns 1908 468 

Section 3067 Burns 1908 457 

Section 3151 Burns 1908 191, 192 

Section 3154 Burns 1908 263 

Section 3158 Burns 1908 190 

Section 3954 Burns 1908 557 

Section 3960 Bums 1908 509 

Section 3962 Burns 1908 4, 5 

Section 4050 Burns 1908 261 

(xxiy) 



STATUTES CITED AND CONSTRUED. xxv 

Section 4051 Boms 1908 259, 260, 261 

Section 4819 Bams 1908 9 

Section 5195 Burns 1908 401 

i«eition 5256 Burns 1908 673 

ijection 5263 Bums 1908 315 

SecUon 5444 Bums 1908 162 

Section 6411 Bums 1908 240 

SccUon 6417 Bums 1908 104, 107, 108 

S«tion 6443 Bums 1908 241 

Section 6583 Bums 1908 106 

Section 6598 Bums 1008 238 

Section 6599 Bums 1908 238, 240 

Section 6602 Burns 1908 10(5 

Section 6675 Bums 1908 240 

Section 6946 Bums 1908 427 

Section 7463 Bums 1908 31, 517 

Section 7761 Bums 1908 427 

Section 7793 Bums 1908 423 

Section 8017 Bums 1908 673, 67G 

Section 8029 Bums 1908 80, 82, 177, 271, 527 

Se(tion 8295 Burns 1908 127 

Section 8307 Bums 1908 130 

Section 8360 Bums 1908 334 

Sections 8636, 8637 Bums 1906 199 

Section 8638 Bums 1908 200 

Section 8962 Bums 1908 054, 655 

Seiilon 9001 Bums 1908 342 

Sni'tlon 9009 Bums 1908 342 

Section 9071 Bums 1908 39, 40 

Seinion 9074 Bums 1908 40 

Section 9089 Bums 1908 357 

Section 10202 Bums 1908 446 

Section 10256 Bums 1908 44G 

Section 10265 Bums 1908 446 

Section 667 Bums 1901 2<50 

Sttion 4346 Bums 1901 342 

Section 258 R. S. 1881 457 

Sections 289-291 R. S. 1881 284 

Section 293 R. S. 1881 47S 

Swtlon 300 R. S. 1881 479 

Section 320 R. 8. 1881 570 

Section 321 R. S. 1881 508 

M'tion 339 R. S. 1881 458 

Section 391 R. S. 1881 405 

Sections 394, 395, 396 R. S. 1881 405 

Section 479 R. S. 1881 080 

Section 533 R. S. 1881 344 

SecUon 559 R. S. 1881 02 

Section 633 R. S. 1881 433 

Section 640 R. S. 1881 432, 433 

Section 649 R. S. 1881 435, 468 

Section 655 R. S. 1881 2G0 

Section 658 R. S. 1881 110, 465, 545 

Section 662 R. S. 1881 C87, G88 

SectlMi 674 R. S. 1881 569 

Section 676 R. S. 1881 569 

S^tionfl 1024, 1025 R. S. 1881 334 

Section 1286 R. S. 1881 570 

Section 2222 R. S. 1881 100, 192 

Seilion 2228 R. S. 1881 191, 192 



xxvi STATUTES CITED AND CONSTRUED. 



Section 2231 
Section 2206 
Section 22m 
Section 2357 
Section 2378 
Section 2380 
Section 2381 
Section 2508 
Section 2510 
Swtlon 2520 
Section 2503 
Section 250<5 
Section 2G00 
S«H-tIon 2023 
Section 2020 
Section 2031 
Section 3006 
Section 3007 
Section 3774 
Station 3003 
Swtion 3017 
Section 5325 
Section 5501 
Section 550i 
Section 5518 
Section 6387 



Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 
Acts 



1881 (s. 
1883 p. 
1883 p. 
1880 p. 
1801 p. 
1801 p. 
1803 p. 
1803 p. 
1807 p. 
1807 p. 
1800 p. 
1800 p. 
1800 p. 
1800 p. 
1800 p. 
1800 p. 
1001 p. 
1001 p. 
1001 p. 
1001 p. 
1001 p. 
1003 p. 
1003 p. 
1003 p. 
1003 p. 
1005 p. 
1005 p. 
1005 p. 
1007 p. 
1007 p. 
1007 p. 
1007 p. 
1007 p. 
1007 p. 



R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
R. S. 
s.) p 
140.. 
158.. 
157.. 



1881 192, 193 

1881 190 

1881 190 



1881 
1881, 
1881, 



,204 
.212 
.212 



1881 212 

1881 335, 468 

1 8S 1 408 

1881 457 

18S1 191, 192 

1881 263 



1881 
1881 
1881 



,190 
.557 
,509 



1881 4, 5 

1881 261 

1881 259, 260, 261 

1881 9 



.401 
.315 
.334 



1881 

1881 

1881 

1881 39,40 

1881 40 

laSl 357 



1881 446 

611 440 

130 

212 

427 

30 687 

100 446 

17 104, 107, 108 

204 673, 670 

244 282 

271 109, 200 

5 233, 234 

58 620 

231 80, 82, 177. 271, 527 

424 240 

485 i«*> 



500. 
57.. 
104. 
160. 
281. 
470, 
40.. 



.31, 



338 57, 435, 468, 

400 



528 

210 

521 

5r,7 

50 (;23, 625, 

14(; 106, 238, 

221 

240 

323 

371 



654, 



162 
127 
342 
517 
673 
192 
240 
446 
642 
241 
238 
342 
423 
427 
62(J 
240 
623 
655 
106 
427 



TEXT-BOOKS QTED 



6 Am, and Eng. Enc-y. Law 

»)1 552 

10 Am- and Eu.a:. Ency. Law 

(2d ed.) VJt G04 

20 Am. and Enj?. Ency. Law 

(2d ed.) 13«) 169 

2J) Am. and Eng. Ency. Law 

(2d ed.) 888 20-1 



Benjamin, Sales (Gth ed.) 



^308. 



012 



1 Bishop. Mar. and Div. 

(1801 eil.) 8259 8;i5 

(1891 ed.) i527l 335 

1 Bishop, Mar., Div. and Sep. 

#Gi8 .^^•; 

2 Bisihop. Mar., Div. and Sep. 
$1596 335 

Klack. Interp. of Laws 115. . .343 

1 Blackstcnw's Comm. *442..552 

2 Blackj^tciue's Comm. ♦182. . .55:1 
Browne, Stat, of Frauds §2()5 

204 



2 rhamberlayne. Modern Law 

of Ev. S1030 676 

3 Cook. Conx)ratlons (Gth 
e<l.) «S70 224 

Cooper, Eq. PI. 99 221 

1 (\vc. 307 701 

14 Cyc. 1220 et seq 504 

15 Cyc. 2m 214 

2IJ Cyc. 1199 610 

2r, rye. iU'A 694 

2»» CVc. 864 335 

27 Cyc. 1012 445 

'*'j Cvf» 4n*> J. in 

::i Cyc. 1662 308 

:z> Cyc. 73 25 

177 24 

U Cyc. 1410 613 

1 Daniel. Xeg. Inst. §§55, 56. . 30 

§805 41 

§867 41 

§879 41 

§882 41 

§895 •. 41 

§§899.901 41 

2 Iianiel, Neg. Inst. §1706 39 

J1708« 42 

13 Dec-enial Digest "Master 

and Servant" §112 75 



2 Dillon, Mun. Corp. (3d ed.) 
§754 148 

§1027 150 

Elliott, App. Proc. §113 433 

§116 433 

§144 234 

§186 435 

§§299, 308 2(W) 

§§489, 490 306, 386 

§558 687 

§626 6G5 

§627 184, 666 

. §779 3g3 

2 Elliott. Evidence' §881 . . . . ." .385 

3 Elliott, Railroads §1171 407 

Elliott, Roads and Sts. (2d 

ed.) §6.34 156 

13 Ency. PI. and Pr. 88 371 

Endlich, Interp. of Stat. §185 

343 

Ewbank, Ind. Trial Ev. §253.631 
Ewbank's Manual §255 665 



2 Freeman, Execution (3d 
ed.) §172b 570 

Green, Pr. and PI. §468 466 

Grecnhood, Public Policy 645.594 
2 Greenleaf, Evidence (loth 
ed.) §421 371 

1 Jones, Liens §744 130 

2 Kent, Comm. (3d ed.) 132, 
133 555 

438 612 

1 Lewis's SuthA-land, Stat. 
Constr. <2d ed.) §247 343 

Mills, Eminent Domain (2d 

ed.) §110 503 

Mitford, Ch. PI. 95 221 

Newell, Slander and Libel 788 
371 

2 Parsons, Contracts ♦515. . . .353 

3 Phillips, Evidence (Oowen 

& Hlirs Notes) 466 600 



(xxvii) 



XXVlll 



TEXT-BOOKS CITED. 



1 Poineroy, Eq. Jurisp. (3d 
edL) §364 198{ 

3 l*omeroy, Eq. Jurisp. (2d 
ed.) §1219 445 

§§12:i4-1237 (SlXi 

§§1238, 1239 49(j 

§1241 605 

§§1241, 1242 607 

1 Preston, Estates ♦ISl 553 

♦132 -^' 



•136, 



,552 



Piiterbaiigh, Ch. PI. and Pr. 
279 221 

1 Randolph, Com. Paper §§89, 
00 39 

3 Randolph, Com. Paper §1665 
568 

1 Sedgwick, Damages (9th 
ed.) §405 588 

1 Story, Contracts (5th ed.) 

§675 500 

Story, Eq. PI. (10th ed.) §343 
221 



§420, 



*>'>•> 



1 Sutherland, Djunages §57.. 403 



1 Thompson, Negligence §221.277 
4 Thompson, Negligence §3773 
75 

§3986 75 

§4361 75 

§4665 169 

§§4731-4752 65, 72 

§4753 75 



': honiton, Gifts and Advance- 
ments, §148 610 

Tiedeman, Com. Paper §§485, 
487 39 

Townshend, Slander and Libel 
§403 371 



Washburn, Real Property 425 



556 



Wharton, Negligence (2ded.) 
§§16,17 410 

§21 410 

§76 410 

§999 403 

1 Wigmore, Evidence §437. ..676 
4 Wigmore, Evidence §2.530. .676 
Wigraore. Pocket Code §341.. 670 

2 Williams, Executors (5 Am. 
ed.) 1283 211 



JUDGES 



ov 



Appellate Court 



OW VBM 



STATE OF INDIANA, 



WHOSE OPINIONS AKE CONTAINED IN THIS VOLUME. 



Hon. JOSEPH G. IBACH.*t 
Hon. DAVID A. MYERS.Jt 
Hon. MILTON B. HOTTEL.**f 
Hon. ANDREW A. ADAMS. J J H 
Hon. EDWARD W. FELT.^f 
Hon. MOSES B. LAIRY.^f 
Hon. frank S. R0BY.§ 



*Chief Justice at November Term, 1912. 

tPresifUng Jodge at November Term, 1912. 
♦♦Chief Justice at May Term, 1912. 
UPresiding Judge at May Term, 1912. 

J.\ppointed March 21, 1901 ; elected in 1902 and 1906. 

tAppointed October 18, 1904 ; elected in 1904 and 1908. 

TElected in 1910. 



ixxa) 



OFFICERS 



OF THa 



Appellate Court 



ATTORNEY-GKNERAL, 

THOMAS M. HON AN 



REPORTER, 

PHILIP ZOERCHER 



CLERK, 

J. FRED FRANCE 



SHERIFF, 

HARRY W. PEMBERTON 



LIBRARIAN, 

W. GARY CARSON 



fxxx) 



CASES DECIDED 



IN THB 



Appellate Court 



OF THE 



STATE OP INDIANA, 

AT INDIAXAPOLIS, MAY TERM, 1912, AND NOVEMBER 
TERM, 1912, IN THE NINETY-SIXTH AND NINETY- 
SEVENTH YEARS OF THE STATE. 



Larrance V. Lewis. 

[No. 7,674. Filed June 18, 1912.] 

1. Deeds. — Unrecorded Conreijance. — Validity. — Suhseqtietit Pur- 
c/i<wer«.— While under §3962 Burns 1908, §2931 R. S. 1881, an 
unrecorded conveyance of an interest in real estate Is void as to 
subsequent purchaserSy lessees and mortgagees in good faith and 
for a valuable consideration. It is valid as to all other persons. 
p. 4. 

*!. Ve:cdob and Pubchaser. — Bona Fide Purohuaer. — Notice. — A 
purchaser is bound to take notice of the terms and recitals in tlie 
prior deeds which constitute his chain of title, and In law he is 
preHumcd to have examined such deeds, p. 5. 

o. Vendor and Pubchaser. — Bona Fide Purchaser, — Notice. — In an 
actioD to enjoin defendant from removing timber from plaintiff's 
land, an answer alleging that at the time plaintiff purchased the 
land he was fully informed of the fact that defendant had pur- 
chased the timber and had a right to enter upon the real estiite 
and remove the same, and that he was at that time in possession 
of and removing said timber, and that plaintiff accepted the con- 
veyance with such full knowledge, was sufficient, as against a 
demurrer, to show that plaintiff was not a bona fide purchaser of 
the timber as against the claim of defendant, pp. .1, (». 

4. CoxTRACTS. — Validity. — AcknoicJedgment. — A contract is good, 
as between the parties, without an acknowledgment, p. 5. 

'k Pleading. — Demurrer. — Admission. — A demurrer to a pleading, 
for the purposes of the ruling thereon, admits that the facts well 
pleaded are true. p. 6. 

0. New Trial. — Xeiv Trial as of Rif/ht. — ^Where two causes of 
action are joined, and proceed to judgment in the same case, In 



2 APPELLATE COURT OP INDIANA. 

Ijarrance r. Lewis — ^51 Ind. App. 1. 

one of whicb a new trial is allowable as of right and in the 
other it is not, the statute (§1110 Burns 1906, §1064 R. S. 1881) 
is not applicable and a new trial as of right will not be granted. 
p.G. 
7. Appeal. — Review. — Questions Not Presented in Trial Court. — 
Presumption. — Authority of Special Judge. — Under the presump- 
tion in favor of the regularity of all proceedings of all courts of 
record, the record on appeal need not show the manner of the ap- 
pointment of a special Judge, and where no objection was made 
to such appointment and no question was raised below as to the 
regularity of such apiwintment, nor as to the authority of sucli 
Judge to act, all such objections are deemed waived, p. 7. 

From Vermillion Circuit Court ; Gould C. Rheuby, Special 
Judge. 

Action by Paris H. Larrance against Mark Lewis. From 
a judgment for defendant, the plaintiff appeals. Affirmed. 

E. E. Neel and A. T. Livengood, for appellant. 
Hugh H. Conley, Paul H. Conley and W. Bert Conley, for 
appellee. 

PeXiT, J. — The nature of this action and the questions 
raised by the appeal are best presented by a summary of the 
pleadings filed in the case. 

Appellant's complaint is in two paragraphs, each of which 
is, in substance, as follows : That appellant is the owner in 
fee simple and entitled to the possession of certain described 
real estate, situated in Vermillion county, Indiana ; that ap- 
pellee is unlawfully holding possession of the same and claim- 
ing an interest in said real estate, which claim is wholly with- 
out right ; that said claim is adverse to appellant and a cloud 
on his title ; that appellant, before bringing this action, made 
a demand on appellee for possession of said real estate, which 
demand was refused ; that while in possession of the premises, 
appellee has, without right, removed valuable timber from 
the same ; that he is still removing valuable timber therefrom, 
and will continue so to do unless enjoined. "Wherefore ap- 
pellant asks for damages, for possession of said premises, that 



MAY TERM, 1912. 



Larrance v. Lewis — ^51 Ind, App. 1. 



his title thereto be quieted, and that appellee be enjoined 
from further removing said timber. 

The complaint was verified, and on application a tempo- 
rary restraining order was issued and a bond duly executed. 
Afterwards on motion the restraining order was dissolved. 

Appellee filed a general denial and a special paragraph of 
answer, in which he admitted that appellant was the owner 
of the real estate described in the complaint, but averred 
that prior to the time appellant purchased said real estate, 
appellee purchased of the owners, C. F. Haworth and Will- 
iam Bennett, all the timber in the section in which the real 
estate in controversy is situated, except four trees, which 
were reserved by the contract; that at the time appellant's 
grantor, Hall, purchased of said Bennett and wife the land 
described in the complaint, the timber on said land was re- 
ser\'ed by the terms of the deed and did not pass to said 
Hall ; that, by mutual mistake of all the parties thereto, the 
elaaae in said deed so reserving said timber did not describe 
the tract of land on which the timber was located, but de- 
scribed a different tract also conveyed in said deed, and on 
which there was no timber ; that at the time of said convey- 
ance said Haworth also owned some interest in said timber ; 
that after said conveyance said Hall made no claims to the 
timber in question, but recognized that the same had been 
reserved ; that before the conveyance of the real estate from 
said Hall to appellant, appellee, with Hall's knowledge and 
consent, entered on said premises, took possession of the tim- 
l)er thereon, and began the removal of the same ; that such 
possession of said timber and work in cutting and removing 
the same was open, obvious and notorious, and was con- 
tinnous and in fuU operation at the time appellant pur- 
chased said real estate from said Hall, and for some time 
thereafter, without objection on the part of appellant ; that 
at the time appellant purchased said real estate he was fully 
informed of the fact that appellee had purchased said tim- 



4 APPELLATE COURT OF INDIANA. 

Larrance r. I-iewls — 51 Ind. App. 1. 

her, and that he had the right to enter on said real estate 
and remove the timber therefrom; that appellant accepted 
such conveyance with full knowledge of the fact that said 
timber had previously been sold to appellee and belonged to 
liim, and that he had the right to remove the same; that 
appellee claims no interest in said real estate, except the 
license given him by said contract to enter on said land, and 
to cut and remove said timber. A copy of the contract for 
the sale of the timber was filed with the complaint as an ex- 
hibit. 

Appellant's demurrer to this answer was overruled, and 
issues were joined by a reply in general denial. The cause 
was tried before a special judge, who found for appellee. 

The first question presented by the appeal is the alleged 
error of the court in overruling appellant's demurrer to 
the second paragraph of appellee 's answer. 

In attacking this answer appellant has presented several 
propositions of law about which there is no controversy. 

The fourth proposition, which presents the only contro- 
verted question, is that ** conveyances of any interest in 
lands shall be, by deed in writing, subscribed, sealed and 
duly acknowledged by the grantor or his attorney." 

It is conceded by appellee that a contract for the sale of 
growing timber is a contract for the sale of an interest in 
real estate, and must be in writing to bind either party. The 
contract here involved is in writing, and is signed by the 
parties thereto. The question then arises: Should the con- 
tract have been acknowledged and recorded in order to bind 
appeUant? 

An unrecorded conveyance of an interest in real estate is 
valid as against every person except subsequent pur- 

1. chasers, lessees and mortgagees in good faith and for 

a valuable consideration. §3962 Bums 1908, §2931 

R. S. 1881 ; State Bank, etc., v. Backus (1903), 160 Ind. 682, 

694, 67 N. E. 512; Sills v. Lawson (1892), 133 Ind. 137, 141, 

32 N. E. 875. 



MAY TERM, 1912. 



La France v, Lewis — 51 Ind. App. 1. 



hi Mueller v. Brigham (1881), 53 Wis. 173, 10 N. W. 366, 
the supreme court of Wisconsin had under consideration a 
statute similar to §3962, supra, and there held, that **to 
purchase in good faith is to purchase without knowledge of 
the outstanding incumbrances, or any information suflScient 
to put the purchaser upon inquiry/' Furthermore, the 
deed to appellant's grantor is shown to have contained a 
elanse reserving the timber in question. 

A purchaser is l>ound to take notice of the terms and re- 
citals in the prior deeds which constitute his chain of title, 
and in law he is presumed to have examined such 

2. deeds. Gregory v. Armes (1911), 48 Ind. App. 562, 
96 N. E. 196, 199; Oglehay v. Todd (1906), 166 Ind. 

250, 255, 76 N. E. 238; Wagner v. Winter (1890), 122 Ind. 
57, 62, 23 N. E. 754; Hazlett v. Sinclair (1881), 76 Ind. 488, 
493, 40 Am. Rep. 254. 

This provision of the deed was enough to put appellant on 

inquiry, and to suggest to him that such reservation was 

intended to apply to the land on which there was no timber 

rather than to a portion on which there was no timber. 

3. These facts, coupled with the averments that appel- 
lant purchased the land with notice and full knowl- 
edge of the rights of appellee to said timber, and that the 
same was at the time of such purchase being cut and re- 
moved in pursuance of such right, are sufftcient to show that 
appellant was not a hona fide purchaser of such timber, as 
against the claim of appellee. Salmon v. N orris (1903), 81 
N. Y. Supp. 892, 895, 82 App. Dis. 362 ; Oerow v. Castello 
(1888), 11 Colo. 560, 19 Pac. 505, 7 Am. St. 260; Manley v. 
Tow (1901), 110 Fed. 241, 254. 

As between the parties, the contract was good, even with- 
out an acknowledgment. Wines v. Woods (1887), 

4. 109 Ind. 291, 10 N. E. 399; Bever v. North (1886), 
107 Ind. 544, 8 N. E. 576; Blair v. Whittaker (1903), 

31 Ind. App. 664, 671, 69 N. E. 182. 
Appellee's second paragraph of answer charges "that at 



6 APPELLATE COURT OP INDIANA. 

Larrance v. Lewis — 51 Ind. App. 1. 

the time the plaintiff [appellant] purchased said real estate 
of said Hally he was fully informed of the fact that 
3. the defendant [appellee] had purchased said timber 
and had full knowledge of the fact that said timber 
had been sold to him, the defendant, and that the defend- 
ant had the right to enter upon said real estate and remove 
the timber and that he was at that time in possession of and 
removing said timber, and took and accepted such convey- 
ance with such full knowledge that said timber belonged to 
the defendant and that he had the right to remove the 
same." These averments are suflScient to charge appellant 
with notice and knowledge of appellee's ownership of the 
timber, and of his possession of the premises for the pur- 
pose of removing the same, and to make his purchase of the 
land subject to appellee's right to said timber. 

The demurrer admits, for the purposes of the ruling there- 
on, that the facts well-pleaded are true, and we 

5. therefore hold the answer good. State, ex reL, v. 
Hall (1909), 173 Ind. 145, 147, 89 N. E. 855; Greenor 

waldt V. Lake Shore, etc., R. Co. (1905), 165 Ind. 219, 223, 
74 N. E. 1081 ; Stahl v. Illinois Oil Co. <1910), 45 Ind. App. 
211, 214, 90 N. E. 632. 

Appellant next contends that the court erred in overrul- 
ing the motion for a new trial as of right. Where two causes 
of action are joined, and proceed to judgment in the 

6. same case, in one of which a new trial is allowable as 
of right and in the other it is not, the statute is not 

applicable, and a new trial as of right will not be granted. 
N niter v. Hendricks (1898), 150 Ind. 605, 50 N. E. 748; 
Garrick v. Gaa-rick (1909), 43 Ind. App. 585, 590, 87 N. E. 
696, 88 N. E. 104; Aetna Life Ins. Co. v. Stryker (1908), 
42 Ind. App. 57, 83 N. E. 647; BonAam v. Doyle (1907), 39 
Ind. App. 434, 438, 77 N. E. 858. 

While appellant in his complaint prayed that his title to 
the property therein described be quieted as against appellee, 



MAY TERM, 1912. 



Larrance v. Lewis — ^51 Tnd. App. 1. 



he also asked damages for the removal of timber from said 
lands, and for injunctive relief against the further removal 
of the same. The substantive facts set out in the complaint 
are sufficient to state a good cause of action for the relief 
prayed, in addition to the request that the title be quieted. 

Appellee specifically admits appellant's title to the real 
estate in question, and the principal controversy at the trial 
centered about appellee's rights to certain timber thereon, 
title to the lands being only incidentally involved. In such 
situation a new trial as of right is not demandable. Richwine 
V. Presbyterian Church (1893), 135 Ind. 80, 86, 34 N. E. 
737; Butler University v. Canard (1884), 94 Ind. 353; 
Bradford v. School Town of Marion (1886), 107 Ind. 280, 
7 N. E. 256; Hofferbert v. Williams (1904), 32 Ind. App. 
593, 70 N. E. 405 ; Schlichter v. Taylor (1903), 31 Ind. App. 
164, 169, 67 N. E. 556. 

Appellant suggests in his brief that the special judge who 

tried the case and rendered judgment at the May term had 

no authority to act on the motion for a new trial as 

7. of right, filed and ruled on at the succeeding October 
term. The question of the authority, of such special 
judge to rule upon such motion, without a new appointment, 
at a term subsequent to that at which final judgment was 
rendered in the case, is not presented by the record. The 
presumption is in favor of the regularity of the proceedings 
of all courts of record. Where no objection was made to a 
special judge, and no questions were raised below, as to the 
regularity'' of his appointment or his authority to act, the 
record on appeal need not show the manner of his appoint- 
ment, and all objections to the regularity of his appoint- 
ment and the legality of the proceedings before him will be 
deemed waived. Perry v. Pernet (1905), 165 Ind. 67, 70, 
74 X. E. 609, 6 Ann. Cas. 53S, Lillie v. Trentman (1891), 
130 Ind. 16, 21, 29 N. E. 405; Whitesell v. Strickler (1907). 
167 Ind. 602, 620, 78 N. E. 845, 119 Am. St. 524; Schluncvu , 



8 APPELLATE COURT OP INDIANA. 

Brashears v. Perry County, etc., Ins. Co. — 51 Ind. App. 8. 

V. State (1888), 113 Ind. 295, 296, 15 N. E. 269; State Bldg., 
etc, Assn. V. Brackin (1901), 27 Ind. App. 677, 683, 62 N. 
E. 91. 

Finding no available error in the record, the judgment is 
affirmed. 

Note.— Reported in 98 N. E. 892. See, also, under (1) 13 Cyc. 
nirj; (2) 39 Cyc. 1713; (3) 39 Cyc. 1778; (4) 1 Cyc. 514; (5) 31 
Cyc. ;W3; (U) 29 Cyc. 1037; (7) 2 Cyc. 660. As to possession as 
notice wliere deed Is not recorded, see 104 Am. St 345. 



Brashears et al. v. Perry County Farmers 
Protective Insurance Company. 

[No. 7,513. Filed June 19, 1912.] 

1. INSUBANCE. — Mutual Company. — By-laws, — Policy, — By-laws of a 
mutual insurance company that are not inconsistent with the 
provisions of the ix)llcy become a part of the contract of insur- 
ance and must be construed therewith, even though not referred 
to in the policy, p. 10. 

2. Insurance. — Fire Insurance, — Mutual Company, — By-laws, — 
Suspension of Policy. — A provision in the policy of a mutual fire 
insurance company that the company will "not pay any loss or 
damage on any dwelling house when vacant more than ten days," 
is not inconsistent with a by-law suspending the policy where 
there Is such vacation, and providing that the owner shall notify 
the secretary of the company of reoccupation In order to revive 
the policy, p. 10. 

3. Insurance. — .4c^ion on Policy. — Pleading By-laws. — ^^Vn allega- 
tion in the answer of a mutual insurance company, that, at tlie 
time the policy was issued to plaintiff, it delivered to plaintiff a 
copy of the company's by-laws, is a sufficient allegation that the 
by-laws were in force at the time the iwlicy was issued, p. 11. 

4. INSURANCK. — Fire Insurance. — Mutual Company. — By-laws. — 
Suspension of Policy, — **Vacant." — A house is vacant within the 
moaning of a by-law of a mutual fire insurance company suspend- 
ing a i)olicy where the building insured becomes vacant for more 
til an ten days, when no one lives therein, although it contains 
articles of furniture which the last occupant failed to remove, 
p. 12. 

5. Insurance. — Fire Insurance. — Suspension of Policy. — Liability 
fw Loss, — Cancellation. — ^Where a policy of fire insurance pro- 
viilcd that the company reserved the riirht to onnci*! at any time 



MAY TERM, 1912. 



Brashears t*. Perry County, etc., Ins. Co. — ^51 Ind. App. 8. 



after giTing the insured five days' notice, and the house cover<^d 
by the policy was burned while the policy was suspended under 
a by-law providing for such suspension in case of vacancy for 
more than ten days, affirmative action was necessary on the com- 
pany's part to avoid the policy, although it had no knowledge of 
the vacancy until after the fire, and, having failed to cancel the 
iwlicy and return the unearned premium after obtaining knowl- 
edge of such vacancy, its action must be construed as an election 
to hold the policy valid, and a recovery thereon may be had. p. 12. 

«l PiKADiifG. — Reply to Bad An^iver. — Where an answer is bad, a 
bad reply is sufficient p. 13. 

7. Insurance. — Policies. — Conditions. — Avoidance of Liability. — 
To prevent liability under a policy, whether for breach of a con- 
dition precedent or of a condition subsequent, the company on 
learning of such breach must elect to avoid the policy and return 
all money or premiums paid for the time during which no risk 
attached, p. 14. 

Prom Perry Circuit Court ; C. W. Cook, Judge. 

Action by Emily J. Brashears and another against the 
Perry County Farmers Protective Insurance Company. 
From a judgment for defendant, the plaintiflEs appeal. Re- 
versed. 

John W, Etoing and William H. Roose, for appellants. 
Philip Zoercher and Martha Zoercher, for appellee. 

Ibagh, J. — ^Appellants sued to recover for a loss by fire, 
on a policy of insurance issued to them by appellee, a mu- 
tual insurance company organized and doing business in this 
State under §4819 Burns 1908, §3774 B. S. 1881. 

Error is assigned in overruling the separate demurrers of 
plaintiffs to the second paragraph of defendant's amended 
answer, and in sustaining a demurrer to the second and third 
paragraphs of plaintiffs' reply. 

By the policy, which contains no reference to the by-law\s, 
it is *' provided and agreed that this company will not pay 
any loss or damage on any dwelling house when vacant more 
than ten days.'' From defendant's answer it appears that 
it was a provision of the by-laws that the ** vacation of any 
insured property for a longer period than ten days shall 



10 APPELLATE COURT OP INDIANA. 

Brashears r. Perry County, etc., Ins. Co. — 51 Ind. App. 8. 

suspend the action of the policy, but it shall revive again 
when reoccupied, provided the owner shall notify the secre- 
tary of such reoccupation, " and that at the time the policy 
was issued the insured was given a copy of the by-laws. It 
is also alleged that the house insured had been vacant for 
six weeks, was reoccupied, and a few days after reoccupancy 
was destroyed by fire, and no notice of reoccupancy was 
given by plaintiffs to the secretary of the company, and he 
had no information from other sources of such reoccupation 
until after the dwelling was destroyed. 

The general doctrine as to the effect of by-laws of a mu- 
tual insurance policy was well and aptly expressed by Judge 
Mitchell in the case of Davidson v. Old Peoples Mut., 

1. etc., Society (1888), 39 Minn. 303, 39 N. W. 803, 1 
L. R. A. 482, as follows: **The general rule un- 
doubtedly is that where a policy is issued by a mutual in- 
surance or benefit society, the assured, by virtue of his in- 
surance, becomes a member of the society, and must take 
notice of and is bound by its articles of association and by- 
laws, although not recited in the policy, or expressly made 
a part of it. All the provisions of the by-laws not incon- 
sistent with the provisions of the policy itself will be binding 
as a part of the contract.'' See, also, Supreme Lodge, etc., 
V. knight (1889), 117 Ind. 489, 20 N. E. 479, 3 L. R. A. 409; 
Bauer v. Sampson Lodge, etc. (1885), 102 Ind. 262, 1 N. E. 
571; Gray v. Supreme Lodge, etc. (1889), 118 Ind. 293, 20 
N. E. 833; Pfister v. Oerwig (1890), 122 Ind. 567, 23 N. E. 
1041 ; Schmidt v. German Mut. Ins. Co. (1892), 4 Ind. App. 
.']40, 343, 30 N. E. 939. Therefore, the by-laws in the present 
instance became a part of the contract of insurance, and 

must be construed with the policy. Though the pro- 

2. vision in the policy that the company will **not pay 
any loss or damage on any dwelling house when 

vacant more than ten days," if standing alone, would prob- 
ably be construed to mean that the vacation of the prop- 
erty for a period longer than ten days would only suspend 



MAY TERM, 1912. 11 



Brashears v. Perry County, etc., Ins. Co. — 51 Ind. App. 8. 



the action of the policy and it would revive again when re- 
occnpied {Aetna Im. Co. v. Meyers [1878], 63 Ind. 238), 
yet this provision of the policy is in its terms not incon- 
sistent with the provision in the by-laws that the owner shall 
notify the secretary of reoccupation in order to revive the 
policy, and it must be held that the duty rested on the 
policyholder to give such notice. 

The answer alleged that at the time the policy was issued 

the defendant delivered to plaintiffs a copy of the by-laws of 

defendant, and that said copy of the by-laws contained, 

3. among others, the provision set out above. This is a 
sufficient allegation that the by-laws were in force at 
the time the policy was issued, since defendant could have 
no by-law not in force, for if not in force, a by-law could no 
longer be a by-law of the company. We regard this decision 
as not in conflict with the case of Supreme Tent, etc,, v. 
Ethridge (1909), 43 Ind. App. 475, 87 N. B. 1049, for in 
that case the decision goes only so far as to hold that if error 
was committed in sustaining the demurrer to the answer, 
because there was lacking an allegation that the by-laws were 
in force when the policy was issued, or at the death of the 
insured, such error was harmless, in that case. 

It is alleged in the third paragraph of reply that a tenant 
of plaintiffis was living in the house at the time of the fire, 
and had occupied the house for more than ten days previous 
to the fire ; that he had lived in and occupied the house be- 
fore ; that during a period of six weeks after the policy was 
issued he had been absent from the house, taking with him 
his family and the greater part of his household goods, and 
at the time of leaving did not intend to return, but later 
changed his mind and returned, and again occupied it as 
his dwelling ; that during the time he was gone, many articles 
of household goods and valuables remained in said dwelling- 
house, which was near by plaintiffs' house, and said house 
was carefully watched by plaintiffs, and the fire was in 
no way caused by the vacation of the house. 



12 APPELLATE COURT OP INDIANA. 

Brashears t\ Perry County, etc., Ins. Co. — 51 Ind. App. 8. 

While under the decisions in some states a house in which 

articles of furniture have been left is held not to be vacant 

within the meaning of the word as used in a fire in- 

4. surance policy, such is not the force of the Indiana 
holdings. In the case of Home Ins. Co. v. Boyd 

(1898), 19 Ind. App. 173, 189, 49 N. E. 285, it is said: 
*'From the authorities and the etymological meaning of the 
words, we feel fully justified in saying that the words 'va- 
cant' and * unoccupied*, when used in a policy of insurance 
in connection with the idea that the insurer was stipulating 
against an increase in the risk from the absence of persons 
from the premises insured, must be regarded as interchange- 
able and eciuivalent in meaning; that when no one lives in 
the house it is both vacant and imoccupied, though it may 
contain articles of furniture which the last occupant failed 
to remove/' 

It is averred in both paragraphs of reply that at the time 
of the fire the plaintiffis were clear on the books of the de- 
fendant, had paid all assessments made by defend- 
ant up to that date, and had paid into the reserve 

5. fund of defendant $5, which amount so paid by plain- 
tiffs to defendant is now held by said defendant, and 

no part of the same has been returned to the plaintiffs ; that 
defendant still retains part of the money paid in on the 
policy sued on, and has not returned or offered to return the 
same. The third paragraph of reply in addition avers that 
defendant has never elected to avoid plaintiffs' policy by 
reason of their failure to notify defendant of the reoccupa- 
tion, as provided for in section sixteen of the by-laws, and 
that the policy provides that the company reserves the right 
to cancel the policy at any time after giving the insured five 
days' notice. The answer alleges that defendant did not at 
any time waive any of the conditions set out in the policy, 
nor any of the conditions and provisions of its by-laws, and 
did not at any time after the policy was suspended revive 
the same, or give assent to its revival. There is no averment 



MAY TERM, 1912. 13 

Brashenrs r. Perry County, etc., Ins. Co. — 51 Ind. App. 8. 

of any affirmative act on the part of the company to avoid 
the policy. 

When the house had been vacant ten days, liability on the 
policy became suspended, and, under the contract, would 
continue suspended after reoccupation until the secretary 
was notified. However, the policy was not made void by the 
terms of the contract, and had it been, the effect would have 
been only to make it voidable at the option of the company. 
An affirmative act by the company was necessary to avoid 
the policy. After the company learned of the violation of 
the condition of the insurance contract, even though this was 
after the loss, it could have elected to avoid the contract. A 
failure to make this election must be construed as an election 
to hold the policy valid. Aetna Life Ins. Co, v. Bockting 
(1907), 39 Ind. App. 586, 79 N. E. 524; Modern Woodmen, 
etc., V. Vincent (1907), 40 Ind. App. 711, 715, 80 N. E. 427, 
82 N. B. 475, 14 Ann. Cas. 89. In order to avoid the con- 
tract, the company must affirmatively signify its intention 
to do so, and must offer to return all unearned moneys of 
the insured in its possession. The by-laws provide that a 
policy may be canceled by the insurer at any time upon 
giving five days' notice to the insured. The policy was not 
canceled in this way. The second paragraph of defendant's 
answer fails to show an election to avoid the policy, and for 
this reason the demurrers thereto should have been sustained. 
It appears from the replies that defendant retains part of 
plaintiffs* money paid in on the policy sued on. Defendant 
may not avoid liability on the contract, and still retain 
moneys unearned. Furthermore, there could be no right to 
receive money from plaintiffs at a time when liability was 
suspended. The second and third paragraphs of reply are 
good, and therefore the court committed error in sus- 
taining the demurrers thereto. However, the answer 

6. being bad, a bad reply would have been sufficient. 

Our holding is supported by the following cases. 

Farmers, etc, Ins. Vo. v. IIUI (1910), 45 Ind. App. 605, 91 



14 APPELLATE COURT OF INDIANA. 

Anderson v. Leonard — 51 Ind. App. 14. 

N. E. 361 ; Modem Woodmen, etc., v. Vincent, supra; Aetna 
Life Ins. Co. v. Bockting, supra; Glens FaUs Ins. Co. v. 
Michael (1907), 167 Ind. 659, 74 N. E. 964, 79 N. E. 905, 
8 L. R. A. (N. S.) 708; United States, etc., Ins. Co. v. Clark 
(1908), 41 Ind. App. 345, 83 N. E. 760; American Cent. 
Life Ins. Co. v. Rosenstein (1910), 46 Ind. App. 537, 92 N. 
E. 380; Metropolitan Life Ins. Co. v. Johnson (1912), 49 
Ind. App. 233, 94 N. E. 785. 

We may concede, that, with the exception of Farmers, 

etc., Ins. Co. v. Hill, supra, in the cases just cited, the policy 

was voidable from the beginning, but we can see no 

7. essential diflference in principle, whether a policy is 
voidable from the beginning because of failure of a 
condition precedent, or whether it becomes voidable after 
risk has once attached because of a breach of a condition 
subsequent. In either case, to prevent liability, the company 
on learning of the breach must elect to avoid the policy, and 
must return premiums or moneys paid for the time during 
which no risk attached. 

Judgment reversed. 

Note.— Reported In 98 N. B. 889. See, also, under (1) 22 Cyc. 
1411; (3) 22 Cyc. 1412; (4) 19 Cyc. 730; (5) 19 Cyc. 712; (6) 31 
Cyc. 338. As to how a new by-law affects a member In standing 
when not destructive of vested rights, see 83 Am. St 710. As to 
the doctrine that a breach of condition in a fire insurance policy 
renders the latter voidable merely, see 43 Am. Rep. 222. For a dis- 
cussion of the meaning of the term "unoccupied" or "occupied" as 
used with reference to a building in a fire Insurance policy, see Ann. 
Cas. 1912 D 82. 



Anderson v. Leonard et al. 

[No. 7,687. Filed June 20, 1912.] 

1. JuDQ^ENT. — Default — Motion to Set Aside. — Sujffldenei/. — ^A pe- 
tition or motion to set aside a judgment by default in a replevin 
action, showing that defendants had a good and meritorious de- 
fense, and alleging that on being served with summons they had 
employed an attorney who advised them that they need not 



MAY TERM, 1912. 15 

Anderson v. Leonard — 51 Ind. App. 14. 

appear further to the action until notified by him so to do, that 
such attorney receipted for and received the papers In the case 
and pr^ared answers to be filed, that plaintiff knew that defend- 
ant** had employed such attorney, and that before return day of 
the summons their said attorney was compelled to go to a dis- 
tant state on business and did not return until after the default 
had been taken, was sufiddent to authorize the default to be set 
aside on proof supporting the averments, pp. 15, 17. 

2l Appe.\l. — Assignment of Errors, — Ruling on Demurrer, — Waiver, 
— ^An assignment of error in the ruling of the trial court on u 
demurrer is waived by appellant's failure to set out the demurrer 
or the substance thereof in his brief, p. 16. 

3. I^LEADiKG. — Complaint. — Sufficiency, — Question of Sufficiency 
Raised After Judgment, — ^A complaint will be held sufficient 
a^inst an attack made for the first time after judgment, if it 
states facts sufficient to bar another suit for the same cause of 
action and does not wholly omit any fact essential to the cause of 
action attemi)ted to be stated, p. IG. 

Prom Superior Court of Marion County (78,690) ; James 
31. Leathers, Judge. 

Petition by Henry S. Leonard and another against Will- 
iam P. Anderson to set aside a judgment by default. From 
a judgment for petitioners, the defendant appeals. Affirmed, 

G. W. Paul, W. T, Young and W. B. Paul, for appellant. 
Ira M. Holmes and J. E. Martin, for appellees. 

Pelt, J. — In June, 1909, appellant brought this suit 
against appellees to reple\'y an automobile. The summons was 
duly served, and was returnable June 28, 1909. On June 
29 each of the appellees was defaulted, and judgment was 
rendered against them in favor of appellant. 

On September 7, 1909, appellees filed their verified motion 
to set aside the default and judgment on the ground of 
mistake, inadvertence and excusable neglect. 

The petition or motion averred that the suit was an action 

in replevin, and that appellees had a good and meritorious 

defense thereto, in this: ''That defendants have fully 

1. paid plaintiffs for the property claimed in this ac- 
tion;'* that the summons was served on appellees on 



16 APPELLATE COURT OP INDIANA. 

Anderson v, Ijeonard — ^51 Ind. App. 14. 

June 17, 1909, and on that day they delivered the same to 
Ira M. Holmes, and employed him as their counsel; that 
they gave to him a full and complete statement of the facts 
of their defense to said action, and authorized him to file 
the necessary pleadings for them; that he then and there 
agreed so to do, and informed appellees that they need not 
appear further to said action until notified so to do by him ; 
that appellees are infonned and believe said Hohnes did pre- 
pare the necessary answers to be filed for them in said case ; 
that he receipted for and received the papers in said case 
as their attorney and was such attorney in said cause on 
June 29, 1909; that appellant and his attorney knew that 
appellees were represented by said Holmes; that on June 
19, 1909, said Holmes was compelled to go to Tulsa, Okla- 
homa, on business, and did not return until after said de- 
fault was taken ; that he was at the time very busy, and en- 
tirely forgot to have said answer filed. 

The trial court sustained the motion, and set aside the 
default. 

Appellant has assigned as error (1) the overruling of his 
demurrer '*to the complaint or motion of appellees," and 
(2) **that the motion or complaint of appellees does not 
state facts sufficient to constitute a cause of action." 

The first' assignment is waived by the failure of appellant 

to set out the demurrer or the substance thereof in his brief. 

The ground of the demurrer is not shown in any form 

2. by the brief of appellant. Knickerbocker Ice Co. v. 
Gray (1905), 165 Ind. 140, 72 N. E. 869, 6 Ann. Gas. 

607; Eolliday v. Anheier (1910), 174 Ind. 729, 93 N. E. 1; 
Chicago Terminal, etc., R. Co. v. Walton (1905), 165 Ind. 
253, 74 N. E. 1090. 

The second assignment questions the complaint or motion 
for the first time after judgment. In such case the 

3. pleading will be hold sufficient if it states facts suffi- 
cient to bar another suit for the same cause of action. 



MAY TERM, 1912. 17 

Shirley r. Grove — 51 Ind. App. 17. 

and does not wholly omit any fact essential to the cause 
of action attempted to be stated. 

The complaint or motion is sufficient to authorize 
1. the court to set aside the default on proof support- 
ing the averments. 
In Mutiuil Reserve Life Ins. Co. v. Boss (1908), 42 Ind. 
App. 621, 627, 86 N. E. 506, this court said: **0n the hear- 
ing of such a motion it should be made to appear that the 
attorney gave the matter at least such attention 'as a man 
of ordinary prudence gives to his important business.' Carr 
Y.FirstNat. Bank (1905), 35 Ind. App. 216 [73 N. E. 947], 
111 Am. St. 159. Such a motion is addressed to the judicial 
discretion of the trial court; and, unless we can say that 
upon the record before us there appears to have been an 
abuse of such discretion, whereby there has been undue in- 
terference with the course of justice, the judgment of the 
lower court will not be disturbed on appeal.*' See, also, 
Green v. Stobo (1889), 118 Ind. 332, 20 N. B. 850; WilU 
tarns v. Orooms (1890), 122 Ind. 391, 24 N. E. 158; Syfers 
V. Reiser (1903), 31 Ind. App. 6, 9, 66 N. E. 1021; Masten 
V. Indiana tJar, etc., Co. (1900), 25 Ind. App. 175, 181, 57 
N. E. 148. 

No available error having been pointed out, the judgment 
is affirmed. 

XoTE.— Reported in 98 N. B. 891. See, also, under (1) 23 Cyc. 
1M9; (2) 3 Cyc 388; (3) 31 C^e. 766. 



Shirley v. Grove et al. 

[No. 7,96L Filed June 20, 1912.] 

1 Adoption. — Jurisdiction. — Averment of Petition. — Where a peti- 
tion for the adoption of a child averred that the child resided 
within the county in which the court was held, such averment 
was sufficient to give the court Jurisdiction, p. 19. • 

2. Courts. — JuHsdictiOfi, — Collateral Attack. — When a court 

Vol. 51—2 



18 APPELLATE COURT OP INDIANA. 

Shirley r. (Jrove — 51 Ind. App. 17. 

passes on facts which are essential to establish its Jurisdiction, 
its decision on such question is conclusive as against collateral 
attack, p. 19. 
o. Adoption. — Parties, — Chiardian. — Appeal. — A ^tardian, not be- 
ing a necessary party to a x>etition for the adoption of his minor 
ward, cannot question the decree, where he was not a party to 
the proceeding, nor can he api^eal therefrom, p. 19. 

From Clinton Circuit Court; Joseph Clayhaughy Judge. 

Petition by Bado T. Shirley against Richard N. Grove and 
another to set aside an adoption decree. From an adverse 
judgment, the petitioner appeals. Appeal dismissed. 

Goldsberry & Ooldsberry, for appellant. 

Thomas M, Ryan and James V. Kent, for appellees. 

Lairy, J. — ^Appellees filed their petition in the Clinton 
Circuit Court for the adoption of Oscar Balph Strain, an in- 
fant nine years of age. The petition sets forth that said 
child is a resident of Clinton county, Indiana, that its father 
and mother are both dead, and that appellant Shirley is its 
duly appointed and acting guardian. The petition further 
discloses that the petitioners reside in Tippecanoe county, 
Indiana, and are amply able to care for and educate the 
child, and that appellee Lavina A. Grove is its aunt. The 
petition conforms in all respects to the statute on the sub- 
ject. On this petition the court made an order for the 
adoption of the child by the petitioners. At the next term 
of court, on the petition of appellant as guardian of the 
child, the court set aside the former order and decree, but 
later in the term, and after the decision of this court, ren- 
dered in the case of Leonard v. Honisfager (1909), 43 Ind. 
App. 607, 88 N. E. 91, the court reconsidered its action on 
the petition of the guardian, and struck said petition from 
the files and reinstated its first order. From this order the 
guardian seeks to prosecute an appeal. 

The only question presented by the petition of appellant 
was that the trial court had no jurisdiction, for the reason, 
as stated in the petition, that the child adopted did not 



MAY TERM, 1912. 19 

Hubbard r. Rellly— <>1 Ind. App. 19. 

reside in Clinton county. Appellees' petition averred 

1. that the child was a resident of Clinton county, and 
this averment was sufficient to give the court juris- 
diction. It must be presumed that this fact was estab- 
lished to the satisfaction of the trial court. When a 

2. court passes on facts which are essential to establish 
its jurisdiction, its decision on such question is con- 
clusive as against collateral attack. Fee v. Moore (1881), 
74 Ind. 319; Stoddard v. Johnson (1881), 75 Ind. 20; City 
of Delphi V. Startzman (1885), 104 Ind. 343, 3 N. E. 937; 
Bruce v. Osgood (1899), 154 Ind. 375, 56 N. E. 25. 

The guardian is not a necessary party to a petition for 

the adoption of a minor of whom he is the guardian, and if 

he is made a party to such proceeding he cannot 

3. appeal. Leonard v. Honisfager, supra. It must 
necessarily follow that such guardian cannot, after 

such a decree is rendered in a proceeding to which he was 
not a party, come into the trial court by petition or other- 
wise and question it, and that where he attempts to do so, 
he has no standing in that court, and cannot prosecute an 
appeal. 
Appeal dismissed. 

Note.— Reported hi 98 N. E. 874. See, also, under (2) 11 Cyc. 
701; (3) 1 Cyc. 027-Newr Cyc. Anno. As to collateral attack upon 
adjudication In proceedings to adopt a child, see 3J) Am. St. 215. As 
to a collateral attack on a decree of adoption, see 13 Ann. Cas. HST. 
The authorities on the right of parties to adoption proceeding, or 
their privies, to attack decree of adoption are reviewed in 30 L. R. 
A. (X. S.) 1(50. 



Hubbard v. Reilly. 

[Xo. 7,663. Filed Jnno 21, 1012.] 

1. Appeal. — Presenting Question for Rei^icw. — Ruling on Demur- 
rer. — Where a demurrer to a complaint is overruled and exeei)- 
tions saved, but such ruling is not assigned as error, no question 
thereon is presented for review, p. 21. 



20 APPELLATE COURT OF INDIANA. 

Hubbard r. Rellly— 51 Ind. App. 19. 

2. Pbincipal and Surety. — Release of Surety, — AHeraiion of In- 
strument, — A material alteration of the terms of a surety bond, 
made without the surety's consent, will serve to release him, 
aJthough such alteration is not in writing and may be to his 
benefit p. 24. 

8. Principal and Surety. — Action on Bond. — Liability of Surety. 
— Scope. — The plaintiff in an action against the surety on a bond 
can Impose on such surety only those burdens which are within 
the terms and provisions of the bond. p. 2o. 

4. Appeal. — Assignment of Errors. — Complaint. — Sufflciency. — 
Where a complaint Is attacked by an assignment of error pre- 
senting the question of its sufficiency, and not the error on the 
ruling on the demurrer, it will be held good if it states facts 
sufficient to bar another action for the same cause, and If there 
is not a total failure to state some essential element of the right 
of recovery, p. 25. 

5. Principal and Surety. — Action on Contractor's Bond. — Evi- 
dence. — Sufficiency. — In an action against the surety on the bond 
of a building contractor, where there was no evidence showing 
that plaintiff finished the building according to the contract after 
undertaking to do so, nor that the excess paid for labor and 
material was for such as was required by the contract, and the 
evidence showed that both before and after plaintiff undertook 
the completion of the building plaintiff himself paid for material 
and labor to various persons and on numerous occasions contrary 
to the provisions of the bond, which required all payments to be 
made through the surety, and that plaintiff demanded a surren- 
der of the contract long before the expiration of the time limited 
for the completion of the building, the evidence was insufficient 
to show any liability against the surety, pp. 25, 26, 28. 

6. Principal and Surety. — Contractor's Bond. — Payments hy Ohli- 
gee. — Payments by the obligee in a contractor's bond should be 
made only according to the terms of the contract, p. 20. 

7. Principal and Surety. — Contractor's Bond. — Release of Surety. 
— ^Where, long before the time for the completion of a building 
had expired, plaintiff demanded the contract and voluntarily 
took it off the contractor's hands, such conduct, unexplained, 
operated to discharge the surety on the contractor's bond. p. 28. 

From Superior Court of Marion County (72,889) ; Cla- 
rence E. Weir, Judge. 

Action by Maurice F. Reilly against Walter J. Hubbard. 
From a judgment for plaintiff, the defendant appeals. Re- 
versed. 



MAY TERM, 1912. 21 

Hubbard v. Reilly— 51 Ind. App. 19. 

Charles B. CloA-ke, Walter C. Clarke and E. E, McFerren, 
for appellant 
Elmer Wetzel, for appellee. 

HoTTEL, C. J. — ^Action on a contractor's bond. On July 
31, 1906, appellee entered into a written contract with the 
firm of Phelan & Moore, contractors, for the erection of a 
dwelling-house. To secure the faithful performance of such 
a contract a bond was given, with appellant as surety. 

Appellee brought this action against appellant alone as 
surety on said bond. There was a judgment in favor of ap- 
pellee for $566.13 and $50 attorney's fees, and from this 
judgment this appeal is prosecuted. 

The issues of fact were presented by a complaint in one 
paragraph and a general denial. A demurrer to the com- 
plaint for defect of parties and want of facts was 

1. overruled and exceptions saved, but the ruling on that 
branch of the demurrer challenging the sufficiency of 
the complaint for want of facts is not assigned as error, and 
is not, therefore, presented to this court for review. There 
is, however, an assignment of error, that the complaint does 
not state facts sufficient to constitute a cause of action 
against appellant, and in order that this question, as well 
as others herein discussed, may be understood, we set out the 
substance of that part of the complaint, bond and contract 
involved in such discussion. 

The complaint, after averring the execution of the con- 
tract, bond and specifications, and setting out the same, 
avers, in substance, that appellee complied with all the terms 
of said contract ^'except as herein otherwise set forth/' and 
that Phelan & Moore failed and refused to comply with the 
same. It is then averred that long before the house was com- 
pleted, Moore left the work and Phelan refused to proceed ; 
that appellant was notified in writing of said failure, and 
refused to finish the building for his principals ; that appel- 
lee, after said request of appellant, ''in order to save said 



22 APPELLATE COURT OP INDIANA. 

Hubbard r. Rellly— 61 Ind. Appw 19. 

building from total destruction, was forced to and did em- 
ploy carpenters to finish the work left undone" by the prin- 
cipals and appellant; that appellant knew the conditions of 
said building contract, but paid no attention to the work; 
that appellee paid out the money stipulated in said con- 
tract to be paid for said building, and in addition thereto 
*' nearly $600,'* which said last payments were made neces- 
sary by reason of the filing of the several liens against said 
property. 

The contract referred to provides that for the considera- 
tion named, Phelan & Moore ** contract, covenant and agree to 
do and perform all the work in the best and most skilful and 
faithful manner and to furnish and provide all the material 
for the erection and building of a dwelling house erected 
upon * • • . The party of the first part, may, at any 
time during the progress of said building,, make any altera- 
tions in the plans, material or the erection of the work, and 
the same shall in no way effect or make void this contract, 
but the costs of the same will be deducted or added from the 
amount to be paid under this contract as the case may be." 
Provision is also made for payment by the second parties 
of all artisans, laborers and material, and to save harmless 
and indemnify first party on account of liens for the same, 
which provision is in effect the same as that in the bond 
hereinafter set out. It is further provided that in case sec- 
ond party fails to erect said building in the manner and at 
the time named, first party, by giving second party three 
days' written notice, can **put as many men at work on 
said building and furnish such materials as he may think 
fit, at the expense" of second party, and complete such 
building. For the faithful performance of the contract first 
party was to pay $1,833.80, in the manner set out, reserving 
twenty-five per cent thereof until completion and acceptance 
of the work, at which time said reserved sum was to be paid. 
^* Provided, the terms of this contract are complied with, and 
the wages of artisans and laborers and all persons holding 



MAY TERM, 1912. 23 

Hubbard v, Reilly — 51 Ind. App. 19. 

or claiming demands against said building, or the ground 
upon which it is built, are paid, satisfied and discharged so 
that there can be no liens or claims upon the building for 
work or for materials used in fulfilling this contract/' 

Said bond provides as follows: *'That, whereas the said 
Phelan and Moore have entered into an agreement of even 
date herewith, which agreement is referred to and made a 
part of this bond with the said Maurice Eeilly to do and 
complete a dwelling house according to the plans, condi- 
tions and stipulations in such agreement contained and such 
changes as may be made therein. • • • Now should the 
aforesaid Phelan and Moore do and complete the said work 
as aforesaid, and protect and save the said Maurice Beilly 
and the Celtic Savings and Loan Assn. No. 3 or either of 
them harmless and indemnify them or either of them against 
any and all loss, costs and attorneys' fees or other expenses 
of whatsoever nature, caused by any lien or liens or claims 
of any kind for labor or materials which may be created 
upon said building or the real estate upon which it is built 
by any subcontractor, laborer, artisan, person or persons 
furnishing materials therefor, then this obligation to be nuU 
and void; otherwise to be and remain in full force and 
effect. This obligation shall not be affected by any changes 
made in the materials, plans, execution or in the terms of 
said agreement. Money to be paid through bondsman." 

It will be observed that the complaint contains a general 
averment that the appellee perform^ all the conditions of 
said contract ^'except as herein otherwise set forth.'' The 
exceptions referred to are not specifically mentioned as 
such, and are not certainly or definitely set out, so that, the 
conditions of the contract, performed and unperformed, 
are, by the averments of the complaint, left in doubt and 
uncertainty. 

The averments that follow the above-quoted statement 
would indicate that the exception referred to related to the 
performance by appellee of that part of the contract to be 



24 APPELLATE COURT OP INDIANA. 

Hubbard r. Rellly— 51 Ind. App. 19. 

performed by Phelan & Moore, in that appellee waa required 
to finish, and complete the building begun by them. In this 
connection there is no averment by appellee that he finished 
or completed the work according to the terms of the contract, 
or that the amount which he was required to pay in excess 
of the contract price was in fact paid for material necessary 
to complete the building according to the terms of the con- 
tract. The contract price for the building was $1,833.80, 
and appellee alleges that he paid $568.50 and $100 attor- 
neys' fees in excess of this amount. These averments might 
all be true without creating any liability on said bond, be- 
cause there was an express provision in the bond and con- 
tract for changes and alterations both in plans and material, 
and that the same should in **no way affect or make void the 
contract, but the costs of the same will be deducted or added 
from the amount to be paid under this contract." 

Appellee, so far as the allegations of his complaint show, 
may have so changed or altered the plans or material that 
entered into the building as to necessitate the excess pay- 
ment, thereby making such payment, under the express 
terms of the contract, a proper addition to the contract price, 
for which appellant could not be held liable under the bond 
sued on. 

The bond provided that the contract price of the building 
should be paid ''through the bondsman.'' The complaint 
shows that this provison was violated, in that appellee 
himself paid Moore, the contractor, and laborers and mate- 
rialmen, and averments are made attempting to show reason 
and excuse for this violation of the terms of the bond, the 
sufficiency of which would be open to serious doubt on at- 
tack by demurrer. 

A material alteration of the terms of a surety bond, made 

without the surety's consent, will serve to release the surety, 

even though such alteration may be to his benefit. 

2. Weir Plow Co. v. Walmslcy (1887), 110 Ind. 242, 
246, 11 N. E. 232; 32 Cye. 177; Foster v. Gabion 



MAY TERM, 1912. 25 

Hubbard t?. Rellly— 51 Ind. App. 19. 

(1890), 123 Ind 96, 104, 23 N. E. 1092; Guthrie v. Carpen- 
ter (1904), 162 Ind. 417, 70 N. E. 486. 

To effect a release of the surety, it is not necessary that 
such alteration be in writing. Guthrie v. Carpenter, supra, 
421; PhiUbrook v. Emswiler (1884), 92 Ind. 590; Foster v. 
Oaston, supra, 104. 

The plaintiff in an action against the surety on a bond 

can impose on such surety only those burdens which are 

within the terms and provisions of the bond. City of 

3. Lafayette v. James (1883), 92 Ind. 240, 243, 47 Am. 
Rep. 140; Warrum v. Derry (1896), 14 Ind. App. 

442, 444, 42 N. E. 1123; Dunlap v. Eden (1896), 15 Ind. 
App. 575, 580, 44 N. E. 560 ; 32 Cyc, 73. 

If the ruling of the court below on the demurrer to the 
complaint for want of facts was before us, we would hesi- 
tate to say that the court did not err in overruling 

4. the same. But the attack here made against the com- 
plaint, being under an assignment which presents its 

sufficiency to this court, and not the error on the ruling on 
the demurrer, a much more liberal rule of construction ob- 
tains. Against the character of attack here made the com- 
plaint will be held good, if it states facts sufficient to bar an- 
other suit for the same cause of action, and if there be not 
a total failure to state some essential element of the right of 
recovery. Oliver Typewriter Co. v. Vance (1911), 48 Ind. 
App. 21, 95 N. E. 327, and cases cited. The complaint under 
these holdings is probably sufficient as against the attack 
here made on it. 

The overruling of the motion for new trial is also assigned 
as error. In determining the sufficiency of the evidence, we 
find the same omission and infirmities discussed in connec- 
tion with the complaint, and others more serious. 

There is no evidence that appeUee, after undertaking to 
finish his building, in fact finished it according to 

5. the terms of the contract, or that the labor and ma- 
terial whicli entered into the same was in fact such 



26 APPELLATE COURT OP INDIANA. 

llulibard r. Rellly— 51 Tud. App. 19. 



labor and material only as was required by the terms of the 
contract. There was no evidence showing that the entire ex- 
cess paid over the contract price was for material and labor 
required in said building under the terms of said contract. 
The averments of the complaint were that the excess pay- 
ments made by appellee **were made necessary by reason of 
the filing of several mechanics' liens". We find no evidence 
of any lien filed, and, in fact, as to some of the items which 
necessarily entered into the judgment, there was no proof 
that the material constituting the same went into the build- 
ing covered by the contract. 

The evidence shows that appellee paid the contractor 
Moore, and for practically all the material and labor; that 
none of it was paid through the surety on the bond; that 
these payments were made to various persons and on numer- 
ous occasions, both before and after appellee undertook the 
completion of the building. As tending to excuse failure to 
pay through the bondsman, as the contract provided, appel- 
lee testified that he made two trips to find appellant, and 
failing to find him made the payment himself. Numerous 
payments were afterwards made by appellee with no further 
eflEort to locate appellant, and with no offer to pay through 
him. **The obligee in a bond should retain ihoney 
6. and pay it out only according to the terms of the con- 
tract.*' Foster v. Oaston, supra; Guthrie v. Carpen- 
ter, supra. 

Appellee's testimony on the subject of Phelan & Moore's 
failure to complete the building was, in substance, as fol- 
lows : Phelan & Moore did not complete the work. A 
5. man by the name of Davis, hired by appellee, com- 
pleted it. Moore paid for some of the work and quit 
the job and left Phelan there, and he refused to handle the 
money and made appellee pay the bills. Moore worked on 
the job over two weeks, and Phelan worked about four weeks 
longer. 

It will be observed that appellee in his statement attempts 



MAY TERM, 1912. 27 

Hubbard v. Reilly— ^1 lud. App. 19. 

no explanation why Phelan & Moore quit the work. There 
is no statement that they refused to proceed with the work. 
The contractor Moore in his examination when offered by 
appellee testified, in substance, that he worked on the job 
three weeks, and was "overcome with the heat'', and while 
sick, Reilly came to his house and demanded the contract, 
and he surrendered it to him. Moore, when introduced by 
appellant, testified as follows: **I was on the job about 
three weeks. The house was enclosed when I quit. I got 
overcome with the heat and while I was at home sick, Mr. 
ReiUy came to my house and demanded the contract for the 
building and I turned it over to him. I suppose I would 
have gone back and finished the house if he had not told me 
he wanted the contract. I turned over the contract and pa- 
pers, receipts I had there to Mr. Reilly." When asked to 
detail just what w^s said on that occasion, Mr. Moore said : 
**He come to my house and said he wanted the contract and 
receipts, and that he would do it himself, and I gave him the 
receipts and surrendered the contract to him. He told me 
the contract was terminated. I never went over the bills 
afterward and don't know what went on after that day." 
• The evidence discloses' that this conversation occurred 
sometime in August, 1906. The contract contained a provi- 
sion for the completion of the house by October 1, 1906, and 
for a forfeiture of an amount, left blank, for each day's de- 
lay thereafter, as liquidated damages. Mr. Hubbard testified 
that he was out of the city of Indianapolis on his vacation 
from two to three weeks in August, and got back before 
September 1, and was here continuously after that time. 
The other contractor, Mr. Phelan, was deceased at the time 
of trial, and no explanation for his failure to finish the job 
is offered by either appellant or appellee, except the state- 
ment of some witness that Phelan told him that he was dis- 
chAged, which, it seems from the record, was afterwards 
stricken out. 



28 APPELLATE COURT OP INDIANA. 

Morton r. Gaffield— 51 Ind. App. 28. 

The statement of Moore was not denied by appellee. There 
is nothing inconsistent between appellee's statement that 
Moore quit the work, and Moore's own statement that 
7. he quit because of becoming overheated, and that aft- 
erwards appellee demanded a surrender of the con- 
tract, long before the time for completion expired, and with 
110 excuse or explanation offered for such demand. So far 
as the evidence shows, the principal Moore was willing to go 
aliead and finish his contract, but appellee, when Moore was 
sick, demanded the contract, and voluntarily took it off his 
hands. Such conduct on appellee's part, unexplained, 
would, under the law, operate to discharge the surety. 

A careful examination of the evidence in this case leads 

us to the conclusion that under the authorities herein cited, 

it is clearly insuflScient in several essential elements 

5. necessary to show a liability against the surety on the 

bond sued on, and that the motion for new trial 

should have been granted. For this reason the judgment is 

reversed, with instructions to the court below to grant a 

new trial, with leave to appellee to amend his complaint, and 

for any other proceedings consistent with this opinion. 

Note.— ^Reported in 98 N. E. 880. See, also, under (1) 2 Cyc. 
982; (3) 32 Cyc. 109; (4) 31 Cyc. 82; (5) 32 Cjc 138; (G) 32 Cyc. 
189. As to release of surety by material alteration of instrument 
after signing, see 28 Am. St. 215. 



Morton v. Gaffield. 

[No. 7,695. Filed June 25, 1912.] 

1. Contracts. — Sale of Real Estate. — Commission Contracts. — 
Statutory Requirements, — In an action for a commission for tlie 
sale of real estate, plaintiff must show a substantial compliance 
with §74a3 Burns 1JK)8, Acts 1901, p. KM. which provides that no 
contract for the payment of a commission for procuring? a pur- 
chaser for the real estate of another shall be valid, unless the 



MAY TERM, 1912. 29 

Morton r. Gaffield— 51 Ind. App. 2vS. 

same shall be in \rritlng and signed by the owner of snch real 
estate or his legally appointed and qualified representative, p. 31. 

2. OoNTRACTS. — Sale of Real Estate, — Commission Contracts. — Ele- 
ments. — ^To constitute an enforceable contract under §7463 Burns 
1908, Acts 1901 p. 104, providing that no contract for the pay- 
ment of a commissicm for procuring a purchaser for the real 
estate of another shall be valid, unless the same shall be in writ- 
ing and signed by the owner of such real estate or his legally 
appointed and qualified representative, the contract must be 
signed by the owTier of the real estate or his representative, and 
must express a definite consideration, p. 31. 

3. CoNTBACTS. — Sale of Real Estate. — Commission Contracts. — De- 
scription of Real Estate. — Sufficiency, — In an action to recover a 
commission for the sale of real estate, where the land was de- 
scribed in the contract as "my farm of 120 acres," such descrip- 
tion, though incomplete, did not render the contract Invalid, and 
parol evidence was admissible to show that the land described in 
the complaint was the land on which the minds of the parties 
met at tlie time the contract was signed, p. 32. 

4. Appeal. — Record. — Motion for New Trial. — Error predicated on 
the overruling of a motion for a new trial, based on the evidence, 
cannot be considered, where the evidence is not in the record, 
p. 33. 

0. Appeal. — Review. — Proceedings in Trial Court. — Presumption. — 
Where the evidence Is not In the record on appeal, it will be 
presumed that the averments of the complaint were fully proved 
by the evidence offered, p. 33. 

Prom Jasper Circuit Court ; Charles W. Hcmley, Judge. 

Action by William P. Gaffield against James T. Morton. 
From a judgment for plaintiff, the defendant appeals. Af- 
firmed, 

George A. WUliams, for appellant. 
Frank Foltz, for appellee. 

Adaus, p. J. — This action was commenced before a justice 
of the peace to recover a commission alleged to be due for 
services in procuring a purchaser for appellant's real estate. 
Appellee recovered judgment before the justice, and appel- 
lant appealed therefrom to the Jasper Circuit Court, where 
appellee again recovered judgment, from which this appeal 
is taken. 

The complaint alleges that defendant, James T. Morton, 



30 APPELLATE COURT OP INDIANA. 

Morton r. Gaffield — 51 Iiid. App. 2s. 

on November 1, 1907, entered into a contract with plaintiflE 
for the sale of 120 acres of land (describing it) in Milroy 
township, Jasper county, Indiana, as follows : 

**Nov. 1, 1907 listed my farm of 120 acres at 35 per 
acre on a commission of $1.00 per acre to be cash. 

James T. Morton.'' 

It is averred that the listing of the land was with the 
plaintiff; that the plaintiff accepted the conditions of said 
contract, which were subsequently modified by the following 
letter : 

"Watseka, 111. May 6, 1909. 
Mr. W. P. Gaffield, 
Rensselaer, Ind. 

Dear Sir : — Is there any one living on my place ? If 
not, tell them to keep out and keep all stock out. I am 
expecting a party to look at the place soon, and I want 
to sell to him and if you should see him and can say any- 
thing in favor of me, allright, the price is between 30 
and 35.00 and it is worth the money. I would not trade 
at that price. If there is now on [no one] farming the 
place I would like to know it at once, so 1 can arrange 
to bring some teams and put out a fine bunch of buck 
wheat. Let me hear at once. Very truly yours, 

James T. Morton." 

It is further averred in the complaint that, in pursuance 
of said agreement, plaintiff found a purchaser for said real 
estate at and for the price of $30 an acre; that defendant 
closed the sale of said real estate with said purchaser, and 
that by reason of furnishing said purchaser and aiding and 
assisting in the sale of said land, there is due and owing 
plaintiff, as a commission under the terms of the contract, 
the sum of $120, for which judgment is demanded. Appel- 
lant demurred to this complaint for want of sufficient facts, 
which demurrer the court overruled. Trial by jury, verdict 
and judgment in favor of appellee for $120. 

The only error assigned and not waived by appellant is 
that the court erred in overruling the demurrer to the com- 



MAY TERM, 1912. 31 

Morton t\ Gaffield— 51 Ind. App. 28. 

plaint. The single question presented by the record 
1. and briefs is whether the memorandum and letter set 
out in the complaint constitute an enforceable con- 
tract, as defined by §7463 Burns 1908, Acts 1901 p. 104, 
which reads as follows : **That no contract for the payment 
of any sum of money or thing of value as and for a commis- 
sion or reward for the finding or procuring by one person, 
of a purchaser for the real estate of another, shall be valid, 
miless the same shall be in writing, signed by the owner of 
such real estate or his legally appointed and qualified repre- 
sentative.'* It has been held that in an action for commis- 
sions against the owner of real estate sold, a substantial com- 
pliance with the terms of the statute will be required. Price 
V. Walker (1909), 43 Ind. App. 519, 522, 88 N. B. 78; Provi- 
dent Trust Co. V. Darrough (1907), 168 Ind. 29, 36, 78 N. E. 
1030. In the case last cited, at page 35 the Supreme Court 
said: **The manifest purpose of the statute was to protect 
owners of real estate against doubtful and conflicting claims 
for services as alleged agents in connection with real estate 
sales. * * • The operation of this statute will not be ex- 
tended further than necessary to make its spirit and purpose 
effective. * * 

And this court, in the recent case of Olcott v. McChire 
(1912), 50 Ind. App. 79, 98 N. E. 82, quoted the above with 
approval, and added: *'The statute just cited was enacted 
to protect the owners of real estate against the imposition 
and fraud of real estate agents, not to enable them to com- 
mit such fraud and imposition against such agents." 

It will be noted that the contract forming the basis of this 

action is in writing, is signed by the owner of the real estate, 

and expresses a definite consideration. To constitute 

2. an enforceable contract, under §7463, supra, these ele- 
ments must appear in the instrument sued on. Bcak- 
kr V. Clark (1904), 32 Ind. App. 222, 226, 68 N. E. 613; 
Selvage v. Talbott (1911), 175 Ind. 648, 95 N. E. 114, 33 L. 



32 APPELLATE COUBT OP INDIANA. 

Morton v. Gaffleld— ^51 Ind. App. 28. 

R. A. (N. S.) 973; Zimmerman v. Zehendner (1905), 164 
Ind. 466, 469, 73 N. E. 920, 3 Ann. Cas. 655. 

But it is urged by appellant that no sufficient de- 

3. scription or identification of the land is shown by the 
contract, said land being only identified as ''my farm 
of 120 acres." 

In Doney v. Laughlin (1912), 50 Ind. App. 38, 94 N. E. 
1027, the written instrument acknowledging and promising 
to pay the commission was executed after the sale, and the 
real estate was described as '*my farm'*. The court said: 
''It has been held that parol testimony may be admitted to 
enable the court properly to apply the contract to the sub- 
ject-matter. This does not change or modify the terms of 
the agreement, but makes possible an intelligent application 
of it to the subject of the contract. As our statute does not 
provide that the agreement shall describe the real estate to 
be sold, and as in this case the instriunent was written after 
the sale, it is not insufficient for failing so to do, and the 
reference thereto in the agreement is sufficient on the facts 
of this case.'* See authorities there cited. 

To the same general eflfect is the case of Ames v. Ames 
(1910), 46 Ind. App. 597, 91 N. E. 509, which was an action 
for the specific performance of a contract to sell **all of 
her interest in the real estate formerly owned by Augustus 
Ames, deceased." It was insisted that the description was 
too indefinite and uncertain, but the court said: "It is well 
established that where the description given is consistent, but 
incomplete, and its completion does not require the contra- 
diction or alteration of that given, nor that a new description 
shoidd be introduced, parol evidence may be received to com- 
plete the description and identify the property. Tewksbury 
V. Howard (1894), 138 Ind. 103 [37 N. E. 355] ; Maris v. 
Masters (1903), 31 Ind. App. 235 [67 N. E. 699] ; Warner v. 
Marshall (1906), 166 Ind. 88 [75 N. E. 582] ; Howard v. Ad- 
kins (1906), 167 Ind. 184 [78 N. E. 665]. '* 



MAY TERM, 1912. 33 

Morton v. Gaffleld— 51 Ind. App. 28. 

So in the case at bar, we think it was competent to show 
that the 120 acres of land described in the complaint waid the 
land on which the minds of the parties met at the time the 
memorandum was signed. This is assured by the letter set 
out in the complaint, wherein appellant made inquiry of ap- 
pellee whether there is * * any one living on my place ? If not, 
tell them to keep out and keep all stock out." This letter 
clearly recognizes some authority in appellee over the farm 
of appellant, and clearly presumes that **my place" is a 
sufficient designation fully to advise appellee as to the place 
meant. 

We think the signed memorandum, as modified by the let- 
ter of May 6, 1909, is capable of enforcement without a fuller 
identification in the contract, and that the land in regard to 
which the parties contracted may be shown by parol proof 
to be the land described in the complaint. 

The evidence is not in the record, and the error predicated 
on the overruling of the motion for a new trial cannot be con- 
sidered. Every presumption being indulged on appeal 

4. in favor of the correctness of the judgment of the trial 
court, we must assume that the averments of the com- 

5. plaint were fully proved by the evidence oflfered. On 
this assiunption, a reversal of the judgment and a 

holding that the complaint fails to state a cause of action 
would be extending the operation of the statute further than 
necessary to make its spirit and purpose effective, which pur- 
pose, as declared by this court, was to protect the owners of 
real estate against fraud, and not to enable them to commit 
such fraud. 
The judgment is affirmed. 

XoTE.— Reported in 98 N. E. 1007. See, also, under (1) 19 Cyc. 
m; (2) 19 Cyc. 219; (3) 17 Cyc. 724; (4) 3 Cyc. 175; (5) 3 
Cyc. 313. As to a real estate broker's right to commission, see 139 
Am. St. 225. 

Vol. 51—^ 



34 APPELLATE COURT OP INDIANA. 



Krie^; r. Paliuer Nat. Hank — 01 Iiid. Aijp. 34. 



Krieg et al. v. Palmer National Bank. 

[No. 7,133. Filed June 30, 1911. Rehearing denied June 25, 1912.] 

1. Bills and Notes. — Certificates of Deposit, — Payable in ''Cur- 
rent Funds.** — Negotiability. — A certificate of deposit payable In 
''current funds" is not negotiable under the law merchant as an 
inland bill of exchange, but is negotiable by virtue of §9071 Bums 
1908, §5501 R. S. 1881, making all promissory notes, bills of ex- 
change, bonds or other instruments in writing, negotiable by 
indorsement thereon, p. 38. 

2. Courts. — Supreme Court. — Decisions Binding on Appellate 
Court. — ^The Appellate Court is bound by the decisions of the 
Supreme Court until they are overruled or modified by the latter, 
p. 40. 

3. Bills and Notes. — Certificates of Deposit. — Place of Payment. 
— \ certificate of deposit issued by a named bank In this State, 
and made payable to the order of the depositor on the return of 
the certificate properly Indorsed, is payable at a bank In this 
State, though not expressly stating that it is payable at such 
bank. p. 40. 

4. Bills and Notes. — Certificates of Deposit. — Negotiability. — 
Laws Governing, — ^Whlle liability on a contract of indorsement 
must be determined by the laws of the state where the indorse- 
ment is made, where a certificate of deposit was executed in this 
State and indorsed In this State by the payee to one who in- 
dorsed it to plaintifi! In Illinois, in an action against the deposi- 
tory and payee. In which plaintiCTs indorser is not a party, the 
negotiability of the Instrument and the rights of plalntlflf as 
against the defendants must be determined by the laws of this 
State, p. 40. 

5. Bills and Notes. — Certificates of Deposit. — Indorsement. — Equi- 
ties. — Estoppel. — Where one transfers a certificate of deposit to 
another by indorsement, he is estopped thereby as against a sub- 
sequent assignee for value and without notice of prior equities 
and defenses, from asserting that the title so transferred is not 
good. p. 41. 

U. Appeal. — Assignment of Errors. — Review. — Proceedings in Trial 
Court. — Presumption. — ^Where the ruling of the trial court on a 
demurrer Is not presented by assignment of error, such ruling 
will be presumed to have been correct p. 42. 

7. Estotpel. — Estoppel in Pais. — Pleading. — ^To obtain the benefit 
of an estoppel in pais, it must be pleaded, p. 42. 

From Wabash Circuit Court; A. H. Plummer, Judge. 



MAY TERM, 1912. 35 

Krieg 17. Palmer Nat. Bank — 51 Ind. App. 34. 

Action by Palmer National Bank of Danville, Illinois, 
against Gteorge L. Krieg«and another. From a judgment for 
plaintiff, the defendants appeal. Reversed. 

Lesh db Lesh, and Frank T. Switzer, for appellants. 
G. W. Watkins, Charles A. Butler and E. Winters, for ap- 
pellee. 

Pelt, P. J. — ^This suit was originally brought by the Pal- 
mer National Bank of Danville, Illinois, against appellant 
Huntington County Bank, of Huntington, Indiana, to re- 
cover on a certificate of deposit, which reads as follows : 

"14,250. HUNTINGTON COUNTY BANK. 

Huntington, Indiana, March 14, 1907. 

Gfeorge L. Krieg has deposited in this Bank forty two 
hundred and fifty dollars payable to the order of him- 
self in current funds on the return of this certificate 
properly endorsed. Roy Gibler, 

Not subject to check. Cashier. 

No. 77,179.*' 

Said instrument was duly indorsed by the payee to James W. 
Price, who in turn indorsed the same to appellee. On appli- 
cation of the Huntington County Bank and on his own peti- 
tion, appellant Krieg was made a party defendant. The 
Hnntington bank thereafter filed answer, showing that by 
authority of the court it paid to the clerk, for the use and 
benefit of the party lawfully entitled thereto, the sum of 
$4,381, the amoimt of the certificate and interest to the date 
of such payment. The venue was changed from the Hunt- 
ington Circuit Court to the Wabash Circuit Court, where, 
after the issues were formed, the case was tried and judg- 
ment rendered against appellant Krieg and The Huntington 
County Bank for $4,560.50, from which judgment this appeal 
is taken. 

Appellant Ej-ieg has separately assigned as error (1) sus- 
taining the demurrer of appellee to the amended second para- 
graph of his answer to the complaint; (2) overruling his 



36 APPELLATE COURT OP INDIANA. 

Krieg r. Palmer Nat Bank — 51 Ind. App. 34. 

demurrer to the third paragraph of the reply of appellee 
to the third and fourth paragraphs of the separate answer 
of appellant Krieg; (3) sustaining the demurrer of appeUee 
to the second paragraph of Krieg 's reply to the fourth para- 
graph of appellee's answer to the cross-complaint of appel- 
lant Krieg; (4) overruling the motion for a new trial 

Appellant Huntington County Bank, by separate assign- 
ment of errors, presents the same questions, and there is 
also a joint assignment of the same errors. 

The amended second paragraph of the answer of appellant 
Krieg avers, in substance, that the certificate of deposit sued 
on was obtained by his assignee. Price, by fraud ; that said 
Price claimed to be the patentee of a **Parm Derrick", and 
he and his associates made certain false statements and 
fraudulent representations to appellant in regard to the 
utility and value of said patent (the details of which appear 
in the answer), and also made bogus sales of territory and 
rights in his presence, all of which he believed to be true and 
genuine ; that relying thereon, and wholly by reason thereof, 
he purchased an interest in said patent, and executed his 
note therefor to said Price in the sum of $4,300; that said 
Price had not complied with the law by filing with the clerk 
of the Huntington Circuit Court a copy of said letters pat- 
ent ; that said sale was made and said note executed in Hunt- 
ington county, Indiana; that said Price did not show, on 
said note over appellant Krieg 's signature, that it was given 
for a patent right ; that thereafter and on the same day the 
note was executed, at the solicitation of said Price, and while 
still in ignorance of the fraud that had been practiced on 
him, and believing the false representations made to him to 
be true and said bogus sales to be genuine, he indorsed to 
said Price said certificate of deposit for $4,250 iu exchange 
for his said note; that said patented device had no value 
whatever and no element of utility, and appellant Krieg re- 
ceived no consideration whatever for said certificate of de- 



MAY TERM, 1912. 37 

Krieg V. Palmer Nat. Bank — 51 Ind. App. 04. 

posit; that the same was executed and delivered to said Price 
in Indiana, and is not negotiable under the laws of Indiana ; 
that the indorsement and transfer of said certificate by Price 
to appellee was made in Illinois and is governed by the laws 
of that state ; that by the laws of Illinois a person who takes 
a nonnegotiable instrument by indorsement in blank and 
delivery, as in this case, does not acquire a legal, but only an 
equitable title thereto, subject to the rights and equities of 
all prior holders thereof. 

The third paragraph of appellant's answer to the com- 
plaint avers that there was no consideration for the succes- 
sive transfers of said certificate, and appellee accepted the 
same with knowledge thereof. 

The fourth paragraph of his answer charges that appel- 
lant Krieg was induced to purchase an interest in said let- 
ters patent by the fraud of Price and his associates, and 
gave his note therefor in the sum of $4,300, and before dis- 
covering the fraud, took up said note by giving to said Price 
the certificate in suit ; that appellee took said certificate with 
knowledge of said fraud ; that after ascertaining said fraud 
appellant tendered a return of the instrument conveying to 
him an interest in said letters patent, and demanded from 
said Price said certificate of deposit, but Price refused to 
accept the same or to return to him said certificate of 
deposit. 

The substance of the third paragraph of the reply of 
appellee to the third and fourth paragraphs of answer of 
appellant Krieg, is that appellee is a corporation, organized 
as a national bank, and doing business under the laws of 
Dlinois; that it trades in and buys notes and commercial 
paper as any national bank ; that it purchased the certificate 
in question before maturity from James "W. Price, in the 
due course of business, for $4,250 iq money, without any 
notice or knowledge that the consideration thereof had failed 
or that it was procured by fraud. Appellant Krieg 's cross- 



38 APPELLATE COURT OF INDIANA. 



Krleg V. Palmer Nat Bank--51 Ind, App. 34. 

complaint set up the alleged fraud by which Price obtained 
the certificate of deposit, and alleged a total failure of con- 
sideration. 

The fourth paragraph of appellee's answer to the cross- 
complaint of said appellant alleged substantially the same 
facts that are averred in its third paragraph of reply to the 
third and fourth paragraphs of said appellant's answer. 

The second paragraph of said appellant's reply to the 
fourth paragraph of appellee's answer to the cross-complaint 
of Krieg, alleges in substance, that the certificate sued upon 
was executed in Indiana, is payable in said State, and its 
negotiability is governed by the laws of Indiana; that the 
indorsement of Price and the delivery by him of said certifi- 
cate to appellee was in the state of Illinois ; that by the laws 
of that state appellee obtained only an equitable title to said 
certificate, subject to the rights and equities of all prior hold- 
ers thereof. 

The assignments of error raise the question of the nego- 
tiability of the certificate of deposit sued on. Certificates 
of deposit in the usual form, substantially like the 

1. one sued on, have been held in this State to be the 
promissory notes of the bank issuing them, and, as 
such, governed by the same rules as to negotiability that ap- 
ply to promissory notes. Drake v. Markle (1863), 21 Ind. 
433, 83 Am. Dec. 358; Gregg v. Union County Nat. Bank 
(1882), 87 Ind. 238; First Nat. Bank v. Stapf (1905), 165 
Ind. 162, 74 N. E. 987, 112 Am. St. 214; Long v. Straus 
(1886), 107 Ind. 94, 104, 6 N. E. 123, 7 N. E. 763, 57 Am. 
Rep. 87. 

The further question arises, whether the certificate of de- 
posit is negotiable under the law merchant or only negoti- 
able by virtue of our statute. On this question, outside our 
own State, there is a great diversity of opinion ; but we think 
it is settled in Indiana that a certificate of deposit payable 
**in current funds" is not negotiable under the law mer- 



MAY TERM, 1912. 39 

Krieg u. Palmer Nat Bank — 51 Ind. App. S4. 

chant as an inland bill of exchange, but is negotiable by vir- 
tue of our statute. §9071 Burns 1908, §5501 E. S. 1881 ; 
National State Bank v. Ringel (1875), 51 Ind. 393; Conwell 
V. Pumphrey (1857), 9 Ind. 135, 68 Am. Dec. 611; Drake v. 
Markle, supra; First Nat, Bank v. Stapf, supra. 

In 1 Daniel, Neg. Inst. (5tli ed.) §§55, 56, numerous deci- 
sions are cited on both sides of the question, and the author 
concludes by saying: *'In business paper it is best to ad- 
here to strict rules ; and as certainty is of the first moment 
in commercial dealings, and paper payable in fluctuating 
values is uncertain and delusive, we think sound judgment 
approves the doctrine of the text. Money alone is legal ten- 
der, and only the note which represents money should be 
held negotiable. It should be expressed simply as payable 
in dollars, which have a definite signification fixed by law." 
See, also, 2 Daniel, Neg. Inst. §1706 ; 1 Randolph, Com. Pa- 
per §§89, 90; Tiedeman, Com. Paper §§485, 487. 

However, two comparatively recent cases by the Supreme 
Court of the United States depart from the doctrine de- 
clared in Indiana, and many of the states, and hold that the 
phrase **in current funds", under our present monetary 
system and business usage, has come to be used to designate 
any of the forms of legal tender money of our government, 
and that its use in a check or other instrument does not de- 
stroy its negotiability, for it was intended to cover whatever 
was receivable and current by law as money, whether in 
the form of notes or coin, all being current and declared, by 
positive enactment, to be legal tender. Bull v. Bank of Kas- 
son (1887), 123 U. S. 105, 112, 8 Sup. Ct. 62, 31 L. Ed. 97; 
"Woodruff V. Mississippi (1896), 162 U. S. 291, 302, 16 Sup. 
Ct. 820, 40 L. Ed. 973. 

There is a strong tendency in the more recent decisions of 
the several states to change the former holdings, and to fa- 
vor the rule of negotiability, though some states and some 
lawwriters still incline to the old doctrine of nonnegotiabil- 



40 APPELLATE COURT OP INDLAJ^A. 

Krieg v. Palmer Nat Bank — 61 Ind. App. 34. 

ity of such instruments. However, in view of the 

2. long-established rule in Indiana, and the fact that 
this court is bound by the decisions of our Supreme 

Court, until overruled or modified by that court, and the 
further fact of the division of opinion in other states, we 
adhere to the rule that a certificate of deposit, such as the 
one before us in this case, is not negotiable under the law 
merchant, but is negotiable by, and liability attaches accord- 
ing to, the provisions of our statute. §§9071, 9074 Burns 
1908, §§5501, 5504 R. S. 1881. 

Section 9074, supra, reads as follows: **Any such as- 
signee, having used due diligence in the premises, shall 
have his action against his immediate or any remote indorser j 
and in suit against a remote indorser, he shall have any de- 
fense which he might have had in a suit brought by his im- 
mediate assignee.'' 

It is also contended that the instrument is not negotiable 

because not in express terms payable at a bank in this State. 

In view of our conclusion above stated, this question 

3. is not important, but we are not impressed with the 
correctness of the contention, and think a fair and 

reasonable interpretation of the instrument leads to the con- 
clusion that it is payable at the Huntington County Bank, 
Huntington, Indiana. See Halstead v. Woods (1911), 48 
Ind. App. 127, 95 N. E. 429. 

The certificate in suit was negotiated by Price by indorse- 
ment to appellee bank, in the State of Illinois, but was orig- 
inally executed in Indiana, and its negotiability must 

4. be determined by the laws of Indiana. It is true, 
however, that liability on a contract of indorsement 

is determined by the laws of the state where the indorsement 
is made ; but Price is not a party to this suit, and he is the 
only person mentioned whose liability could be determined 
by the laws of that state, and appellee, having elected to sue 
Krieg and the Huntington County Bank, and not to sue 



MAY TERM, 1912. 41 

Krieg r. Palmer Nat Bank — 51 Ind. App. 34. 

Price, its immediate indorser, the question of the liability, 
under the Illinois law, is not pertinent to any question pre- 
sented for our decision. 1 Daniel, Neg. Inst. §§865, 867, 
882, 899-901; Hunt v. Standart (1860), 15 Ind. 33, 77 Am. 
Dec. 79; Rose v. President, etc. (1860), 15 Ind. 292. 

The Huntington County Bank issued the certificate in In- 
diana, it is by its terms payable in Indiana ; Krieg indorsed 
it to Price in Indiana, and the suit was brought in this State, 
so that appellee's rights against appellants must be deter- 
mined by the laws of Indiana. 1 Daniel, Neg. Inst. §§879, 
882, 895. 

It is contended by appellee, that, independent of the ques- 
tion of the negotiability of the certificate of deposit, the 
judgment must be affirmed, for the reason that appel- 
5. lant Krieg, by his indorsement and transfer of the 
instrument in the ordinary course of business, with 
the usual apparent indicia of title, is thereby estopped from 
setting up as against a subsequent assignee, for value, with- 
out notice of prior equities or defenses, that his title so 
transferred is not good and the instrument collectible by 
appellee. 

In Moore v. Moore (1887), 112 Ind. 149, 13 N. E. 673, 2 
Am. St. 170, Judge Mitchell, in speaking of the rights and 
equities between indorsers and indorsees of instruments, un- 
der our statute, said: **The effect of these provisions is 
to vest in the indorsees of the instruments named therein. 
whether such instruments be technically negotiable by the 
law merchant or not, a complete legal title, as "vvell as a right 
of recovery by indorsees in their own names, respectively. 
Whatever right remains in the assignor of an instrument 
thns assignable, after the holder has transferred it by an 
unrestricted indorsement, must of necessity be of a purely 
equitable character. It is not perceived, therefore, why an 
innocent purchaser, who takes such an instrument by in- 
dorsement for value, and without notice of the latent equities 



42 APPELLATE COURT OF INDIANA. 

Krieg «;. Palmer Nat Bank — 51 Ind. App. 34. 

of prior indorsers, may not stand upon the rule that where 
the equities are equal he is in the situation of advantage who 
holds the legal title. If one of two equally innocent parties 
must suffer, that one who, by his indorsement of the instru- 
ment, has conferred upon another the apparently absolute 
ownership of the paper must bear the loss. This doctrine 
ruled the case of St oner v. Brown (1862), 18 Ind. 464, which 
is not distinguishable in principle from the case before us. 
It is familiar law that if the owner, although induced there- 
to by fraud, invests another with the apparent legal title to 
chattels, in pursuance of a contract, the person so clothed 
may transfer an unimpeachable title to a good-faith pur- 
chaser." See, also, 2 Daniel, Neg. Inst. §1708g; Kiefer v. 
Klinsick (1896), 144 Ind. 46, 57, 42 N. E. 447; Shirk v. 
North (1894), 138 Ind. 210, 214, 37 N. E. 590; Merrell v. 
Spnnger (1890), 123 Ind. 485, 488, 24 N. E. 258, 8 L. R. A. 
61 ; Eirsch v. Norton (1888), 115 Ind. 341, 17 N. E. 612. 

Appellee's fifth paragraph of reply to the third and fourth 

paragraphs of Kreig's answer, and its third paragraph of 

answer to Krieg 's cross-complaint were by way of es- 

6. toppel, but a demurrer was sustained to each, and 
appellee has assigned no cross-errors questioning such 

rulings. Peder v. Field (1889), 117 Ind. 386, 20 N. E. 129. 

The rulings of the trial court are presumed to be correct. 

Therefore, there is no plea of estoppel in this case ; 

7. and by numerous decisions of our Supreme Court it 
is established that to obtain the benefit of an estoppel 

in pais it must be pleaded. Webb v. John Hancock, etc., Ins. 
Co. (1904), 162 Ind. 616, 69 N. E. 1006, 66 L. R. A. 632; 
International, etc, Loan Assn. v. Watson (1902), 158 Ind. 
508, 64 N. E. 23; Center School Tp. v. State, ex rel (1898), 
150 Ind. 168, 49 N. E. 961 ; Wood v. Ostram (1867), 29 Ind. 
177. The questions on the instructions are determined by 
our conclusions already announced, and we do not deem it 
wise to extend this opinion by further discussion. 



MAY TERM. 1912. 43 

Henry r. I^rendergajst — 51 lud. App. 43. 

Following the conclusions announced, we hold that the 
trial court erred in sustaining the demurrer to the amended 
second paragraph of answer, in overruling the demurrer to 
the third paragraph of the reply of the appellee to the third 
and fourth paragraphs of the separate answer of appellant 
Erieg, in sustaining the demurrer of appellee to the second 
paragraph of Krieg's reply to the fourth paragraph of ap- 
pellee's answer to the cross-complaint, and in overruling the 
motion for a new trial. 

The judgment, is therefore reversed, wth instructions to 
the lower court to sustain the motion for a new trial, to 
change the rulings on the several demurrers to conform to 
this opinion, and to permit the parties to amend their plead- 
ings, if they desire so to do, and for further proceedings in 
accordance with this opinion. 

Lairy, C. J., Myers, Hottel and Ibach, J.J., concur. 

Adams, J., dissents. 

Note. — ^Reported in 95 N. B. 613. See, also, under (1) 7 Cyc. 
5K; (2) 11 Cyc. 747; (3) 7 Cyc. 603; (4) 7 Cyc. 6il; (5) 7 
Cyc. 830; (6) 2 Cyc. 982; (7) 16 Cyc. 806. As to the nature and 
negotiability of certificates of deposit, see 75 Am. St 46. 



Henry, Receiver, v. Prendergast, Adminis- 
tratrix, 

INa 7,222. Filed May 12, 1911. Rehearing denied October 13, 

1911. Transfer denied June 25, 1912.] 

1. Railboads. — Interurhan. — Receivers, — Powers, — Improvcm cnts. 
—Where the receiver of an inteL'urban railroad was autliorized 
by the order appointing him to operate the lines of raih-oad and 
keep the ears daily running thereon, and to do whatever was 
necessary or proper to Iceep the cars running and to keep the 
road in operation, he had authority to contract for the alteration 
an* repair of a pit in a car barn. p. 49. 

2. RAn.]K>ADB. — Interurhan, — Action Against Reciever. — Authority 
of Receiver. — Complaint. — In an action against the receiver of 
an interurhan railroad to recover for the death of a person en- 
gaged In making repairs to a pit in a car bam, the allegation of 



44 APPELLATE COURT OF INDIANA. 

Henry r. Prendergast — 51 Ind. App. 43. 

the complaint that the receiTer was ordered to do whatever was 
necessary and proi)er to keep the road in c^ieraticm and the cars 
running, was a sufficient allegation of the authority of the re- 
ceiver to have such repairs made without averring his specific 
authority so to do. p. 50. 
?». Master anu Servant. — Injury to Servant. — Knowledge of Dan- 
fjer. — Uninsulated MHre. — Complaint. — Sufficienoy. — In an action 
for tlie deatii of a servant by contact with an uninsulated ele(*trlc 
wire, where the only negligence charged was in maintaining the 
uninsulated wire in a pit which decedent had been engaged to 
reimir, the averment of the complaint that decedent **had no 
notice or linowledge that such wire was uninsulated" was a 
sufficient allegation of the decedent's want of knowledge without 
alleging that he had no notice that the pit was dangerous, p. 51. 

4. Master and Servant. — Injury to Servant. — Uninsulated Wire. 
— Patent Defects. — Complaint. — In an action for the death of one 
engaged in repairing a pit in a car barn by coming in contact 
with an uninsulated electric wire, the allegation of tlie complaint 
that defendant caused such wire to be strung in the pit and that 
at a certam point the same was wholly uninsulated for a dis- 
tance of two inches, does not render the complaint objectionable 
as alleging a patent defect, since, when taken with other allega- 
tions describing the place where decedent was required to work 
and the location of the wire in the pit, it is sufficiently shown 
that the defect was not such as could be discovered by the use of 
ordinary care. p. 51. 

5. Master and Servant. — Injury to Servant. — Latent Defects, — 
Knowledge. — Compl4Jhit. — ^Where facts alleged, in an action for 
injury to a servant, all tend to show that the theory of the com- 
plaint Is that the defect was latent, It is sufficient to allege that 
the servant did not know of such defect or danger, p. 52. 

0. Appeal. — liciHcw. — histructions. — Conformity to Evidence, — 
Where instructions given in an action for the death of a servant 
correctly stated the law on the theory that the defect complained 
of was latent, and there was evidence to support such theory, the 
giving of such Instructions was not error, p. 52. 

7. Death. — ycpUgcnt Death. — Measure of Damages. — Instructions. 
— In an action for the negligent death of a person, brought for 
the benefit of surviving sisters, instructions that the Jury might 
consider the pecuniary value of any labor performed by decedent 
In raising crops the proceeds of which were used with decedent's 
consent in the supiwrt of such sisters, if a continuance of such 
lal>or, applied to such uses, might be expected by reason of the 
relationship of the parties, and also Informing the Jury that 
l)ecunlary Injury may be caused by loss of services, on which the 
parties themselves never fixed any stipulated value, and for 



MAY TERM, 1912. 45 



Henry v, Prendergast — 51 Ind. App. 43. 



services rendered where there was no legal obligation to render 
them, were correct p. 53. 

8. BIasteb and Sebyant. — Injury to Servant. — Safety of Place to 
Work. — Master*8 Duty. — Degree of Care. — A master Is not bound 
to use the highest degree of care to provide a safe place In which 
his ser^'ant is to work, and his duty Is fulfilled when he uses 
ordinary' care, proportionate to the danger, to provide a reason- 
ably safe place and to keep the same in reasonably safe condi- 
tion, p. 54. 

9. Appeai^ — Review, — Instructions, — Where the issue largely con- 
trolling the determination of an action for the death of a servant 
involved the quantum of care which defendant should have used, 
instructions erroneously stating the degree of care required were 
not harmless, p. 54. 

Prom Shelby Circuit Court; Will M. Sparks, Judge. 

Action by Catherine Prendergast as administratrix of the 
estate of Leo Prendergast, deceased, against Charles L. 
Henry, receiver of the Indianapolis and Cincinnati Trac- 
tion Company and others. From a judgment for plaintiff, 
the defendant receiver appeals. Reversed. 

Hord & Adams and Smith, Cambern & Smith, for appel- 
lant. 
Douglas Morris, for appellee. 

Ibach, J. — Action by appellee as administratrix of the es- 
tate of Leo Prendergast against appellant, as receiver of the 
Indianapolis and Cincinnati Traction Company, Philip Wilk 
and William Redman, for damages for the negligent killing 
of Leo Prendergast, by reason of his receiving an electric 
shock while working in the car barn of said company at 
Shelbjrville. The action was first brought in the Rush Circuit 
Court and the venue was changed to the Shelby Circuit 
Court. Issues were formed by a complaint in one paragraph 
to which a demurrer was overruled, and an answer in general 
denial filed. The jury returned a verdict in favor of appel- 
lee against appellant Henry, as receiver, for $1,500, and in 
favor of defendants Wilk and Redman. Over a motion for 
a new trial, judgment was rendered on the verdict. 



46 APPELLATE COURT OP INDIANA. 

Iltnry r. Prendergast — 51 Ind. App. 43. 

Appellant relies for reversal on alleged errors of the court 
(1) in overruling his demurrer to the complaint for want 
of sufficient facts; (2) in refusing to sustain his motion to 
instruct the jury to find for appellant ; (3) in overruling his 
motion for a new trial. 

The substantial averments of the complaint are that on 
December 8, 1908, Catherine Prendergast was appointed ad- 
ministratrix of the estate of Leo Prendergast ; that the Indi- 
anapolis and Cincinnati Traction Company is a corporation 
owning an electric railroad running from Indianapolis to 
Bushville, Indiana, operated by electricity generated at its 
power-house at Bushville ; that previous to July 1, 1905, the 
Indianapolis and Southeastern Traction Company owned 
and operated an electric railroad from Indianapolis to Shel- 
byville, Indiana that at Shelbyville said company owned a 
car bam, connected by tracks with its railroad, and into 
which it ran its cars for cleaning and repairing; that be- 
tween the rails of said tracks was constructed a pit, five feet 
deep, four feet wide and thirty feet long, into which pit 
workmen entered for the purpose of repairing and cleaning 
the cars when such cars were run on the tracks above said 
pit ; that on July 5, 1905, said Indianapolis and Cincinnati 
Traction Company leased said railroad from the Indianapo- 
lis and Southeastern Traction Company, together with said 
car barn and appliances, for 999 years, with full power to 
make any repairs or alterations it might see fit to make, and 
from that day said Indianapolis and Cincinnati Traction 
Company operated both of said railroads by electricity gen- 
erated at its power-house at Bushville; that in July, 1906, 
defendant Charles L. Henry was appointed receiver of said 
Indianapolis and Cincinnati Traction Company by the Su- 
perior Court of Marion County, Indiana, and was ordered to 
operate both said Bushville and Shelbyville lines of rail- 
road, and to keep said cars running thereon; that on Novem- 
ber 1, 1906, said Henry, as receiver, decided to alter and 



MAY TERM, 1912. 47 

Henry r. Prendergast — 51 Ind. App. 43. 

repair said pit at said barn at Shelbyville, by deepening it 
and constructing a cement floor on the bottom thereof, so as 
to enable the employes better to clean and repair the cars, 
and, because said pit was dark, he caused electric light wires 
to be strung along one side and near the top of said pit, and 
to which were attached incandescent bulbs for lighting said 
pit; that said wires were connected with other wires by 
which electricity was conveyed from said Rushville power- 
house, and liable at any time to come in contact therewith, 
were wires carrying a high voltage of electricity — 33,000 
volts; that it was the duty of said Henry to place in said pit 
only wirea that were well insulated ; that said Henry in plac- 
ing a wire in said pit carelessly and negligently caused 
such wire to be strung therein which at a point thereof for 
a distance of two inches along said wire was wholly unin- 
sulated ; that it was the duty of said receiver to inspect fre- 
quently said wires in said pit, tod see that they were prop- 
erly insulated, but said defendant negligently and carelessly 
failed to inspect said wires, and that a careful inspection 
thereof would have revealed said uninsulated portion of said 
wire, and it could have been immediately insulated ; that on 
November 15, 1906, said Henry, as receiver, employed de- 
fendants Philip Wilk and William Redman to deepen and 
cement the bottom of said pit, and authorized them to em- 
ploy laborers to work in said place, and afterwards, on No- 
vember 27, 1906, said Wilk and Redman employed plaintiff's 
decedent to dig said pit deeper, and cement the bottom there- 
of, and pursuant to said employment, plaintiff's decedent 
eommenced work in said pit on Wednesday, November 28, 
1906, at 10 o'clock a. m. 

Plaintiff further says that before placing decedent in said 
pit to work, it was the duty of said Wilk and Redman, and 
said Henry, as receiver, to inspect said wires, and see that 
they were properly insulated, but that each of them failed 
to do so, and as a result thereof, when said decedent com- 



48 APPELLATE COURT OF INDIANA. 

Henry r. Prendergast — 51 IiitL App. 43. 

menced said work, said portion of said wire in said pit was 
uninsulated and in the condition it was when first placed as 
aforesaid ; that it was the duty of said defendants to furnish 
decedent a safe place in which to work, but that defendants 
negligently failed to do so, and the place where decedent 
was employed to work was dangerous by reason of said un- 
insulated portion of wire and the probability of a fatal re- 
sult to any one touching said uninsulated portion of wire, 
when the same was charged with electricity ; that the top of 
said pit was covered with boards, and the pit was lighted by 
an electric light attached to said partially uninsulated wire ; 
that decedent was taller than the depth of said pit, and in 
working therein he was compelled to stoop ; that the pit was 
dimly lighted ; that decedent commenced to work therein by 
digging up the bottom of said pit ; that he continued at said 
work till the time of his death, about one hour after he com- 
menced work; that by reason of the stooping position in 
which he was compelled to work, his cap dropped down over 
his eyes, and he thereupon raised his left hand to straighten 
his cap, and in doing so his hand came in contact with said 
electric wire at the point where the same was not insulated, 
and by reason of said contact decedent received an electric 
shock which caused his death; that at said time said dece- 
dent had no notice or knowledge that said wire was uninsu- 
lated ; that at the time of said contact said wire was charged 
with electricity at a pressure of 600 volts; that decedent's 
death was proximately caused by the negligence of defend- 
ants, aforesaid, and without any negligence on decedent's 
part contributing thereto, and by reason thereof plaintiff is 
entitled to recover damages in the sum of $10,000; 
that decedent was twenty-four years of age, without ances- 
tors or descendants, and he left as his next of kin certain 
brothers and sisters (naming them) ; that each of said sis- 
ters except one was wholly dependent on him for support ; 
that this action is brought for the benefit of said next of 



MAY TERM, 1912. 49 

Henry r. Prendergast — 51 Ind. App. 43. 

kin; that before bringing this suit, plaintiff obtained leave 
80 to do from the Superior Court of Marion County, where 
said receivership is pending. 

Appellant claims that the complaint is insufficient, because 
it does not allege that the contract for the work done by 
Wilk and Redman was authorized by the court appointing 
the receiver, nor that the receiver had authority to alter and 
repair the pit in the car barn where deceased was killed, nor 
that the receiver had authority from the court to authorize 
said Wilk and Redman to employ laborers to work in said 
place. 

The complaint alleges that ''by the terms of the order of 
appointment of said court, the receiver was ordered to oper- 
ate the lines of railroad, and keep the cars daily run- 

1. ning thereon, and to do whatever was necessary or 
proper to keep said cars running and to keep said 
road in operation.'* 

The receiver had the authority, under such general order 
made in said receivership to contract for the work done by 
Wilk and Redman, to alter and repair the pit in the car 
bam where decedent was killed, and to authorize said Wilk 
and Redman to employ laborers to work in said place. Van- 
derbat v. Central R, Co. (1887), 43 N. J. Eq. 669, 12 Atl. 
188; Polys V. Jeweit (1880), 32 N. J. Eq. 302; Little v. Du- 
senberry (1884), 46 N. J. L. 614, 50 Am. Rep. 445 ; Cowdrey 
V. Galveston R. Co. (1870), 1 Woods (U. S.) 331, Fed. Cas. 
Xo. 3,293; Taylor v. Canaday (1901), 155 Ind. 671, 57 N. E. 
524, 59 N. E. 20. 

A statement of the law which is highly applicable to the 
present case is found in Vanderbilt v. Central R. Co. supra, 
where the court, by Magie, J., said: ''Doubtless the chan- 
cellor has power to retain in his hands the administration of 
such a trust, and to personally direct and order each con- 
tract into which the receiver should enter. But it would obvi- 

VoL. 51—4 



50 APPELLATE COURT OP INDIANA, 



Henry r. Prendergast — 51 Ind. A pp. 43. 



ously be impracticable to adopt such a course in running a 
railroad. To select and employ the necessary subordinates, 
to fix the term of service and the amount of wages, contract 
for and purchase materials and supplies, and to anticipate 
in these respects the future needs of one of these gigantic 
corporations by express orders in each case, would reciuire 
the whole time of the chancellor, and could never have been 
intended by this legislation. It must have been contem- 
plated that in the performance of these multifarious duties 
some degree of discretion might be accorded to the receiver. 
Whether a power to exercise such discretion would not be 
assumed to exist in every case without a special order, need 
not be considered, for it is clear that the chancellor may 
accord such discretionary power to a receiver by a general 
order — such as was made in this cause. When a receiver has 
thus acquired discretionary powers to operate an insolvent 
railroad, his position is peculiar, and the contracts he makes 
for that purpose are sui geneiis. Such a receiver is not ex- 
empt from liability to answer for injuries inflicted by the 
wrong doing or negligence of those he employs in operating 
the railroad." Citing Palys v. Jewett, supra, and Little v. 
Dusenberry, supra. 

It is not necessary to aver in the complaint that the re- 
ceiver had specific authority to make repairs. The allega- 
tion that the receiver was ordered to do whatever was 

2. ** necessary and proper" to keep the road in opera- 
tion and the cars running, alleges authority to alter 
and repair the pit in the car barn, where repairs were to be 
made on the cars to keep them in service, and such power is 
included within the general order made by the court before 
whom the receivership matter was pending. The complaint 
in this respect is snflficient. 

Appellant also contends that the allegation in the com- 
plaint, that decedent **had no notice or knowledge that 
such wire was uninsulated", is insufficient, and claims that 



MAY TERM, 1912. 51 

Henry v, Prendergast — 51 Ind. App. 43. 

the complaint should also allege that decedent had no 
3. notice that the pit was a dangerous place, as he might 

have known that the place was dangerous, without 
knowing of the exact cause of the danger. The cases cited 
I)y appellant are to the effect that if the complaint had al- 
leged generally that decedent was unaware of the danger- 
ous character of the place where he worked, and had failed 
to aUege specifically that he was unaware of the defect 
which was claimed to have caused his death, it would not 
have been suf&cient. These authorities, however, do not hold 
that a complaint which alleges want of knowledge of the 
specific defect complained of as constituting negligence must 
also allege want of knowledge of the danger caused by this 
defect. In the present case, the allegation of the dangerous 
character of the pit where decedent was working is that such 
place was dangerous **by reason of said uninsulated portion 
of wire", which is the only negligence charged against de- 
fendant. The complaint definitely avers that decedent had 
no knowledge or notice that such wire was uninsulated, avers 
that his death was caused by such defect, and therefore suf- 
ficiently alleges want of knowledge of the only danger which 
is charged in the complaint. 

Appellant's third objection to the complaint is to tile 
clause alleging that appellant ''caused such wire to be 

strung therein [in the pit where decedent was put to 
4. work] which at a point thereof for a distance of two 

inches along said wire was wholly uninsulated. ' ' Ap- 
pellant claims that this is an allegation of a patent and not 
of a latent defect, of one open and obvious, which decedent 
was bound to see and observe. 

It is averred that decedent was a laborer put to work to 
deepen the pit in the car barns; that the pit was dimly 
lighted; that over the top thereof boards had been placed; 
that the light wire was at the extreme top of the pit; that 
decedent could not stand erect, but was compelled to stoop 



52 APPELLATE COURT OF INDIANA. 

Henry t\ Prendergast — 51 Ind. App. 43. 

while working therein. This description in the complaint 
of the work which decedent was directed to do, and of the 
place where he was at work when he was killed, is such as 
to indicate that the defect mentioned was not such as could 
be discovered by the use of ordinary care, but only by a 
careful examination and inspection. 

The facts alleged all tend to show that the theory of the 

complaint is that the defect was latent, and in such cases it 

is sufficient to allege that decedent did not know of 

5. such defect or danger. Such allegations are found in 
the complaint before us as repel not only actual 

knowledge, but implied knowledge as well. The averments 
show a duty owing to decedent by appellant, and a breach 
of that duty resulting in his death. Facts are also averred 
negativing knowledge on his part of the defective condition 
of the wire, and that such defect was a latent one ; therefore 
the complaint is sufficient to withstand demurrer. Consoli- 
dated Stone Co. v. Summit (1899), 152 Ind. 297, 53 N. E. 
235; Evansville, etc., R. Co. v. Duel (1893), 134 Ind. 156, 
161, 33 N. B. 355. 

Among the reasons for a new trial, appellant assigns error 

in the giving of instructions 12, 13, 14, 16, 19, 21 and 22. 

These instructions we have examined carefuUy, and 

6. find that they state the law correctly, on the theory 
that the defect complained of was a latent one. There 

was abundant evidence to support such theory, and tending 
to prove the following facts : that the pit was dark and dim- 
ly lighted ; that there were car-tracks above the pit, and that 
boards were laid between these tracks ; that when decedent 
was killed there was a car standing over the pit ; that the pit 
was not deep enough to permit decedent to stand erect, but 
that it was necessary for him to stoop while working in the 
pit, and that his line of vision at the time and place of the 
injury was on the ground ; that the wire which was uninsu- 
lated was strung along the top of the pit, right up against 



MAY TERM, 1912. 53 

Henry v, Prendergast — 51 Ind. App. 43. 

the wall ; that there was a part of the end of a wire which 
stuck out, and had no insulation on it, and a few inches dis- 
tant on the same wire was an uninsulated place about half 
an inch long. In the light of evidence such as this, we could 
not be warranted in considering the existence of the uninsu- 
lated spot on the wire as a patent defect, discoverable by the 
exercise of ordinary care. There was evidence supporting 
the theory on which these instructions were given, and the 
giving of them was not error. 

Instructions twenty-eight and twenty-nine are objected to. 
These instructions foUow: (28) "If you find for the plain- 
tiff and that plaintiff is entitled to damages, in assessing the 
same, you may take into consideration the labor per- 

7. formed by decedent, if any, in raising crops, the pro- 
ceeds of the sale of which, if any, were used with de- 
cedent 's consent in the support of any one or more of his 
sisters in whose behalf this action is brought. And if you 
find such labor was performed, and the proceeds thereof so 
applied, and that a continuance of such labor, applied to 
such uses, might be expected by reason of the relationship 
of the parties, then you may in assessing damages, consider 
the pecuniary value of such labor which was received by 
such sister or sisters." 

(29.) '*If you find that plaintiff's decedent and one or 
more of his sisters in whose behalf this action was brought 
lived together as members of one family, and said decedent 
and said sisters or sister rendered services to one another of 
value, without any contract or stipulation for wages on either 
side ; and if you further find that said decedent never fur- 
nished any money to any one of his said sisters, such facts 
alone would not preclude a recovery by plaintiff. Pecuniary 
injury may be caused by loss of services, on which the par- 
ties themselves never fixed any stipulated value, and for 
services rendered where there was no legal obligation to ren- 
der them." 



54 APPELLATE COURT OF INDIANA. 



Henry v. Prendergast — ^51 lud. App. 43. 



Said instructions are a correct statement of the measizre 
of damages as applicable to the circumstances of the case. 
There may be a right to recover for services when there is 
no legal obligation to render them, and this right is cor- 
rectly stated in the instructions. Smith v. Michigan Cent. 
R. Co. (1905), 35 Ind. App. 188, 201, 73 N. E. 928. 

Error is also assigned in the giving of instruction eleven, 

in which the jury was told that appellant was ''bound to use 

every protection which is reasonably accessible and to 

8. use the utmost care to keep its wires so protected and 
insulated as to be safe for workmen whose' duties re- 
quire them to be in their vicinity," and in the giving of 
instruction fifteen, in which it was told that one furnishing 
electricity for lighting purposes '*is not an insurer against 
injury to persons whose duties require them to be near the 
wires, but he must exercise the highest care to prevent such 
injury." 

These instructions were erroneous. There are numerous 

statements to be found in the books, to the effect that where 

the record affirmatively shows that the jury was not 

9. misled by an erroneous instruction it will be deemed 
harmless. But the question as to whether the jury 

was influenced by an erroneous instruction depends on the 
facts peculiar to each case. An issue largely controlling the 
determination of the case at bar involved the qiuintum of 
care which the employer had exercised to furnish decedent 
a safe place in which to work. By the instructions now be- 
ing considered, the court informed the jury that appellant 
was bound to use the highest, the utmost care to furnish to 
decedent a safe place in which to work. This is carrjring 
the rule farther than is approved by the Supreme Court 

of Indiana. In this State a master is not bound to 
8. use the highest degree of care to provide a safe place 

in which his servant is to work, and his duty is ful- 
filled when he uses ordinary care to provide a reasonably 



MAT TERM, 1912. 55 

Outcanlt Advertising Co. t?. Harry Joseph, etc., Co. — ^51 Ind. App. 55. 

safe place, and exercises ordinary care to keep the same in 
reasonably safe condition. Haskell <& Barker Car Co, v. 
Przezdziankowski (1908), 170 Ind. 1, 83 N. B. 623, 14 L. 
E. A. (N. S.) 972, 127 Am. St. 352; Grand Trunk, etc., B. 
Co. V. Melrose (1906), 166 Ind. 658, 670, 78 N. E. 190. 

Though care proportionate to the danger must be exer- 
cised, and though the use of electricity at a high voltage is 
accompanied with a high and lurking degree of danger, and 
requires a high degree of care, yet, in the light of the settled 
Indiana rule, we must conclude that instructions eleven and 
fifteen were harmful to appellant, and that the jury was 
misled by them, for which reason the case is reversed. 

Other errors have been assigned, which may not occur at 
a new triaL The judgment is reversed, and the case re- 
manded for retrial and for further proceedings not incon- 
sistent with this opinion. 

Kotk.— Reported In 94 N. B. 1015. See, also, under (1) 33 Cyc 
C30; (3) 26 Cyc. 1397; (4) 31 Cyc. 83; (7) 13 C^a 385; (8) 26 
eye. UOe; (9) 3 cyc. 383. As to the liability of receivers of 
operating railroad^, see 120 Am. St 280. As to the duty of em^ploy- 
ere in a i^rvlce involving the use of electric wires, see 100 Am. 
St 537. 



OuTCAULT Advertising Company v. Harry Joseph 

Clothing Company. 

[No. 7,691. Filed June 26, 1912.] 

1. AFPEKU—Presentinff Questions for Decision. — Briefs. — ^Where 
appellant has failed to set c^t in his brief a statement of what 
the issues were, how they were dfecidfed and what the judgment 
was, the errors relied on for reversal, and a ccmclse statement of 
sto moch of the record as fully presents the errors and exceptions 
relied on, no question is presented for decision, p. 56. 

From Superior Court of Vanderburgh County ; Alexander 
Gilchrist, Judge. 

Action by the Outcault Advertising Company against the 
Harry Joseph Clothing Company. From a judgment for 
defendant, the plaintiff appeals. Affirmea. 



56 APPELLATE COURT OF INDIANA. 

McConnell v. Ryan — 51 Ind. App. 56. 

Va7i Buskirk & Osborn, and Seitz, Bryan & Wilber, for 
appellant. 
Durre & Curry, for appellee. 

LAmY, J. — This was an action brought by appellant 
against appellee, wherein appellant claimed the som of $208 
due on a certain contract The cause was submitted to a 

« 

jury, and from a verdict and judgment in favor of appellee, 
this appeal is taken. 

Appellant is not in a position to ask for a decision on any 

question attempted to be raised. Its brief fails in almost 

every particular to comply with Rule 22 of this court. 

1. It fails to contain a short and clear statement dis- 
closing (1) what the issues were, (2) how the issues 
were decided and what the judgment was, (3) the errors re- 
lied on for reversal, (4) a concise statement of so much of 
the record as fully presents the errors and exceptions re- 
lied on, referring to the pages and lines of the transcript. 

This court has held repeatedly that a brief which fails in 
these respects to comply with the rules, raises no question 
for decision. The judgment of the trial court is affirmed. 

Note.— Reported in 98 N. E. 1005. See, also^ 2 Qyc. 1013, 1014. 



McConnell et al. v, Ryan. 

[No. 8,243. Filed June 26, 1912.1 

1. Appeal. — Review, — Weighing Evidence, — A cause that was tried 
by a jury Is not within the statute (§698 Bums 1908, Acts 1903 
p. 338) requiring the court on appeal to weigh the evidence and 
render such Judgment as may seem right and prai)er. p. 57. 

2. Appeat^ — Review. — Weight of EvidcfiJOc, — Credibility of Wit- 
ncsfics, — ^The fact that appellee's evidence comes almost entirely 
from appellee and certain relatives, Is immaterial in determining 
the sufficiency of the evidence on appeal, since the court will 
neither weigh conflicting oral evidence nor determine the credi- 
bility of witnesses, p. 57. 

Prom Grant Circuit Court ; H, J, Pavlus, Judge. 



MAY TERM, 1912. 57 

McConnell v. Ryan — 51 Ind. App. 5C. 

Action by Ellen Ryan against James McConnell and an- 
other. From a judgment for plaintiff, the defendants ap- 
peal Affirmed. 

Meade S. Hays, for appellants. 

St, John, Charles & Oemmill and John T. Strange^ for ap- 
pellee. 

HoTTEL, C. J. — Suit by appellee to recover possession of 
certain real estate, and for damages for the unlawful de- 
tention of the same. The cause was tried by a jury, which 
returned a verdict in favor of appellee for possession, and 
for damages in the sum of $40. 

In presenting this appeal appellants allege error in the 
overruling of their separate and several motion for a new 
trial. There is serious doubt whether there has been such 
a compUance with the rules of this court in the preparation 
of appellants' brief as to present properly any question for 
our consideration. However, the only question attempted to 
be presented is the sufficiency of the evidence to sustain the 
verdict, and an examination of the record convinces us that 
this ground of the motion for a new trial is without merit as 
furnishing a cause for reversal on appeal. 

This case was tried by a jury, and is, therefore, not within 

the statute (Acts 1903 p. 338, §698 Burns 1908) requiring 

the Appellate Court to weigh the evidence and render 

1. such judgment as may seem right and proper. The 
record discloses evidence strongly supporting the ver- 
dict of the jury and amply sufficient to prevent a reversal of 

the judgment. Appellants suggest that appellee's evi 

2. dence comes almost entirely from herself and certain 
of her relatives, but ttiat fact has no weight in de- 
termining the question before us. This court, on appeal, 
will not weigh conflicting oral evidence, nor determine the 
credibility of the witnesses. Oglebay v. Tippecanoe Loan, 
eic, Co. (1908), 41 Ind. App. 481, 486, 82 N. E. 494; 



58 APPELLATE COURT OP INDIANA. 



Baltimore, etc., R. Co. r. Keiser — 51 Ind- App. 58, 



McFadden v. Ross (1896), 14 Ind. App. 312, 319, 41 N. E. 
607 ;Ketcham v. Barbour (1885), 102 Ind. 576, 26 N. B. 127. 

The trial court did not err in overruling the motion for a 
new trial. 

Judgment affirmed, with ten per cent damages. 

Note.— Reported in 98 N. E. 1004. See, also, under (1) 3 Qyc. 
348. 



Baltimore and Ohio Railroad Company v. Keiser. 

[No. 6,886. Filed March 9, 1911. Rehearing denied June 29, 1911. 

Transfer denied June 26, 1912.] 

1. Appeal. — Briefs, — Statement of Evidence, — Rules of Court, — 
Where sixteen witnesses testified, and in appellant's brief only 
three of them are mentioned and the evidence, embracing 248 
pages of the record, is condensed to nine pages and omits any 
reference to the testimony of numerous witnesses on important 
matters in issue, there is no substantial compliance with the 
requirements of the rules of the Supreme and Appellate courts 
with reference to setting out the evidence in appellant's brief, 
p. 64. 

2. Appeau — Briefs. — Questions Reviewable. — Instructions. — ^Where 
appellant's brief does not comply with the court rules with ref- 
erence to setting out the evidence, and it is necessary to deter- 
mine whether the instructions given were ai^llcable to the evi- 
dence, the court is not required to pass on them, except to decide 
whether they were proper in view of any evidence that might 
have been given under the issues, p. 65. 

3. Master and Servant. — Injury to Servant. — Complaint. — Suffl- 
ciency, — In an action by a railroad brakeman for injuries by 
falling through an open bridge in the track near a station whUe 
he was on the ground examining the air-brakes while the train 
was In motion, the averments of the complaint that on account 
of the negligence of the engineer in falling to observe the usual 
customs in giving the signal to start the train from the station 
and in moving and stopping the train, the brakeman believed 
that the train had passed the opening, and left the train and 
proceeded along the track examining the air-brakes and releas- 
ing air-brakes In the train, and while so doing fell into the open- 
ing and was injured, are sufficient to show an exception to the 
rule denying recovery to a servant who has previous knowledge 
of the dangers complained of and which are incident to bis 
employment, p. 65. 



MAY TERM, 1912. 59 

Baltimore, etc., R. Co. v. Kelser — 51 Ind. App. 58. 

4. Masteb and Sebvant. — Injury to Servant. — Assumption of Risk, 
—Question for Jury. — ^Where a servant is shown to have been 
surrounded at the time of injury by extraordinary circumstances, 
not of his own making, in which attention is diverted from the 
danger by a great and important duty to his master whicli he 
is required to discharge, it becomes a question for the jury to 
determine whether the rlslc was or was not assumed, p. 65. 

0. Masteb and Servant. — Injury to Servant. — Verdict. — Answers 
to Interrogatories. — In an action by a brakeman for injuries re- 
ceived tn falling through an open bridge In the track while nt 
work in the discharge of his duties, answers to Interrogatories 
by the jury showing that he believed that the train was beyond 
the opening, that he used the roadway along the track to release 
air-brakes, that his attention was diverted from the danger of the 
opening by the duty of his employment, that he continued to run 
along the train in the x)^formance of his duty of releasing air- 
brakes and that while so doing he fell into the opening, that he 
was at the time acting in a reasonably prudent manner, that he 
could not see the opening and did not then have his mind on the 
opening; are not in conflict with a general verdict for plaintiff, 
pp. 67, 70. 

CL Trial. — Verdict. — Answers to Interrogatories. — ^A general ver- 
dict finds every material fact essential to a recovery, and judg- 
ment cannot be rendered on answers to interrogatories unless 
they are in Irreconcilable conflict with the general verdict 
pt70. 

7. Tbiai^ — Verdict. — Answers to Interrogatories. — Conflicting An- 
steers. — ^Where answers to interrogiitories are inconsistent or in 
ccmfliet with each other, they cancel and nullify each other and 
have no effect on the general verdict p. 70. 

8. Masteb and Servant. — Injury to Servant. — Duty of Master. — 
Construction of Railroad Bridge, — "Negligence. — Although a rail- 
road bridge constructed and maintained in a rural district, ac- 
cording to an approved plan, may be conclusive under ordinary 
circumstances in favor of the railroad company on the question 
of Diligence, where a bridge is constructed in the same way in 
a switchyard or at a station where employes of the company 
necessarily pass over and near the same, not only the construc- 
tion and maintenance of the bridge, but its location, use and tlic 
handling of the company's business, and the operation of Its 
trains In the immediate vicinity, must be considered in deter- 
mining the question of negligence in the manner of its construc- 
tion and maintenance, p. 70. 

9. Kasteb and Servant. — Injury to Servant. — Negligence. — Coii. 
struction of Railroad Bridge. — In an action by a railroad brake- 
man for injuries in falling through an open bridge while In tLic 



60 APPELLATE COURT OP INDIANA. 

Baltimore, etc., R. Co. v. EeLser — 51 Ind. App. 58. 

discharge of bis duty in running along the train to release air- 
brakes, where it was established that the bridge was 2400 feet 
west of the signal tower at the crossing where the telegraph 
station was situated, and 2000 feet west of the station, that a 
pumping house was 3100 feet west of the tower and 700 feet west 
of the bridge, that the water tank was 3700 feet west of the 
tower and 1300 feet west of the bridge, it cannot be said as a 
matter of law that defendant was free from negligence in main- 
taining such open bridge although It may have been of an ap- 
proved plan In general use. p. 71, 

10. Negligence. — Question for Jury, — Although the court will de- 
clare negligence as a matter of law where the facts are undis- 
puted, where the facts are controverted and reasonable minds 
may draw diflTerent conclusions, the question Is for the jury, 
p. 71. 

11. Appeal. — Review. — Harmless Error, — Instructions, — Where an 
instruction, otherwise correct, assumes the proof of a fact about 
which there is no controversy, or one proved by undisputed evi- 
dence, its giving is not reversible error, p. 72. 

12. Evidence. — Preponderance, — Weight, — Instructions. — ^An In- 
struction telling the jury that the preponderance of the evidence 
does not depend on the number of witnesses, but on the weight 
of the testimony, and that the plaintiff cannot recover if the 
evidence Is equally balanced, but that he must have the prepon- 
derance in his favor, is a correct statement of the law. p. 72. 

13. Appeal. — Review. — Incomplete Instruction. — Failure to Ten- 
der Complete Instruction. — ^An instruction, which, though incom- 
plete. Is correct as far as it goes, cannot be attacked on appeal, 
where appellant failed to tender a more complete instruction, 
p. 73. 

14. Railboads. — Maintenance, — Construction of Trades. — Duty. — 
A railroad company must keep Its tracks and grounds In a safe 
and suitable condition for the purposes for which they are used, 
and where switching Is done and trains are made up, and the 
employes are constantly exposed to dangers, a greater degree of 
care is required than at points where such duties are rare, 
p. 73. 

15. Appeal. — Review. — U armless Error, — Instructions. — ^Where the 
instructions given on the whole state the law fully and correctly 
as applied to the facts, technical errors and omissions, If any, In 
particular Instructions are harmless, p. 77. 

16. Appeal. — Review, — Finding. — Judgment. — Evidence. — The find- 
ing and judgment on Issues properly submitted to the jury, will 
not be disturbed on appeal, where there was evidence tending to 
sustain the same. p. 77. 

From Starke Circuit Court; John C. Nye, Judge. 



MAY TERM, 1912. 61 

Baltimore, etc., R. Co. v. Keiser — 51 Ind. App. 58. 



Action by Frank M. Keiser against the Baltimore and 
Ohio Bailroad Company. From a judgment for plaintiff, 
the defendant appeals. Affirmed, 

Miller, Shirley & Miller, for appellant. 

Kelly & Pentecost and H. A. Steis, for appellee. 

Pelt, J. — ^An appeal from the Starke Circuit Court from 
a judgment of $2,000, for personal injuries, in favor of ap- 
pellee and against appellant. 

The errors assigned are : Overruling the separate demur- 
rers to the first, second and third paragraphs of complaint, 
overruling the motion for judgment on the interrogatories, 
notwithstanding the general verdict, and overruling the mo- 
tion for a new trial. 

The first paragraph of complaint alleges, in substance, 
that appellant owned and operated a railroad through the 
village of McCool, in Porter county, Indiana ; that it main- 
tained a water-tank a short distance from said town, and 
operated a double track through the town, between which 
tracks there was a path for the use of its employes while en- 
gaged in the discharge of their duties, and especially for the 
use of brakemen in going alongside trains to examine cars 
and to inspect and release air-brakes ; that appellant negli- 
gently constructed its roadbed near said town by leav- 
ing an opening near the water-tank, about four feet 
in width and twenty feet deep from the surface of 
the roadbed, and negligently failed in any way to 
guard or to cover the same, or to warn persons using such 
path of the danger incident thereto ; that said roadbed was 
so constructed and maintained with full knowledge that the 
space between the tracks was of necessity used by appel- 
lant's employes as a path in discharging their duties to the 
Company; that said path extended between said tracks on 
either side of said opening, which was caused by a highway 
passing under said railroad tracks; that on February 3, 
1905, appellee was in the employ of appellant as a freight 



62 APPELLATE COURT OP INDIANA. 

Baltimore, etc., R. Co. v. Kelser — 61 Ind. App. 58. 

brakeman ; that his duty required him to keep constant look 
over the train, to obey all orders of the conductor, to give 
signals, to look after air-brakes, and see that they were in 
proper working order, and if found not to be, to go along- 
side the train and release the air by pulling a rod attached 
to the cars for that purpose ; that on said date appellee was 
engaged in the discharge of his duties in the caboose of said 
train, which was managed by other employes of appellant, 
including engineer, conductor, fireman and other brakemen ; 
that said train stopped at McCool to take water, and after 
so doing, the engineer carelessly and negligently started said 
train and moved it for some distance, and then caused it 
to stop momentarily, and then again moved it for some dis- 
tance, and then momentarily stopped it again, and then care- 
lessly and negligently blew the whistle and gave signals to 
start, which signals were the usual signals for departing 
from the station ; that it was the usual and customary prac- 
tice of the engineer to sound the whistle for leaving the sta- 
tion only after the caboose of the freight-train was over, 
across and beyond the opening in the roadbed over said 
bridge ; that on account of the negligence of the engineer in 
giving the signals and sounding the whistle for the depart- 
ure from said station, and because of the previous moving 
and stopping of the train, appellee was thereby, and on ac- 
count of the general custom of so starting trains at that 
place, informed and led to believe that the caboose, in which 
he was working, had passed said opening, and that he was 
safe and free from danger if required to leave the train for 
any purpose ; that immediately after the engineer signaled to 
leave the station and the train started, appellee discovered 
that some of the air-brakes were not working, and it was nec- 
essary for him, in the discharge of his duties, to leave the 
caboose and use the path to go alongside the cars, and release 
the air-brakes by pulling said release rods ; that immediately 
on discovering the failure of the air-brakes to work, he left 



MAY TERM, 1912. 63 

Baltimore, etc., R. Co. v. Keiser — 51 Ind. App. 58. 

the caboose, taking with him a lantern, and proceeded along- 
side the train, over said path between the tracks, while the 
train was moving at a rate of speed of about four miles an 
hour, to a car on which the air-brakes had failed to work; 
that while in the act of looking under the car and getting 
hold of the rod to release the air-brake, not knowing the 
opening to be at that place, he came suddenly to said open- 
ing in the roadbed, which, from the signals given by the 
engineer, he believed the train had passed, and was suddenly 
and violently thrown into said opening, and fell to the road- 
way below, a distance of twenty feet, on the frozen ground, 
and was severely injured ; that the accident occurred about 
2 o'clock in the morning, when the weather was severely 
cold 

The second paragraph is substantially the same as the first, 
except that it alleges that appellant carelessly and negli- 
gently constructed and maintained its roadbed, by leaving 
said opening near the water-tank uncovered, and without 
guards or signals or anything to show at night the danger 
in using said path, and did so with full knowledge that the 
space between the ends of the ties was of necessity used by 
its employes as a path while in the discharge of their duties 
at that place. 

The third paragraph of complaint is substantially the 
same as the first, except the following averments: *'That 
while in the performance of his said work in attempting to 
release the air-brakes his mind was entirely absorbed in the 
doing of said work, so that he did not know and was not 
able to know at that time the particular place where he was 
»rith reference to the opening in the roadbed; that he was 
re<^iuired to act promptly and hurriedly in the attempt to re- 
lease the air-brake inmiediately upon the discovery that the 
same was not working properly and he says that in response 
to such immediate demand, in the hurriedness of his work, 
and that because of the fact that the work which he was do- 



64 APPELLATE COURT OP INDIANA. 

Baltimore, etc., R. Co. v. Keiser — 51 Ind. App. 5S. 

ing demanded and required of him his full care and atten- 
tion the plaintiff says, he was not able to know, or see and 
did not know the precise place where said opening in the 
roadbed was and did not see said opening with reference to 
the time his doing the work herein mentioned, and that said 
footway between the two tracks was the only available space 
for him to perform the work herein alleged that he did per- 
form." 

Appellee insists that appellant has not complied with the 

rules of this court in the preparation of its brief, and that 

no question is presented for decision, but, on appli- 

1. cation, permission was granted to file an amended 
brief, which appellant has done, and in which it has 
set out the demurrers. The amended brief shows a substan- 
tial compliance with the rules of this courts except in the fail- 
ure to set out a condensed statement of the evidence in nar- 
rative form. • 

The record shows that sixteen witnesses testified, and ap- 
pellant has mentioned only three of them, but has given a 
statement of the evidence under three subheads, viz: **The 
Place of the Accident", '*The Plaintiff", and ''The Acci- 
dent". There are 248 pages of the evidence in the record, 
which appellant has condensed into nine pages in its amend- 
ed brief. While terseness is to be commended, the absence 
from the condensed statements of the evidence of any refer- 
ence to the testimony of numerous witnesses on important 
and vital matters in issue, makes it impossible to say that 
there has been such substantial compliance with the rules in 
this regard as the decisions of this court and the Supreme 
Court require. Welch v. State, ex rel. (1905), 164 Ind. 104, 
108, 72 N. E. 1043 ; Indiana, etc., R. Co. v. Ditto (1902), 158 
Ind. 669, 672, 64 N. E. 222. 

Where necessary to consider instructions, and determine 
whether under the evidence they are applicable, the court 
in this situation is not required to pass on them, except to 



MAY TERM, 1912. 65 

Baltimore, etc., R. Co. v. Keiser — 51 Ind. App. 58. 

decide whether proper, considering any evidence that 

2. might be given under the issues as formed. Welch v. 
State, ex rel., supra; Fifth Ave. 8av. Bank v. Coop- 
er (1898), 19 Ind. App. 13, 17, 48 N. E. 236; Bilker v. KcU 
hy (1892), 130 Ind. 356, 30 N. E. 304, 15 L. R. A. 622. 

The objection urged to each paragraph of the complaint 

is that there is no averment that appellee was ignorant of 

the conditions which are alleged to constitute the neg- 

3. ligence of appellant in the construction and mainte- 
nance of the bridge where appellee was injured, and 

the further objection that no negligence is shown. 

The theory of each paragi*aph of the complaint is that 
the facts alleged show an exception to the general rule deny- 
ing recovery to a servant who has previous knowledge of 
the dangers complained of, and which are incident to his 
employment. 

There are cases, where the danger is obvious, in which it 

camiot be ruled, as a matter of law, that an employe assumes 

the risk. If the facts averred show appellee to be sur- 

4. rounded by extraordinary circumstances, not of his 
own making, in which his attention is diverted from 

the danger by a great and important duty to his master, 
which he is required to discharge, it then becomes a question 
for the jury to say whether, under all the circumstances 
shown by the evidence, the risk was or was not assumed. 

The averments of each paragraph of the complaint are suf- 
ficient on this theory to state a cause of action, and there was 

no error in overruling the separate demurrers. 4 
3. Thompson, Negligence §§4731-4752; Baltimore, etc., 

B. Co. V. Leathers (1895), 12 Ind. App. 544, 40 N. E. 
1094; WaUace v. Central Vt. R. Co. (1893), 138 N. Y. 302, 
•B X. E. 1069 ; Williams v. St. Louis, etc., R. Co. (1893), 119 
Mo. 316, 24 S. W. 782; Maue v. Erie R. Co. (1910), 198 N. 
Y. 221, 91 N. B. 629; Strong v. Iowa Cent. R. Co. (1895), 94 

Vou 51—6 



66 APPELLATE COURT OP INDIANA. 

Baltimore, etc., R. Co. v. Kciser — 51 Ind. App. 58. 

Iowa 380, 62 N. W. 799 ; Chicago, etc., B. Co. v. Johnson 
(1886), 116 lU. 206, 4 N. E. 381. 

In Baltimore, etc., R. Co. v. Leathers, supra, on page 549, 
this court said : * * The general rule is, that when machinery 
and appliances are so placed and constructed that the danger 
is open and obvious the servant assumes the risk. He is 
bound to make use of his senses, and if he proceed to work 
when he knew or could have known of the danger by using 
his senses, he will be deemed to have accepted the risk. But 
there is a class of cases where the danger is obvious in which 
the assumption of the risk can not be ruled as a matter of 
law, but is a question for the jury. If a servant be sur- 
rounded by extraordinary circumstances not of his own mak- 
ing, or if his attention be diverted from the danger by great 
or more important duties to his master, it is a question for 
the jury to say whether or not he assumed the risk." 

In Wallace v. Central Vt. R. Co., supra, the court consid- 
ered a case where a brakeman, while in the discharge of his 
duties on the top of a moving train, was hit by a low bridge 
and injured. He brought an action against his employer 
for damages, and the trial court nonsuited him, but the judg- 
ment was reversed. 

The court in that case, among other things, said : *' At the 
time of the accident there were fifty-four cars in the train, 
and there were two brakemen assigned to duty upon the 
train. It was the duty of the plaintifiE to be on top of the 
cars, ready to respond to calls for brakes, and to keep watch 
over the train to see that it did not part and run together. 
• • • The plaintiflE had been in the employment of the 
defendant for several weeks at the time of the accident, and 
had daily passed over the road under the bridge, and had 
thus made about thirty-one trips over the road. He must 
have known of the existence of the bridge, and must repeat- 
edly have noticed it. When he passed under the bridge at 
prior times he may have been facing it, and may thus have 



MAY TERM, 1912. 67 

Baltimore, etc., R. Co. r. Kelser — 51 Ind. App. 58. 

avoided the danger, or he may have been sitting down on top 
of the cars, and thus been out of reach of the bridge. At the 
time of the accident he was upon a very long train, intent 
upon the discharge of his duty, with his face toward the rear 
of the train, in a position to most effectually discharge his 
duty, and thus his back was toward the bridge. He was not 
at the time aware that he was approaching a place of danger, 
and had no warning of the bridge. Indeed, the bridge was 
not in his mind, and the trial judge non-suited him because 
he did not at the time have the bridge in his mind and thus 
guard himself against the danger of injury. We do not 
think that one thus situated can, as a matter of law, be 
charged with negligence because he did not take notice of 
the fact that he was approaching the bridge, and thus know 
that he was in a place of danger. He was in a place where 
there was danger that the traiu might break in two, and he 
was intent upon the discharge of his duty. It cannot be 
said that a brakeman is, as a matter of law, careless because 
he does not bear constantly in mind the precise location 
where the train is and where every bridge is. * • * But 
a brakeman on the top of a moving train cannot always be 
expected to know when he is approaching a low bridge. His 
duties may require his attention to the rear of his train, 
away from the place of danger, and he cannot be expected 
to bear constantly in mind and to know where the train is, 
or where a bridge is.'' 

The fourth assignment of error is based on the refusal of 
the court to render judgment in favor of appellant on the 
answers to the interrogatories returned with the general 
verdict. 

The facts on which appellant relies are based on answers 
to interrogatories showing that at the time of the injury 

appellee was engaged in trying to release the air- 
5. brake, and did not have in mind the opening of the 

bridge ; that he had passed over this bridge and the 



68 APPELLATE COURT OP INDL/^A. 

Baltimore, etc., R. Co. r. Kelser — 51 Ind. App. 58. 

roadway repeatedly during two years of service prior to the 
accident, and had lived at McCool prior to his employment 
as brakeman, and knew the location of the tracks, the road- 
bed, station building, signal-tower, pump-house, water-tank, 
switch-targets and bridge of the appellant, at and near the 
town of McCool; that appellant's road crosses another rail- 
road at McCool, and runs practically east and west through 
the town ; that at this railroad crossing is located a signal 
tower in which there is a telegraph oflBce, from which the 
trainmen receive orders; that going west from this signal 
tower there are the following: Station building, 400 feet 
west ; derailing device, 600 feet west ; a switch-target, 1,300 
feet west ; a bridge over a public highway, where appellee fell 
and was injured, 2,400 feet west; a pump-house, 3,100 feet 
west; other switch- targets, 3,400 feet west, and the water- 
tank, 3,700 feet west ; that appellee knew the sounding of two 
blasts of the locomotive whistle meant that the train was to 
leave the station but did not signify leaving from any par- 
ticular point ; that when not otherwise engaged, appellee was 
to occupy the rear car, and when an emergency arose he was 
to act immediately without waiting for signals or instruc- 
tions; that appellee did not immediately before he alighted 
from the train look at the surroundings to ascertain the loca- 
tion of the train, and believed at that time that the caboose 
was between the signal-tower on the east and the water-tank 
on the west ; that the train was going east ; that he knew the 
bridge in question was not planked between the tracks ; that 
the surface of the roadway between the double tracks of 
appellant's road at McCool, immediately on either side of 
the opening at the bridge, was used by brakemen as a path 
in going about the trains in the discharge of their duties, and 
was so used on February 3, 19C5 ; that it was the usual way 
used by employes of the company at and before the time of 
the accident; that said path at the time was not a reason- 
ably safe place for appellee to engage in the work required 



MAY TERM, 1912. 69 

Baltimore, etc., R. Co. r. Kelaer — 51 Ind. App. 58. 

of him; that he was engaged in the discharge of his duties 
immediately before he fell ; that it was the duty of appellee 
when he discovered that air-brakes were not working prop- 
erly, to proceed promptly to release them ; that his attention 
was diverted from the danger of the opening of the bridge 
across the highway by the more important duty of releasing 
the air-brakes, while said cars were in motion ; that on discov- 
ering that the brakes were not working, he promptly alighted 
from the caboose, and ran east alongside the train, going in 
the same direction, and released the brakes on the two cars 
in front of the caboose and reached the third one, pulled 
the rod intended to be used for releasing the brakes, and the 
same did not work; that he continued to run alongside the 
cars with his lantern in one hand and the other hand work- 
ing on the rod to release the brake, and ascertain the partic- 
ular diflSculty that prevented the release of the brake ; that 
while so engaged he came to the bridge, and fell and was 
injured ; that appellee in leaving the caboose and undertak- 
ing to release the air-brakes at the time and just before his 
injury, acted in a reasonably prudent manner; that while 
so engaged in trying to release the air-brakes on the third 
car from the caboose, he could not see the opening in the 
bridge in time to avoid falling, and did not then have in 
fflind the opening of the bridge ; that at the time he started 
from the caboose with his lantern to release the brakes, be- 
eaose of the previous movements of the train, and because 
of the signaLs given by the sounding of the whistle by the 
engineer, he believed he was beyond and east of the opening 
in the bridge into which he fell; that the opening in the 
bridge between the tracks was about two feet eight inches in 
width, and seventeen feet long, and no danger-signals were 
maintained at either side of the opening. 

The general verdict finds every fact essential to a recov- 
ery, and judgment can not be rendered on the interroga- 
tories, unless the facts established by the answer thereto are 



70 APPELLATE COURT OF INDIANA. 

Baltimore, etc., R. Co. r. Reiser — 51 Ind. App. 58. 

in irrecopcilable conflict with the general verdict. 

6. Second Nat. Bank v. Gibboney (1909), 43 Ind. App. 
492, 87 N. E. 1064; Wright v. Chicago, etc., R. 

Co. (1903), 160 Ind. 583, 66 N. E. 454; Albany Land Co. v. 
Rickel (1904), 162 Ind. 222, 228, 70 N. E. 158. 
If the answers to interrogatories are inconsistent or in con- 
flict with each other, they cancel and nullify each oth- 

7. er, and have no eflEect on the general verdict. Louis- 
ville,, etc.. Traction Co. v. Worrell (1909), 44 Ind. 

App. 480, 86 N. E. 78 ; South Shore Oas, etc., Co. v. Ambre 
(1909), 44 Ind. App. 435, 87 N. E. 246. 

In this case, the answers to the interrogatories sap- 
5. port rather than contradict the general verdict, and 

are not in irreconcDable conflict therewith. 
The principal reason assigned by appellant for judgment 
on the interrogatories is that the answers show that appellee 
had no right to rely on the whistle signals in the start- 

8. ing and moving of the train, and that he knew the 
conditions and surroundings immediately before and 

at the time of his injury, and therefore assumed the risk. 

In the case of Indiana, etc, R. Co. v. Bundy (1899), 152 
Ind. 590, 53 N. E. 175, cited by appellant, it was said that 
the court cannot say as a matter of law that a recovery may 
not be had where the servant knew the method of operating 
the interlocking switches and knew the location of the one 
where his injury occurred, or that the employe was bound, 
on such general knowledge, to know the particular ground 
occupied by the wires which caused his injury ; that because 
of such general knowledge, the servant could not be held to 
have the particular knowledge, ** without stripping him of 
all protection afforded by ordinary, prudent and cautious 
protection.** 

A bridge constructed and maintained in a rural district, 
according to an approved plan in general use, doubtless 
would be conclusive under ordinary circumstances in favor 



MAY TERM, 1912. 71 

Baltimore, etc., R. Oo. t\ Keiser — 51 Ind. App. 58. 

of the railway company on the question of negligence, but 
the same bridge constructed in the same way in a switch 
yard or at a station, where employes of the company would 
necessarily pass over or near the same, may not, as a matter 
of law, be sufficient to relieve the company from the charge 
of negligence where an injury results from its open and un- 
guarded condition. A bridge of approved construction in 
general use does not exclude the idea of its location and par- 
ticular use in determining the question of negligence. 

9. In this case, the evidence and the answers to the in- 
terrogatories show that the bridge in question was 

2,400 feet west of the signal-tower at the railroad crossing, 
where the telegraph station was situated, and 2,000 feet west 
of the station ; that a pumping-house was 3,100 feet west of 
the tower and 700 feet west of the bridge ; that the water- 
tank was 3,700 feet west of the tower, or 1,300 feet west of 
the bridge. 

On these facts we hold that it cannot be ruled as a matter 
of law that appellant was free from negligence in construct- 
ing and maintaining the bridge at this particular point in 
the manner shown. Not only the construction and mainte- 
nance of the bridge, but its location, use and the handling 
of the company's business, and the operation of its trains 
in the immediate vicinity, by its employes, must be consid- 
ered in determining the negligence or freedom from negli- 
gence of appellant in so maintaining the bridge, with the 
ongnarded and imcovered opening between the tracks. 

The court wiU. declare negligence as a matter of law where 
the facts are undisputed, but where the facts are contro- 
verted, and reasonable minds may draw diflferent con- 

10. elusions, the question is for the jury, and in this case 
the question was properly submitted to the jury. 

Cleveland, etc., R. Co. v. Haas (1905), 35 Ind. App. 626, 636, 
T4 X. E. 1003 ; Baltimore, etc., R, Co. v. Leathers (1895), 12 
Ind. App. 544, 549, 40 N. E. 1094 ; Baltimore, etc., R. Co. v 



72 APPELLATE COURT OP INDIANA. 

Baltimore, etc., B. Oo. v. Keiser — 51 Ind. App. 5S. 

Roberts (1903), 161 Ind. 1, 67 N. E. 530; 4 Thompson, Neg- 
ligence §§4731-4752; Libby, McNeil & Libby v. Banks 
(1904), 209 III: 109, 70 N. E. 599; Baltimore, etc., R. Co. v. 
Slaughter (1906), 167 Ind. 330, 341, 79 N. E. 186, 7 L. R. A, 
(N. S.) 597, 119 Am. St. 503. 

Errors arising on the motion for a new trial, as far as 
presented by appellant's brief, are that (1) the verdict is 
not sustained by sufficient evidence and is contrary to law; 
(2) the court erred in giving and in refusing to give certain 
instinictions. 

Objection to instruction one, given by the court of its own 

motion, is that it limits the questions at issue to the subject 

of negligence. An examination of this instruction 

11. shows that the objection is purely technical, and the 
error, if any, harmless ; for it has been held that to give 

an instruction otherwise correct, which assumes the proof of 
a fact about which there is no controversy, or one proved by 
undisputed evidence, is not reversible error. These rules are 
applicable here, for there was no attempt to disprove, or 
question, the happening of the accident and the injury to 
appellee, and these facts are the basis of the objections urged. 
Braxton v. State (1901), 157 Ind. 213, 61 N. B. 195; Haw-^ 
kins V. State (1894), 136 Ind. 630, 36 N. E. 419; Chicago, 
etc., R. Co. V. Spilker (1893), 134 Ind. 380, 401, 33 N. E. 
280, 34 N. E. 218 ; Louisville, etc., R. Co. v. Vtz (1892), 133 
Ind. 265, 32 N. E. 881; nunt v. Conner (1901), 26 Ind. 
App. 41, 59 N. E. 50. 

Number three, given by the court, told the jury that the 

preponderance of evidence does not depend on the number 

of witnesses, but on the weight of the testimony, and 

12. that plaintiff could not recover if the evidence was 
equally balanced, but he must have the preponderance 

in his favor to entitle him to a recovery. The instruction is 
somewhat verbose, but states the law correctly, if the lan- 
guage is fairly interpreted. The same is true of instruc- 



MAY TERM, 1912. 73 

BalUmore, etc., R. Ck>. r. Keiser — 51 Ind. App. 58. 

tion four, given by the court of its own motion. It does not 
undertake to enumerate the facts essential to a recovery, but 
calJs attention to facts that may be considered in determining 
appellee's care or want of care. If incomplete, as the objec- 
tion urges, a more complete instruction should have 

13. been tendered by appellant, in order to save any ques- 
tion, for the instruction was correct as far as it went, 

and was applicable to the evidence. MaLott v. Shimer (1899) , 
153 Ind. 35, 54 N. E. 101, 74 Am. St. 278 ; Cromer v. State 
(1899), 21 Ind. App. 502, 52 N. E. 239. 

Instruction four and one-half, given by the court on 

14. its own motion, and nine, asked by appellant and re- 
fused, may be considered together. 

Instruction nine asked the court to instruct the jury that 
as a matter of law, if the company ** constructed and main- 
tained the bridge in question in a fashion generally approved 
and adopted by first class railroads, ' ' it was not negligent in 
so constructing and maintaining the same. Four and one-half 
ealls attention to the allegations of the complaint charging 
negligence in leaving the open space between the tracks at 
the bridge uncovered, and to the claim of appellant that the 
bridge was of approved construction in general use, and told 
the jury that if it found from the evidence that such was 
the fact, the question whether the bridge and path between 
the tracks were reasonably safe, was to be determined by 
them, not alone from the construction and maintenance of 
the bridge, but from all the evidence bearing on the subject 
^i its location, and the particular use of the bridge and thi' 
company ^s adjacent premises, including the evidence show- 
ing its construction and maintenance and the general use. of 
similar bridges. 

These instructions present the controUing question in this 
case. The instruction refused, states a proposition of law 
that is weU recognized, and in many cases applicable. In- 
struction four and one-half proceeds on the theory tluit 



74 APPELLATE COURT OP INDIANA. 

Baltimore, etc., R. Co. v. Keiser — 51 Ind. App. 58. 

it cannot be declared as a matter of law that approved con- 
struction in general use will in every case preclude the idea 
of negligence on the part of the railway company. 

In this case, it is contended that, owing to the situation 
and use of the bridge over the highway where appellee fell 
and was injured, the question of negligence because of the 
failure to guard or to cover the open space between the 
tracks with some suitable bridging, and in so maintaining the 
same, was one of fact, to be determined by the jury not alone 
on the question of what was approved construction in gen- 
eral use, but, in connection with such fact, the location, nec- 
essary use by employes, and all the facts and circumstances 
in relation thereto disclosed by the evidence. 

On the facts of this case we think the latter theory cor- 
rect. In Indiana, etc., R. Co. v. Bundy, supra, cited by ap- 
pellant, where an instruction, in regard to wires connected 
with an interlocking switch, similar to said instruction nine 
was tendered, the same was refused, and the court clearly 
shows that the care required in providing a safe place for 
employes to work necessarily varies with the conditions, and 
that it must at all times be in proportion to the danger, and 
cannot in every case where the question of approved con- 
struction is involved, be made to depend wholly on that 
question. 

In Williams v. St. Louis, etc., R. Co., supra, 322, the court 
said: **The duty of a railroad company in respect to keep- 
ing its tracks and grounds in a safe and suitable condition, 
must be a relative one, dependent upon the purposes for 
which they are used, and the duties required of employes 
upon them. In yards where trains are made up and much 
switching done, and in which switchmen are constantly ex- 
posed to dangers, a greater degree of care is required than 
at points on the road where such duties are rare. The duty 
of the master should be measured and determined by the 
uses to which premises are applied." To the same eflfect are 



MAY TERM, 1912. 75 

naltimore, etc., R. Co. v. Keiser — 51 Ind. App. 58. 

the following authorities : Baltimore, etc., R. Co, v. Leath- 
ers, supra; 13 Decennial Digest/* Master and Servant'' §112 ; 
Choctaw, etc., R. Co. v. Stroble (1906), 80 Ark. 68, 96 S. W. 
116; Louisville, etc., R. Co. v. Wright (1888), 115 Ind. 378, 
16 X. E. 145, 17 N. E. 584, 7 Am. St. 432 ; 4 Thompson, 
Negligence §§4753, 4361, 3773, 3986; Barnett & Record Co. 
Y. Schlapka (1904), 208 111. 426, 70 N. E. 343; Cincinnati, 
(tc.,R. Co. V. Sampson's Admr. (1895), 97 Ky. 65, 30 S. W. 
12; Maker v. Boston, etc., R. Co. (1893), 158 Mass. 36, 32 N. 
E, 950; Strong v. Iowa Cent. R. Co. (1895), 94 Iowa 380, 62 
X. W. 799; Shadford v. Ann Arbor St. R. Co. (1899), 121 
Mich 224, 80 N. W. 30; Kalker v. Redden (1905), 72 N. J. 
L. 239, 61 AtL 395 ; Chicago Edison Co. v. Moren (1900), 185 
m. 571, 57 N. E. 773 ; Dolphin v. Plumley (1896), 167 Mass. 
167, 45 N. E. 87. 

In the case at bar, the proposition is more than a simple 
•ioestion of the construction of a bridge, for the danger inci- 
dent to an opening between its tracks at the bridge over a 
highway is involved, which on the facts distinguishes this 
from many cases cited by appellant. 

Appellant has cited the case of Maxie v. Erie R. Co., supra, 
to show that the company was not negligent in maintaining 
the bridge in the manner shown. There was a dissenting 
opinion in the case, but it was decided on the theory that 
the bridge was over a highway at a farm crossing in a rural 
district. The court said: '*The case, as now presented, 
tumg wholly upon the question whether the defendant was 
negligent in maintaining this farm crossing without a deck 
or cover." The bridge was shown to be two miles from a 
town, which was the usual place of inspecting, and the em- 
ploye was injured while inspecting the cars near the bridge. 
The court fully recognized that a different rule applies 
where employes in discharging their duties make frequent 
Tise of the premises, and said: **It would be as unjust to 
bold that railroad corporations should be required to antici- 



76 APPELLATE COURT OP INDIANA. 

Baltimore, etc., R. Co. t\ Keiser — 51 Ind. App. 58. 

pate every possible emergency that may arise in the progress 
of trains as to absolve them from responsibility for the unnec- 
essary maintenance of dangerous conditions at particular 
places where brakemen, in the regular inspection of trains, 
are subjected to perils which can be obviated by the exercise 
of reasonable care and prudence." The court in that case 
ordered a new trial, and did not as a matter of law hold that 
there could be no recovery. The facts are sufficiently differ- 
ent from those in the case at bar to readily distinguish it. 

Appellant complains of instructions two and five, given 
by the court at the request of the appellee. These instruc- 
tions are unnecessarily long. Instruction two told the jury, 
in substance, that in determining whether appellant was neg- 
ligent in maintaining the bridge, as alleged, it should consid- 
er its plan, construction, whether approved and in general 
use, its maintenance, its location, the use of the bridge and 
the roadbed on either side thereof by its employes, the neces- 
sity and feasibility of such use in managing and operating its 
trains, and informed the jury that from all the facts, includ- 
ing the fact of approved construction and general use, it 
should determine whether it was negligence so to maintain 
the bridge as shown by the evidence. Instruction five told the 
jury that as a general rule the servant assumed the hazards 
incident to his employment, and then informed it that in de- 
termining whether the appellee in this case assumed the risk, 
it might consider the evidence tending to show that his mind 
was so absorbed in the discharge of an important duty to his 
master, in an emergency, as to relieve him from the assump- 
tion of the risk, and that, from all the evidence bearing on 
that question, it should determine whether he did or did not 
assume the risk in the particular instance under investiga- 
tion. 

Complaint is also made of the refusal to give instruction 
ten, reriuested by appellant. The substance of this instruc- 
tion was included in other instructions given. 



MAY TERM, 1912. 77 

Baltimore, etc., R. Co. r. Keiser — r>l Ind. App. 58. 

The instructions are unnecessarily long, and, considered 

separately, show some omissions, technical errors and minor 

inaccuracies, but when all those given and refused are 

15. read, as we have done, those given are found to state 
the law fully and, on the whole, correctly as applied 

to the facts of the case, and the errors, if any, could not have 
possibly misled or influenced the jury, and are harmless. 

The point is made that the case depends on concurrent and 

interdependent acts of negligence, and that there is a failure 

to prove the alleged negligence in sounding the whis- 

16. tie and in the movements of the train. Notwithstand- 
ing the omission of the evidence from the briefs, we 

have read most of it from the record, and find that there is 
testimony tending to establish these facts, and from which 
the jury may have found them. 

The case is one where the parties differ radically in their 
theories. Numerous cases are cited to show that appellant 
was not negligent on the facts shown by the evidence, and 
that appellee assumed the risk. These cases are distinguish- 
able from the one at bar, and are not in conflict with the 
authority herein cited or our holding in this case. The the- 
ory and the facts are different, and the rules there applied 
are not applicable here. The questions at issue were prop- 
erly submitted to the jury, and there is evidence tending to 
sustain the finding and judgment. 

No available error is shown by the record. 

Judgment afi&rmed. 

XoTE.— Rei)orted in 94 N. E. 330. See, also, under (1) 2 Cyc. 
1013; (2) 3 Cye. 169; (3) 26 Cyc. 1397; (4) 26 Cyc. 1478; (5) 2(5 
Cyc. 1514; (6) 38 Cyc. 192G; (8) 20 Cyc. 1129; (9) 26 Cyc. 1463; 
(10) 20 Cj-c. 634; (11) 38 Cyc. 1809; (12) 17 Cyc. 754; (13) 3S 
Cyc. 1G93; (14) 26 Cyc. 1125; (15) 38 Cyc. 1778; (16) 3 Cyc. 34S. 
As to the question of assumption of risk being one for the jury, 
see 131 Am. St 437. As to the duty of an employer to furnish 
wife tools and appliances* see 98 Am. St. 496. On the question of 
the assumption of obvious risks of hazardous employment, see 1 
U H. A. (X. S.) 272. As to servant's assumption of risk from 



78 APPELLATE COURT OP INDIANA. 



Model Automobile Co. t\ Sterling — 51 Ind. App. 78. 

latent danger or defect, see 17 L. R. A. (N. S.) 76. The queBtion 
of the rights of an employe to rely on statute requiring signal to 
be given by train approaching crossing is treated in 40 L R. A 
(N. S.) 1105. 



Model Automobile Company v. Sterling. 

[No. 7,571. Filed June 27, 1912.] 

1. Master and Servant. — 'Injury to Servant — Complaint — Theory. 
— Factory Act — Although a complaint by a servant for injuries 
received while making repairs to shafting which was suddenly 
put in motion, described the shafting as "defective", where it 
was manifest from other specific averments that the word "de- 
fective" was used in the sense that the shafting was unguarded, 
and it was averred that defendant had notice of the defect, with- 
out alleging plaintifTs want of knowledge thereof, such complaint 
Is on the theory of liability for failure to guard the shafting, as 
provided by §9 of the factory act (§8029 Burns 1908, Acts 1899 
p. 231. ) pp. 81, 82. 

2. Pleading. — Complaint, — Determination of Theory. — The nature 
of an action must be determined troiA the general character and 
scope of the pleading, and Isolated and detached allegations, not 
essential to support its main theory, will be disregarded, p. 82. 

3. Pleading. — Complaint, — Sufficieney. — Theory. — A paragraph of 
complaint must proceed on a single definite theory, and be good 
on that theory, or it will not be good at all. p. 82. 

4. Negligence. — Proximate Cause. — The proximate cause of an 
injury is the eflSclent cause, or tlie cause which originates and 
sets in motion the dominating agency that necessarily proceeds 
through other causes as mere instruments or vehicles In the 
natural line of causation to the result p. 82. 

5. Master and Servant. — Injury to Servant — Proximate Cause. 
— Com^lamt. — Sufficiency. — A paragraph of complaint in a serv- 
ant's action for personal injuries, based on the theory of a lia- 
bility under §9 of the factory act (§8029 Burns 1908, Acts 1899 
p. 231) requiring shafting, etc., to he properly guarded, which 
averred that while plaintiff was engaged in making repairs in 
and about defendant's shafting, the machinery was suddenly put 
in moti(m and caused such shafting to revolve against and strike 
plaintiff and hurl him to the floor, and which charged defendant 
with failure to install a guard "regulating the action and force 
of operation of said shafting", was insufficient, since it was not 
shown that the failure to guard the shafting was the proximate 
cause of the injury, p. 83. 



MAY TERM, 1912. 79 

Model Automobile Co. v, Sterliug — 51 Ind. App. 78. 

6. Pleading. — Inferences. — Inferences will not be indulged In favor 
of a pleading, it being presumed that a party's pleading is as 
strong in his fayor as the facts to sustain it will warrant, 
p. 83. 

7- MA9TEB AND Sebvattt. — Injury to Servant. — 'Negligence. — Conv- 
plaint, — ^A paragraph of complaint, for injuries to a servant, does 
not show negligence by merely alleging the removal of a certain 
clatch from defendants shafting, where it is neither averred 
that the clutch was necessary for the safety of employes, nor 
that the use of the shafting without such clutch was attended 
with more danger than when used with it, nor that its removal 
was an act of negligence on the part of defendant p. 85. 

S. Xeougence. — Complaint. — Allegations. — In common-law actions, 
based on negligence, the particular negligence relied on must be 
directly averred, or such facts must be stated as will compel the 
presumption or inference that such negligence was the proximate 
cause of the injury sustained, p. 85. 

9. Masteb and Servant. — Injury to Servant. — Defective MachiiV' 
cry. — Complaint. — yotice of Defect, — The complaint in a serv- 
ant's action for injuries, counting on a common-law liability, 
must aver that defendant had knowledge of the defect which 
caused the injury, and a want of such Isnowledge on the part of 
plaintiff. p.8a 

10. Masteb and Sebvant. — Injury to Servant. — Knowledge of De- 
fects. — Assumption of Risk. — Where defects are known by the 
servant, or are open and obvious to both the master and the 
servant, and the servant voluntarily continues in the service and 
incurs the hazards of such defects, he thereby assumes the perils 
thereof, and cannot recover for the injuries sustained therefrom, 
p. 86. 

11. Masteb and Sebvant. — Injury to Servant, — Negligence in 
Starting Machinery. — Complaint. — Sufficiency. — The complaint, in 
a servant's action for injuries, alleging that defendant ordered 
plaintiff to make certain repairs, and that to make them with 
safety it was necessary that the power operating the machinery 
should he cut off, that plaintiff requested defendant not to start 
the engine until word was received from him that the repairs 
were made, that plaintiff commenced work when the machinery 
was motionless, and that while at said work, and in a position 
made necessary therefor, defendant carelessly and negligently, 
without warning and without the knowledge of the plaintiff, sud- 
denly started the engine and machinery connected therewith into 
rapid motion, whereby plaintiff was thrown to the floor and In- 
jured, sufficiently charges defendant with notice of plaintiff*s 
dangerous position and with negligence in starting the machin- 
ery, p. 86. 



80 APPELLATE COTTRT OP INDIANA. 



^rodel Automobile Co. t\ Sterllng--51 Ind. App. 78. 

12. Appeau — Review, — Jlarmlcss Error, — Ruling on Demurrer. — 
Overruling a demurrer to a bad paragraph of complaint Is not 
reversible error, where It clearly appears that the verdict rests 
solely on the charge of negligence contained in a good paragraph, 
p. 87. 

13. Master and Servant. — Injury to Servant. — Negligence. — 
Pleading and Proof. — In an action by a servant against the mas- 
ter for personal Injuries, the charge of negligence that tlie mas- 
ter, after being requested not to do so, started the machinery 
while the servant was repairing it, whereby the servant was 
injured, is not supported by evidence showing that the request 
was made to one who was an employe, not of the master, but of 
the company which sold power to the master, and that such 
employe started the machinery at the direction of the iwwer 
company, p. 87. 

From Miami Circuit Court; Joseph N. Tillett, Judge. 

Action by Thomas J. Sterling against the Model Automo- 
bile Company. From a judgment for plaintiff, the defendant 
appeals. Reversed. 

Antrim <& McCUntic, for appellant. 

V. E. Kagy and Frank D. Butler, for appellee. 

Adams^ p. J. — This action was brought by appellee against 
appellant to recover damages for personal injuries alleged 
to have been received while in the employ of appellant, and 
by reason of appellant's negligence. The complaint is in two 
paragraphs. The first paragraph counts on a statutory lia- 
bility on the part of appellant, under §9 of the factory act 
(Acts 1899 p. 231, §8029 Burns 1908). The second para- 
graph counts on a common-law liability for injury due to 
appellant's negligence in failing to furnish appellee a safe 
place in which to work. 

Issues of law were formed by separate demurrers to each 
paragraph of the complaint, on grounds that neither para- 
graphs states facts sufficient to constitute a cause of action 
against appellant. The demurrers were overruled by the 
court, and such rulings are the first errors assigned and re- 
lied on for reversal. 

» 

The first paragraph of complaint, after setting out the 



MAY TEEM, 1912. 81 

Model Antoniol)ile Co. v. Sterling — 51 Ind. App. 78. 

relation of the parties, the position, connections and purpose 
of certain shafting in appellant's factory, proceeds as 
1. follows: "That during all of said time as aforesaid 
there was and existed a defect in said shafting used 
and being operated by defendant company as aforesaid, 
which said defect was known by the said defendant company, 
it consisting in the absence of a guard regulating the action 
and force of operation of said shafting, which said guard 
defendant company had negligently, carelessly and unlaw- 
fully failed to provide, construct and supply as required by 
law; that it was practical in the operation and use of said 
shafting as aforesaid to so guard the same, and that said 
guard and protection upon said shafting and machinery 
would not render the same practically useless for the purpose 
intended in its operation and connection with the machinery 
of said manufacturing establishment; that on the 23d day 
of November, 1908, this plaintiff was employed by and work- 
ing for defendant company at said factory, and had been 
so employed and engaged in working thereat for said com- 
pany some time previous to said date ; that by virtue of the 
said employment it was required of him to work at and about 
the machinery of said factory, and said shafting, and that on 
said day, while in the course of said employment, plaintiff 
at the direction of defendant company was engaged in and 
about said shafting and making repairs upon the same ; that 
without the knowledge of plaintiff said shafting and machin- 
ery was suddenly and with great force, by the power fur- 
nished and used in the operation of the same at the direction 
and under the control of the defendant company, started up 
and put in operation without said guard or other safety 
attached thereto, and did by reason thereof, and on account 
of the carelessness, negligence and failure of defendant com- 
pany to guard and protect said shafting as aforesaid, cause 
said machinery and said shafting to strike against and rc- 
volye upon plaintiff to such extent and in manner and form 
Vol. 51—6 



82 APPELLATE COURT OP INDIANA. 

Model Automobile Co. v. Sterllug — 51 Ind. App. 78. 

to throw and hurl him therefrom and to the floor of the 
building in which said machinery was located.'' We think 
this paragraph of complaint is clearly on the theory of lia- 
bility for failure to guard shafting, as provided by the fac- 
tory act of 1899, supra. While the shafting is described as 
** defective", it is manifest from other specific averments of 
the paragraph that the word ** defective'* was used in the 
sense that the shafting was unguarded. 

It has been so often declared, as to become almost ele- 
mental, that the nature of an action must be determined from 
the general character and scope of the pleading, and 

2. that isolated and detached allegations, not essential 
to support its main theory, will be disregarded. It is 

3. also well settled that a paragraph of complaint must 
proceed on a single definite theory, and be good on 

1. that theory or it will not be good at all. That this 
paragraph of complaint was not designed to charge a 
common-law liability also appears from the fact that while 
it is averred that appellant had notice of the defect, it is not 
averred that the defect was unknown to appellee. This 
would have been a necessary averment, had appellee intended 
to state a common-law cause of action for negligence. Reli- 
ayice Mfg. Co. v. Langley (1908), 41 Ind. App. 175, 177, 82 
N. E. 114. 

The (luestion then arises, Is the first paragraph good when 

considered as stating a statutory liability for failure to 

guard shafting? The answer to this question depends on 

whether the facts averred show that the failure to guard w^as 

the proximate cause of the injury. Proximate cause 

4. has been defined as the efiicient cause, or the cause 
which originates and sets in motion the dominating 

agency that necessarily proceeds through other causes as 
mere instruments or vehicles in the natural line of causation 
to the result. Chicago, etc., R. Co. v. Dinius (1908), 170 
Ind. 222, 231, 84 N. E. 9 ; New York, etc., R. Co. v. Hamlin 



MAY TERM, 1912. 83 



Model Automobile Co. u. Sterling — 51 Ind. App. 78. 

;1908), 170 Ind. 20, 36, 83 N. E. 343, 15 Ann. Cas. 988; 
Pennsylvania Co. v. Congdon (1893), 134 Ind. 226, 33 N. E. 
795, 39 Am. St. 251 ; BiUma/n v. Indianapolis, etc., R. Co. 
;1881), 76 Ind. 166, 40 Am. Rep. 230. 

It will be noted that the complaint does not state that ap- 
pellee was injured by coming in contact with the unguarded 
shafting. It is averred that while appellee was en- 
3. gaged in making repairs in and about said shafting, 
the machinery, without his knowledge, was suddenly 
put in motion, which caused it to revolve against and strike 
appellee, and hurl him to the floor. Again, it will be noted 
that appellant is charged with failure to install a guard 
"regulating the action and force of operation of said shaft- 
ing'*. It does not appear from this averment what sort of 
guard was contemplated by appellee, but whatever form of 
guard was intended, still the declared purpose of the same 
vas "regulating the action and force of operation of said 
shafting". For any other purpose, it will be assumed 
6. that there was no need of a guard. Inferences will 
not be indulged in favor of a pleading. The rule is 
that a party 's pleading is as strong in his favor as the facts 
to sustain it will warrant. Pein v. Miznerr (1908), 170 Ind. 
659, 665, 84 N. E. 981. 

From the facts directly averred in the first paragraph, it 
is not shown that the failure to guard was the proximate 
cause of the injury complained of. There was, there- 
5. fore, no right of recovery on this paragraph of com- 
plaint, and the demurrer thereto should have been 
sustained. A review of the decided cases requiring this 
holding would unduly extend this opinion, and serve no good 
purpose. A mere citation of the cases will suflSce. P. H. & F. M. 
R'^ts Co. V. Meeker (1905), 165 Ind. 132, 137, 73 N. E. 253 ; 
Chicago, etc., jB. Co. v. Dinius, supra; Crawford & McCrim- 
mn Co. V. Gose (1909), 172 Ind. 81, 83, 87 N. E. 711 ; South- 
(tn R, Co. V. Sittasen (1906), 166 Ind. 257, 266, 76 N. E. 973, 



84 APPELLATE COUET OP INDLINA. 

Model Automobile Co. v. Sterling — 51 Ind. App. 78. 

and cases cited; City of Logansport v. Kihm (1902), 159 
Ind. 68, 71, 64 N. E. 595 ; Billman v. Indianapolis, etc., B. 
Co., supra; PennsylvaaUa Co. v. Congdon, supra; New York, 
etc., R. Co. V. Hamlin, supra. 

The second paragraph of complaint is based on the com- 
mon-law liability for negligence. The part of the complaint 
charging negligence is as follows: **That the power sup- 
plied for the operation of said machinery is connected by a 
long and extended shafting which, when in operation, starts 
the machinery in said establishment by the motion and revo- 
lution of said shafting as aforesaid; that previous to the 
date hereinafter stated there was attached to and operated 
with said shafting, and as a part thereof, a certain guard, 
commonly called a clutch, in such manner as when desired in 
the safety of the operation of said machinery and the em- 
ployes of said establishment, the power and force communi- 
cated by means of such shafting, to said machinery, could 
and was disconnected and stopped through the use and ma- 
nipulation of said guard and clutch, as connected therewith 
to said shaft, without stopping the engine which furnished 
the power to move said machinery as aforesaid ; that there- 
after said guard was, at the direction of defendant company, 
removed and rendered useless and of no account in the opera- 
tion of said shafting and in the movement of said machinery 
as connected with said power plant; that the bents, wheels 
and machinery connected with said shafting, on account of 
its continued use, became defective, and it was necessary to 
repair the same ; that this plaintiff on the 23d day of Novem- 
ber, 1908, and for a period of time previous thereto, was 
engaged in the employment of said company, working in and 
about said factory, and was on said day, at the direction of 
said company, ordered to repair said defective machinery ; 
that in order to make said repairs with safety to himself as 
directed, it became and was necessary that the power and 
engines used in communicating the same by means of said 



MAY TERM, 1912. 85 

Model Automobile Co. v. Sterling — 51 Ind. App. 78. 

shafting to said machinery remain quiet and still, and plain- 
tiff requested of said company and the agent thereof in 
ehai^e of the same not to start the engina and to move said 
shafting and machinery until he received word from him, 
and said repairs were made as directed ; that while said en- 
gineg and machinery were motionless, plaintiff began the 
construction of said repairs, and was in a position made nec- 
essary to perform said work in the line of his duty on a lad- 
der resting against and about said casting, several feet 
from the fk>or of the room in which the same was located ; that 
while in said position, engaged in the work as aforesaid, the 
defendant company carelessly, negligently, unlawfully, wil- 
fully and purposely, without warning and without knowl- 
edge of this plaintiff, suddenly started said engine, shafting 
and machinery connected therewith into rapid and violent 
motion, by means of which plaintiff was hurled to the floor'', 
resulting in the injuries complained of. There is an attempt 
in this paragraph to charge negligence in two particulars: 
(1) By the removal of a certain clutch, whereby the power 
oould be disconnected from the machinery without stopping 
the engine, and (2) in starting the engine without the 
knowledge of appellee. 

It is not averred that the clutch was necessary for the 

safety of employes, or that the use of the shafting without 

the clutch was attended with more danger than when 

7. used with the clutch. If the removal of the clutch did 
not involve increased danger, no negligence is shown 

in that regard. Moreover, there is no averment that the re- 
moval of the clutch was an act of negligence on the part of 
appellant 

In common-law actions, based on negligence, the particular 

negligence relied on must be directly averred, or such facts 

must be stated as will compel the presumption or in- 

8. ference that such negligence was the proximate cause 
of the injury sustained. Pennsylvania Co. v, Marion 



86 APPELLATE COURT OP INDIANA. 

Moiiel Automobile Co. v. Sterling — 51 Ind- App. 78. 

(1885), 104 Ind. 239, 241, 3 N. E. 874; Laporte Carriage Co. 
V. Sullender (1905), 165 Ind. 290, 299, 75 N. E. 270. 

It is also the rule in actions of this kind, counting on a 

common-law liability, that the plaintiff must aver knowledge 

of the defect on the part of the defendant, and a want 

9. of such knowledge on his own part. In the paragraph 
of complaint before us, there is no averment that 

plaintiff did not know that the clutch had been removed. 
This is a fatal omission. Reliam,ce Mfg. Co. v. Langley, 
supra; Kentucky, etc., Bridge Co. v. Eastman (1893), 7 Ind. 
App. 514, 517, 34 N. E. 835 ; Indianapolis, etc.. Transit Co. 
V. Foreman (1904), 162 Ind. 85, 93, 69 N. E. 669, 102 Am. 
St. 185; Peerless Stone Co. v. Wray (1896), 143 Ind. 574, 
575, 42 N. E. 927. And where the defects are known by the 
servant, or are open and obvious to both master and 

10. servant, and the servant voluntarily continues in the 
service and incurs the hazards of such defects, he 

thereby assumes the perils thereof, and cannot recover for 
injuries sustained therefrom. Louisville, etc., B. Co. v. Kem- 
per (1897), 147 Ind. 561, 565, 47 N. E. 214, and cases cited. 
As to the negligence charged in the second paragraph of 
complaint on account of starting the engine without the 
knowledge of appellee, it does not appear by any di- 
ll, rect averment when the repairs were ordered to be 
made, or when they were actually made, after the or- 
der was given. But it is averred that defendant ordered the 
repairs, and that in order to make the same with safety, as 
directed, it was necessary that the power operating the ma- 
chinery should be cut off; that plaintiff requested defendant 
not to start the engine until word was received from him 
that said repairs were made as directed ; that plaintiff com- 
menced work when the machinery was motionless, and was 
in a position, made necessary to perform said work, on a 
ladder several feet from the floor; that while in said posi- 
tion, and engaged in said work, defendant carelessly and 



MAT TERM, 1912. 87 

Model Automobile Co. r. Sterling — 51 Ind. App. 78. 

negligently, without warning and without the knowledge of 
plaintiff, suddenly started the engine and machinery con- 
nected therewith into rapid motion, whereby plaintiff was 
thrown to the floor and injured. We think these averments 
sufficiently charge that appellant had notice of appellee's 
dangerous position, and was negligent in starting the ma- 
chinery without knowing that appellee had completed his 
work. We, therefore, hold that the second paragraph of com- 
plaint states a cause of action against appellant for negli- 
gence in starting the machinery. 

As it clearly appears that the verdict rests solely on this 
charge of negligence, the overruling of appellant's demur- 
rer to the first paragraph of complaint is not reversi- 

12. ble error. Bedford Quarries Co. v. Turner (1906), 38 
Ind. App. 552, 558, 77 N. E. 58 ; Pittsburgh, etc., R. 

Co. V. Warrum (1908), 42 Ind. App. 179, 182, 82 N. E. 934, 
84 N. B. 356 ; Conner v. Andrews Land, etc, Co. (1904), 162 
Ind. 338, 345, 70 N. E. 376 ; Illinois Cent. R. Co. v. Cheek 
(1899), 152 Ind. 663, 668, 53 N. E. 641; lAme City Bldg., 
etc^Assn. v. Black (1894), 136 Ind. 544, 549, 35 N. E. 829. 

Appellant also relies for reversal on the error of the 

13. court in overruling its motion for a new trial, and it 
is first insisted that the verdict of the jury is not sus- 
tained by sufficient evidence. 

In considering this specification of error, it is necessary to 
examine the record. The uncontroverted facts disclosed are 
that the factory building of appellant immediately adjoined 
the building of the Model Gas Engine Works, and was sepa- 
rated therefrom by a single partition wall, without doors or 
inside means of communication between the buildings. Ap- 
pellant and the Model Gas Engine Works were separate and 
distinct corporations. Appellant purchased its power from 
the Model Gas Engine Works, which was transmitted to the 
works of appellant by means of a line shaft extending 
through the partition wall and about thirty feet into appel- 



88 APPELLATE COURT OF INDIANA. 

Model Automobile Co. r. Sterling — 51 Ind. App. 78. 

lant s shops. The power plant was located in the building, 
and was the property of the Model Gas Engine Works, and 
the engineer was Loren Naylor. 

With the general verdict, the jury returned answers to 
three interrogatories. The jury, by its answer to the first 
interrogatory, found that the starting of the machinery by 
the engineer, without notice to appellee, was the proximate 
cause of the injury; by its answer to the second interroga- 
tory, it found that Loren Naylor at the time of the injury 
was in the employ of the Model Gas Engine Works, and by 
its answer to the third interrogatory, it found that said 
Naylor at the time of the injury was in the employ of appel- 
lant. 

There is no evidence whatever supporting the answer to 
the last interrogatory. Naylor himself testified that he was 
at the time of the injury in the employ of the Model Gas 
Engine Works, and was never in the employ of appellant. 
He also testified that appellee informed him that he was 
going to make certain repairs, and that he was not to start 
the machinery until appellee notified him. It is also shown 
by the evidence that when appellee was repairing the pulley 
on the line shaft, Naylor came into the automobile building, 
and inquired of appellee how soon he would be done, and 
was told that it would not be long, and that he would be ad- 
vised. Naylor returned to the Gas Engine building, and 
after waiting ten or fifteen minutes started the machinery 
on the order of the superintendent of the Model Gas Engine 
Works. 

It is obvious that no verdict against appellant for negli- 
gence charged in the complaint could be supported by this 
evidence. 

The judgment is therefore reversed, with instructions to 
the lower court to grant a new trial, with leave to appellee 
to amend his first paragraph of complaint if desired. 

Note. — ^Reported In 99 N. E. 51. See, also, nnder (1) 26 Cyc. 
ian2; (2) 31 Cyc. (58, 84, 116; (3) 31 C>x. IIG; (4> 20 Cyc. 4S9; 



MAY TERM, 1912. 89 

Ruber Mfg. Co. v. Blessing — 51 lud. App. 89« 

(5. 7) 26 Gyc 1386; (6) 31 C^e. 48; (8) 20 C?5rc. 569; (9) 26 Cyc. 
1380, 1307; (10) 26 Cyc. 1196, 1213; (11) 26 Cyc. 1390; (12) 31 
Cya 358; (13) 26 Cyc. 140a As to liability of master for injuries 
to servants while performing special service on his demand, see 
1*7 Am. St. 896. As to the duty and liability of a master with 
respect to guarding shafting, see 18 Ann. Cas. 652. 



The Huber Mantjfacjturing Company op 
Marion, Ohio, v. Blessing et al. 

[No. 7,669. Filed June 27, 1912.] 

1. Appeal. — Assignment of Errors. — Consideration of Errors, — 
Briefs. — ^Alleged error in overruling a demurrer to an answer 
cannot be considered where neither the demurrer, nor its sub- 
stance, nor any statement of the record presenting the error thus 
relied on, is contained in appellant's brief, p. 01. 

2. Appeal. — Assignment of Errors. — Conclusions of Laic. — Briefs. 
—An assignment of error challenging the trial court's conclusion 
of law cannot be considered on appeal, where it is not referred 
to in appellant's brief under "points and authorities", nor in the 
argument p. 01. 

3. Xew Trial. — Grounds. — Rultng on Demurrer. — The action of 
the court In overruling a demurrer is not cause for a new trial. 
p. 91. 

4. Xew Tkialw — Grounds. — Ruling on Motion to Strike Out. — Over- 
ruling a motion to strike out parts of an answer is not available 
fts ground for a new trial, p. 02. 

Ti. Appeal. — Revieia. — Admission of Evidence. — Briefs. — ^Any ques- 
tion as to the admissibility of evidence is waived, where no 
reference is made to the record in connection with the motion 
for a new trial, copied in appellant's brief, and such brief neither 
sets out the objections, nor indicates by pages and lines, or other- 
wise, the places in the record where the testimony in question, 
the objection and exception, and the ruling of the court, may 
be found, p. 02. 

^ Appeal. — Re^tc. — Searching Record. — ^Appellate tribunals will 
not search the record to reverse a judgment, but may do so to 
affirm it p. 03. 

7. Afpeau — Review. — Harmless Error, — Admission of Evidence. — 
While the admission of improper material evidence over objec- 
tion Is error, the admission of that which Is immaterial, unim- 
portant and of no influential consequence, as a rule on appeal, 
win not be considered as having influenced the jury, and there- 
fore c'annot l)c made the basis of reversible error, p. 03. 



90 APPELLATE COURT OP INDIANA. 



Iluber Mfg. Co. r. Blessing — 51 Ind. App. 89. 

S. Trial. — Reception of Evidence. — Objections. — ^Unless offered evi- 
dence is on ibj face clearly incompetent, an objection thereto 
that it is incomr>etent, immaterial and Irrelevant is not siitii- 
ciently specific to be available and the overruling of same is not 
error, p. U'X 

I). Tkial. — Reception of Evidence. — Objections. — ^It is not error to 
overrule a general objection to offered evidence, where any part 
of such evidence is not subject to the objection, p. 93. 

10. Appeal — Review, — Ihrjision. — Sufficienei/ of Evidence. — On ap- 
I>eal the court will look only to the evidence and the inferences 
to be drawn therefrom most favorable to the decision of the trial 
court, in determining whether the decision is sustained by suffi- 
cient evidence, p. 94. 

11. Sales. — Warranty. — Notice of Breech. — Waiver, — ^Notice to the 
seller of a breach of warranty in accordance with the terms of 
the contract may be waived by the seller, p. 90. 

12. Corporations. — Auents, — Xotiee to Agent, — Notice to an agent 
of a corporation relating to any matter of which he has the 
management and control, is notice to the corporation, p. 96. 

13. Appeal. — Review. — Weighing Evidence, — The court cannot 
weigh the evidence on appeal, p. 97. 

From Howard Circuit Court ; Lex J. Kirkpatricky Judge. 

Action by The Huber Manufacturing Company of Marion, 
Ohio, against Samuel D. Blessing and others. From a judg- 
ment for defendants, the plaintiflE appeals. Affirmed. 

E. A, Mock, for appellant. 

K. T, Teter and Blacklidge, Wolf & Barnes, for appel- 
lees. 

Myers, J. — Appellant brought this action against appel- 
lees to enforce the payment of three promissory notes, and 
to foreclose a chattel mortgage on a traction engine, given 
to secure the payment of the notes. 

The complaint was in three paragraphs, to which an an- 
swer in four paragraphs was filed. Iteply in general denial. 
The issues thus joined were submitted to the court for trial, 
and at the request of the parties the court made a special 
finding of facts and stated its conclusions of law thereon in 
favor of defendants, and rendered judgment that plaintiff 



MAY TERM, 1912. 91 

Huber Mfg. Co. v. Blessing — 51 Ind. App. bi), 

take nothing by this action, and that defendants recover 
from plaintiff their costs. 

Appellant assigned error on the action of the court in 
overruling its demurrer to each paragraph of answer. Ap- 
pellees make the point that these errors cannot be 

1. considered, for the reason that appellant in its brief 
has not set out the demurrer, nor the substance there- 
of, nor so stated the record as to present the errors thus re- 
lied on. A careful examination of appellant's brief compels 
the conclusion that the point made by appellees is well taken, 
and must be sustained. Collins v. Wilber (1910), 173 Ind. 
361, 89 N. E. 372; Knickerbocker Ice Co. v. Gray (1905), 
165 Ind. 140, 72 N. E. 869, 6 Ann. Cas. 607 ; Chicago Ter- 
minal, etc., B. Co. V. Walton (1905), 165 Ind. 253, 74 N. E. 
1090; Holliday v. Anheier (1910), 174 Ind. 729, 93 N. E. 1; 
Miedreich v. Frye (1908), 41 Ind. App. 317, 83 N. E. 752; 
Albaugh Bros., etc., Co. v. Lynas (1911), 47 Ind. App. 30, 
93 N. E. 678; First Nat. Bank v. Savin (1911), 47 Ind. App. 
266, 94 N. E. 347. 

The court's conclusion of law is challenged by an assign- 
ment of error. This error cannot be considered, because not 
referred to in appellant's brief under the head of 

2. ** Points and Authorities", nor in its argument. 
Hinkle v. State (1910), 174 Ind. 276, 91 N. E. 1090. 

Appellant's motion for a new trial, assigning thirty-six rea- 
sons in support thereof, was overruled, and this ruling is as- 
signed as error. 

Causes three to six, inclusive, are based on the action of 
the court in overniling appellant's demurrer to each para- 
graph of answer, and are not causes for a new trial. 

3. Dauhenspeck v. Daubenspeck (1873), 44 Ind. 320; In- 
dianapolis, etc., B. Co. V. Smytke (1873), 45 Ind. 322 ; 

Hicks V. Reigle (1869), 32 Ind. 360; Eerron v. Herron 

lb8:j), 91 Ind. 278 ; Hardison v. Mann (1898), 20 Ind. App. 

^34, 50 N. E. 899; Helberg v. Ilammond Bldg., etc, Assn. 



92 APPELLATE COURT OF INDD^A. 

Uuher Mfg. Co. r. BleRsing — 51 Ind. App. 80. 

(1903), 31 Ind. App. 58, 67 N. E. Ill ; Denman v. McMahin 
(1871), 37 Ind. 241. 

Causes seven to ten, inclusive, have reference to the rul- 
ings of the court in refusing to strike out parts of each para- 
graph of the answer. These rulings are not available 

4. as grounds for a new trial. City of New Albany v. 
White (1885), 100 Ind. 206; Ward v. Bateman 

(1870), 34- Ind. 110; Milliken v. Ham (1871), 36 Ind. 166; 
Shafer v. Bronenberg (1873), 42 Ind. 89; Ohio, etc, R. Co. 
V. Ilemberger (1873), 43 Ind. 462; Hamilton v. Elkins 
(1874), 46 Ind. 213; Leiter v. Jackson (1893), 8 Ind. App. 
98, 35 N. E. 289; Bement v. May (1893), 135 Ind. 664, 675, 
34 N. E. 327, 35 N. B. 387. 

Causes eleven to fourteen, inclusive, are covered by assign- 
ment two, which is that * * the decision of tlie court is not sus- 
tained by sufficient evidence." §585 Burns 1908, subd. 6, 
§559 R. S. 1881. 

Causes fifteen to thirty-six, inclusive, relate to the admis- 
sion of evidence. The evidence in this case covers 206 type- 
written pages of the record. Appellant in its brief, 

5. following the name of each witness, but without refer- 
ence to pages and lines of the record, has furnished 

in narrative form the evidence said to have been given by 
the witness at the trial of this cause. No reference is made 
to the record in connection with the motion for a new trial, 
copied in the brief, wherein only the questions and answers 
affirmed to be objectionable appear, nor does the brief set 
out the objections, nor indicate by pages and lines, or other- 
wise, the places in the record where the testimony in ques- 
tion, the objection and exception, and the ruling of the court 
may be found. These omissions in appellant's brief must be 
regarded as a waiver of any question as to the admissibility 
of evidence. Harrold v. Fuenfstueck (1903), 31 Ind. App. 
275, 67 N. E. 699; City of Michigan City v. Leeds (1900), 24 
Ind. App. 271, 272, 55 N. E. 799 ; Memphis, etc,. Packet Co, 



MAY TERM, 1912. 93 

Huber Mfg. Co. v. Blessing— 51 Ind. App. 89. 

v.Pitey (1895),142Ind. 304,40N. E. 527; VandaliaR. Co, 
V. Keys (1910), 46 Ind. App. 353, 91 N. E. 173 ; M. 8. Huey 
Co. s.Johnstan (1905), 164 Ind. 489, 73 N. E. 996; Chicago, 
€ic.,R. Co, V. Wysor Land Co. (1904), 163 Ind. 288, 69 N. E. 
546; Albaugh Bros., etc, Co. v. Lynas, supra. 

In this State, appellate tribunals will not search the record 

to reverse a judgment, but may do so to affirm it. Because 

of this settled practice, the brief of appellant must 

6. aflfirmatively show error. In this case appellees, in 
some instances, have supplied the defects in appel- 
lant's brief. Where this has been done, we have considered 
the questions argued, but find the objections to the questions 
so general and indefinite as to render them insufficient. It 

has been held that the admission of improper material 

7. evidence over objection is error. But the admission 
of evidence immaterial, unimportant and of no in- 
fluential consequence, as a rule, on appeal, will not be con- 
sidered as having influenced the jury, and therefore cannot 
be made the basis of reversible error. Weik v. Pugh (1883), 
92 Ind. 382; Metzger v. Franklin Bank (1889), 119 Ind. 
;i59, 21 N. E. 973; Baldwin v. Runyan (1893), 8 Ind. App. 
344, 35 N. E. 569; Shewalter v. Hamilton Oil Co. (1902), 28 
Ini App. 312, 62 N. E. 708 ; Mortgage Trust Co. v. Moore 
(1898), 150 Ind. 465, 50 N. E. 72. 

There may be cases where the offered evidence, on its face, 

is clearly incompetent, but unless it certainly so appears — 

and in this case it does not — the overruling of an ob- 

8. jection thereto, on the ground that it is incompetent, 
immaterial and irrelevant, is not error, for the reason 

that such objection is not sufficiently specific to be available 

'K€4sling v. Doyle [1893], 8 Ind. App. 43, 35 N. E. 126; 

hknsonv. Brown [1892], 130 Ind. 534, 28 N. E. 698; Metz- 

ger v. Franklin Bank, supra); neither is it error to 

9. overrule a general objection to the evidence where any 
part of it is not subject to the objection. McGuffey v. 

^I^riain (1892), 130 Ind. 327, 30 N. E. 296. 



94 APPELLATE COURT OP INDIANA. 



Huber Mfg. Co. r. Blessing — 51 Ind. App. 81). 

The remaining causes for a new trial, one and two, that 
the decision of the court is contrary to law, and not sustained 
by suflBcient evidence, in view of appellant's brief depend 
entirely on whether there is any evidence to sustain any one 
or more of the paragraphs of answer, which proceed on the 
theory of a breach of warranty. 

We have called attention to the omissions in the brief 
proper of appellant, which, if. we were inclined strictly to 
enforce the rules, would preclude any further attention to 
these last two assignments. But in view of the earnest argu- 
ment of counsel for appellant, and the issues submitted to 
the court for trial, we have carefully considered the evi- 
dence furnished by counsel in their briefs in connection with 
the testimony disclosed by the record. 

Keeping in mind that in determining the present question, 

we are to look only to the evidence and the inferences to be 

drawn therefrom most favorable to the decision of the 

10. court, we cannot say, as a matter of law, that any 
material fact necessary to a finding in favor of appel- 
lees is without evidence to support it. The steam traction 
engine, which was the consideration for the giving of the 
notes in suit, was, by written order, purchased from appel- 
lant, August 31, 1907. This order was addressed to The 
Huber Manufacturing Company, Marion, Ohio, and was for 
*'One 16 Horse Power Huber Traction Old Style Rebuilt 
at Inplis engine". It contained the following statement: 
**THE ORIGINAL OF THIS ORDER TO BE FOR- 
WARDED TO THE HUBER MANUFACTURING CO., 
MARION, OHIO, AND IS SUBJECT TO ITS APPROV- 
AL." On September 19, 1907, appellees met agents of ap- 
pellant at Tipton, Indiana, the place of delivery of the en- 
gine, and made settlement therefor by the execution of the 
notes and mortgage in suit. Fx)llowing the settlement for the 
engine, it was unloaded from the car on which it was shipped, 
the boiler filled with water, and fired up. The agent of ap- 



MAY TERM, 1912. 95 

Huber Mfg. Co. r. Blessing— 51 lud. App. 89. 

pellant, after some trouble on account of its defective condi- 
tion, ran the engine to the corporate limits of the city of 
Tipton, where it was turned over to appellees. Under proper 
and experienced management appellees were able to run it 
over a level road for a distance of about three miles, when, 
on account of its condition for want of repairs, faulty ma- 
terial and workmanship, it was not able to go farther. The 
next day the agent of appellant, from whom the engine was 
purchased, adjusted some of its parts, after which appellees 
finally succeeded in running it to the home of appellee 
Slewing. It appears that appellant had a branch house in 
Indianapolis, and at the time the order was given, the en- 
gine was in the warehouse of this branch. Some time prior 
to the giving of the order, appellees were in Indianapolis, and 
fl^ere shown the engine by appeUant's representative in 
charge of the branch, and he was informed as to the work 
the engine was expected to do, and appellees were assured by 
said representative that the engine was capable of doing the 
work desired. There is plenty of evidence in the record tend- 
iflg to show that said engine would not furnish more than 
from eight to ten horse power ; that it was not a rebuilt en- 
gine as ordered, and as indicated by its general appearance. 
The only use appellees had for the engine during the fall 
of 1907 was to furnish power to run a corn shredder, requir- 
iiig about an eight horse power engine. When the time came 
so to use it, appellees found it would not successfully do the 
<»'ork. True, the engine was used four or five days by run- 
ning it a few hours at a time, and then stopping for repairs. 
Alwut that time appellees proposed to the agents of appel- 
•^t, to whom they gave the order, that they would return 
the engine to the place where they received it, and requested 
a return of the notes. But by promises and assurances from 
appellant's representatives and agents that the company 
^oold make a satisfactory adjustment of the matter, they 
^ere induced not to return the engine, and allowed it to re- 



96 APPELLATE COURT OF LXDIANA. 

Iluber Mfg. Co. i\ Blessing — 51 iDd. App. f^O. 

main in their possession. The matter continued unadjusted 
until the threshing season, the latter part of the following 
July, when it was found that the engine did not have sufQ- 
cient power to run a threshing separator. The matter was 
then taken up with appellant's Indianapolis branch, and 
new flues were furnished. On attempting to make these re- 
pairs, it was discovered that certain parts of the engine were 
missing. Later, appellees were informed that .the engine was 
not one that had been rebuilt, and they immediately notified 
appellant at Marion, Ohio, that the engine was not as de- 
scribed in the order, or as represented when purchased by 
them. The evidence further tends to show that it was not 
a sixteen horse power engine ; that it was old, worn out, un- 
fit for use and worthless. Attached to the order was appel- 
lant's warranty, to the effect that the engine was made of 
good material, well constructed, and, with proper use and 
management, capable of doing well the work for which^t was 
made and sold. In case the engine was not as warranted, no- 
tice of the defects was to be given appellant at Marion, Ohio, 
within a certain time, and according to a specified method. 
AppeUant contends there is no evidence showing notice 
to it in accordance with the terms of the warranty. This 
was a matter which appellant might waive, and from 

11. all the facts and circumstances disclosed by the record 
waiver of notice by appellant might be inferred. The 

agents who made the sale knew, and, it may be inferred from 
the evidence, appellant's representative in charge of 

12. its branch house, also knew that the engine never did 
comply with the warranty in any respect. If it may 

be said that the sale was not complete until the seller made 
the engine comply with the warranty (Port Huron Engine, 
etc., Co. V. Smith [1898], 21 Ind. App. 233, 52 N. E. 106), 
as in this case it attempted to do, but wholly failed, such 
facts make a case within the rule ''that notice to an agent of 
a corporation relating to any matter of which he has the man- 



MAY TERM, 1912. 97 

Habbard v. Burnet-Lewis Lumber Co. — 51 Ind. App. 97. 

agement and control, is notice to the corporation." Port 
Huron Engine, etc., Co. v. Smith, supra. 

We have attempted to make only a few suggestions as to 
what the evidence in this case tends to prove, for the pur- 
pose of showing that the matters and questions in- 

13. volved must of necessity be determined by weighing 

the evidence, and this we cannot do. From an exam- 

inatioQ of this record we are convinced that the conclusion of 

the trial court on the questions presented must be regarded 

as final. 

Judgment affirmed. 

XoTE.— Reported In 99 N. B. 132. See, also, under (1, 5) 2 Cyc. 
1014; (2) 2 Cyc. 1014; 3 Cya 388; (3, 4) 29 Cyc. 761; (6) 3 Cyc 
419; (7) 38 Cyc. 1411; (8) 38 Cyc. 1386; (9) 38 Cyc. 1376; (10) 
3 rye 360; (11) 35 Cyc 427; (12) 10 Cyc. 1054; (13) 3 Cyc. 360. 
As to when a notice to an agent is notice to the principal, see 24 
Am. SL 228. 



Hubbard v. Bubnet-Lewis Lumber Company. 

[No. 7,700. Filed June 28, 1912.1 

1- Appeal. — Vacation Appeal. — Parties. — To give the court juris- 
diction of a vacation appeal, all the parties to the judgment ap- 
pealed from must be made parties to the appeal, p. 99. 

2. Appeal. — Vacation Appeal. — Pwrtiea. — Parties defendant against 
whom a mechanic's lien was foreclosed are not necessary parties 
to a vacation appeal taken by a co-defendant from a personal 
lodgment reiulered against him alone in the action, since a re- 
vasal of such personal judgment could not in any way affect 
their rights, pp.99, 100. 

3. Appeal. — Parties. — ^Where an action Is brought against several 
^fendnnt.s, and a judgment is rendered against one or more of 
them and In favor of the others, those against whom the judg- 
ment is rendered may appeal without joining the other defend- 
ants as appellants, p. 99. 

4. Appeal. — Sufficiency of Gompiatnt. — Review. — Right to Ohject. 
—Appellant cannot object to the sufficiency of the complaint on 
the gronnd that the facts are not sufficient to constitute a cause 
of action for the foreclosure of a mechanic's lien, where he dis- 
daimed any Interest in the property against which the lien was 

Vol. 51—7 



98 APPELLATE COURT OF INDIANA. 

Hubbard v. Burnet-Lewis Lumber Co.— <)1 Ind. App. 97. 

enforced, and the complaint stated sufficient facts to Justify a 
I)ersonal Judgment, whidi was the only form oif Judgment ren- 
dered against him. p. 100. 

5. Appeal. — Briefs. — Questions Present€d.-^Ruling on Motion for 
Neu> Trial. — Where appellant falls to set out in his brief a copy 
of the motion for a new trial, or Its substance, no question on the 
overruling of such motion is presented for consideration, p. 100. 

G. Mechanics' Liens. — Enforcoment. — Attorney's Fees. — Personal 
Judgment. — Where, in an action on an open account and to fore- 
close a mechanic's lien, appellant had disclaimed any interest in 
the property against which the lieu was sought to be enforced, 
and a decree of foreclosure was rendered against his oodefend- 
ants in the amount of the claim and an additional sum for attor- 
ney's fees, and a personal Judgment was rendered against appel- 
lant for tlie same amount, the court erred in including in such 
I)erBonal Judgment the amount found to be due plaintiflf for attor- 
ney's fees. p. 100. 

« 

From Superior Court of Marion County (78,213) ; Pliny 
W. Bartholomew, Judge. 

Action by the Burnet-Lewis Lumber Company against 
Willard W. Hubbard and others. From a judgment for 
plaintiff, the defendant, Hubbard, appeals. Affirmed con- 
ditio^rually. 

Emrick i& Deupree, for appellant. 

D. A. Myers, H. A. Fenton and J. T. Lecklider, for appel- 
lee. 

LAmY, J. — ^Appellee brought this action on an open ac- 
count to recover the price of certain lumber and to foreclose 
a mechanic's lien. The complaint alleges that defendants 
William L. Davis, Willard W. Hubbard, Walter J. Hubbard 
and Eugene F. Manns formed a partnership for the purpose 
of making repairs on a certain described building and con- 
ducting a skating rink therein under the name of the Ma- 
jestic Skating Bink Company ; that the lumber, for the price 
of which this action is brought, was sold and delivered to 
this partnership. The complaint also contains averments in 
reference to a lease from the owners of the real estate to de- 
fendant Manns for the benefit of the partnership, and also 



MAY TERM, 1912. 99 

Hubbard v. Burnet-Lewis Lumber Co, — 51 Ind. App. 97. 

to the filing and recording of a mechanic's lien which plain- 
tiff seeks to foreclose. The owners of the real estate were 
made parties defendant, as well as all of the members of the 
alleged copartnership. A personal judgment was rendered 
against Willard W. Hubbard alone, and a decree was entered 
foreclosing the lien against the leasehold interest. From this 
judgment appellant prosecutes this, as a vacation appeal, 
without joining any of hirf codefendants. 

We are first confronted with a motion to dismiss the ap- 
peal, on the ground that all the parties to the judgment are 
not made parties thereto. It has frequently been held 

1. that in order to give this court jurisdiction of a vaca- 
tion appeal all the parties to the judgment appealed 

from must be made parties to the appeaL Shuman v. Col- 
lis (1896), 144 Ind. 333, 43 N. E. 257; Denke-Walter v. 
Loeper (1895), 142 Ind. 657, 42 N. E. 358. 

The record in the case shows that appellant, Willard W. 

Hubbard, was the only defendant against whom a personal 

judgment was rendered. It is insisted in his behalf 

2. that he has no interest in the judgment foreclosing 
the lien, that the personal judgment against him may 

be reversed without alBfecting such decree of foreclosure, and 
that, therefore, the parties defendant against whom the lien 
^as foreclosed are not necessary parties to this appeal. 

The judgment appealed from was in favor of appellee and 
^igainst appellant Hubbard, but the finding and judgment 
was in favor of all the other defendants. 

Where an action is brought against several defendants, and 

a judgment is rendered against one or more of them and in 

favor of the others, those against whom the judgment 

3. is rendered may appeal without joining the other de- 
fendants as appellants, for the reason that such other 

defendants have no interest in the judgment which appel- 
lants ask to reverse. Southern R, Co. v. Elliott (1908), 170 
Ind. 273, 82 N. B. 1051 ; Town of Windfall City v. First Nat. 



100 APPELLATE COURT OP INDIANA. 

Hubbard v. Bumet-Lewls Lumber C!o.— 61 Ind. App. 97. 

Bank (1909), 172 Ind. 679, 87 N. B. 984, 89 N. B. 311; /w- 
dianapolis Traction, etc., Co. v. Holtzclaw (1907), 40 Ind. 
App. 311, 81 N. E. 1084. 

The reason underlying the cases just cited applies to the 

question here presented. Appellant is endeavoring by this 

appeal to reverse the personal judgment rendered 

2. against him, in which his codefendants in the trial 

court have no interest whatever. A reversal of this 

judgment cannot affect their rights in anyway, and they are 

therefore not necessary parties to this appeal. 

The suflSciency of the complaint is questioned by assign- 
ment of error. The complaint states facts sufficient to show 
a personal liability on the part of appellant and to 

4. justify a personal judgment against him. As this 
was the only form of judgment entered against appel- 
lant, and as he disclaims all interest in the property against 
which the lien was enforced, he is in no position to object 
to the sufficiency of the complaint on the ground that the 
facts are not sufficient to constitute a cause of action for the 
foreclosure of the mechanic's lien. 

Appellant assigns as error that the court erred in over- 
ruling his motion for a new trial, but he has failed in his 
brief to set out a copy of such motion or to give its 

5. substance. This assignment of error therefore pre- 
sents no question for our consideration. Isanogle v. 

Russey (1910), 174 Ind. 245, 91 N. E. 938; Hall v. McDon- 
ald (1908), 171 Ind. 9, 85 N. B. 707. 

The court found that there was due plaintiff, on the ac- 
count sued on, from Willard W. Hubbard the sum of 
$410.31, and that plaintiff held a mechanic's lien 

6. against the leasehold interest and the improvements 
made upon the buildings under a lease from defend- 
ants Kothe to defendant Manns; that there was due plain- 
tiff on said lien the sum of $410.31 and also the further sum 
of $25 as and for attorney's fees. The court thereupon en- 
tered a personal judgment against appellant, Willard W. 



MAY TERM, 1912. 101 

Hubbard r. Burnet-Lewis Lumber Co. — 51 Ind. App. 97. 

Hubbard, for the sum of $435.31, and also entered a decree 
foreclosing the mechanic's lien against the leasehold inter- 
est and the improvements made thereunder in the same 
amount. The court also made an order that the lien be 
transferred to the funds in the hands of defendant Cook, as 
receiver of the Majestic Skating Bink Company, and fur- 
ther ordered that whatever part or portion of said judg- 
ment should not be paid out of the funds in the hands of 
such receiver should be made by execution from the prop- 
erty belonging to appellant. 

Appellant moved the court to modify the personal judg- 
ment against him, by reducing the same $25, for the reason 
that plaintiff was not entitled to recover an attorney's fee 
a^inst him personally, but was entitled to recover such fee 
only as against the property on which the lien was foreclosed. 
It is clear that this motion should have been sustained, and 
that the personal judgment should have been reduced to 
$110.31, that being the amount due on the account in suit. 

It is insisted by appellee that the error of the court in 
overruling this motion was harmless, for the reason that the 
finding shows that defendant David L. Cook was, in another 
action, duly appointed receiver of the leasehold interest of 
Eugene F. Manns who was doing business under the style 
of the ifajestic Skating Bink Company, and that such re- 
ceiver had sold the leasehold interest and the improvements 
made thereunder, which are covered by the decree of fore- 
closm^ in this action, and that he had received therefor the 
sum of $495, which money was at the time in the hands of 
such receiver. 

As heretofore stated, the decree provided that the funds 
in the hands of the receiver should be first applied to the 
payment of the judgment in this case, and that the balance 
should be collected from appellant personally. 

If, after paying the expenses of his trust and other supe- 
rior claims, the receiver will have money remaining which 
'^n be applied to the payment of this judgment, in obedi- 



102 APPELLATE COURT OP INDIANA. 

Willan r. Richardson— 51 Ind. App. 102. 

ence to the decree entered in this case ; and if the amount so 
remaining is or will be equal to, or in excess of, the amount 
of the attorney's fee included in the personal judgment 
against appellant, and if such amount has been paid on said 
judgment or will be available for that purpose, then no harm 
could result to appellant from the ruling on this motion. 

It does not appear from the record in this case, however, 
that any part of the money in the hands of such receiver has 
been paid on this judgment, or that any part of it will be 
available for such purpose. The personal judgment against 
appellant is $25 more than it should be. This error should 
be corrected. 

It is therefore ordered that the judgment of the lower 
court be aflSrmed at the costs of appellee, subject to the con- 
dition that appellee will within thirty days from this date 
enter on the judgment of the court below, as of the date of 
such judgment, a remittitur of $25, and file the certificate 
of the clerk of such court with the clerk of this court that 
such remittitur has been so made, otherwise judgment is 
reversed at cost of appellee. 

Judgment aflSrmed. 

Note.— Reported In 98 N. E. 1011. See, also, under (1) 2 Cye. 
757; (3) 2 Cyc. 758; (4) 3 Cyc. 233; (5) 2 Cyc. 1014; (6) 27 
Cyc. 402. 



Willan v. Richardson, Trustee, et al. 

[No. 7,850. Filed June 28, 1912.] 

1. Schools and School Districts. — Location of Schoolhouse. — 
Injunction, — Parties, — County Superintendent. — ^Where the county 
superintendent had granted a petition to change the location of 
a schoolhouse, under §6417 Burns 1908, Acts 1893 p. 17, provid- 
ing for the change of location of schoolhouses on petition of the 
township trustee and a majority of the patrons, he was not a 
necessary party to a suit thereafter brought to enjoin the taking 
of plaintiff's land and the building of a schoolhouse thereon, 
since by law he had no power or authority to do either, p. 104. 



MAY TERM, 1912. 103 

Willan r. Richardson— 51 Ind. App. 102. 

1 Appeal. — Review. — Harmless Error. — Ruling on Demurrer. — 
Where matters pleaded in a special answer could have been 
provetl under the general denial, the action of the court in over- 
ruling a demurrer thereto, even If erroneous, was harmless, p. 1()."». 

3. Schools and School Distbicts. — Location of Svhoolhomr. — 
Action to Enjoin. — Ansicer, — Where the complaint in an action 
to enjoin tlie relocation of a schoolhoiise, on the theory that the 
order of the county superintendent changing the location was 
granted on a i)etition that was not signed by a majority of the 
patrons of the school, as required by §6417 Burns 1908, Acts lst)3 
p. 17, alleged that withdrawals by three persons were filed on the 
day that the petition was finally ruled on by the county sui)tT- 
Intendent, a paragraph of answer alleging that a remonstrance 
on which plaintiff relied had been executed without authority, 
and that rescissions of withdrawals had been filed to offset with- 
drawals, was proper, p. 105. 

4. Schools and School Districts. — Uigh Schools. — District 
Schools.— Patrons.'-VnaeT §6583 Burns 1908, Acts 1907 p. 323 
and |«j02 Bums 1908, Acts 1907 p. 146, the state board of educa- 
tion prescribes a uniform course of study for noncommissioned 
high schools, and recognizes as noncommissioned high sch(x>1s 
tliose schools following such course, so that a school that is not 
commissioned, or that has not complied with the law for non- 
commissioned high schools, must be deemed merely a district 
9(*hool, although high school subjects are taught therein, and 
the patrons of such school are the patrons of the district, p. 10(1 

5. Schools and School Distbicts. — District Schools. — Patrons. — 
Location of Schoolhouse. — In any year the patrons of a school 
within the meaning of §6417 Burns 1908, Acts 1803 p. 17, requir- 
ing the petition for change and relocation of a school building to 
be signed by a majority of the patrons of the school, are the 
legal patrons living in the district who were enumerated In April 
"f that year, or who have made satisfactory proof that they are 
actually the parents, guardians or custodians of children of school 
age living in the district, though not enumerated, p. 106. 

•'«. tScHooLS AND ScHOOL DISTRICTS. — District Schools. — Patrons. — 
Persons living in a school district In July and August, though 
not enumerated, and having children of school age whom they 
intend to send to school in the district the following winter, aie 
patnMis of the district, p. 107. 

". Schools and School Districts. — Location of School House. — 
Withdrawals from Petition. — Revocation of Withdraicals. — ^Thcre 
Is the siame power to revoke a withdrawal from a petition under 
t<>il7 Bums 1908, Acts 1893 p. 17, to change the location of a 
sehoolhoase, as there Is to withdraw a signature, p. 109. 



104 APPELLATE COURT OP INDIANA. 

Willan r. Hichardsoii— 51 Tiul. App. 102. 

8. Appeal. — Review. — Decision, — Issues of Fact, — The appellate 
court is not aiithorlssed to change the decislMi of the trial court 
ou Issues of fact, where there Is evidence to supjwrt the decision, 
p. 109. 

From Johnson Circuit Court ; William E. Deupree, Judge. 

Action by Robert Ray Willan against Sanford A. Rich- 
ardson, Trustee of Hensley School Township, and others. 
From a judgment for defendants, the plaintiff appeals. 
Affirmed. 

Robert M. Miller, Henry C. Barnett and L. Ert Slack, for 
appellant. 

Miller & White and White dk Owens, for appellees. 

Tbacii, J. — ^Appellant sued appellee Richardson as trustee 
of Hensley School Township, Johnson county, also Hensley 
School Township, Johnson county, also appellee "Webb, coun- 
ty superintendent of schools of Johnson county, permanently 
to enjoin them from moving and relocating a schoolhouse, 
and taking possession of appellant's real estate and con- 
structing a schoolhouse thereon. The court granted a tem- 
porary restraining order, which was dissolved at the time 
judgment was rendered, and the permanent injunction was 
denied. The complaint is based on the theory that the order 
of the county superintendent changing the location of the 
schoolhouse was granted on a petition which was not signed 
by the trustee and a majority of the patrons of the school, 
as reciuired by §6417 Burns 1908, Acts 1893 p. 17. 

It is first argued that the demurrer of appellee Webb to 

the complaint should not have been sustained. Appellant 

has not brought this before us by a proper assigii- 

1. ment of error, neither does he cite authority to sup- 
port his position. However, the acts sought to be en- 
joined are the taking of appellant's land and the building 
of a schoolhouse thereon, and the county superintendent has, 
by law, no power nor authority to do either. He granted the 
petition of the patrons, which caused a condemnation suit 



MAT TERM, 1912. 105 



WUlan V. Rlchardson~<61 Ind. App. 102. 



to be brought against the property, but that being done, he 
had nothing to do with its enforcement, and was not a nec- 
essary party to the suit. 

It is next argued, but again without citation of authority, 
that appellant's demurrer to the second and third para- 
graphs of appellee's answer should have been sus- 

2. tained. The court held the second paragraph suffi- 
cient, because certain facts therein averred were a 

special denial of the allegations in the complaint, that a 
high school existed in the school sought to be removed, and 
so far it was good as a partial answer. Even if this holding 
had been erroneous, the facts alleged could all have been 
proved under the general denial, filed as a first paragraph 
of answer, and no harm could have resulted to appellant 
from the court's ruling. 

It was pleaded in the complaint that certain withdrawals 

by three persons from the petition for relocation of the 

schoolhouse were filed on August 3, 1909, when the 

3. petition was finally ruled on by the county superin- 
.tendent. In the third paragraph of answer it was 

pleaded that the petition was set for hearing on July 24, 
that to accommodate appellant's attorneys the hearing was 
postponed until August 3, on their agreeing that they would 
file no further remonstrances or withdrawals ; that on Au- 
gust 3 there was filed the rescission of withdrawals by three 
I«*rsons who had withdrawn on July 24, and that these had 
Jwn considered by the county superintendent to offset the 
withdrawals filed on August 3 ; also, that a certain remon- 
strance filed by plaintiff, purporting to be executed by the 
agt;nt of certain parties, had been executed without author- 
ity. It was clearly proper to answer that a remonstranc^e 
on which plaintiff relied had been executed without author- 
ity, and that rescissions of withdrawals had been filed to 
offset withdrawals, and the pleading is sufficient as a partial 
answer. 
The important questions to be decided in this appeal arise 



106 APPELLATE COURT OP INDIANA. 

Wlllan r. Richardscm— 51 Ind- App. 102. 

on the sufficiency of the evidence to support the decision, 
assigned under the motion for a new trial, and the 

4. first of these is: Was there a high school in said 
building sought to be removed, and are parents of 

children attending any part of said school, who live out of 
the district, and have been enumerated in other districts, 
patrons of the school? Appellant alleged in his complaint 
that there was a noncommissioned high school conducted in 
the building, and introduced evidence to show that some 
high school subjects were taught in it, and that some chil- 
dren who were enumerated in other districts were among 
those who were studying high school subjects. Appellant 
contends that the school is a high school, and that a ma- 
jority of the patrons of the high school must sign the peti- 
tion for relocation, to make it sufficient. 

The only conclusion from the evidence is, that although 
some high school subjects were taught in the school, it was 
not a commissioned nor a noncommissioned high school. 
Under §§6583, 6602 Burns 1908, Acts 1907 p. 323, Acts 1907 
p. 146, the state board of education prescribes a uniform 
course of study for noncommissioned high schools, and rec- 
ognizes as noncommissioned high schools those schools fol- 
lowing this course, and it was unmistakably shown in evi- 
dence that the school in question did not follow this course, 
and was not recognized as a noncommissioned high school. It 
has been held by the Attorney-General of the State, and we 
think rightly, that if a socalled high school has not com- 
plied with the law for noncommissioned high schools, or is 
not commissioned, it must be deemed merely a district school, 
and that as there, is no statute which refers to a patron of a 
high school, the patrons of such a school are the patrons of 
the district. 

In the case of Ireland v. State, ex reL (1905) , 165 Ind. 377, 
75 N. E. 872, it is held that under the present statute 

5. the parent, guardian or custodian is not transferred 
from one school corporation to another for educa- 



MAY TERM, 1912. 107 

Willan t\ Richardson — 51 Ind. App. 102. 

tional purposes, but only the child. Following this decision, 
we hold that those persons who are enumerated in other dis- 
tricts are not patrons of the school to which the children are 
'jansferred, within the meaning of §6417, supra, which re- 
quires the petition for change and relocation of a school 
building to be signed by a majority of the patrons of the 
i^hool. We hold that in any year the patrons of a school, 
^rithin the meaning of §6417, supra, are the legal patrons 
living in the district w^ho were enumerated in April of that 
vear, or who have made satisfactory proof that they are 
actually the parents, guardians or custodians of children of 
school age living in the district, though not enumerated. 

The next question is whether a majority of the actual pa- 
trons of the school signed the petition in controversy. This 
petition, as presented to the county superintendent, 
6. was signed by thirty-eight persons. It was agreed in 
evidence that fifty-five persons were enumerated in 
April, 1909, as patrons of the school district; that two of 
these — ^Atkinson and Kennedy — ^were not in July, at the 
time of filing the petition, and on August 3 when it was 
filially acted on, such patrons; that two others who signed 
the petition — Naile and Wolf, not enumerated — ^lived in the 
district in July and August, and had children of school age, 
whom they intended to send to school in the district the fol- 
lowing winter. These latter two must be held to be in fact 
patrons. Appellant contends that one Bridges, guardian of 
certain children, who was enumerated, and who signed the 
petition, was not a patron; also offered evidence to prove 
that one Nichols, who signed the petition, but who was not 
enumerated, was in fact a patron. Subtracting from those 
enumerated Atkinson and Kennedy, adding Naile and Wolf 
as patrons in fact, and for the present not counting Nichols 
or Bridges as patrons, we have fifty-four actual patrons. Of 
the thirty-eight signers, it was agreed that Atkinson was not 
a patron, and that six of the signers, including Nichols, filed 
withdrawals of their names on July 24, the day fixed by no- 



108 APPELLATE COURT OP INDIANA. 

Wlllan r. Richardson— 51 IncL App. 102. 

tice for the hearing of the petition. Appellees contend that 
the remaining thirty-one names should be counted as on the 
petition. Appellee Richardson signed as **S. A. Richardson, 
trustee", and appellant contends that this is not a sufficient 
signing as trustee and patron both. Richardson testified 
that he signed in both capacities, and intended to bind him- 
self in both. Section 6417, supra, requires that he sign as 
trustee in order to make the petition sufficient. In the view 
which we shall take of the case, it will be unnecessary to 
decide whether he should be counted as a patron, for exclud- 
ing his name, and that of Bridges, without deciding whether 
the latter should be considered a patron, twenty-nine names 
are left on the petition on July 24, a clear majority, even if 
all those contested should be held to be patrons. 

There are holdings in somewhat analogous cases, that with- 
drawals from a petition after the date set for hearing will 
not aflfect the jurisdiction. But the case of Carnahan v. 
State, ex rel. (1900), 155 Ind. 156, 57 N. E. 717, seems to 
hold that withdrawals from petitions for change or reloca- 
tion of a schoolhouse may be made at any time before the 
superintendent acts on the petition, yet in that case it does 
not appear that the day of hearing was ever postponed, or 
that tlie withdrawals were filed after the day first set for 
hearing, as in the present case. Granting, however, for the 
l)urpose of discussion, but without deciding, that, since the 
statute does not fix a specified time for the hearing of such 
questions, but leaves it optional with the county superin- 
tendent to fix a day, he would have the same right to post- 
pone or delay the hearing to a later day, and that during 
that extended period the parties interested might take such 
additional steps with reference to their names on the peti- 
tion as they might desire, yet, in such a view of the case, 
we would have to hold that the names of a majority of the 
patrons were on the present petition as signers when it was 
finally acted on. On August 3 appellant filed three further 
withdrawals, and appellees filed three rescissions of with- 



MAY TERM, 1912. 109 

Willan r. Richardson— 51 In<l App. 102. 

drawals filed on July 24. All the authorities which 

7. we have found on the subject of rescission of with- 
drawals hold that there is the same power to revoke 

a withdrawal from a petition that there is to withdraw it, 
and that a revocation will be effective at any time when a 
withdrawal would be effective. So we think that in the view 
that there was a right to withdraw after the date first set 
for hearing, these later withdrawals were met by the revoca- 
tion of withdrawals, leaving at least twenty-nine names on 
the petition on August 3. Slingerland v. Norton (1894), 59 
Minn. 351, 61 N. W. 322; State, ex rel, v. Geib (1896), 66 
ilinn. 266, 68 N. W. 1081 ; Snedeker v. In re Sims Special 
Drainage Dist, (1906), 124 IlL App. 380; In re Taxpayers 
of Tomi of Greene (1870), 38 How. Pr. (N. Y.) 515. 

Certain other errors have been assigned, but many of these 

have been waived by failure to argue, and none of the others, 

even if errors, would be material, in view of the holdings 

above made. The important questions sought to be 

8. reviewed by this appeal are largely issues of fact, and, 
as we have seen, the decision of the court in regard 

thereto is supported by the evidence, and so far as they are 
issues of fact, this court is not authorized to change the deci- 
sion of the trial court, where that decision is supported by 
the evidence. 
Judgment affirmed. 

Note. — ^Reported in 98 N. E. 1094. See, also, under (1) 29. Cyc. 
010-91 Anno.; (2) 31 Cyc. 358; (5) 85 Cyc. 936; (8) 3 Cyc. nm. 



110 APPELLATE COURT OP L\ DIANA. 



Lake Erie, etc., R. Co. v, Moore — 51 Ind. App. 110. 



Lake Erie and Western Railroad Company 

i;. Moore. 

[No. 7,83a Filed January 26, 1912. R^earing denied June 28, 

1912.] 

1. Railroads. — Crossing Accidents. — Contributory Negligence. — 
Burden of Proof. — In an action for injuries sustained In a rail- 
road crossing accident, contributory negligence is a matter of 
defense and the defendant lias the burden to establish that fact 
p. 115. 

2. Railroads. — Crossing Accidents. — Contributory Negligence. — 
Oeneral Verdict. — ^In an action against a railroad company for 
injuries sustained in a crossing accident, a general verdict for 
plaintlfT amounts to a finding tot plaintiff as to all the essential 
facts stated in the complaint, and against defendant on the ques- 
tion of contributory negligence, p. 115. 

3. Railroads. — Crossing Accidents. — Anstoers to Interrogatories. — 
General Verdict. — ^Where the complaint, In an action to recover 
for injuries sustained in a railroad crossing accident, alleged 
that plaintiff proceeded carefully toward the crossing, the Jury's 
answers to interrogatories showing that plaintiff stopped and 
listened for an approaching train, but not how far he then was 
from the crossing, and also showing that by stopping and listen- 
ing attentively when within eight feet of the sidetraclc he could 
have heard the train, but could not have seen it before entering 
on the sidetrack, and that he looked and listened as he ap- 
proached the crossing, but that neither was available on account 
of obstructions, are not sufficient, as a matter of law, to show 
that plaintiff was guilty of contributory negligence, so as to over- 
come a general verdict for plaintiff, pp. 116, 117. 

4. Railroads. — Crossing Accidents. — Duty of Traveler Approach- 
ing Crossing, — Only exceptional circumstances require the pre- 
caution to stop. In addition to the traveler's duty to look and 
listen on approaching a railroad crossing, p. 117. 

5. Railroads. — Crossing Accidents. — Contributory Negligence. — 
Instructions. — ^In an action for Injuries sustained in a railroad 
crossing accident, an instruction that while It was plaintiff's duty 
to look and listen for approaching trains at all available points 
before entering upon the crossing, he was not guilty of contribu- 
tory negligence, if he constantly looked and listened as he ap- 
proached the crossing, and if, by reason of obstructions and the 
company's failure to give warning signals and the i^ipid speed 
of the train, he was unable in the exercise of due care to see or 



MAY TERM, 1912. Ill 

Lake Erie, etc., li. Co. r. Moore — 51 Ind. App. 110. 

hear the train until he was upon the railroad track, was not 
objectionable, since it made plaintiff's negligence to depend not 
alone uiK>n certain conditions and omissions which prevented 
iilm from seeing or hearing the train in time to avoid the col- 
lision, but also upon the fact of his exercising due care, which 
includes, in a proper case, the duty to stop. pp. 118, 119. 

6. Railboads. — Travelers Approaching Crossings, — Care Required. 
— ^A traveler on a public highway, before entering upon a railroad 
grade crossing must look and listen for approaching trains, and 
if he is injured by reason of his own neglect in this respect, the 
fault Is prima facie his own, and may be so declared as a matter 
of law; and exceptional circumstances may require him to stop 
as well as to look and listen, but his duty to stop must be deter- 
mined by applying the rule of care measured by the conduct of 
an ordinarily careful and prudent person in like situation, 
p. 118. 

7. Appeal. — Review. — Harmless Error, — Instructions, — Even 
though an instruction may be erroneous, where it appears from 
the record that the jury was not misled, nor the ultimate result 
influenced by a misapprehension thereof, it is within §700 Burns 
1908, §658 R. S. 1881, prohibiting reversals where it appears that 
the merits of the cause have been fairly tried and determined in 
the court below, p. 119. 

8. Rahjioads. — Grade Crossing, — Care Required, — Where railroad 
tracks cross a public highway at a grade, those who operate the 
trains, and the travelers on the highway, are each chargeable 
with due care with respect to the rights of the other, and the 
company operating its trains over such crossing must give timely 
warning of approach so that travelers on the highway may, by 
the exercise of ordinary care, avoid collision therewith, p. 119. 

9. RAII.BOADS. — Crossing Accident, — Care Required, — Instructions, 
— In an action for injuries received in a railroad crossing acci- 
dent an instruction which after stating the duty of plaintiff in 
approaching the crossing told the jury that it was the defend- 
ant's duty to give timely warning of the approach- of its train to 
the plaintiff while approaching the crossing, is not open to the 
objection that it required defendant to make plaintiff aware of 
the train's approach in time to enable him to avoid the injury, 
regardless of his position or conduct, pp. 119, 121. 

10. Railroads. — Crossing Accident, — Care Required, — Instructions, 
— Where, in an action against a railroad company for injuries sus- 
tained in a crossing accident, there was no claim that defendant 
used any means to warn travelers approaching and intending to 
pass over the crossing, other than by sounding the whistle or 
ringing the bell on its locomotive, or that plaintiff was in anv 
other manner warned of the approaching train, an instruction 



112 APPELLATE COURT OF INDIANA. 

Lake Erie, etc., R. Co. v. Moore — 51 Ind. App. 110. 

that if the whistle was sounded as a station signal^ but was not 
sufficient to warn plaintiff, and no other signal in the way of 
sounding the whistle or ringing the bell was given, defendant's 
duty in that regard was not fully discharged so as to relieve it 
from liability to give further signals, was proper, p. 120. 

11. Appeal. — Review. — Harmless Error, — Instructions. — In an ac- 
tion for injuries received in a railroad crossing accident, an in- 
struction that defendant had the right to occupy the street with 
Its tracks and to run its trains over them, but that this right was 
not exclusive, and that the running of its train at a high rate of 
speed over the crossing, without giving reasonable notice and 
warning of its approach, by ringing a bell or sounding a whistle, 
would make it liable to plaintiff if Injured without contributory 
negligence while lawfully using the street and crossing, though 
technically incorrect in falling to connect the stated omissions 
with the Injury, was harmless, since It must have been under- 
stood that the court had reference to the injury proximately 
caused by defendant's act in running its train at a high rate of 
speed and its omission to ring the bell or sound the whistle, 
p. 121. 

12. Afteau— 'Review. — Instructions. — ^An instruction which was 
not within the evidence, and the giving of which would have 
tended to confuse the Jury, was properly refused, p. 122. 

13. Appeal, — Review, — Verdict. — Evidence. — A verdict will not be 
disturbed on the ground that it is not sustained by sufficient evi- 
dence, where no essential fact to sustain the same is without 
legal evidence to support It p. 122. 

14. Raelboads. — Crossing Accident. — Tridl. — Admissibility of Evi- 
dence. — Where witnesses resided near the railroad and were 
familiar with the surroundings, with the running of the trains 
in that locality, and had frequently heard the sound of the whistle 
and bell, their testimony as to where the train was when it 
whistled and as to its speed, was properly admitted in an action 
to recover for Injuries sustained In a crossing accident p. 123. 

15. Railroads. — Crossing Accident. — Witnesses. — Cross-Examina- 
tion^ — ^Where, in an action against a railroad company for in- 
juries received in a crossing accident, the engineer testified on 
direct examination as to the speed of the train at the time of 
approaching the crossing, his testimony, given on cross-examina- 
tion, as to the average speed of the train between certain stations, 
was properly admitted as affecting the weight to be given his 
testimony, p. 123. 

16. Appeal. — Review,-^Harmless Error. — Admission of Evidence. 
— Instructions. — In an action against a railroad company for In- 
juries sustained In a crossing accident, the admission of testi- 
mony regarding the flagman, watchman and gate at the crossing. 



MAY TERM, 1912. 113 

Lake Erie, etc., R. Co. f. Moore — 51 Ind. App. 110. 

eren If Improper, was rendered harmless by an instruction that 
there was no ordinance requiring defendant to maintain a flag- 
man, watchman or gate and that it would not l>e liable for any 
failure in that respect p. 123. 

Prom Hamilton Circuit Court; Meade Vestal, Special 
Judge. 

Action by Burney Moore against the Lake Brie and West- 
ern Railroad Company. Prom a judgment for plaintiff, the 
defendant appeals. Affirmed, 

John B. Cocknim and Shirts & Fertig, for appellant. 
/. F. Neal, Phil J. Fariss and F. G, Christian, for appel- 
lee. 

Mters, J. — ^Appellee sustained personal injuries in a col- 
lision with one of appellant's trains at Cass street crossing, 
in the town of Cicero. In an action to recover damages for 
such injuries, judgment was rendered in the court below 
in favor of appellee and against appellant. From that judg- 
ment appellant has appealed to this court, assigning as er- 
rors, (1) the overruling of its motion for judgment on the 
answers to interrogatories, and (2) the overruling of its 
motion for a new trial. 

This cause is here for the second time. Lake Erie, etc., R. 
Co. V. Moore (1908), 42 Ind. App. 32, 81 N. E. 85, 84 N. E. 
506. The complaint alleges negligence of appellant, (1) in 
running its engine and train of cars against appellee ami* 
his team and carriage, with great force and violence ; (2) in 
nmning its engine and train of cars at a high and dangerous 
rate of speed, to wit, thirty miles an hour, across Cass street, 
which was **much used by the traveling and general pub- 
lic*'; (3) in failing and omitting to sound a whistle or ring 
a bell, or to give any warning, notice or signal of the ap- 
proach of said engine and train of cars toward said crossing ; 
that appellant had and maintained at said crossing no watch- 
man, flagman, person, gatc^ or other means of notifying 
Vol. 51—8 



114 APPELLATE COURT OF INDIANA. 

Lake Erie, etc., R. Co. v. Moore — 51 Ind. App. 110. 

plaintiff or other travelers on Cass street of the approach 
of engines and cars toward and over said crossing. 

The answers of the jury to fifty-six interrogatories, in sub- 
stance, show that at the time of the accident, which occurred 
in the daytime on December 26, 1903, appellant maintained 
one main track, and one side-track across Cass street, in the 
town of Cicero. These tracks were parallel, the center of 
the side-track being thirteen feet east of the center of the 
main track, and north of Cass street they were not ** practi- 
cally straight" for 300 feet. On the north side, and front- 
ing on said street, eight feet east of the side-track and twen- 
ty-three and one-half feet east of the main track, there was 
a mill and elevator. Two box-cars and one coal-car were 
standing on the side-track. One of -the box-cars extended 
about ten feet south of the elevator. These cars, mill and 
elevator increased the danger of the crossing. Appellant's 
only means of signaling the crossing was by ringing 
the bell on the locomotive, or sounding the whistle. The 
whistle was sounded at the usual whistling post, at the 
bridge at the north corporate limits of the town, and was 
not sounded at the private road crossing about 300 yards 
north of Cass street. The bell was not ringing from a point 
at least 200 feet north of, nor whdn the engine reached the 
crossing. The train which collided with appellee came from 
the north, and was one hour behind its regular schedule time 
• for arrival at Cicero. Appellee knew the schedule time for 
its arrival, and thaj; it was late, and had no reason to be- 
lieve that it had passed the crossing, and might have had 
reason to believe that it was approaching the crossing from 
the north. He was a person of ordinary intelligence, had 
good eyesight and hearing, and on said day was familiar 
with the location of said crossing, tracks, buildings and 
structures. lie approached the crossing on Cass street from 
the east, and when on the east side of Peru street he stopped 
and listened for an approaching train. He did not stop 
when within ten feet of the side-track, nor when between 



MAY TERM, 1912. 115 

Lake Erie, etc., R. Co. v. Moore — 51 Ind. App. 110. 

said two tracks. As he approached and entered on the cross- 
ing, he had full control of his horses, and the collision was 
not caused by the horses stopping or plunging forward with- 
out plaintiff's command. "When sixty feet from the crossing, 
he was driving at a slow trot, about three miles an hour, and 
continued at that speed until near the side-track, when he 
drove in a walk across the side-track and the main track. 
Had he stopped when directly south of the west line of the 
elevator shed, and listened attentively, he could have heard 
thp train, and by remaining at that point would have avoid- 
ed the injury. When appellee was on a line with the west 
side of the elevator, the train was 300 feet north of the cross- 
ing, and he did not hear it, because of obstructions, nor 
could he, when within from fifteen to sixty-five feet of the 
crossing, have heard a train approaching from the north 
within a distance of 400 feet of the crossing. He could 
not, at any time before entering upon the side-track, although 
he looked, have seen the train on the main track, on account 
of the box-cars, mill and elevator. He could not, by listen- 
ing attentively, have heard it until within a few feet of the 
main track, unless he had stopped at a point fifteen feet east 
of the crossing, nor could he have avoided the injury by 
stopping and listening while he was between the main track 
and the side-track. 

It is claimed that the answers of the jury show that appel- 
lee was guilty of contributory negligence. In support of 
this claim it is argued that his failure to stop and 
L listen attentively at places available for hearing, be- 
fore di^iving upon the crossing, is decisive of the ques- 
tion against appellee. In this class of cases contributory 
negligence is a defense, and the burden is on the defendant 
to establish that fact. In this case the general ver- 
2. diet amounts to a finding in favor of appellee as to 
all the essential facts stated in the complaint, and 
against appellant on the question of contributory negligence. 
The jury specially found that when appellee was on the 



116 APPELLATE COURT OP INDIANA. 

Lake Erie, etc., B. Co. v. Moore — 51 lud. App. 110. 

east side of Peru street, he did stop and listen for an 
3. approaching train. The distance between this stop 
and the crossing is not found. The answers also show 
that by stopping and listening attentively when directly 
south of the west line of the elevator shed, or within about 
eight feet of the side-track, he could have heard the train, 
but that he could not have seen it before entering upon the 
side-track. As he approached the crossing, he did look and 
listen, but neither was available on account of obstructions. 
The complaint states that he was driving west on Cass 
street with a team of horses hitched to a carriage, in which 
carriage he was seated, and that he proceeded caref uUy and 
cautiously toward the crossing. From these facts, and the 
answers of the jury, the conclusion might be drawn that 
had appellee stopped and listened attentively when his 
horses were on the side-track, and approximately ten feet 
from the main track, he could have heard the train. Other- 
wise he did everything that might be expected from a pru- 
dent and cautious person under all the circumstances sur- 
rounding him at the time. If his failure to stop and listen 
when his horses reached a point less than ten feet from a 
passing train, and where he could not have seen an approach- 
ing train, was not the conduct of an ordinarily careful and 
prudent person, in view of the conditions there existing — 
and of this fact there could not be an honest difference of 
opinion among men of equal intelligence — then the question 
whether he used due care would not be one for the jury, 
and appellant's claim should be sustained. 

But the necessity for stopping arose only when the physi- 
cal surroundings made it difl&cult for him to see or hear an 
approaching train in time to avoid a collision. Appellee 
did stop, look and listen as he approached the crossing, bxit 
not after he passed the point opposite the west line of tlie 
elevator shed. That the place where he did stop ought to 
have been reasonably effective, is not denied. In view of 
the complaint and the answers of the jury, we cannot say, 



MAY TERM, 1912. 117 

Lake Erie, etc., R. Co. v. Moore — 51 Ind, App. 110. 

as a matter of law, the precise number of feet from the cross- 
ing he should have stopped and listened attentively, for the 
reason that they present a mixed question of law and fact, 
depending on the test. Did he exercise ordinary care, in 
view of the danger, in selecting the place? Malott v. Haw- 
kins (1902), 159 Ind. 127, 63 N. E. 308; Cleveland, etc., R. 
Co. V. Harrington (1892), 131 Ind. 426, 30 N. B. 37; Chi- 
cago, etc., R. Co. V. Turner (1904), 33 Ind. App. 264, 
4. 69 N. E. 484. Exceptional circumstances only reqtiire 
the precaution to stop, in addition to the traveler's 
duty to **look and listen*' exacted by the general rule espe- 
cially applicable to this class of cases. 

In this particular case, had appellant stopped a few sec- 
onds for any purpose at any point, as he approached the 
crossing, he would have avoided the collision, and 
3. again, had he approached the crossing more rapidly, 
in all probability, the accident would not have hap- 
pened. Again, had the train been farther away and not 
within his hearing, had he stopped, the time lost in stopping 
might have residted in a collision, as did his failure to stop. 
In our opinion, this is not a case controlled by that line of 
cases where the court can say as a matter of law that appel- 
lee did or did not, under all of the circumstances, use ordi- 
nary care to avoid injury. But it is ruled by cases made to 
depend on facts likely to aflfect differently the conduct of 
equally prudent persons placed in like situation, and there- 
fore the question of appellee's negligence or due care is not 
one of law, but one of fact for the jury, Stoy v. Loiiisvillc, 
dc, R. Co. (1903), 160 Ind. 144, 66 N. E. 615; Cleveland, 
ftc, R. Co. V. Harrington, supra; Baltimore, etc., R. Co. v. 
WaTbom (1891), 127 Ind. 142, 26 N. E. 207; Cincinnati, 
fie, R. Co. V. Grames (1893), 136 Ind. 39, 34 N. E. 714. 

The facts specially found by the jury are not in irrecon- 
cilable conflict with the general verdict. 

Appellant, in support of its motion for a new trial, in- 
sists that it was harmed by instructions three, three and one- 



118 APPELLATE COURT OP INDIANA. 

Lake Erie, etc., R. Co. v, Moore — 51 Ind. App. 110. 

half, four, five and six, given by the court at appellee's re- 
quest, by instruction one, given by the court on its own 
motion, by the court's refusal to give instruction twenty, 
requested by it, in permitting appellee to introduce certain 
testimony over its objection, and, also, that the verdict is 
not sustained by suflScient evidence. By instruction three 
the jury was told that ** while it was the duty of the 

5. plaintiff, before entering upon the crossing, to look 
and listen for approaching trains at any and all 

points where such looking and listening might enable him to 
see or hear an approaching train, yet if plaintiff was, as he 
approached said crossing, constantly looking and listening 
for an approaching train, and if, by reason of obstructions 
to his view and hearing, and failure to give warning signals 
and the high and rapid rate of speed of said train, the plain- 
tiff was not able in the exercise of due care to see or hear 
said train until he was upon the railroad track and too late 
to escape from his perilous position, then he was not guilty 
of negligence contributing to his injury. '* It is argued that 
this instruction was erroneous, because it failed to tell the 
jury that appellee should have stopped before entering upon 
the crossing; that it impliedly told the jury that appellee 
was not required to stop ; that it invaded the province of the 
jury by limiting it to the ''look and listen" rule. 

Under the particular circumstances of this case, the in- 
struction is well subject to criticism for lack of clearness, as 
well as doubtful comprehensiveness in stating the law on 
the subject it was intended to cover. A traveler on 

6. a public highway, before entering on a railroad grade 
crossing, must look and listen for approaching trains, 

and if he is injured in a collision with a train, by reason of 
his own neglect in this respect, the fault is prima fade his 
own, and it may be so declared as a matter of law. Excep- 
tional circumstances may require him to stop, as well as to 
look and listen, but in such cases no inflexible rule can be 
declared prescribing the circumstances making it his duty 



MAY TERM, 1912. . 119 

Lake Erie, etc., R. Co. v. Moore — 51 Ind. App. 110. 

to stop. Consequently, cases involving the question of the 
traveler's duty to stop must be determined by applying the 
rule of care measured by the conduct of an ordinarily care- 
ful and prudent person in like situation. By the instruc- 
tion under consideration, appellee's negligence was 
5. made to depend, not alone on certain conditions and 
omissions which prevented him from seeing or hear- 
ing the approaching train in time to avoid the collision, but 
on the further fact of his exercising due care, which includes, 
in a proper case, a duty to stop, a question for the jury in 
determining whether or not he exercised due care. "With 
this view of the instruction, and as we are convinced 

7. by the record that the jury was not misled, or the 
ultimate result influenced by a misapprehension of 

the instruction, the question is one within the statute against 
reversals, ** where it shall appear to the court that the merits 
of the cause have been fairly tried and determined in the 
court below. '^ §700 Burns 1908, §658 R. S. 1881. See Terre 
Haute, etc., ft. Co. v. Salmon (1905), 34 Ind. App. 564, 73 
X. E. 268; Indianapolis St. B. Co. v. Schomberg (1905), 164 
Ind. Ill, 72 N. E. 1041. 

Instruction three and one-half, after stating the 

8. duty of plaintiff in approaching the crossing, told the 
jury that it was the duty of defendant to give to 

9. plaintiff, while approaching said crossing, timely 
warning of the approach of its locomotive and train 

of cars on said railroad. This instruction is criticised on the 
ground that it required appellant to make appellee aware 
of the train 's approach in time to enable him to avoid a col- 
lision, regardless of his position or conduct, and as the stat- 
ute relating to signals at crossings applies to rural highway 
crossings only, and as there was no ordinance of the town 
requiring signals for street crossings, it was for the jury to 
say whether, in the exercise of reasonable care, any warning 
was required. 
It is a well known fact that the place where railroad 



120 APPELLATE COURT OP INDIANA. 

Lake Erie, etc., It. Co. v. Moore — 51 Ind. App. 110. 

tracks cross a public highway at grade is dangerous, and 
this fact is not alone open to a traveler on such highway, 
but to those who operate the trains as well, and each is 
chargeable with due care with respect to the rights of the 
other. The company operating its trains over such crossing 
must give timely warning of the approach of its locomotive 
and cars, so that travelers on the highway, intending to 
cross, may, by the exercise of ordinary care, avoid a collision 
with its trains. That appellee was a traveler on the high- 
way, is not questioned. It being the duty of appellant to 
signal highway travelers of its approaching trains, and ap- 
pellee being within that class, it owed him the duty to give 
warning of the approaching train. The language of this 
instruction is not subject to the inferences and construction 
appellant would have us place on it. Pittsburgh, etc., R. Co. 
V. Terrell (1912), 177 Ind. 447, 95 N. E. 1109; Lake Shore, 
etc., R. Co. V. Brown (1908), 41 Ind. App. 435, 84 N. E. 25 ; 
Pittsburgh, etc., R. Co. v. Lynch (1909), 43 Ind. App. 177, 
87 N. B. 40; Indianapolis, etc., R. Co. v. McLin (1882), 82 
Ind. 435; Cleveland, etc., R. Co. v. Miles (1904), 162 Ind. 
646, 70 N. E. 985; Cleveland, etc., R. Co. v. Carey (1904), 
33 Ind. App. 275, 71 N. E. 244. 

Instruction 4, in substance, informed the jury that if it 

believed from the evidence that the whistle on appellant's 

locomotive was sounded a half or three-quarters of 

10. a mile north of Cass street, as a station signal, and 
was not sufficient to warn appellee, who, in the exer- 
cise of due care, was approaching the crossing, and that no 
other signal or warning, in the way of sounding the whistle 
or ringing the bell, was given, appellant's duty in that re- 
gard would not be fully discharged so as to relieve it from 
all liability further to sound the whistle or to give warning 
or to put the train under control, or in some manner further 
protect appellee if he was about to use the crossing lawfully 
while exercising due care. 

There is no claim that appellant used any means to warn 



MAY TERM, 1912. 121 

Lake Erie, etc., IL Ck>. t?. Moore — 51 Ind. App. 110. 

travelers approaching and intending to pass over said cross- 
ing, other than by sounding the whistle or ringing the bell 
on its locomotives, or that on the occasion of the accident 
appellee was in any other manner warned of the approach- 
ing train. Therefore, if the whistle was not sounded, other 
than the whistle for the station, or the bell rung, and they 
were insufficient to warn travelers at Cass street, then it 
might be said as a matter of law that appellant had not 
fully discharged the duty which it owed to such travelers. 
This instruction was limited to the duty of appellant to give 
some reasonable warning of the particular train's approach 
to the particular crossing, and in that regard it was not 
misleading by the use of the words ** sufficient to warn plain- 
tiff'', or because it did not go further and make appellant's 
liability to appellee for injuries sustained by him depend on 
such neglect as the proximate cause thereof. For when this 
instruction is read in connection with other instructions, the 
law applicable to the cause was clearly presented to the jury, 
leaving no ground for appellant's objection. 

Instruction five told the jury that it was the duty of ap- 
pellant to give reasonable and timely warning of the ap- 
proach of such locomotive and cars to said street 
9. crossing, and a failure on its part to perform that 
duty would render it liable for damages caused there- 
by. This instruction is challenged, for the reasons stated 
in support of the objections urged against instruction three 
and one-half, and for the reasons given in support of that 
instruction this one was not erroneous. 

The substance of instruction sbc was that appellant had 
the right to occupy Cass street with its tracks, and to run its 
locomotives and cars over them, but that this right 
11. was not exclusive, and that the running of its loco- 
motive and cars at a high rate of speed over the 
crossing, without giving reasonable notice and warning of 
their approach, by ringing a bell or sounding a whistle, 
would make appellant liable to appellee if injured vrithout 



122 APPELLATE COURT OP INDIANA. 

Lake Erie, etc., It. Co. v, Moore — 51 Ind. App. 110. 

any fault or contributory negligence on his part, while law- 
fully using said street and crossing. 

Technically this instruction is incorrect, for failing unmis- 
takably to connect the stated omissions with the injury ; but 
taking the instruction as a whole, we are convinced that no 
reasonable person could have understood from the language 
used that the court had reference to any injuries sustained 
by appellee, other than those proximately caused by appel- 
lant's act in running its locomotive and cars at a high rate 
of speed, and its omission to ring the bell or sound the whis- 
tle. The error was therefore harmless. 

Instruction twenty was properly refused, on the ground 

that it narrated a number of facts from which the jury 

might infer that appellee did not stop and listen at 

12. a stated point, which was opposite the box-car stand- 
ing on the siding. It is not claimed that he did stop 

at this point. At that time he was driving at a slow walk, 
and had he stopped at the point fixed in the instruction, his 
horses' heads would have been within about one foot of the 
main track. As there was no claim that appellee stopped at 
the point fixed by this instruction, it was properly refused, 
for the further reason that it was not within the evidence, and 
the giving of it would have tended to confuse rather than 
to enlighten the jury. Whether appellee acted as a prudent 
and careful person in not stopping and listening at a point 
opposite said box-car, was submitted to the jury, and it was 
for it to say whether appellee exercised due care in not 
stopping. 

No error intervened by the giving of instruction one. 

It is also insisted that the verdict is not sustained by suffi- 
cient evidence, because the evidence shows that appellee was 
not free from fault. This insistence cannot be sus- 

13. tained, for after a careful examination of the evi- 
dence, we cannot say that any essential fact to sus- 
tain the verdict or judgment is without legal evidence to 
support it. 



MAY TERM, 1912. 123 

Lake Erie, etc., R. CJo. v. Moore — ^51 Ind. App. 110. 

Over appellant's objection, one witness was allowed to 

testify as to where the train was when it whistled, and to 

give his opinion as to the speed of the train ; another 

14. witness, to testify at what distance he could, at the 
time, have heard the whistle had it sounded, and that 

on the occasion of this accident he did not hear either the 
whistle or the bell. Another witness, the engineer on the 
locomotive which collided with appellee's carriage, testified 
as to tlie average speed between stations from Tipton, south, 
when under full speed, and as to the speed of the train when 
it crossed the bridge north of Cicero, and another witness 
testified that there was no flagman, watchman or gate at the 
crossing. The witnesses who testified as to where the train 
was when it whistled, and as to the speed of the train, re- 
sided near the railroad, were familiar with the surroundings, 
with the running of the trains in that locality, and had fre- 
quently heard the sound of the whistle and bell. There was 
no error in admitting this testimony. Louisville, etc., R. Co. 
V. Hendricks (1891), 128 Ind. 462, 28 N. E. 58; Louisville, 
etc, R. Co. V. Jones (1886), 108 Ind, 551, 9 N. B. 476; Gug- 
genheim V. Lake Shore, etc., R. Co. (1887), 66 Mich. 150. 
The engineer who testified as to the ^speed of the 

15. train at the points mentioned, did so on cross-exam- 
ination. On his original examination he had testified 

as to the speed of the train at the time he approached the 
crossing. The evidence was properly admitted as affecting 
the weight to be given his testimony. The testimony admit- 
ted, regarding the flagman, watchman and gate at the 

16. crossing, if improper, was rendered harmless by an 
instruction which the court gave, to the effect that 

there was no ordinance of the town requiring appellant to 
maintain a flagman, watchman or gate, and for that reason 
appellant was not liable for any failure in that respect. 
Judgment affirmed. 

XoTR— Reported in 97 N. E. 203. See, also, under (1) 33 Cyc. 
V.rji); (2. 3) :J3 Cyc. 1142; (4) 33 Cyc. 1010; (H) 33 Cyc. 1110; 



124 APPELLATE COURT OP INDIANA. 

Rexing v, Princeton Window Glass Co. — 51 IndL App. 124. 

(G) 33 Cyc. 1000; (7) 38 Cyc. 1809; (8) 33 Cyc. 966; (9) 33 Cyc. 
1137; (11) 38 Cyc. 1800; (12) 38 Cyc. 1602, 1012; (13) 3 Cyc. 349; 
(14) 33 Cyc. 1082, 1084; (15) 40 Cyc. 24S0; (16) 38 Cyc 1444. 
As to the duties resting on persons approaching a railroad track, 
see 20 Am. St. 452. On the question of failure to give customary 
signals as excusing nonperformance of duty to look and listen, see 
3 L. R. A. (N. S.) 391- Upon the duty of a traveler approaching 
railway crossing as to place and direction of observation, see 37 
L. R. A, (N. S.) 136. The question of the duty to give crossing 
signals for the benefit of persons near a crossing, but who are not 
about to use the same is treated in 14 L. R. A. (N. S.) 998; 31 
L. R. A. (N. S.) 607. As to evidence as to speed of trains and 
hand ears, see 34 L. R. A. (N. S.) 790. 



Rexinq v. Princeton Window Glass Com- 
pany ET al. 

[No 7,202. Filed May 12, 1911. Rehearing denied October 13, 1911. 

Transfer denied July 2, 1912.] 

1. Master and Servant. — Laborers* Liens. — Statutes. — Construc- 
tion. — Statutes giving a Hen in favor of laborers, as a protection 
to their claims for wages, should be liberally construed in favor 
of such laborers, p. 127. 

2. Statutes. — Construction^ — Title. — ^The purpose and scope of an 
act of the legislature must be determined from its title, p. 128. 

3. Master and Servant. — Laborers' Liens, — Right to Lien. — Stat- 
utes. — The right of a factory laborer to a lien under §8295 Burns 
1908, Acts 1899 p. 569, providing that all claims for wages for 
mechanics and laborers employed in or about any shop, mill, etc., 
shall be a first Hen on all machinery, tools, etc., located therein, 
or used in the business thereof, is not destroyed when the em- 
ployer is in falling circumstances by the provision therein that 
''should the employer be in failing circumstances, the above men- 
tioned claim shall be preferred debts, whether claim or notice 
of lien has been filed or not", but in such event such provisicHi 
serves to enlarge the security given by the act by making pre- 
ferred creditors of laborers who had not filed their liens, 
pp. 128, 129. 

4. Statutes. — Construction. — Legislative Intent. — The legislative 
Intention, as collected from the whole, as well as the separate 
parts, of a statute, will prevail over the literal import of par- 
ticular terms, p. 129. 

5. Master and Servant. — Laborers' Liens. — Notice of Lien. — Ef- 
fect as Against Trustee of Mortgage and Bondholders. — The trus- 
tee of a mortgajco executed by a manufacturing corporation, as 



MAY TERM, 1912. 125 

Rexing r. Princeton Window Glass Co. — 61 Ind. App. 124. 

well as the holders of the bonds, are charged with knowledge 
that laborers employed in such factory are given a first lien for 
their wages on certain personal property therein, under §8295 
Bums 1906, Acts 1899 p. 569. p. 130. 

6. Mabteb and Sebyaitt. — Laiboters* Liens. — Superiority Over 
Mortgaffc. — Legislative Power. — It is within the power of the 
legislature to make the lien of laborers on the product of their 
toil, and other personal property in the factory where they are 
empioyedf superior to the lien of a mortgage securing a bond 
Issue, p. 130. 

7. Kasteb and Servant. — Laborers* Lietis. — Attorney's Fees, — A 
factory laborer recovering judgment in an action for the enforce- 
ment of the lien given by §8295 Burns 1908, Acts 1890 p. 509, 
Is also entitJed to the recovery of reasonable attorney's fees under 
}8307 Burns 1908, Acts 1883 p. 140, providing that on recover^' 
of judgment under the provisions of the mechanics' lien act, the 
plaintiff shall be entitled to recover reasonable attorney's fees, 
p. 130. 

Prom Gibson Circuit Court ; 0. M. Welborn, Judge. 

Action by John B. Rexing against the Princeton Window 
Glass Company and others. Prom an adverse judgment, 
the plaintiff appeals. Reversed. 

TFtHiom D. Hardy, for appellant. 

Lucius C, Embree and Morton G. Emhree, for appellees. 

Adams, J. — The question presented by this appeal is 
whether a laborer employed in and about a factory is enti- 
tled to hold a first lien on the personal property therein for 
his wages, or whether such laborer has no lien, but simply a 
preferred claim, when the firm or corporation is in failing 
cirenmstances. 

The facts about which there is no controversy, as shown 
by the record, are briefly as follows : Appellant was em- 
ployed as a laborer in and about the factory of the Prince- 
ton Window Glass Company, and left such employment on 
June 7, 1907, at which time there was due him for wages 
the sum of $392.50. On June 18, 1907, appellant filed notice 
of his intention to hold a lien on the real estate and personal 
property of said glass company, and in this action sought 
to enforce tlie same. 



126 APPELLATE COURT OP INDIANA. 



Kexlug r. Princeton Window Glass Co. — 51 Iiid. App. 124. 

It is admitted that the glass company was in failing cir- 
cumstances during the entire time the service was rendered 
for which this suit was brought. It is also admitted that on 
July 15, 1907, the Princeton Window Glass Company made 
a general assignment to Alois Ziliak, trustee, for the benefit 
of its creditors; that on July 14, 1905, the glass company 
executed a deed of trust to the American Trust and Savings 
Company of Evansville, Indiana, to secure an issue of bonds 
in the sum of $45,000, all of which were sold and outstand- 
ing prior to the employment of appellant; that the C. W. 
White Liunber Company is the holder of a judgment against 
the glass company in the sum of $632.62, recovered in an 
action to enforce its lien for materials sold and used in the 
construction and repair of the buildings of the glass plant, 
which judgment is prior to the mortgage of the American 
Trust and Savings Company; that the Inez Wild Glass 
Company is the holder of a judgment for $360.69; that the 
Gibson Oil and Gas Company is the holder of a judgment in 
the sum of $2,249.80. It is further admitted that no execu- 
tion has been issued on the judgment of the Inez Wild Glass 
Company, nor on the judgment of the Gibson Oil and Gas 
Company. 

The court found for appellant, and rendered judgment 
for $410.15, and that said amount was senior and superior 
to the claims of all general creditors. The court further 
found that appellant was not entitled to a lien for the 
amount of said judgment on the property of the glass com- 
pany, or any part thereof, and that said judgment is junior 
and inferior to the liens herein set out. The motion for a 
new trial was overruled. Appellant then filed his motion 
to modify the judgment in the following particulars : That 
he be given a reasonable attorney's fee, and that his judg- 
ment be made and declared to be a first lien on the machin- 
ery, tools, stock of materials and work finished and unfin- 
ished, located in and about the factory of the Princeton 
Window Glass Company, junior to the lien of the C. W. 



MAY TERM, 1912. 127 

Rexing r. Princeton Window Glass Co. — 51 lud. App. 124. 

White Lumber Company, but senior to the mortgage of the 
American Trust and Savings Company, and the judgments 
of the Inez Wild Glass Company and the Gibson Oil and 
Oas Company. This motion was overruled, to which ruling 
appellant excepted, and assigns the same, together with the 
niUng on the motion for a new trial, as error in this court. 

The error relied on for reversal calls for a construction 
of §8295 Burns 1908, Acts 1899 p. 569, which is as follows : 
"That contractors, sub-contractors, mechanics, journeymen, 
laborers and all persons performing labor or furnishing ma- 
terial or machinery for the erection, altering, repairing or re- 
moving any house, mill, • • • may have a lien separately or 
jointly upon the house, mill • * • which they may have 
<*rected, altered, repaired or removed, or for which they may 
have furnished material or machinery of any description, and 
on the interest of the owner of the lot or parcel of land on 
which it stands or with which it is connected to the extent 
of the value of any labor done, material furnished, or 
either ; and all claims for wages for mechanics and laborers 
employed in or about any shop, mill • • • shall be a 
first lien upon all the machinery, tools, stock of material, 
work finished or unfinished, located in or about such shop, 
mill • • *, or used in the business thereof; and should 
the person, firm or corporation be in failing circumstances 
the above mentioned claim shall be preferred debts, whether 
claim or notice of lien has been filed or not." 

In the cases of Bass v. Doerman (1887), 112 Ind. 390, 14 

X. E. 377, and Pendergast v. Yandes (1890), 124 Ind. 159, 

24 N. E. 724, 8 L. R. A. 849, it was held that statutes 

1. giving a lien in favor of laborers, as a protection to 
their claims for wages, should be liberally construed 
in favor of such laborers. It was held by the trial courx that 
the concluding part of the above section — ''and should the 
person, firm or corporation be in failing circumstances the 
aWe mentioned claim shall be preferred debts" — means 
literally what it says, and where, as in this case, it appears 



128 APPELLATE COURT OP INDIANA. 

Rexing V. Princeton Window Glass Co. — 51 Ind. App. 124. 

that the employer is in failing circumstances^ the claims of 
laborers for wages become merely preferred debts, and do 
not constitute a lien of any kind. We cannot concur in this 
interpretation. 

The purpose and scope of an act of the legislature must 
be determined from its title. The act in question is entitled 

2. *'An act concerning liens of mechanics, laborers and 
material men." It is an act relating to liens, and in 

3. furtherance of its purpose, the first part of the sec- 
tion in question gives to contractors, mechanics, la- 
borers and materialmen a lien on the structure in which the 
material is used and on which the labor is performed, which 
lien also includes the real estate appurtenant to such build- 
ing. The second part provides that the wages of laborers 
employed in or about any such mill or factory shall be a 
first lien on certain personal property in or about such fac- 
tory. 

In the absence of the concluding sentence, the meaning 
of the section would be obvious and the purpose clear to give 
the laborers in the factory a first lien on the personal prop- 
erty. The words ** above mentioned claim'', in the con- 
cluding sentence, clearly refer to the claim of laborers who 
are given a first lien on the property designated. It can- 
not be said that the legislature, by enacting this section of 
the mechanic's lien law, intended to do an absurd or. contra- 
dictory thing; that it intended to give the laborer in the 
factory a first lien on the personal property in and about 
the same, when the employer is solvent and responsible, and 
when the laborer has no need of the security of a lien, only 
to take the lien away from him when the employer is in fail- 
ing circumstances, and the laborer does need such security. 
Such a construction would defeat the evident purpose of 
the act. 

"The legislative intention, as collected from an examina- 
tion of the whole, as well as the separate parts, of a statute, 
will prevail over the literal import of particular terms, and 



MAY TERM, 1912. 129 

Rexing r. Princeton Window Glass Co. — ^51 Ind. App. 124. 

will control the strict letter of the statute, where an 
4. adherence to such strict letter would lead to injustice, 

to absurdity, or to contradictory pi*ovisions." Stout 
V. Board, etc. (1886), 107 Ind. 343, 347, 8 N. E. 222. 
See, also, Middletown v. Oreeson (1885), 106 Ind. 18, 5 N. 
E. 755; Miller v. State, ex rel. (1886), 106 Ind. 415, 7 N. 
E.209. 

A strict interpretation of the concluding sentence would 
give the section an impossible meaning. It would mean that 

laborers in a factory are entitled to a first lien on 
3. the personal property for their wages, the lien to be 

acquired by giving notice as provided in the third 
section of the act. But if the employer should be in failing 
circmnatances, the laborer would be forced to give up his 
right to hold a lien, even after he had given his notice, and 
become merely a preferred creditor, and his claim inferior 
to the claims of all lien holders. That this was not the leg- 
islative purpose clearly appeai-s from the last words — 
'whether claim or notice of lien has been filed or not.*' The 
nianifest purpose was not to impair the security given by 
*he act, but to enlarge it, by including laborers who had not 
filed their liens, in cases where the employer was in failing 
eiremnstances. 

It is conceded that the judgment foreclosing the lien of 
the C. W. White Lumber Company, for materials used in 
the construction and repair of the glass plant, is superior to 
sppeDant's claim. No execution having been issued on the 
judgments of the Gibson Oil and Gas Company and the 
Inez Wild Glass Company, those judgments are liens on the 
real estate. 

The deed of trust executed by the Princeton Window 
GIa£3 Company to appellee American Trust and Savings 
Company, to secure a bond issue of $45,000, was executed in 
July, 1905, long prior to the rendering of the service by ap- 
pellee, for which this suit is brought. The law enters into 

Vol. 51—9 



130 APPELLATE COURT OP INDIANA. 

Hexing V. Princeton Window Glass Co. — 51 Ind. App. 124. 

and becomes a part of every contraet, and the trustee, 

5. as well as the holders of the bonds, knew that the 
Princeton Window Glass Company was a manufactur- 
ing concern, and that its success depended on its operation ; 
that labor would be required in the making of its product, 
and that the law, at that time, gave laborers employed in such 
a factory a first lien on certain personal property therein, to 
secure the payment of their wages. Bass v. Doerman, supra; 
Bryson v. McCreary (1885), 102 Ind. 1, 1 N. E. 55; Ed- 
wards V. Johnson (1886), 105 Ind. 594, 5 N. E. 716; Brook 
V. Burlington, etc., B. Co. (1879), 101 U. S. 443, 25 L. Ed. 
1057. 

It was within the power of the legislature to make the lien 

of laborers on the product of their toil, and other 

personal property in the factory, superior to the lien 

6. of a mortgage securing a bond issue. 1 Jones, Liens 
§744; Watts V. Sweeney (1891), 127 Ind. 116, 26 N. 

E. 680, 22 Am. St. 615 ; Farmers Loan, etc., Co. v. Canada, 
etc., R. Co. (1891), 127 Ind. 250, 26 N. E. 784, 11 L. E. A. 
740; Warren v. Sohn (1887), 112 Ind. 213, 13 N. E. 863; 
Brook V. Burlington, etc., R. Co., supra. 

It is provided by §8307 Burns 1908, Acts 1883 p. 140, 

that in all suits brought for the enforcement of any lien, 

under the provisions of the machanic's lien act, if 

7. the plaintiff or lien holder shall recover judgment in 
any sum, he shall be entitled to recover reasonable 

attorney's fees. 

Our conclusion is that appellant is entitled to have his 
claim found to be a first lien on the property named in his 
motion, inferior only to the lien of the C. W. White Lumber 
Company. Appellant is also entitled to recover, in addi- 
tion to the amount of his claim and interest, a reasonable 
attorney's fee. As the amount of this fee must be deter- 
mined on the evidence, a new trial should be granted. 

The judgment is therefore reversed, with instructions to 



MAY TERM, 1912. 131 

Schilling r. Indljyiapolls, etc., Traction Co. — 51 Ind. App. 131. 

grant a new trial, and for further proceedings in accord- 
ance with this opinion. 

Myers, C. J., Lairy, P. J., Hottel, Ibach and Felt, JJ., 
conenr. 

Xart— Reported in 94 N. E. 1031. See, also, under (1) 26 Cyc. 
1066; (2) 36 Cyc. 1133; (4) 30 Cyc. 1100, 1128; (6) 20 Cyc. 1072; 
(7) 26 Cyc 1075. As to the intent of the law-makers as an essen- 
tial guide in construing a law, see 12 Am. St. 827. As to the va- 
lidity of medianic's lien laws, see 4 Ann. Cas. 620 ; Ann. Cas. 1912 
C33d. 



Schilling v. Indianapolis and Cincinnati 
Traction Company et al. 

[So. 7326. Filed October 25, 1911. Rehearing denied January 26, 

1912. Transfer denied July 2, 1912.] 

1. ApfeaLw — Ruling on Motion for Judgment on Answers to Inter- 
rogatories, — Determination of Question. — The question raised on 
the ruling of the trial court in sustaining a motion on the an- 
swers to interrogatories, notwithstanding the general verdict, 
most be decided from a consideration of the Issues, the general 
verdict and the answers to the interrogatories, p. 134. 

2. Pleabi^'o. — General Denial. — Verdict. — EJvery material aver- 
in^it of a complaint is put In issue by the general denial, and a 
general verdict for plaintiff is a finding for him on every ma- 
terial point thus in issue, p. 130. 

3L Trial. — Verdict. — Answer a to Interrogatories. — Control of Ver- 
dict. — Unless the answers to interrogatories are in such irrecon- 
cilable conflict with, or so antagonistic to, the general verdict 
that both cannot stand, the general verdict will be sustained. 
p. 136. 

4. Pleaj>ino. — Complaint. — Theory. — Issues and Proof. — A plead- 
ing must proceed on a single, definite theory, and a plaintiff can- 
not declare on one theory and recover on another, p. 137. 

5. RAixfiOADS. — Interurhan. — Injury to Persons on Tracks. — Com- 
plaint, — Theory. — Where the complaint, in an action against an 
intemrban railroad company for damages to plaintiff in a col- 
lision with a car, alleged that the approach of a car and an ob- 
struction In the highway required plaintiff to drive upon an ad- 
Joining track, that before he could leave the latter track, another 
car of the defendant, running negligently and without warning 
and at a high rate of speed tow*ard him, struck his horses and 
wagon and caused the Injuries* and that with reasonable care 



132 APPELLATE COURT OP INDIANA. 

Schilling v. Indianapolis, etc., Traction Co. — 51 Ind. App. 13L 

plaintiffs peril could have been seen and the car stopped before 
striking him, the theory Is not that of operating the car at a 
negligent rate of s])eed, but of negligence either in failing to 
exercise proi)er care to discover plaintiff's dangerous situation, 
or to make proper efforts to stop the car after making such 
discovery, p. 137. 

6. Pleading. — Complaint. — Construction. — Inconsistent Theories, — 
Where a complaint proceeds on Inconsistent theories, the one 
most consistent with its general scope and character must be 
adopted, p. 139. 

7. Railroads. — Interurhan, — Infurp to Persons on Tracks. — Last 
Clear Chance. — Segligence. — ^The doctrine of last clear chance, 
though usually applied where the negligence of defendant is 
shown, and where it also appears that the injured by his own 
negligence had placed himself in a position of imminent perU. 
exposing him to danger as a result of the defendants negligence, 
is also applicable in charging original negligence to defendant 
in an action for injuries sustained in a collision with an Inter- 
urban car, where plaintiff, because of an obstruction in the high- 
way and to avoid injury from the approach of a car, drove upon 
an adjoining track in the highway, where he was struck by 
another of defendant's cars, and those In charge of the latter car 
with reasonable care could have seen his perilous position and 
stopped the car before striking him. p. 139. 

8. Railroads. — Interurhan. — Injury to Persons on Track. — Ter- 
dict. — Answers to Interrogatories, — ^In an action for injuries sus- 
tained in a collision with an interurban car, where it was shown 
by the complaint that plaintiff was unavoidably placed in a 
perilous position on defendant's track, and it was alleged that 
with reasonable care his peril could have been seen and the car 
stopped before striking him, answers to Interrogatories showing 
that the car was running rapidly, but, that on seeing plaintiff, 
the mot or man did all that he could to stop the car and avoid 
striking him, while in conflict with the general verdict for plain- 
tiff on the question of negligence in falling to stop the car after 
discovering plaintiff's peril, are not in conflict therewith as to 
defendant's negligence in failing to discover his peril in time to 
avoid the injury, p. 141. 

9. Kailkoads. — Interurhan^ — Injury to Persons on Tracks. — Con- 
tributory Negligence. — Burden. — An interurban railroad company, 
in an action against it for striking plaintiff with one of its cars, 
has the burden of proving that plaintiff was guilty of contribu- 
tory negligence which proximately contributed to his injury, 
p. 141. 

10. Railboads. — Interurhan. — Injury to Persons on Track. — Conr 
trihutory Negligence. — Evidence. — To show contributory negU- 



MAY TERM, 1912. 133 



Schilling r. Indianapolis, etc., Traction Co.— 51 Ind. App. 131. 

gence by the driver of a vehicle struck by an interurban car, it 
most be shown that after plaintiff was in a position where he 
saw his own danger, or could have seen it by the exercise of 
ordhiary care, he had an opportunity to escape therefrom, and 
failed to do so. p. 143. 

11. Rahjeoads. — Interurban. — Injury to Persons on Track, — Con- 
trihutury Negligence. — Verdict. — Answers to Interrogatories. — In 
an action for injuries sustained in a collision with an interurban 
car, where the complaint allied that plaintiff was unavoidably 
placed In a perilous position on defendant's track, answers to 
interrogatories not showing aflBrmatlvely that he was negligent 
in failing to discover his danger in time to escape, or in failing 
to use proper efforts to escape after such discovery, are not in 
conflict with a general verdict for plaintiff, p. 143. 

12. Appeal. — Ruling on Motion for Judgment on Answers to In- 
terrogatories. — Pleadings. — Determination of Issues and Facts 
provable. — In passing on a motion for Judgment on the answers 
to Interrogatories, the court will look to the pleadings only to 
determine what the issues were and what facts could have been 
proved under them. p. 144. 

13. Appeal. — Review, — Verdict. — Ansivers to Interrogatories. — 
Reconciliation with General Verdict. — It is the duty of the court 
on appeal to reconcile the answers to interrogatories with the 
general verdict when possible to do so. p. 145. 

From Superior Court of Marion County (75,926) ; Vin- 
«>ft Carter, Judge. 

Action by Chris Schilling against the Indianapolis and 
Cincinnati Traction Company and another. From a judg- 
ment for defendants, the plaintiff appeals. Reversed. 

Frank T. Brown and Ernest T. Brown, for appellant. 
Elam & Fesler and Claude Cambem, for appellees. 

Lairy, C. J. — This action was brought by appellant to re- 
cover damages on. account of personal injuries and injury 
to personal property which he sustained by reason of a col- 
lision \vith a car operated by appellee Henry, as receiver of 
the Indianapolis and Cincinnati Traction Company. 

The ease was submitted to a jury on the issues formed by 
the complaint and the answer filed in general denial by 
each of the appellees. The jury returned a general verdict 



134 APPELLATE COURT OP INDIANA. 

Schilling V. Indianapolis, etc., Traction Co. — 51 Ind. App. 131. 

in favor of appellant, and assessed his damages in the sum 
of $1,400. The jury also returned with its general verdict 
answers to sixty-one interrogatories submitted to it under 
the direction of the court. 

' Appellees filed a motion in the trial court for judgment 
in their favor on the answers to interrogatories, notwith- 
standing the general verdict. This motion was sus- 
1. tained by the court, and appellant excepted, and this 
ruling and exception present the only question for 
review in this court. 

The question thus raised is to be decided from a consid- 
eration of the issues, the general verdict and the answers to 
interrogatories. The complaint, omitting the formal parts, 
is as follows: *'That said defendants maintained and con- 
trolled street railway tracks upon and along the highway 
which is known as the continuation of Prospect Street to 
the Michigan free gravel road, all in the county of Marion, 
State of Indiana. That on the seventeenth day of February, 
1908, and at or about seven o'clock p. m. of said day while 
it was dark the plaintiff was driving a wagon drawn by two 
horses eastward on said highway on the right side of said 
highway and was approaching the subway under the tracks 
of the Indianapolis Union Railway, commonly known as The 
Belt Railroad, when one of the cars belonging to said de- 
fendants and controlled by defendants' agent or agents 
came up behind plaintiff on the south and outbound track 
upon which plaintiff was driving and by whistle signaled 
for plaintiff to clear the way for said car to pass said plain- 
tiff. That at the time said car signaled to plaintiff to clear 
the way for said car plaintiff was driving on the south and 
outbound track and was unable to drive to the south of 
said south and outbound track to enable said car to pass him 
by reason of an embankment of dirt about six feet high at 
the distance of about nine feet from the north rail of the 
south and outbound track by reason of all of which he drove 
to the north and left hand side of said roadway onto the 



MAY TERM, 1912. 135 

Schilling r, Indianapolis, etc., Traction Co. — 51 Ind. App. 131. 

nortli and inbound traek of said defendants' traction line 
after whieh the said defendants' ear passed plaintiff from 
the rear when he began to enter into the subway of said 
highway under the tracks of said Indianapolis Union Rail- 
way, commonly know as the Belt Railroad, at or near the 
west end of the stone abutment on either side of said sub- 
way. That said subway was at said time and i: now about 
thirty-three feet wide between the said stone abutments, 
about sixteen and one-fourth feet of which was occupied by 
the tracks of said defendants in the center of said highway. 
That by reason of the great glare of light coming from the 
headlight of said car running eastward and which passed 
him plaintiff was blinded and by reason of the obstruction 
of the trestle work and tracks of the said Indianapolis Union 
Railway, commonly known as the Belt Railroad, over and 
above said subway and by reason of a hill beyond said trestle 
work, plaintiff was unable to see cars approaching said sub- 
way from the east on the north and inbound track until said 
ears were in or near to said subway. That there was a space 
of about eight feet in width from the north rail of the said 
north and inbound track to the said north stone abutment of 
said subway. That while on the said north and inbound 
track of said defendants and driving eastward at or near to 
the west entrance of said subway and before he was able to 
drive to the south and outbound track or get off of said 
north and inbound track in any direction the agent or agents 
of said defendants controlling and operating a car owned by 
said defendants which car was running westward and in- 
bound negligently, carelessly and without warning to plain- 
tiff ran said inbound car at a high rate of speed toward 
plaintiff, blinding plaintiff and blinding and frightening 
plaintiff's said horses with a sudden and great glare of light 
from the head light of said car. That defendants' agent or 
agents ran said car into and against the horses and against 
the horses and wagon driven by plaintiff with great force 
and violence by reason of which one of plaintiff's said horses 



136 APPELLATE COURT OF INDIANA. 

Schilling r. Indianapolis, etc., Ti'action Co. — 51 Ind. App. 131. 

was killed; another of plaintiff's said horses was badly in- 
jured; the harness was torn to pieces; plaintiff's said wa^n 
was demolished and plaintiff received severe injuries in and 
about his head, fracturing his skull ; splitting the lower lid 
of his left eye ; fracturing his cheek bone and the bones of 
his nose; his teeth were dislocated; the muscles and liga- 
ments of his face were torn loose; plaintiff's nervous system 
was shocked and shattered and plaintiff was seriously and 
permanently injured. That plaintiff was on said date, to- 
wit : Feb. 17, 1908, the owner of said horses and wagon. That 
the said agent or agents of said defendants had knowledge 
or should have had knowledge of the dangerous conditions 
existing at the place where plaintiff was struck by said de- 
fendants' car. That with reasonable care defendants' agent 
or agents in control of said car could have seen plaintiff 
and plaintiff's peril and stopped said car before striking 
plaintiff. That plaintiff at the time he sustained said in- 
juries was at a place where he had a right to be; that said 
injuries w^ere caused by negligence and carelessness of de- 
fendants and that plaintiff was free from negligence. That 
by reason of the killing of said horses and the demolishing 
of said harness and wagon, plaintiff has been damaged in 
the sum of two hundred and fifty dollars. That on account 
of said injuries the plaintiff has sustained permanent in- 
juries ; has suffered great pain and intense anguish ; incurred 
large expense for medical attention and medicine ; has been 
prevented from following his usual occupation and by rea- 
son thereof has been damaged in the sum of $15,000.00. 
Wherefore plaintiff, Chris Schilling sues and demands judg- 
ment against the defendants in the sum of $15,000.00 for 
costs and all other proper relief." 

Every material averment of this complaint was put 

2. in issue by the general denial, and the general verdict 
is a finding in favor of appellant on every material 

3. point thus in issue. This general verdict will be sus- 
tained, unless the answers to the interrogatories are 



MAT TERM, 1912. 137 

Schilling r. Indianapolis, etc., Traction Co. — 51 Ind. App. 131. 

in such irreconcilable conflict with, or so antagonistic to the 
general verdict that both cannot stand. 

On the part of appellees it is claimed that the answers to 
interrogatories are in conflict with the general verdict on 
two material points at issue, viz., the negligence of appellees, 
as charged in the complaint, and the contributory negligence 
of appellant. 

Appellant and appellees do not agree as to the theory of 
the complaint. Appellees contend that the complaint in 
charging negligence against them proceeds on the theory 
that appellant, just prior to his injury, was in a position 
of danger on the track of appellees, from which he was un- 
able to escape, by reason of conditions described in the 
complaint, which were known to appellees; and that by the 
exercise of reasonable care on the part of the agents of said 
appellees in control of said car, they could have seen appel- 
lant's peril and stopped the car before striking him. Appel- 
lant insists that he is not limited to this theory, but does 
not point out any other theory on which the complaint can 
be good. 

It is well settled in this State that a pleading must pro- 
ceed on a single, definite theory, and that a plaintiff cannot 
declare on one theory and recover on another. City 

4. of Logansport v. Vhl (1885), 99 Ind. 531, 50 Am. 
Rep. 109; Cottrell v. Aetna Life Ins. Co. (1884), 97 

Ind. 311. It is therefore necessary to determine the theory 
of the complaint in order that we may know what facts 
therein averred relating to negligence are put in issue by 
the general denial. 

The complaint in our mind clearly proceeds on the theory 

indicated by appellees. It is true that the complaint in a 

former part avers, in substance, that defendants' 

5. agents in charge of said in-bound car carelessly, neg- 
ligently and without warning ran said car at a high 

rate of speed toward plaintiff, blinding him and blinding 
and frightening his horses, with a sudden and great glare 



138 APPELLATE COURT OF INDIANA, 

Schilling? 1?. Indianapolis, etc., Traction Co. — 51 Ind. App. 131. 

of light from the headlight of said car; that defendants' 
said agent or agents ran said car into and against the horses 
and wagon driven by plaintiff, and caused the injuries de- 
scribed. If these averments could be considered alone, and 
without reference to the other averments of the complaint, 
we might be led to believe that the pleader was proceeding 
on the theory that the conditions of the highway, described, 
at the place where the collision occurred were of such a char- 
acter as to render it dangerous to operate a car at that point 
at a high rate of speed, and that, by reason of such condi- 
tions, reasonable care required that appellees' cars should 
be so operated when approaching and passing that point as 
to be under the control of the motormen, so as to be stopped 
within a short distance, and that appellees were guilty of 
negligence in operating said car at such a high and n^li- 
gent rate of speed that the agents were unable to stop it in 
time to prevent the collision described in the complaint. It 
will be seen from an examination of the averments of the 
complaint referred to, that they fall far short of stating facts 
sufScient to constitute a cause of action on this theory. It 
is not averred that the car was being operated at an unlaw- 
ful, dangerous or negligent rate of speed. It is averred that 
the car waa negligently operated at a high rate of speed, 
but whether the rate of speed constituted the negligence, or 
whether the negligent operation was due to some other cause, 
is not stated. It is also averred that defendants' agents 
ran said car against the horses and wagon driven by plain • 
tiff, but whether this was caused by the high rate of speed, 
or was due to some other cause, is not shown. We think 
that these averments, when considered alone, indicate that 
the pleader did not proceed on the theory that injury was 
caused by the car being operated at a negligent rate of 
speed ; but when we consider these averments in connection 
with other aUegations of the complaint, we become confirmed 
in this belief. It is averred that, with reasonable care, de- 
fendants' agent or agents in control of said car could have 



MAY TERM, 1912. 139 

SchiJIing t\ Indianapolis, etc, Traction Co. — 51 Ind. App. 131. 

seen plaintifiE and plaintiff's peril, and stopped said car be- 
fore striking him. This averment clearly indicates that the 
ear which struck plaintiff was not running at a high and 
negligent rate of speed so as to be beyond the control of the 
operator, but, on the other hand, that its speed was such 
that it could have been stopped after the person in charge 
of it waa in a position to have seen plaintiff's danger and 
before the collision; and that the negUgence of defendants 
consisted either in a failure to exercise proper care to dis- 
cover plaintiff's dangerous situation, or to majce proper ef- 
forts to stop the car after such discovery. The two 

6. theories are inconsistent, and we must adopt that 
theory which is most consistent with the general char- 
acter and scope of the pleading, and disregard isolated and 
detached allegations which are not essential to the main 
theory. Monnett v. Turpie (1892), 132 Ind. 482, 32 N. E. 
328; State, ex reL, v. Scott (1908), 171 Ind 349, 86 N. E. 
409. 

The doctrine of last clear chance is usually applied in 

eases where the negligence of the defendant is shown, and 

where it also appears that the plaintiff, or decedent, 

7. by his own negligence has placed himself in a posi- 
tion of imminent peril exposing him to danger as a 

result of the negligence of the defendant. In such a case 
it may be shown that the plaintiff, or decedent, prior to the 
collision had placed himself in a position of apparent and 
inuninent peril from which he was unable to extricate him- 
self by the use of due care, and that after this condition had 
arisen, and before the injury, the defendant or its servants 
knew of the dangerous situation, or might have known of it 
br the exercise of proper care in time to have prevented 
the injury. Under such a state of facts, the negligence of 
the person injured is deemed to have terminated at the time 
he reached a situation where due care on his part was no 
liHiger of any avail; and if after that time the defendant 
wuld have prevented the injury by the exercise of due care, 



140 APPELLATE COURT OF INDIANA. 

Schilling r. Indianapolis, etc., Traction Co. — 51 Tnd. App. 131. 

and failed to do so, such failure will be regarded as the sole 
proximate cause of the injury. The negligence may have 
consisted either in a failure to use proper care to discover 
the exposed and helpless condition of the person injured in 
time to avoid the injury, or in a failure to use proper care 
after such discovery; in either case, such negligence of the 
defendant is deemed to be subsequent to that of the plain- 
tiff, and it is regarded as the sole proximate cause. Louis- 
ville, etc., R. Co. v. East Tenn., etc., R. Co. (1894), 60 Fed. 
993, 9 C. C- A. 314 ; Indianapolis St. R. Co. v. Schmidt 
(1905), 35 lud. App. 202, 71 N. E. 663, 72 N. E. 478; Grass 
V. Fort Wayne, etc.. Traction Co. (1908), 42 Ind. App. 395, 
81 N. E. 514. It is apparent, however, that the same doc- 
trine may be invoked in charging original negligence to a 
defendant. In this case, it is averred that certain dangerous 
conditions existed in the street or highway at or near the 
point where the collision occurred, which conditions were 
known to appellees, and that as appellant approached the 
place he drove his team from the south, or outgoing track to 
get out of the way of an outgoing car, and in so doing en- 
tered upon the north or incoming track, and that in entering 
upon said track he was in a place where he had a right to be, 
and was without fault. As we construe the complaint, it 
does not charge that appellees' agents were guilty of any 
negligence in the operation of the car in question prior to 
the time the car reached a point on the tracks where said 
agents in charge of the car could have seen appellant and 
the dangerous situation in which he was placed. Both ap- 
pellant and the appellees being free from negligence up to 
that time, if both had remained free from negligence from 
then until the collision, there could be no recovery; but if 
said appellees were negligent after that time, and ap- 
pellant remained free from negligence, said appellees are 
liable. It is alleged that with reasonable care appellees' 
agent or agents in control of said car could have seen 
appellant and his peril, and stopped said car before strik- 



MAY TERM, 1912. 141 

Schilling r. Indianapolis, etc., Traction Co. — 51 Ind. App. 1.11. 

ing him. This is sufficient to show that the agents of ap- 
pellees were negligent either in failing to use proper care 
to discover appellant's danger, or in failing to use proper 
means to stop the car after such discovery. These facts, as 
averred in the complaint, constitute original negligence. 
Under the general denial, it could be proved as a defense 
that after appellant saw the car approaching, or could have 
seen it by the exercise of ordinary care, he had time and 
opportunity to escape from the dangerous situation in which 
he was, and did not do so. 

Under the issues formed by the complaint as we have con- 
strued it, and the general denial thereto, it was necessary, 
in order to establish negligence as against appellees, that 
appellant should prove, (1) that immediately prior to the 
collision he was in a position of imminent peril on or near 
the tracks of appellee traction company; (2) either that the 
agents of the appellees in charge of the approaching car saw 
him and the danger to which he was exposed some time be- 
fore the collision, and that by the exercise of reasonable 
care said agents could have slackened the speed of said car 
in time to have avoided or mitigated the injury, and that 
they failed to do so, or that by the exercise of ordinary care 
and watchfulness the agents of the appellees could have 
observed appellant and the danger to which he was exposed 
in time to have prevented or mitigated the injury by the 
exercise of ordinary care, and that they failed to exercise 
proper care in this respect. 

The general verdict finds in favor of appellant on 

8. all these issues, and the first question presented is 
whether the answers to the interrogatories are in 
irreconcilable conflict with the general verdict on the issues 
so presented. 

As bearing on the question of the negligence of appel- 
lees, the jury foijnd, by way of answers to interroga- 
tories, that the west-bound car was running at the 
speed of thirty miles an hour at the time its motorman first 



142 APPELLATE COURT OP INDIANA. 

Schilling r. Indianapolis, etc., Traction Co. — 51 Ind. App. 131. 

saw appellant s team and wagon on the track, and that said 
car was at the time about 600 or 700 feet east of the sub- 
way; that as soon as the motorman saw appellant and his 
team on the track he blew the whistle, sounded the gong, 
applied the brakes, reversed the power, and did all that he 
could to stop the car and avoid striking appellant and his 
team. On behalf of the company it is insisted that the facts 
so found show that it was not guilty of the negligence charged 
in the complaint. We agree that these facts show that appel- 
lees' agents were not guilty of negligence in failing to use 
proper means to stop the car after they saw appellant's dan- 
ger. To that extent the answers to the interrogatories are 
in conflict with the general verdict, but they are not in con- 
flict with the general verdict on the other issue of negligence 
presented by the complaint. The complaint in this case 
averred facts showing that prior to the collision appellant 
was in a situation on the tracks, from which, by reason of 
conditions which surrounded him, he could not escape in 
time to avoid the injury. Evidence was admissible under 
the issues to show that said agents were negligent in failing 
to use proper care and diligence to discover the danger to 
which appellant was exposed, and that if said agents had 
exercised proper care in keeping a look-out along the track 
they woidd have discovered appellant's danger sooner than 
they did, and would have been able to stop the car sooner, 
and thus avoid a collision. In passing on the motion for 
judgment on the answers to interrogatories, notwithstand- 
ing the general verdict, the presumption is that evidence of 
this character was introduced, and that the general verdict, 
rests on such evidence. The answers to interrogatories are 
not in irreconcilable conflict with the general verdict on the 
issue of appellees' negligence as charged in the complaint. 
We shall now consider whether the answers to interroga- 
tories are in irreconcilable conflict with the general 
9. verdict on the issue of contributory negligence. The 
burden was on appellees to prove that appellant was 



MAY TERM, 1912. 143 

Schilling r. Indianapolis, etc., Traction Co. — 51 Iiul. Aiip. i;U. 

guilty of negligence which proximately contributed to his 
injury. Under the averments of this complaint, it is not 
enough for appellees to show that appellant was goilty of 
negligence in approaching and entering on the track where 
he was exposed to the danger of being injured. If it appears 
that the agents of appellees could, by the exercise of ordi- 
nary care, have discovered appellant's danger in time to 
have stopped the car and prevented the injury, then this 
situation is treated as a condition with reference to which 
appellees were, required to act, and not as the proximate 
cause of the injury. In order to show contributory 

10. negligence on the part of appellant in this case, it was 
necessary to show that after he was in a position 

where he saw his own danger, or could have seen it by the 

exercise of ordinary care, he had an opportunity to escape 

from that danger, and failed to do so. The answers 

11. to the interrogatories do not show what the condi- 
tions were which surrounded appellant from the time 

he was first in a position to discover his own danger until 
the time of the collision. The evidence may have shown 
that his team was unmanageable at the time, or that he was 
surrounded by conditions which made it impossible for him 
to escape the threatened danger. The general verdict finds 
tbt appellant was free from contributory negligence, and 
the answers to the interrogatories do not show affirmatively 
that he was negligent in failing to discover his danger in 
time to escape, or in failing to use proper efforts to escape 
after such discovery. The answers to the interrogatories are 
not in irreconcilable conflict with the general verdict, and 
the court erred in sustaining the motion of appellees for 
judgment thereon, notwithstanding the general verdict. 

The cause is reversed, with directions to the lower court to 
grant a new trial, with leave to amend pleadings. 



144 APPELLATE COURT OP INDIANA. 



Schllliug r. Indianapolis, etc., Traction Co. — 51 Ind. App. 131. 

On Petition for Rehearing. 

Lairy, J. — In the brief of appellees on petition for rehear- 
ing, certain averments of the complaint are referred to in 
connection with the interrogatories, and we are asked to con- 
sider the facts so averred as true in passing on the mo- 

12. tion for judgment on the interrogatories. In passing 
on this motion the court will look to the pleadings for 
the purpose of determining what the issues were and what 
facts could have been proved under them. This is the only 
purpose for which the pleadings are considered in passing on 
this motion. 

Appellees urge that the original opinion is in conflict 
with the case of Chicago, etc., B, Co. v. Hedges (1889), 118 
Ind. 5, 20 N. E. 530. In that case the special findings 
showed that the person struck by the train was a pedestrian, 
and that he walked onto the track when the car which struck 
him was 200 feet away, and stood there, without apparently 
seeing the approach of the car, until he was struck. There 
was nothing to prevent him, at any time before the accident 
occurred, from getting out of the way of the car, had he 
observed it, and his want of care in failing to see the ap- 
proach of the car continued up to the time of the injury. 
If his foot had been fast, or if he had fallen on the track so 
as to be unable to escape the threatened danger by the exer- 
cise of due care, a diflEerent rule would have applied. In this 
case, appellant was driving a team hitched to a wagon, and, 
under the averments of the complaint, the liability of appel- 
lees is made to rest on the doctrine of last clear chance. Un- 
der the issues it was competent for appellant to show that 
the conditions surrounding him in the street were such that 
he could not, by the exercise of care, escape from his place 
on the tracks in time to avoid the injury. The jury found 
by its general verdict that appellant was free from contrib- 
utory negligence. Evidence of the character referred to 
would tend to support the general verdict as to this issue. 



MAY TERM, 1912. 145 

m 

Moore r. City of Bloomington — 51 lud. A pp. 145. 

On this issue the general verdict can rest on such evidence, 
and not be in conflict with answers to any of the in- 
13. terrogatories. It is the duty of this court, under the 
authorities, so to reconcile the answers to interroga- 
tories with the general verdict. 
Petition overruled. 

Note.— Reported in 96 N. E. 167, 97 N. B. 124. See, also, under 
(2) 31 Cyc. 195; 38 Cyc. 1869; (3) 88 Qyc. 1927; (4) 31 Cyc. 116, 
tSsO; (6) 31 Cyc. 84; (7) 36 Cyc. 1565; (8) 36 Cyc. 1646; (9) 36 
Qyc. 1584; (10) 36 Cyc. 1605; (11) 36 Cyc. 1646; (13) 38 Cyc. 
U<27. As to when contributory negligence does not bar recovery, 
see 8 Am. St 850. 



Moore v. City of Bloomington. 

[No. 7^62. Filed June 6, 1911. Rehearing denied February 23, 

1912. Transfer denied July 5, 1912.] 

1. MuKiciPAL CoBPOBATiONS. — Governmental Powers. — Failure to 
Exercise, — Liability, — A city is not liable for a failure to exer- 
cise powers of a purely governmental character, p. 148. 

2. MuHiciPAL C?OBPORATioN8. — Ministerial Duties. — Failure to Per- 
form. — Liability, — ^Where a fixed, certain and absolute ministerial 
duty is Imposed on a city by statute, and means provided for its 
discharge, the city is under obligations to perform and will be 
held answerable in damages for failure to perform, or for the 
n^Ugent performance of such duty. p. 149. 

3. Municipal Corporations. — Streets. — Licensed Use for Display 
of Fireworks, — Liability for Injury, — The use of a street for the 
display of fireworlss therein is foreign to the purposes of a street, 
and is intrinsically dangerous, and may be found to be a nuisance 
which will render a city, authorizing such use, liable for injury 
to one in the street from the discharge of fireworks negligently 
liandled by Inexperienced persons, pp. 151, 153, 155. 

"i Municipal Corporations. — Streets. — Licensed Use for Extraor- 
dinary Purpose, — Liability for Injury. — The liability of a city 
for injuries to one caused by its authorized use of a street for a 
purpose foreign to the purpose for which it was dedicated is not 
affected by the fact that such authorized use does not change or 
aiTect the physical condition of the street, p. 151. 

5. Municipal Corporations. — Streets. — Obstruction. — }fuisanc&. — 
liability.— QueHi(m for Jury,-^A city is liable for erecting or 

You 51—10 



146 APPELLATE COURT OP INDIANA. 

Moore v. City of BloomiDgton — 51 IdcL App. 145. 

maintaining a nuisance, and, while a ijermaneut obstruction in a 
street is a nuisance per «e, the question of whether a temi)orary 
obstruction or use constitutes a nuisance is for the determination 
of the jury under proper instructions, p. 154. 

G. Municipal Corporations. — Streets. — Licensed Use for Display 
of Fireworks. — Injury to Bystander, — Contributory Negligetioe. — 
Tlie mere fact that a child of tender j-ears, who was injured, 
while In a street, by the discharge of fireworks therein, was not 
at the time using the street for travel, but was present solely 
for the puri><>«e of watching the- display at fireworks, did not 
render it guilty of contributory negligence as a matter of law. 
p. 157. 

7. Xeoligence. — Cotitributory yegUgenoe. — Question for Jury, — 
Where the undisputed facts bearing on the question of coDtriba- 
tory negligence are of such a character that impartial men may 
differ as to the Inference to be drawn therefrom, the question Is 
for the jury. p. 158. 

From Lawrence Circuit Court; James B. Wilson, Judge. 

Action by Josephine Moore, by her next friend, Joseph C. 
Moore, against the City of Blocanington. Prom a judgment 
for defendant, the plaintiff appeals. Reversed. 

Miers cfe Corr, for appellant. 

B. L. Morgan and J. E. Henley, for appellee. 

Lairy, C. J. — By this action, appellant, Josephine Moore, 
a minor, by her next friend, seeks to recover damages from 
the city of Bloomington for personal injuries sustained by 
her while attending a public exhibition of fireworks, given 
in the streets of said city, under the control and direction 
of a committee of the labor unions, as a part of the Labor 
Day celebration held in the city of Bloomington on Septem- 
ber 3, 1906. 

The common council of the city had, prior to that date, 
passed and entered of record an order granting to said labor 
unions the free use of the streets for the purpose of holding 
their celebration, and further granting them the privilege 
to give a display of fireworks in the streets in the evening. 
The display was given in the street near the courthouse 
square, in the presence of a large crowd of people. Appel- 



MAY TERM, 1912. 147 

Moore r. Oity of Bloomington — 51 lud. Aiip. 145. 

lant, Josephine Moore, was present, and, while standing in 
the street near the platform from which the fireworks were 
l>emg discharged, was struck in the face by a skyrocket and 
seriously injured. It is alleged that the rocket which struck 
and injured appellant was negligently ignited and dis- 
charged by those in charge of the display. The complaint 
on which the case was tried consisted of two paragraphs — 
the first and third — a demurrer having been sustained to the 
second. The averments of the first and third paragraphs 
are similar, except that in the third the negligent acts and 
conduct of those in charge of the display were particularly 
described. After hearing the evidence, the trial court di- 
rected the jury to return a verdict in favor of defendant, 
and the question here presented is whether, under the facts 
shown by the pleadings and proof, a case was made out 
which should have been submitted to the jury for deter- 
mination. 

The suflSciency of the complaint was questioned below by 
demurrer, and the action of the court in overruling the de- 
murrer to the first and third paragraphs of complaint is 
presented here by assigu^nent of cross-error. Appellant as- 
signs as error that the court erred in directing a verdict for 
appellee, and also in overruling the motion for a new trial. 
As the questions presented by the several assignments of 
error can be determined by the application of the same legal 
principles, it will not be necessary to discuss them sepa- 
rately. 

The precise question here presented has never been de- 
cided by either the Supreme Court or the Appellate Court of 
this State, and the decisions of the courts of other states are 
not entirely uniform. It is therefore proper and necessary 
to eonsider and apply the principles of law governing the 
liability of cities for torts under circumstances similar to 
those involved in this case. 

The courts have held uniformly that a city is not liable 
for a failure to exercise powers of a purely governmental 



148 APPELLATE COURT OP INDIANA. 

Moore r. City of Bloomlngton — Gl lud. Ai.p. 14o. 

character. It is not liable for failure to provide 
1. adequate appliances for extinguishing fires, nor for 

failure to furnish a suflBcient police force, nor for 
failure to enact proper ordinances, nor for failure properly 
to enforce the laws of the State or the ordinances of the city 
enacted for the protection of the lives and property of its 
citizens. Such powers are governmental and discretionary, 
and the failure to exercise them cannot be made the basis of 
an action for damages. City of Lafayette v. Timberlake 
(1882), 88 Ind. 330; Robinson v. City of Evansville (1882), 
87 Ind. 334, 44 Am. Rep. 770 ; Brinkmeyer v. City of Evans- 
ville (1867), 29 Ind. 187; 2 Dillon, Mun. Corp. (3d ed.) 
§754; Oriflin v. Mayor, etc. (1853), 9 N. Y. 456, 61 Am. 
Dec. 700; mil V. Board, etc. (1875), 72 N. C. 55, 21 Am. 
Rep. 451; Rivers v. City Council, etc. (1880), 65 Ga. 376, 
38 Am. Rep. 787; City of Logansport v. Wright (1865), 
25 Ind. 512 ; Mills v. City of Brooklyn (1865) , 32 N. Y. 489 ; 
Hill V. City of Boston (1877), 122 Mass. 344, 23 Am. Rep. 
332 ; Kennedy v. City of Lansing (1894), 99 Mich. 518, 58 N. 
W. 470. 

By an application of this principle, the courts have held 
that a city is not liable for damages caused by persons while 
making use of the streets for an illegal and unauthorized 
purpose. The failure of the city in such a case to prevent 
or suppress such illegal use of its streets does not render it 
liable to respond in damages. So, it has been decided, that 
a city is not liable for damages caused by persons coasting 
in a street, in violation of a city ordinance. City of Lafay- 
ette V. Timberlake, supra. The fact that the unauthorized 
and illegal act is carried on openly, and in the presence of 
the police officers of the city, does not change the application 
of the rule. Fanlkner v. City of Aurora (1882), 85 Ind. 130, 
44 Am. Rep. 1. In 'the absence of a statute, a city is not 
liable for injury to person or property caused by the acts of 
a mob which the city authorities failed to suppress. 

It is clear, from an application of this principle, that a 



MAY TERM, 1912. 149 

Moore r. City o( Bloomington — 51 Ind. App. 145. 

city cannot be held liable for an injury to person or property 
caused by the explosion of fireworks in its streets by a per- 
son or society of persons without the authority, consent or 
license of the city. If the pleadings and the proof disclosed 
such a ease here, there would be no difficulty in reaching a 
decision; but in this case, it appears from the pleadings 
and the evidence that the common council of the city of 
Bloomington, in response to a request by a committee of the 
labor unions of said city, made and entered of record an 
order granting to said labor unions the free use of the streets 
of said city foE their Labor Day celebration, including a dis- 
play of fireworks at night, and that the exhibition of fire- 
works, at which appellant received her injuries, was held by 
the labor unions as a part of their celebration, under the 
permission and license so granted by said city. We cannot, 
therefore, determine this case by the application of the prin- 
ciple just announced, but we are required to consider and 
determine the effect of the express permission and license 
given by said city, as bearing on the question of its liability 
for damages resulting from such authorized display of fire- 
works. In considering this question, it is necessary to dis- 
CX18S briefly the duties of the city in reference to keeping its 
streets in a safe condition for use. 

It is weU settled that where a fixed, certain and absolute 
duty of a purely ministerial character is imposed on a city 
by statute, and means are provided whereby such 
2. duty may be discharged, it is under obligation to per- 
form ; and it will be held answerable in damages for 
its failure to perform, or for its negligent performance of 
such duty. By the application of this principle, cities in this 
State have been held liable for a failure to keep their streets 
in a safe condition for travel, and for negligently permitting 
such streets to become obstructed or out of repair so as to 
be dangerous. City of Logansport v. Dick (1880), 70 Ind. 
65, 36 Am. Rep. 166 ; City of Indianapolis v. Doherty (1880) , 
71 Ind. 5; Town of Monticello v. Kennard (1893), 7 Ind. 



150 APPELLATE COURT OF INDIANA. 

Moore v. City of Bloomington — 51 Ind. App. 145. 

App. 135, 34 N. E. 454; Lyon v. City of LoQanspori (1894), 
9 Ind. App. 21, 35 N. E. 128 ; City of Anderson v. Fleming 
(1903), 160 Ind. 597, 67 N. E. 443, 66 L. R. A. 119. 

If a person without the knowledge of the city and with- 
out license or authority from it makes an excavation in a 
street or places an obstruction therein, whereby the condi- 
tion of the street is made dangerous^ the city is not liable 
for injury resulting from such dangerous condition, unless 
it appears that the city had either actual or constructive 
notice of such condition in time to have taken precautions 
to prevent the injury. In such a case, the only negligence 
that can be charged against the city is that it failed to take 
proper precaution to prevent injury after notice of the dan- 
gerous condition of the street On the other hand, if the 
city, by contract or license, authorizes an excavation to be 
made in a street or an obstruction to be placed therein, which 
from their character and location will necessarily or prob- 
ably produce injury to those using the street, unless precau- 
tionary measures are taken to prevent it, such city will be 
liable in damages to a person injured by reason of the want 
of necessary precautionary measures to make it safe. To 
render the city liable in such a case, it is not necessary to 
show that it had notice that the person who had placed the 
obstruction or made the excavation in the street pursuant to 
such authority or license had failed to guard it or to light it, 
or to take other precautions necessary to make it safe, and 
that after such notice the city had time to take such precau- 
tions before the injury occurred. The duty to see that such 
precautions are taken rests primarily on the city, and it can- 
not absolve itself from such duty by delegating it to another. 
Park v. Board, etc. (1892), 3 Ind. App. 536, 30 N. E. 147; 
City of Indiwnapolis v. Marold (1900), 25 Ind. App. 428, 58 
N. E. 512; 2 Dillon, Mun. Corp. (3d ed.) §1027. 

In the last cited case the city of Indianapolis had let a 
contract for lowering a bridge. The execution of the work 
contemplated by the contract necessarily resulted in a con- 



MAY TERM, 1912. 151 

Moore r. City of Bloomlngton — ^1 Ind. App. 145. 



dition of the street which would be dangerous unless prop- 
erly lighted or guarded. The contractor failed properly to 
light or guard the place, and the city was held liable to the 
person injured by reason of the defect so created. The court 
held that as the improvement contracted for contemplated 
the creation of a condition of the street which was danger- 
008, unless precautions were taken to make it safe, the duty 
primarily rested on the city to see to it that such precautions 
were taken, and that notice to the municipality of the ab- 
sence of such precautions or guards was not required to make 
the city liable. In the case of City of IndianapoUs v. Doher- 
ty, supra, the same principle was applied to a case where a 
person had created an obstruction in the street by placing 
building material therein, under the authority of a building 
permit issued by the city. 

We can see no reason why the principle announced and 

applied in these eases should not apply to a case where a city 

expressly grants permiaeion or a license authorizing 

3. the use of a street for a purpose which, in its nature 
18 intrinsically dangerous and which necessarily 

or ordinarily renders the use of the street unsafe un- 
less precautions are taken to prevent the danger or- 
dinarily incident to such use, especially where the use au- 
thorized is an extraordinary and unusual use, and one that 
is foreign to the purpose for which the street was 

4. dedicated. Counsel for appellee concede that these 
principles apply where the act authorized results in 

an excavation or obstruction in the street, or any other 
change in its physical condition which makes it unsafe for 
use ; but it is urged that they should not apply when the act 
authorized or licensed does not change or affect the physical 
condition of the street, and which amounts only to a tempo- 
rary use of the street which may or may not be dangerous 
according to the amount of care used. No court has recog- 
nized such a distinction, so far as we have been able to learn 
from our investigation of the question, and we know of no 



152 APPELLATE COURT OF INDIANA. 

Moore r. CMty of Bloomington — Til Iiul. Apj). 145. 

sound reason on which such a distinction could rest. There 
may be uses to which a street might be appropriated or sub- 
jected which would make it more unsafe for travel than it 
could be made by any obstruction or change in its physical 
condition. 

In the case of Utile v. City of Madison (1877), 42 Wis. 
643, 24 Am. Rep. 435, it was held that the city, by authoriz- 
ing the exhibition of bears in the street, became liable to a 
person who sustained damage by reason of his horse taking 
fright at the animals so exhibited. In the case of Wheeler 
V. City of Fort Dodge (1906), 131 Iowa 566, 108 N. W. 
1057, 9 L. R. A. (N. S.) 146, the supreme court of Iowa 
held that a wire stretched across the street from the top of 
a building on one side to a point near the ground on the 
other, for the purpose of giving an exhibition known as ''the 
slide for life", was a nuisance, and the city was held liable 
in damages to a person in the street who was injured by the 
performer while engaged in giving the performance falling 
upon him. In the opinion the court said: "That the city- 
may be held liable for permitting conditions which endanger 
travelers, but do not constitute any defect in the street sur- 
face or obstruct travel thereon, has been expressly held by 
this court. • • • * This duty extends, not merely to the sur- 
face of the street or walk, but to those things within its con- 
trol which endanger the safety of those using the street or 
walk properly, ' * • • If we are not to abandon this prin- 
ciple so just and reasonable in itself, there is no escape from 
the conclusion that the presence in the streets of defendant 
city of the apparatus erected for the so-called 'slide for life' 
was a nuisance. But, even if for any purpose or in any ex- 
ceptional sense of the word the existence of the naked wire 
stretched across the public way can be said not to constitute 
a nuisance, yet, when it is considered, as it should be con- 
sidered, with reference to the purpose of its erection and 
the use to which it was to be subjected, its unlawful charac- 
ter is placed beyond a reasonable doubt. There are various 



MAY TEEM, 1912. 153 

Moore r. City of Bloomlngton — 51 Ind. App. 145. 

reasonable and proper uses to which a street may be tem- 
porarily put, which may for the time being obstruct or in- 
temipt its public use. But the right to make or cause such 
interruption must have some foundation in the necessity or 
in the reasonable enjoyment of the use of adjacent prop- 
erty." 

Appellee cites and relies on the case of Wheeler v. City of 

Plymouih (1888), 116 Ind. 158, 18 N. E. 532, 9 Am. St. 837. 

Prom the facts in that case it appears that the mayor 

3. of said city had granted permission to certain per- 
sons to fire an anvil on a vacant lot within the corpo- 
rate limits of said city, and that as a result of the firing of 
such anvil, stones were thrown which broke a plate glass. 
The owner sued the city for the damage to the glass, and it 
was held that he could not recover. The court said : * * The 
act of the mayor in granting permission to fire the anvil 
did not create a liability against the city. The utmost that 
can be granted is that the act of the mayor constituted the 
wrongdoers the licensees of the corporation, and granting 
this, but by no means so deciding, the city is not liable for 
their act, because it is not shown that it was intrinsically 
dangerous. It is quite well settled that a municipal corpo- 
ration is not liable for the acts of its licensees unless it is 
shown that they were authorized to perform an act danger- 
ous in itself. City of Warsaw v. Dunlap [1887], 112 Ind. 
576, 580 [11 N. E. 623, 14 N. E. 568] ; Booley v. Town of 
^uUivan, supra [(1887), 112 Ind. 451, 14 N. E. 566, 2 Am. 
St 209] ; Ryan v. Cxirran [1878], 64 Ind. 345 (31 Am. Rep. 
123). Here there is nothing to show that the authorized act 
was intrinsically dangerous; on the contrary, the danger 
arose from the negligent manner in which the licensees per- 
formed the act." 

This case can be distinguished from the case at bar. The 
act authorized was not to be done in a street of the city, but 
on a vacant lot, and for that reason the duty which is im- 
posed on the city to keep its streets in a safe condition for 



154 APPELLATE COURT OP INDIANA. 

Moore v. City of Bloomington-— 61 Ind. App. 145. 

use could not be invoked in favor of plaintiff. It is stated 
in the opinion that there was nothing in that ease to show 
that the authorized act was intrinsically dangerous, and the 
city is excused from liability on this ground. This is a rec- 
ognition of the principle that the city would have been 
liable, if it had appeared that the act authorized had been 
of such a character as to be dangerous in itself. 

A city is liable for erecting or maintaining a nuisance, 

the same as an individual. City of Valparaiso v. Moffitt 

(1895), 12 Ind. App. 250, 39 N. E. 909, 54 Am. St. 

5. 522; City of New Albany v. Slider (1899),' 21 Ind. 
App. 392, 52 N. B. 626. Any permanent obstruc- 
tion in a street or highway is a nuisance per se. State v. 
Berdetta (1880), 73 Ind. 185, 38 Am. Rep. 117; Hildrup 
v. Town of Windfall City (1902), 29 Ind. App. 592, 64 N. 
E. 942. A temporary obstruction or use of a street may or 
may not be a nuisance in fact. Whether such use is a nui- 
sance in fact must depend on the circumstances of each 
particular case. In determining the question, it is proper 
to consider the character of the use, as to whether it is 
necessarily or ordinarily incident to the uses and purjMwes 
for which the street is intended, as well as the danger or 
inconvenience to the public occasioned thereby. Where the 
particular use of the street authorized by the city can not 
be said as a matter of law to constitute a nuisauQe, but when 
it is of such a character, when considered in reference to 
surrounding conditions and circumstances, that it may or 
may not constitute a nuisance in fact, the question should 
be submitted to the jury for determination, under proper 
instructions by the court. Speir v. City of Brooklyn 
(1893), 139 N. Y. 6, 34 N. E. 727, 21 L. B. A. 641, 
36 Am. St. 664; Landau v. City of New York (1904), 
180 N. Y. 48, 72 N. E. 631, 105 Am. St 709; John- 
son v. City of New York (1906), 186 N. Y. 139, 78 N. 
E. 715, 116 Am. St. 545. The cases last cited are directly 
in point, and furnish express authority for our decision in 



MAY TERM, 1912. 155 

Moore r. City of Blooinlngton — 01 Ind. App. 145. 

this case. In the first ease the city of Brooklyn 
3. was held liable for an injury to a spectator caused 
by a display of fireworks which the city had author- 
ized to be held in its streets. In the second case the plain- 
tiff was injured by a dispky of fireworks in the streets of 
the city, given under the permission of the city authori- 
ties, for the purpose of celebrating a jwlitical victory. A 
non-suit was granted by the trial court, and the case was 
reversed on appeal; the court holding that the case should 
have been submitted to the jury. 

We are not to be understood as holding that a city can 
be made liable for every injury which results from a use 
of the streets which such city has authorized. Before the 
city can be held liable, it must appear that the act to be 
done under the authority of the city, or the use to which 
the street was to be subjected under such authority, was 
of such a character as to render the condition of the street 
dangerous, unless precautions were taken to make or keep 
it safe. If the act authorized is of such a character that it 
is necessarily or usually safe where proper care is used, 
and which can become dangerous only in case the persons 
in charge are guilty of negligence making it so, then the 
city cannot be held responsible for damages caused solely 
by reason of the negligence of the persons in charge, but 
if the act which the city authorizes to be done in its street, 
or the use to which it is subjected under such authority, is 
of such a character as to be necessarily or usually danger- 
ous, and which can be made ordinarily safe only by the use 
of certain precautions, the city owes the duty to see that 
such precautions are used. Norwalk Gas Light Co. v. 
Borough of Norwalk (1893), 63 Conn. 495, 28 Atl. 32; 
BoOep V. Troy, etc., R. Co. (1884), 57 Vt. 252, 52 Am. Rep. 
129; Bower v. Peate (1876), I Q. B. D. 321; Thompson v. 
Lowell, etc., St R. Co. (1898), 170 Mass. 577, 49 N. E. 913, 
40 L. B. A. 345, 64 Am. St. 323. 
The cases cited as to the last proposition api)ly tho rule 



156 APPELLATE COURT OP INDIANA. 

Moore v. City of Bloomington — 51 Ind. App. 145. 

therein stated so as to hold a person liable for the acts 
of an independent contractor, where the work to be done 
under the contract was of such a character as to be dan- 
gerous unless precautions were exercised to make it safe. 
We can see no reason why the same rule should not apply 
as against a city which has, by contract or license, author- 
ized an act to be done in its streets which will render their 
use unsafe unless precautions are taken. City of India7i- 
a polls V. Huffer (1868), 30 Ind. 235 ; Elliott, Roads and Sts. 
(2d ed.) §634. 

As an illustration, we may assume that a city, for a 
consideration, has granted a license to the owner of an 
automobile, authorizing him to operate it in the streets 
of the city. It would scarcely be contended that the city 
would be liable to a person injured on the streets by reason 
of the negligent operation of such automobile. The reasons 
are manifest. In the first place, the use as authorized and 
licensed is one of the recognized modes of travel, and is in 
no way foreign to the purposes for which the street is in- 
tended; and, in the second place, the use authorized is one 
which is ordinarily safe where proper care is used, and be- 
comes dangerous only by a failure to use proper care. If, 
however, the city of Indianapolis should grant permission 
to an automobile club to hold races on "Washington street in 
said city, it would hardly be claimed that such races, if held, 
would not constitute a nuisance. Johnson v. City of New 
York, supra. 

The facts in this case show that a display of fireworks 
was made from a platform placed on a wagon near the 
corner of the public square in the city of Bloomington ; that 
this was in the heart of the city, and that a large crowd of 
people had assembled to see the display; that Soman 
candles and skyrockets, heavily charged, were used in mak- 
ing such display, and that the person in charge had never 
had any experience in handling fireworks of this character. 
The discharge of fireworks of this kind in the crowded 



MAY TERM, 1912. 157 

Moore v. City of Bloomlngton — 61 Ind. App. 145. 

streets of a city renders such streets unsafe and dangerous 
for use, unless precautions are used, and the exercise of 
such precautions is the only thing that can make the use of 
fireworks reasonably safe. The question as to whether or 
not the fireworks as authorized and conducted constituted a 
nuisance for which the city was liable should have been sub- 
mitted to the jury. As was said in Landau v. City of New 
York, supra: ''fireworks exhibited on an extensive scale in 
a large thoroughfare in the midst of a large city, where a 
vast multitude of people is assembled, if not a nuisance as 
matter of law, may properly be found such as a matter of 
fact. This was so adjudged in the Speir case [, supra], 
which is controlling in principle. While such displays are 
sometimes tolerated, they are not authorized, and whoever 
is responsible for them must run the risk of liability for the 
eonsequences^ so far as they result in injury to persou or 
proi)erty.*' 

It appears from the evidence in this case that appellant 

was not using the street for travel at the time of her injury, 

but that she had come to the place solely for the pur- 

6. pose of watching the fireworks. Under such circum- 
stances, it is insisted that she assumed the risk of 
injury, and cannot recover for that reason, and the case 
of Scardon v. Wedger (1892), 156 Mass. 462, 31 N. E. 642, 
16 L. E. A. 395, is cited as sustaining this proposition. 
The case cited fully sustains the proposition, but its weight 
as an authority is considerably weakened by a dissenting 
opinion by Morton, J. 

The contrary doctrine is announced in Vermont, where 
it is decided that the presence of a person on a public street, 
in a crowd of people that had been invited there to see an 
^'xhibition of fireworks, did not constitute contributory 
negligence. Bradley v. Andrews (1879), 51 Vt. 530. The 
Supreme Court of Missouri has also decided that a person 
attending a display of fireworks is not guilty of con- 
tributory negligence. DoweU v. OutJiene (1889), 99 Mo. 



158 APPELLATE COURT OP INDIANA. 

Moore r. Citj' of Blooniington — Til Ind. App. 145. 

653, 12 S. W. 900, 17 Am. St. 598. In the case of Johnson 
V. City of New York, supra, it was held that a person who 
was injured while attending an automobile race, held in the 
streets of the city, was not, as a matter of law, guilty of 
contributory nt^ligence, but that the question of his con- 
tributory negligence was one of fact for the jury. 

We cannot say from the facts in this case that appel- 
lant was guilty of contributory negligence as a matter of 
law. It appears that she was a girl of tender years, and 
she may not have known nor fully appreciated the danger 
she was encountering. She may have had no knowledge of 
the dangerous character of the fireworks which were being 
used, nor of the inexperience of the person in 

7. charge. We have often held that where the undis- 
puted facts bearing on the question of contributory 
negligence are of such a character that impartial men may 
differ as to the inference to be drawn therefrom, the 
(iuestion should be submitted to the jury: Rush v. CocU 
Bluff Min, Co. (1892), 131 Ind. 135, 30 N. B. 904; Cleve- 
land, etc., R. Co. V. Harrington (1892), 131 Ind. 426, 30 N. 
B. 37. 

The motion for a new trial should have been sustained. 
The judgment is therefore reversed, with directions to sus- 
tain the motion for a new trial, and for other proceedings 
not inconsistent with this opinion. 

Note.— Reported in 95 N. E. 374. See, also, under (1) 28 Cyc- 
1257; (2) 2S Cyc. 1202; (3) 28 Cye. 1.^55; (5) 28 Cyc. 1500; (6) 
28 Cye. 1510; (7) 20 Cyc. (531. As to the contributory negligence 
of a child, see 49 Am. St. 408. As to the liability for injuries re- 
sulting from the discharge of fireworks, see 5 Ann. Cas. 539; \l\ 
Ann. Cas. 547. 



MAY TERM, 1912. 159 

Indianapolis Southern XL Co. r. Wycoff — 51 Iiul. App. 159. 



Indianapolis Southern Railroad Company v. 

Wycoff. 

IXo. 7J27Z. File* June 23, 1911. Rehearing denied May 14, 1912. 

Transfer denied July 5. 1912.] 

1. Easement. — Contract Creating. — Necessity for Writing. — Stat- 
ute of Frauds. — An easement is an interest in land, within the 
meaning of the statute of frauds, and a contract creating such 
an interest must be in writing. i>.161. 

2. Railroads. — Private Crossing Connecting Lands Separated hy 
Right of Way. — Contract. — Easement. — Statute of Frauds. — The 
right of a landowner, across whose lands a right of way for rail- 
road purposes has been acquired, to cross that portion of the land 
occupied for such right of way, is given by statute (§5444 Burns 
1908, Acts 1899 p. 485) and exists in the absence of any contract 
on the subject^ so that an agreement of a railroad company in- 
tended to provide such landowner with a convenient way by 
which such right may be exercised, does not create any easement 
or interest in the land conveyed for right of way purposes, and 
is not required by the statute of frauds to be in writing, p. 162. 

3. Evidence. — Parol Evidence. — Consideration of Deed. — ^Notwith- 
standing the rule that, in the absence of fraud or mistake, the 
terms of a written contract cannot be varied by i^arol evidence, 
the actual conslderatioa of a deed may be shown by parol evi- 
dence, even though it differs from the consideration expressed 
in the Instrument, and, where a deed conveying a right of way 
to a railroad company mentioned the consideration as a specified 
Bom of money, and was silent as to any other consideration, 
part^ evidence was admissible to show that a part of the consid- 
eration was an agreement of the railroad company to erect stei)s 
for the convenience of i)edestriaus in crossing the right of way. 
P.163w 

Prom Monroe Circuit Court ; James B. Wilson, Judge. 

Aetion by Andrew Wyeoff against the Indianapolis South- 
ern Railroad Company. From a judgment for plaintiff, the 
defendant appeals. Affirmed. 

Ira C. Batman, Robert G. Miller, James W. Blair and 
James E. Kepperley, for appellant. 
Henry A. Lee and Miers <& Corr, for appellee. 



160 APPELLATE COURT OP INDL^A. 

Indianapolis Southern R. Co. t?. Wycoff — 51 Ind. App. 159. 

Lairy, C. J. — Appellant railroad company instituted con- 
demnation proceedings to acquire a right of way for its 
railroad across the farm of appellee. Appraisers were ap- 
pointed, who filed a report, awarding damages in the sum of 
$850, to which award exceptions were filed by appellee. Ap- 
pellant paid the amount of the award to the clerk of the 
court, took possession of the right of way, and constructed 
its road thereon, and in so doing it built a grade of consider- 
able height just east of the house located on appellee's land. 
The orchard on appellee's farm was located east of the house, 
as was also a valuable spring, which had been used in con- 
nection with the residence on the farm, and this grade was 
located between the spring and the house, and so as to leave 
the larger part of the orchard east of such grade. 

Before the case was tried on the exceptions a compromise 
was reached, by the terms of which appellee conveyed to 
appellant by deed the right of way across his farm, and ap- 
pellant paid to appellee $650 in addition to the amount al- 
ready paid into the clerk's office, making a total of $1,500. 
It is claimed by appellee that at the time the negotiations 
for the settlement were had, appellant agreed that, in consid- 
eration of the execution of the deed for the right of way, it 
would pay to him the sum of $1,500, and in addition thereto 
would construct and maintain stone or cement steps or ap- 
proaches to its grade, immediately east of his residence, so as 
to enable pedestrians to pass over said grade in going be- 
tween the house of appellant and the spring and orchard, 
which were located east of said grade. 

This action was brought in the Monroe Circuit Court to 
recover damages on account oif the failure of appellant to 
perform that part of the agreement relating to the construc- 
tion of the steps. A trial was had, which resulted in a 
judgment in favor of appellee, from which judgment an ap« 
peal was taken to this court. 

The complaint does not aver that the contract in refer- 
ence to the building of the steps was in writing, and th.o 



MAY TERM, 1912. 161 

Imlianni)oIis Southern R. Ck). v. Wycoff — 51 Ind. App. loO. 

special finding of facts afBirmatively shows that it rested in 
parol. The deed recites that the conveyance is made in con- 
sideration of $1,500, the receipt whereof is acknowledged, 
but it is silent as to any other or further consideration. In 
view of these facts, appellant takes the position that appel- 
lee is not entitled to recover for a failure of the railroad 
eompany to construct steps, as alleged in the complaint, even 
though it be conceded that such an agreement was made, as 
a part of the negotiations for settlement, which were con- 
summated by the execution of the deed. 

Several errors are assigned which present this question 
in different ways. The determination of this question will 
therefore be decisive of all questions presented by the as- 
signment of errors, and a separate discussion of each is un- 
necessary. 

Appellant contends that the alleged agreement for the 
construction of the steps leading up to the grade of ap- 
pellant's tracks, on each side thereof, for the use of pedes- 
trians, would, if enforced, constitute an easement across ap- 
pellant 's right of way. If appellant is correct in this con- 
tention, it must prevail in this appeal. It is well- 
1. settled law that an easement is an interest in land, 
within the meaning of the statute of frauds, and that 
a contract creating such an interest must be in writing. 
Robinson v. Thrailkill (1887), 110 Ind. 117, 10 N. B. 647; 
Brumfield v. Carson (1870), 33 Ind. 94, 5 Am. Rep. 184; 
Rkhter v. Irwin (1867), 28 Ind. 26; Schmidt v. Brown 
(1907), 226 111. 590, 80 N. E. 1071, 11 L. R. A. (N. S.) 457, 
117 Am. St 261. 

It therefore becomes necessary to determine whether the 
alleged agreement in reference to the construction of the 
steps has the effect, if enforced, of creating an easement in 
favor of appellee in the land conveyed by him to appellant 
for right of way purposes. 
It is claimed by appellant that the alleged agreement 
YoL. 51—11 



162 APPELLATE COURT OP INDIANA. 

Indianapolis Southern R. Ck>. v. Wycoff — 51 Ind. App. 159. 

would give to appellee and his family the right to cross and 
recross its track and right of way in passing between the 
residence on one side and the orchard and spring on the 
other, and that such a right would constitute a burden on 
its estate in the land, amounting to an easement. If, in the 
al)sence of any contract on the subject, appellee and his iara- 
ily possessed no right under the law to cross the right of 
way of appellant in passing from one part of his farm to 
the other, then the contract averred in the complaint could 
be properly held to confer such a right, but if the law gives 
to appellee and his family this right, regardless of any con- 
tract on the subject, then such a conclusion could not be 
reached. 

Section 5444 Bums 1908, Acts 1899 p. 485, provides "that 
owners of tracts of land separated by the right of way of a 
railway company, or owner of a tract or tracts of 
2. land separated by the right of way of a railway com- 
pany from a public highway or road, lying and situ- 
ated immediately contiguous to and adjoining said right of 
way, may, if such right of way has been or shall hereafter 
be acquired by condemnation and appropriation, or by pur- 
chase or donation, construct and maintain wagon and drive- 
ways over and across such right of way leading from one of 
such tracts to another on the opposite side of such right of 
way, or leading from such tract or tracts of land on one 
side to the highway on the other side of the right of way, 
at any point most convenient to such owner. For this pur- 
pose such owner may enter upon such right of way and con- 
struct such embankment or make such excavation on one or 
both sides of the track of such railway as may be necessary 
to establish easy grades from one tract of land to the oppo- 
site tract or highway, and may spike planks on the ties of 
such railway on the line of such way for the space of the 
width of such way, of such thickness as not to be elevated 
above the top of the rails of such railway, and may also 
bridge the gutters at the sides of such railway track in such 



MAY TERM, 1912. 163 

Indianapolis Southern R. Co. r. Wycoff — 51 Ind. App. 159. 

manner as not to obstruct the flow of water therein: Pro- 
vided, The railroad company shall make the crossing.'' 

The effect of this statute is to reserve to the landowner 
across whose land a right of way for railroad purposes has 
been acquired^ the right to cross that portion of land occu- 
pied for such purposes. This right is given by statute, and 
exists in the absence of any contract on the subject. By 
virtue of this statute, appellee had a right to a passageway 
over and across said right of way leading from the portion 
of his land on one side of the right of way to that on the 
opposite side, and the agreement of the railroad company, 
alleged in the complaint, would not have the effect to create 
this right, but was simply intended to provide him with a 
convenient way by which it could be exercised. The contract 
did not, therefore, create any easement or interest in the 
land conveyed for right of way purposes, and was not re- 
quired by the statute of frauds to be in writing. 

The oral testimony introduced at the trial, tending to show 

tiiat appellant agreed to erect and maintain the steps, as 

alleged in the complaint, could not be excluded on the 

3. ground that its effect and purpose was to vary the 
terms of a written contract. It is true that a deed is 
a written contract, and it is also true, as a general propo- 
sition, that where a contract has been reduced to writing and 
signed it becomes the respository for the entire agreement, 
and that, in the absence of fraud or mistake, it cannot be 
varied by parol evidence ; but notwithstanding this rule, the 
courts hold that the actual consideration of a deed may be 
shown by parol evidence, even though it differs from the con- 
sideration expressed in the instrument. 

It was said in the case of Levering v. Shockey (1885), 100 
Ind. 558 : "The actual consideration of a deed may be shown 
by parol evidence. • • • Either party may show for any 
purpose, except to defeat its operation as a valid and effect- 
ive grant, the true consideration of a deed, although it be 
entirely different from that expressed in the deed. • • • 



164 APPELLATE COURT OF INDIANA. 

Indianapolis Southern R. Co. v. Wycoff — 51 Ind. App. 199. 

The consideration expressed is the least important part of 
the instrument, and may be varied to aknost any extent by 
parol evidence, as the estate created does not depend upon 
it, but upon the conditions and limitations contained in the 
instrument, descriptive of its quantity and duration. • • • 
When one consideration and no other is expressed in a 
deed, parol evidence is admissible to prove a different con- 
sideration, though the legal effect of the deed may be there- 
by changed. ■' See, also, Hays v. Peck (1886), 107 Ind. 389, 
390, 8 N. E. 274. 

Many other cases might be cited as sustaining this propo- 
sition, but the rule is so well settled that we deem it unnec- 
essary. In the case of Hays v. Peck, supra, the court says : 
'*It is an elementary doctrine that the consideration of a 
deed may be shown by parol, and it is impossible to give 
effect to this doctrine without permitting the parties to 
prove what agreement as to the consideration preceded the 
execution of the deed. The agreement as to the considera- 
tion necessarily precedes the execution of the deed, and the 
fact that the consideration was agreed upon some time prior 
to the delivery of the deed does not preclude the grantor 
from showing what constituted the consideration of the 
deed. To hold otherwise would be to run counter to the 
rudimentary doctrine that it is always competent to prove 
the actual consideration yielded for the conveyance of land. 
With few exceptions the rule is, that the preliminary nego- 
tiations are merged in the deed. • • • This doctrine, 
however, does not apply to the consideration, except, per- 
haps, where the deed specifically sets forth the consideration. 
Where, however, the consideration is merely stated in gen- 
eral terms, the doctrine does not apply. The case of Ice v. 
Ball, supra [(1885), 102 Ind. 42, 1 N. E. 66], is not to be 
considered as deciding that where the deed states the con- 
sideration in general terms, the grantee is precluded from 
proving the true consideration, even though it may have 
been agreed upon prior to the execution of the deed. It is, 



MAY TERM, 1912. 165 

United Coal Mining Co. v. Daugherty — 51 Ind. App. 165. 



of course, necessary to show that the consideration previ- 
ously agreed upon was the one on which the deed was 
founded.'' 

The conclusion we have reached on this question is de- 
cisive on every question presented by this appeal. There 
was no error in overruling appellant's demurrer to the com- 
plaint, and the oral evidence was properly admitted, tend- 
ing to prove the contract averred in the complaint. The 
suflSciency of the evidence to sustain the finding of facts is 
not questioned, and the facts found are abundantly sup- 
ported by the evidence. The court committed no error in 
overruling appellant's motion for a new trial. There was 
no error in the conclusions of law as stated by the court on 
the facts found, and the court properly refused to state 
other and further conclusions of law, as requested by appel- 
lant 

Finding no error in the record, the judgment ia affirmed. 

Note. — ^Reported in 95 N. B. 442. See, also, under (1) 20 Gyc. 
215; (2) 33 Cyc. 301; (3) 17 Cyc. 653. As to the admissibility of 
OQtside evidence to vary deed, see 11 Am. St. 844. For a discussion 
of the admissibility of parol evidence to show an aj^reement be- 
tween the parties at the time of the execution of a deed of land 
to a railroad for a right of way or depot purposes, see 17 Ann. 
Cas. S63. 



United Coal Mining Company v. Daugherty. 

FXa 7,329. Filed November 21, 1911. Rehearing denied February 
2, 1912. Transfer denied* July 5, 1912.] 

1- Appeal. — Review. — ConflicHng Evidence, — Verdict, — The court 
will not weigh conflicting evidence on appeal, and the jury's ver- 
dict is conclusive if there is some evidence to supi*rt it. p. 160. 

2. Masteb and Sebvant. — Injury to Servant. — Assumption of Risk. 
— ^Wliere plaintiff, who was employed in a coal mine to remove 
pillars, saw that a rock in the roof was loose, and asked the day 
man, whose duty it was to make such repairs, to take it down. 
and the day man propped the rock instead and informed him that 
it was all right, plaintiff had a right to rely on the repairs boinir 
puch as to make the place reasonably safe, and it cannot be said 



166 APPELLATE COURT OP INDIANA. 

United Coal Mlninj? Co. v. Daugherty — 61 Ind. App. 165. 

as a matter of law that plaintiff assumed the risk of injury from 
the falling of the rock by going to work thereunder after making 
only an ordinary inspection of the place, although he was in a 
position where he could have tested the rock and discovered that 
it was loose, p. 109. 

3. Masteb and Servant. — Injury to Servant, — Assumption of Bisk, 
— Evidence. — Verdict. — Conclusiveness. — ^Where the evidence ia 
such that the court cannot say as a matter of law that plaintiff 
assumed the risk of injury from the dangerous condition of his 
working place, his nonassumption thereof is established by the 
verdict in his favor, p. 171. 

4. Master and Servant. — Injury to ServofU. — Evidence. — Adtnis- 
sihility. — Where plaintiff, employed in a coal mine to remove pil- 
lars, informed the day man, whose duty it was to make repairs, 
that a rock in the roof was loose and that the place was danger- 
ous, and the day man, within two to five minutes after propping 

' the rock with timbers, informed plaintiff that It was all right, 
such statement formed a part of the history of the incident, and 
was admissible on that ground, p. 171. 

5. Master and Servant. — Injury to Servant. — Evidence. — Adtnis*- 
sibiUty. — ^Where plaintiff, a coal mine employe, had informed the 
day man, whose duty it was to make repairs, that the roof was 
dangerous, and the latter, after making repairs thereto^ told 
plaintiff that it was all right, such statement was admissible for 
the purpose of showing that the repairs had been finished, p. 172. 

6. Appeal, — Assignment of Errors. — Waiver, — Errors assigned, but 
not discussed, are waived, p. 172. 

7. Appeal. — Ohjcction to Instructions. — Waiver. — Briefs. — One 
complaining of error in the giving of Instructions waives consid- 
eration thereof, where neither the instructions nor a substan- 
tial statement of what they contain is set out in his brief, p. 172. 

8. Master and Servant. — Injury to Servant. — Instructions. — ^In 
an action by an injured coal mine employe, instructions that it 
was not necessary for plaintiff to establish all the various acts 
of negligence charged, but that it was sufiicient if he had proved 
by a preponderance of the evidence that he was Injured as alleged, 
without contributory negligence, and that the injuries were prox- 
imately caused by one or more of the material acts of ne^^ll- 
gence charged, and that while defendant was not an Insurer of 
the safety of Its employes against injury, it was its duty to pro- 
vide a reasonably safe place of work for them, do not purport to 
state all the facts essential to a recovery by plaintiff and they 
were not erroneous, p. 173. 

9. Trial. — Instructions. — -An instruction, which purports to tell 
the jury on what state of facts a party may recover, must include 
all the material facts necessary to a recovery, p. 173. 



MAY TERM, 1912. 167 

United Coal Mining Co. v, Daugherty — 51 Ind. App. 165. 

10. Masteb and Sebvant. — Injury to Servant. — Measure of Dam- 
ag€9, — Peril. — Instructions. — In a servant's action against the 
master for persona] injuries, an instruction that the peril, If 
anj*, to plaintiff's life, may be considered as an element of dam- 
age, is not erroneous, where there is evidence that actual physi- 
cal injuries were sustained- p. 174. 

From Parke Circuit Court; Oould G. Rheuby, Judge. 

Action by John P. Daugherty against the United Coal 
Milling Company. From a judgment for plaintiff, the de- 
fendant appeals. Affirmed. 

White & White, and Jump, Cooper & Bogart, for appel- 
lant. 
Maxwell <& McFadden, for appellee. 

Ibach, J. — Common-law action by appellee to recover 
damages for personal injuries sustained while employed in 
appellant's mine, and alleged to have been caused by appel- 
lant s negligence in failing properly to support and prop 
a certain loose rock in the roof of the mine above appellee's 
working place. Trial by jury resulted in judgment for ap- 
pellee. The errors assigned and discussed arise on the mo- 
tion for a new trial. 

It is properly assigned as error that the verdict of the 
jury is not supported by the evidence. All the testimony in 
the case was given by appellee's witnesses, who were him- 
self, his father, who was employed in the same mine, his 
wife, his physician, and William Dutell, who was working 
with him at the time of his injury. It appears from the evi- 
dence that appellee, a coal miner of about ten years' expe- 
rience, had been for a year employed by appellant to **pull 
pillars", that is, before the final abandonment of the mine 
to remove the pillars of coal left to support the roof alonj^ 
entries and between them and other workings, and for two 
weeks he had been working at such labor with Dutell. Ap- 
pellee was absent from the mine on the day before his in- 
jury, and on that day Dutell shot down from a certain pil- 
lar onto the floor of the mine a pile of coal four feet deep 



168 APPELLATE COURT OP INDIANA. 



United Coal Mining Co. v. Daugherty — 51 Ind. App. 165. 

at the deepest point, and diminishing in thickness to six 
inches, which he left in that eo'iidition over night. On the 
day of the injury, when appellee and Dutell came to work 
in the morning, they found that a loose rock in the roof of 
the mine extended across the car track, which passed near 
the pillar and beyond it four or five feet immediately over 
the pile of coal which Dutell had shot down the day before. 
Appellee asked the day man to take down the rock. Instead 
of doing so, he placed some timbers under it, three on one 
side of the track, and two on the other. After the props 
were set four or five feet of the rock projected beyond the 
timbers and overhung the pile of coal. Just as the day man 
had finished setting the props, he said to appellee and Du- 
tell: '*Boys, I think that is all right." After working at 
another place near by until 2 p. m., appellee and Dutell went 
to work shoveling the coal that was under the loose rock into 
cars, which was a part of the work they were employed to 
do. When they had worked about an hour, the rock broke 
oflf near the timbers, and without warning fell upon appellee, 
breaking his leg and otherwise injuring him. The coal vein 
was about four or five feet in thickness, and appellee, who 
was a man five feet nine inches in height, could not stand 
erect, and was stooped over shoveling when the rock fell. 
The piece which fell was about five or six feet long, and 
four or five feet in width, six inches in thickness next to the 
timbers, at the place where it broke, and tapering to a 
feather edge. Appellee's father, an experienced miner, tes- 
tified that to have propped the rock properly, two more 
props should have been placed under the projecting end, 
and that these could have been placed there with the pile of 
coal underneath. But appellee and Dutell both testified that 
no more props could have been placed there without remov- 
ing coal from underneath. Dutell testified that one could 
see that the rock was loose, that the end of it swagged down 
from the roof a little, but it seemed to be thin, and there 
were plenty of timbers, such as are used for propping, lying 



MAY TERM, 1912. 169 

United Coal Mining Ck>. t?. Daugherty — 51 Ind. App. 165. 

near. Appellee testified that he made no examination of the 
rock before going to work under it, beyond looking at it, 
saving that '*you can't examine a rock just with your eyes". 
He also stated that he had a light, and that with the light 
he could have seen the condition of the roof. 

As there is conflicting testimony on the subject of appel- 
lant's negligence in its manner of propping the rock, into 
that question we cannot enter, and since there is some 

1. evidence tending to show that appellant was negli- 
gent, so far as the present appeal is concerned we 

must regard that fact as conclusively found against appel- 
lant by the verdict of the jury. 

But appellant contends that the following uncontradicted 
facts brought out by the evidence show that appellee as- 
sumed the risk. He knew that the rock had been 

2. loose, for he told the day man to take it down and 
clean it. He knew that the day man had not done so, 

but, instead, had propped it with timbers. When he went 
to work under the rock, he made no examination beyond cas- 
ually looking at it, although by looking he could have seen 
that the rock was loose, and although, from the situation in 
which he worked, the rock being not more than five feet 
from the floor, it would have been easy to have tested it oth- 
erwise than merely with his eyes. So appellant claims the 
evidence brings out such a state of facts that appellee must 
have known of the danger if he had exercised ordinary care 
and prudence. 

The present case comes within the rule that *'a servant 
has the right to rely on assurances that defects which he has 
complained of have been remedied, and is entitled to recover 
for injuries caused by the failure to repair as alleged unless 
the defects are such as to be apparent to one in the use of 
ordinary care.'* 20 Am. and Bng. Ency. Law 130. 

In 4 Thompson, Negligence §4665, the author, while dis- 
cussing assumption of risk, states the rule thus: ''If the 
servant complains to the master, or to the superintendent or 



170 APPELDATB COURT OP INDIANA. 

United Coal Mining Co. v, Daugherty — 51 Ind. App. 165. 

other representative of the master, that a given place, ma- 
chine or appliance is defective and dangerous, and the latter 
undertakes to repair the defect so as to make it safe, and 
assures the servant that he has done so, it is not negligence, 
as matter of law, for the servant to continue to work as be- 
fore, though it afterwards turns out that the repairs were 
such as to not make it safe." This principle has been held 
in the following cases: Kerrigan v. Chicago, etc., R. Co. 
(1902), 86 Minn. 407, 90 N. W. 976 ; Rogers v. Chicago, etc., 
R. Co. (1896), 65 Minn. 308, 67 N. W. 1003; Nelson v. St 
Paul Plow Works (1894), 57 Minn. 43, 58 N. W. 868; Gulf, 
etc., R. Co. v. Brentford (1891), 79 Tex. 619, 15 S. W. 561, 
23 Am. St. 377; Atchison, etc., R. Co. v. McKee (1887), 37 
Kan. 592, 15 Pac. 484; Connolly v. St. Joseph, etc., Print. 
Co. (1902), 166 Mo. 447, 66 S. W. 268; Indiana Iron Co. v. 
Cray (1898), 19 Ind. App. 565, 48 N. E. 803. 

Applying this rule to the present case, it appears that 
when the day man had finished his repairs and notified ap- 
pellee of such fact, he had a right to rely on the place being 
reasonably safe, and did not assume the risk occasioned by 
the defective repairs, unless the danger from such was appar- 
ent to one in the exercise of ordinary care. In other words, 
the fact that he had known that the place was dangerous 
before the repairs were made did not cast on him any duty 
to make a more thorough investigation of his place of work 
than if he had just entered the mine to work, with no knowl- 
edge of the previous dangerous condition. Neither did the 
fact that the master had repaired the place assure appellee 
that it was absolutely safe, but only that it was reasonably 
safe, nor did it in any way lessen appellee's assumption of 
obvious dangers. Appellee was under no duty to make a 
critical inspection. He had been told that the repairs were 
finished by the one whose duty it was properly to make such 
repairs. He made an ordinary inspection of the place, and 
he could see that the rock was propped ; and though he could 
see that a part of it had separated somewhat from the roof » 



MAY TERM, 1912. 171 

United Coal Mining Co. v. Daugherty — 51 Ind. App. 165. 

at that point it appeared to be of little thickness. Such, ap- 
pearance would not necessarily indicate danger, and the 
evidence brings out nothing to show that the appearance of 
the rock indicated that there would be danger to one work- 
ing under it. Appellee had a right to rely on the repairs be- 
ing such as to make the place reasonably safe. While 

3. the evidence bearing on the issue of assumption of 
risk is uncontradicted, and does not strongly show 

nonassumption, yet it is such that we cannot say, as a matter 
of law, that it shows that the dangerous condition of appel- 
lee's working place, after the repairs had been made, was 
such as to be apparent to one in the exercise of ordinary 
care, or that it shows that appellee did not use ordinary care. 
It must therefore be held to be established by the verdict of 
the jury as an issue of fact that appellee, in the use of ordi- 
nary care, could not have been aware of the danger, and did 
not assume the risk. 

During the trial, evidence was introduced by plaintiff to 

the effect that Joseph Bobinson, the day or timber man, an 

employe and representative of defendant, was re- 

4. quested by plaintiff to take down a certain loose rock 
in the roof of defendant's mine, at the place where 

plaintiff would have to work. Bobinson did not take it down, 
bat propped the rock with timbers. A portion of the rock 
afterwards broke off and caused the injury for which plain- 
tiff sues. Plaintiff when on the stand as his own witness was 
asked: *'What, if anything, did Mr. Robinson say to you 
with reference to the timbers or the roof of the entry before 
he left ! " The answer was : '' Well, he says, I think, ' That 
is all right now.' " Defendant objected to the question on 
the ground that it did not call for the time of the conversa- 
tion, whether before he put the timbers in or afterwards, it 
being too indefinite. The court overruled the objection, and 
defendant excepted. On cross-examination plaintiff testified 
that Bobinson said it was all right, just when he got done 
Ktting up the timbers, between two and five minutes after 



172 APPELLATE COURT OF INDIANA. 

United Coal Mining Co. v. Daugherty — ^51 Ind. App. 165. 

he had finished setting them up. Defendant moved to strike 
out the remark of Robinson, as it appeared on cross-examina- 
tion that it was made after he had put the timbers in. The 
court overruled the motion, and admitted the remark on the 
ground alone that it showed that Robinson had finished his 
attempt to prop the roof. 

Appellant argues that this evidence was incompetent, on 
the ground that declarations of an agent made while not en- 
gaged in transacting the business of the principal are not 
admissible against the principal. But it seems that the mas- 
ter had delegated to the day man, Robinson, the duty of sup- 
porting the roofis and timbering the mine to make it a safe 
place in which to work. This duty was a continuing one, and 
in all his work about the mine he represented the master. 
He was no less engaged in his master's business because he 
had finished making repairs in a particular place. It also 
appears that the statement made by him to appellee was 
made so soon after the transaction as to form a part of its 
history, and to be admissible on that ground. How- 

5. ever, the court admitted the remark, not for the assur- 
ance of safety which it contained, but merely for the 

purpose of showing that the repairs had been finished. For 
such purpose it was clearly competent. And having notified 
appellant that his place of work was unsafe, and having been 
informed by appellant that the work of repair was finished, 
appellee had a right to assume that the place was reasonably 
safe. An assurance that the place was all right would in 
this case have no more legal effect than a mere statement 
that the repairs were finished. 

Certain errors assigned have been waived by fail- 

6. ure to discuss them ; and under the rules of the Su- 
preme and Appellate Courts appellant has waived con- 

7. sideration of the errors assigned in the giving of 
instructions twenty, twenty-two and twenty-five at ap- 
pellee 's request, by failing to set them out sufficiently in his 
brief. It is better, though not necessary, to set out instruc- 



MAY TERM, 1912. 173 

United Coal Mining Co. r. Daugherty — 51 Ind. App. 165. 

tions in full, and at least a substantial statement of what 
they contain must be made. It is not sufficient to set out 
what counsel regard as their legal effect. ^'In testing instruc- 
tions the legal effect is to be determined by the court from 
the language used, and not by the opinion of counsel." Hen- 
derson V. Henderson (1906), 165 Ind. 666, 75 N. B. 269. In 
the present case, appellant's brief is especially faulty, for it 
purports to set out the contents of instructions twenty, twen- 
ty-two and twenty-five in such a way that from reading the 
brief we might conclude that they were erroneous. To satis- 
fy ourselves on this point, we turned to the record, and found 
that the instructions as there set out in full state the law 
correctly, and though appellant is not entitled thereto, we 
give him the benefit of the result of our investigation. 

Instructions five, fourteen, nineteen and twenty -three, giv- 
en at appellee's request, were set out in full in appellant's 
brief, and properly presented for consideration. We set out 
below instructions five and fourteen, as the error alleged in 
the giving of the others is the same which is said to appear 
m these. 

(5.) ''It is not necessary that the plaintiff es- 

8. tablish by a preponderance of the evidence all the va- 
rious acts of negligence charged against the defendant 

9. in either paragraph of his complaint. It is sufficient 
if the plaintiff has proven by a preponderance of the 

evidence that he was injured as alleged, without negligence 
on his part contributing thereto, and that his injuries were 
proximately caused by any one or more of the substantial 
and material acts of negligence charged in either paragraph 
of his complaint against the defendant. If the plaintiff has 
so established his case then he is entitled to recover, notwith- 
standing he may not have proven all the acts of negligence 
charged against the defendant in either paragraph of his 
complaint." 

(14.) *' While the defendant was not the insurer of the 
safety of its employes against accident or injury, it was its 



174 APPELLATE COURT OP INDIANA, 



United Coal Mining Co. v. Daugherty — 51 Ind. App. 165. 

duty to provide a reasonably safe place for its employees in 
which to perform the work for which they were engaged, and 
if it failed so to do, and by reason thereof an employee who 
was without fault himself, was proximately injured thereby, 
then under such circumstances the defendant is liable to 
such employee for damages as occasioned him by such in- 
juries." 

Appellant claims that the court in giving these instruc- 
tions and instructions nineteen and twenty-three ignored the 
element of assumed risk, and that they come under the rule 
that an instruction which purports to instruct the jury on 
what state of facts a party may recover must include all the 
material facts necessary to a recovery. This principle is well 
established, but does not apply to the instructions under con- 
sideration. None of them purports to state to the jury what 
facts plaintiff must establish in order to recover, but each 
is intended to instruct the jury on one branch of the case. 
The fifth applies only to the issue of negligence, the four- 
teenth, nineteenth and twenty-third to the duty of the master 
to maintain a reasonably safe working place, and they cor- 
rectly state the law on those propositions. None of them as- 
sumes to fix the basis on which appellee is entitled to recover, 
but only one element of that basis. Each of these instruc- 
tions is a correct abstract statement of a general proposition 
of law applicable to any similar case between master and 
servant, and not an instruction based on the particular facts 
of the case at bar, such as those which were disapproved by 
the court in the authorities cited by appellant. The jury 
was fully and completely instructed by other instructions 
given as to assumption of risk, and the trial court did not 
err in giving instructions five, fourteen, nineteen and twenty- 
three, at appellee's request. 

By instruction twenty-six, relating to the measure of dam- 
ages, the court told the jury, enumerating various 

10. elements of damages, that it might take into consid- 
eration the peril, if any there was, to the plaintiff's 



MAY TERM, 1912. 175 

Indianapolis Foundry Co. v. Lackey — 51 Ind. App. 175. 

life. Such an instruction waBapprovediiirerr6Haw]f6,e^c., B. 
Co, V. Brunker (1891), 128 Ind. 542, 551, 26 N. E. 178, Lou- 
isiiUe, etc., R. Co. v. Williams (1898), 20 Ind. App. 576, 588, 
51 N. E. 128, and American Tin-Plate Co. v. WiUiams 
(1902), 30 Ind. App. 46, 56, 65 N. E. 304, and on their au- 
thority and reasoning we hold the present instruction good. 
The authorities cited by appellant to the contrary go only 
so far as to hold that there may be no recovery for peril to 
life, irrespective of actual physical injuries sustained. Under 
the evidence in the present case, there was no question but 
that physical injuries were sustained. 
No reversible error appearing, the judgment is affirmed. 

Note.— Reported In 96 N. B. 477. See, also, under (1) 3 Cyc. 
549; (2) 26 Cyc. 1213, 1478; (3) 26 Cyc. 1516; (4) 26 Cyc. 1422; 
(6) 3 Cyc 388 ; (7) 2 Cya 1014 ; (8) 26 Cyc 1491 ; (9) 38 Cyc. 
130S; (10) 13 Cyc. 234. As to mining and the risks to servant 
thereto incident, see 87 Am. St 573. As to the liahility of a 
mine owner to a servant for injuries caused by the falling of the 
loof of the mine, see Ann. Cas. 1912 B 577. 



Indianapolis Foundry Company v. Lackey. 

IXo. 7,463. Filed January 31, 1912. Rehearing denied April 26, 

1912. Transfer denied July 5, 1912.] 

1. Master and Sebvaivt. — Factory Act. — Emery-Wheels, — Exhaust- 
F<WM.— DiMt— The word "dust" as used in the factory act (§8029 
Bums 1908, Acts 1899 p. 231) requiring that exhaust-fans of 
sufficient power shall be provided for the purpose of carrying off 
dust from emery-wheels and grindstones and dust-creating ma- 
chinery. Includes particles of iron and crystals created and 
thrown frcMn an emery-wheel while in operation, p. 177. 

2. Master and Sebvant. — Injury to Servant. — Emery-Wheela. — 
Exhau9t-Fans. — Complaint. — Allegations, — Proof, — ^In an action 
by a servant for injury, based on the master's failure to provide 
an emery-wheel with an exhaust-fan as required by §8029 Burns 
1908, Acts 1899 p. 231, the plaintiff must allege and prove that 
the emery-wheel could have been provided with an exhaust-fan 
without rendering it useless for the purposes intended, p. 178. 

3. Appeai.. — Review. — Itwited Error. — Instructions, — ^In an action 
by a servant for injury based on the master's failure to comply 



176 APPELLATE COURT OP INDIANA. 

Indianapolis Foundry Co. i\ Lackey — 51 Ind. App. 175. 

with §8029 Burns 1908, Acts 1899 p. 231, requiring emery-wlieels 
to be provided with exhaust-fans, where it was not contended 
that such fan could not have been installed, but the sole theory 
of the defense was that one could not have been installed that 
would have carried away all the dust or that would have pre- 
vented the injury, defendant cannot take adv^tage of the fail- 
ure of an instruction purporting to enumerate the facts essen-. 
tial to recovery by the plaintiff to include the element of the 
practicability of installing sudi fan, since the error was invited 
by the theory of its defense, p. 180. 

4. Appeal. — Review, — Harmless Error. — Instructions.-'-^ln an ac- 
tion by a servant for injuries, based on the master's failure to 
provide an emery-wheel with an exhaust-fan, as required by 
§8029 Bums 1908, Acts 1899 p. 231, the failure of an instruction, 
purporting to enumerate the facts essential to recovery by the 
plaintiff, to include the element of the practicability of installing 
such fan, was harmless, where the defense did not contend that 
it was impracticable to install same, but that the installation 
thereof would not have prevented the Injury, p. 184. 

& Master and Servant. — AsswnptUm of Risk. — Factory Act. — A 
servant does not assume the risk resulting from the master's 
failure to guard a machine or equip it with attachments as re- 
quired by the factory act, §8029 Bums 1908, Acts 1899 p. 231. 
p. 185. 

a Appeal. — Review. — Harmless Error. — Instructions. — ^Where the 
subject of an instruction, in a servant's action against the mas- 
ter for injuries resulting from the master's failure to provide an 
emery-wheel with an exhaust-fan, as required by §8029 Bums 
1908, Acts 1899 p. 231, was clearly limited to the question of the 
servant's assumption of the risk in such cases, the fact that it 
included the words "machinery required to be guarded" could not 
have misled the jury. p. 185. 

7. Appeal. — Review, — Evidence. — Verdict. — A verdict for plaintiflP 
will not be disturl>ed on ground of insufficiency of the evidence 
where there was some evidence to support every material allega- 
tion of the complaint p. 186. 

8. Appeal. — Review. — Verdict. — Damages. — The verdict of the jury 
will not be disturbed on the ground that the damages are exces- 
sive, except in extreme cases, p. 186. 

From Superior Court of Marion County (75,702) ; Clar- 
ence E. Weir, Judge. 

Action by Charles P. Lackey against the Indianapolis 
Foundry Company. From a judgment for plaintiff, the 
defendant appeals. Affirmed. 



MAY TERM, 1912. 177 

Indianapolis Foundry Co. r. Lackey — 51 Ind. App. 175. 

Charles O, Roemler, H. 0. Chamberlin and E. E, Steven- 
son, for appellant. 
Elliott & Elliott and Oeorge W. Oalmn, for appellees. 

HoTTEL, J. — This was a suit brought by appellee to recover 
damages for personal injuries alleged to have been caused by 
reason of appellant's failure to guard and provide an ex- 
haust-fan on a certain emery-wheel in its foundry. The 
cause was tried by a jury which returned a verdict for appel- 
lee in the sum of $1,000. A motion for a new trial was over- 
ruled and an appeal taken, the errors assigned being as fol- 
lows: (1) That the court erred in overruling appellant's de- 
murrer to the complaint; (2) that the court erred in overrul- 
ing appellant's motion for a new trial. "We deem it unneces- 
sary to set out in this opinion the complaint, or any of its 
averments, as the only objection urged against it presents a 
question which has been by this court expressly decided ad- 
verse to appellant's contention. 

Appellant contends that the term "dust", as used in the 

factory act (Acts 1899 p. 231, §8029 Bums 1908), does not 

include ''particles of iron and crystals", and that on 

1. this account this complaint is insufficient, because the 
ground for relief sought therein is predicated on a 
failure to comply with certain statutory requirements, and 
the complaint at the same time shows the alleged injuries to 
have arisen from conditions neither embraced within nor con- 
templated by the statute. This court has held that it would 
have been improper for a court to instruct a jury that the 
term '*dust" did not include particles of iron and emery. 
Muncie Pulp Co. v. Hacker (1906), 37 Ind. App. 194, 205, 76 
X. E. 740 J Indianapolis Foundry Co. v. Bradley (1910), 45 
Ind. App. 530, 534, 89 N. E. 505. In the latter case, the 
court, in construing the provision of the act in question here, 
said at page 533 : "One purpose of the statute is to reduce 
the hazards incident to the operation of emery-wheels. It re- 

VoL. 51—12 



178 APPELLATE COURT OP INDLAJ^A. 

Indianapolis Foundry Co. r. Lackey — 51 Ind. App. 175. 

quires that exhaust-fans of sufficient power shall be provided 
for the purpose of carrying off dust from * emery-wheels and 
grindstones and dust-creating machines'. Appellee testified 
that the dust thrown off the wheel in question was 'emery 
and iron*. We think the legislature failed in its purpose if 
the statute did not apply to the particles of created matter 
thrown from the wheels while in operation, as well as any 
dust likely to be present in rooms in which dust-creating ma- 
chines are operated. ' ' 

In Muncie Pulp Co. v. Hacker, supra, the allegation in the 
complaint was similar to the one here considered, and the 
court held the complaint good under the factory act. 

In its motion for a new trial appellant set forth thirty-one 
grounds, but has specifically waived all but the following: 
(1) That the court erred in refusing to give to the jury in- 
structions two, three, four, five, six and seven asked for by 
appellant; (2) that the court erred in giving, on its own mo- 
tion, instructions numbered four, six, nine and ten; (3) that 
the verdict is not sustained by sufficient evidence ; (4) that 
the verdict is contrary to law; (5) that the damages assessed 
by the jury are excessive. The alleged error presented by the 
refused instructions, supra, is next urged by appellant. 

Instruction two, tendered by appellant and refused, was 
in every essential feature an exact copy of instruction six 
which this court in the case of Indianapolis Foundry Co. v. 
Bradley (1910), 45 Ind. App. 530, 534, 89 N. E. 505, held to 
have been properly refused. We need not discuss the other 
instructions refused, because in so far as they are not covered 
by those given by the court, the same questions are presented 
by the discussion of instructions four, nine and ten, given 
by the court on its own motion. 

The objection to these instructions urged by appellant is. 
in effect, that each purports to enumerate the facts 

2. necessary to be proved by appellee to entitle him to a 
recovery, and that each omits an element essential to 



MAY TERM, 1912. 179 

Indianapolis Foundry Co. r. Lackey — 51 Ind. App. 175. 

such recovery, viz: That it was necessary for appellant to 
"prove that a guard or an exhaust-fan [as the case may be] 
could have been attached to the machine without interfer- 
ing with its use." 

On this question this court in the case of Muncie Pulp Co. 
V. Hacker, supra, said at page 203 : *'In Monteith v. Koko- 
mo, etc., Co. (1902), 159 Ind. 149 [64 N. B. 610], 58 L. R. A. 
944, a complaint based upon the clause of this act first-above 
quoted was held to state a cause of action, although the plead- 
ing contains no averment that it was possible or practicable 
properly to guard the saw without rendering it useless for 
the purpose intended. But in the later case of Laporte Car- 
riage Co. V. SuUender (1905), 165 Ind. 290 [75 N. E. 270], a 
paragraph of complaint was held insufficient for the reason 
among others, that it omitted an averment of this fact ; the 
case holding that whether the thing required by the statute 
to be guarded could be so guarded was not a matter of de- 
fense. But in the case at bar it is sufficiently shown by the 
pleading that no exhaust-fans were provided for the emery- 
wheels, that without the exhaust-fans they were dangerous, 
and that it was practical to operate the emery-wheels with 
proper exhaust-fans. This clause of the above section was 
not under consideration in either Monteith v. Kokomo, etc., 
Co., supra, or Laporte Carriage Co. v. SuUender, supra; and 
it would seem to be sufficient to aver that the emery-wheel 
was not provided with any exhaust-fan for carrying off dust 
therefrom. The effect of the statute is to impress upon an 
emery-wheel in use in a factory a characteristic of danger, 
and to forbid its use unless provided with an exhaust-fan. 
The statute imposes a specific obligation with reference to a 
specific thing, and the failure to comply with the require- 
ments of the statute is a plain breach of a statutory duty ow- 
ing to the employe. But, if the doctrine of the case of La- 
porte Carriage Co. v. Sullender, supra, is applied to this par- 
ticular clause of the statute, the pleading sufficiently avers 



180 APPELLATE COURT OP INDLAJNTA. 

Indianapolis Foundry Go. v. Lackey — 51 In<l App. 175. 

that the emery-wheel could have been provided with an ex- 
haust-fan without rendering it useless for the purposes in- 
tended. ' ' 

The writer of this opinion agrees with the reasoning and 
conclusion reached by this court in the case just quoted from 
on the merits of the question here presented, but the later 
decisions of this court, on the authority of Laporte Carriage 
Co. V. Sullender, supra, have expressly held that it is neces- 
sary, under the provision of the statute here involved, to 
allege and prove that the emery-wheel could have been pro- 
vided with an exhaust-fan without rendering it useless for 
the purposes intended. Such is the holding of this court in 
the case of National Drill Co. v. Myers (1907), 40 Ind. App. 
322, 81 N. E. 1103, and Indianapolis Foundry Co. v. Bradley 
(1910), 45 Ind. App. 530, 89 N. E. 505. In the last case the 
court said: **To warrant a recovery, the burden was on 
plaintiff to show • • • that it was practicable to provide 
said emery-wheel with an exhaust-fan ; that plaintiff was in- 
jured by dust thrown from said wheel; that his injury was 
caused in the manner alleged. ' ' 

It is manifest that, under these authorities, instructions 
four and ten, given by the court on its own motion, were 
erroneous on account of their failure to include therein as 
one of the elements essential to plaintiff's recovery the ele- 
ment that it was practicable to provide said emery-wheel 
with an exhaust-fan, and on account thereof, this cause must 
be reversed, unless it appears from the record that the error 
was invited, or that appellant was not harmed thereby. 

An examination of the record in this case makes clear and 

fully explains the omission of this element in the instruction, 

as well as the reason for the court's refusal to give 

3. the instructions tendered by appellant, which involved 
the same question. The record discloses that there was 
in fact no controversy about appellant's ability to provide an 
exhaust-fan for such emery-wheel, but appellant's sole con- 
tention was that it was impossible to provide one that was 



MAY TERM, 1912. 181 

Indianapolis Foundry Ck), v. Lackey — 51 Ind. App. 175. 

sufficient to carry away all the dust and particles thrown 
from said wheel while in operation^ and that an exhaust-fan, 
if it had been provided for the emery-wheel in question, 
** would not have prevented appellee's injury". 

On this subject, appellee introduced the chief deputy of the 
State Bureau of Inspection, who read in evidence the writ- 
ten notice served by said department on appellant, notify- 
ing it to comply with the section of statute under which this 
action is brought; specially mentioning that it should ''con- 
nect emery-wheels and all dust-creating machinery with ex- 
haust-fans for removal of dust and flying substances from 
such wheels." This witness described the exhaust-fans which 
he had observed attached to emery-wheels in other factories, 
the manner of their connection with the wheel, their action 
on the dust, and the process of installing the same, and fur- 
ther testified that it was ''possible to install a system of that 
kind in connection with the ordinary emery-wheel used in 
foundries and machine shops. ' ' 

All of appellant's witnesses who testified on this subject 
were either from factories which operated emery-wheels of 
like character and construction as that involved in this case, 
and which had exhaust-fans attached, or if such witness was 
not an employe of such factory he testified to having seen 
emery-wheels of like kind and construction to that here in- 
volved which had the exhaust-fans attached. Appellant's 
purpose in each instance, as disclosed by the examination of 
such witnesses, was to show that such exhaust-fans did not 
and would not carry away all the dust and particles of emery 
and iron that are thrown oflf from such wheel when in opera- 
tion. To render its evidence competent and pertinent to this 
ease, appellant had the witness in each instance describe the 
emery-wheels with which he was familiar, which were such 
as those used in appellant's factory, and the witness was then 
asked to tell the eflfect and result of appellant's operation 
with such fans, as to their carrying away all the dust. To 
gome of the witnesses, appellant, in a hypothetical question, 



182 APPELLATE COURT OP INDIANA. 

ludianapollB Foundry Co. v. Lackey — 51 Ind. App. 175. 

described an emery-wheel similar to the one here involved, 
and then asked if an exhaust-fan could be attached to such 
an emery-wheel, which would carry away all the dtist and 
particles, etc. 

Appellant's theory of defense is best disclosed by its own 
words in its answer to objections made to one of its questions. 
The question put to the witness by appellant, and the objec- 
tion made by appellee, together with appellant 's[ response 
thereto, follow : 

* * Q. Now then, Mr. Bixby, taking an emery-wheel sixteen 
inches in diameter attached to a shaft, and that shaft con- 
nected by belts and pulleys to the power system, that wheel 
revolving very rapidly, the workman at the wheel grinding 
a stove frame say two and a half by two feet which he 
grinds while standing in front of the machine pressing the 
stove frame up against the wheel, the wheel having no ex- 
haust-fan or exhaust system attached to it, I will ask you to 
state to the jury whether an exhaust-fan attached to an em- 
ery-wheel operated under such conditions would be of suffi- 
cient power to carry away all the dust and particles of emery 
and iron made by the contact of the stove frame with the 
emery-wheeH 

Mr. Galvin : I object to that, if the court please, that is 
not the proposition involved in this case. Whether an ex- 
haust-fan will carry oflf all the particles or not is not a 
matter we can determine from the Act of the Legislature. 
This Act provides that all emery-wheels shall be provided 
with exhaust-fans of sufficient power to carry ofif the dust 
created by such emery-wheel. Now as to whether such an 
exhaust-fan will carry off all these particles is not a question 
involved in this case. The question here is whether the de- 
fendant has supplied any exhaust-fan, and it is admitted 
that this machine did not have an exhaust-fan. Therefore we 
are upon this question directly and positively. It is not a 
question of whether any exhaust-fan will carry off all the 



MAT TEEM, 1912. 183 

Indianapolis Founiry Co. v. Lackey — 51 Ind. App. 175. 

particles from any machine, but what the Legislature had in 
mind when it passed this law. 

Mr. Chamberlin: The question is merely and solely to 
bring out that an exhaust-fan would not have prevented this 
injury. That is our sole defense. If we are not permitted to 
show that, we are prevented from making any defense here. 
We have put this man on the stand as an expert, and I believe 
the question is competent." 

An examination of the record discloses that it was at no 
time contended by appellant that it was impracticable to con- 
nect exhaust-fans with its emery-wheels, but its sole theory 
was that it was an impossibility to install one of sufficient 
power to carry away all the dust and particles of emery and 
iron thrown from such wheel when in operation, and that 
even though an exhaust-fan had been provided for the emery- 
wheel in question, it would not have prevented appellee's 
injury. 

In order that appellant might get this theory before the 
jury, and the full benefit thereof, it was, by the court, per- 
mitted tx) show by witnesses who worked in factories using 
such fans the character of their operation and work, and 
the results obtained therefrom, to the extent of allowing the 
introduction before the jury of a sample of the dust removed 
by such fans in other factories, and a sample of the parti- 
cles taken from around such wheels, that had not been re- 
moved thereby, such samples being brought by the witnesses 
who testified on such question. On this question appellant's 
president was permitted to testify that since appellee's in- 
jury the appellant has installed the fan system, tad he was 
permitted to describe the conditions and results before and 
after such installation, and to go into detail in describing 
the operation of *' these emery-wheels under the two condi- 
tions", and was permitted to ** explain to the jury just 
what happened when operated without the exhaust-fan and 
what happened when operated with the exhaust system so 



184 APPELLATE COURT OP INDIANA. 

Indianapolis Foundry Co. r. Lackey — 51 Ind. App. 175. 

far as throwing off particles of emery and iron from the 
wheel was concerned/' 

In view of the theory of appellant's defense, as disclosed 
by this record, appellant invited the ferror, if any, in the 
giving of instructions four and ten, supra, and cannot now 
be heard to take advantage of the same. Elliott, App. Proc. 
§627; Cleveland, etc, R, Co, v. Dixon (1912), post, 658, 96 
N. E. 815; Rcilly v. Hanmhal, etc., R. Co. (1887), 94 Mo. 
600, 7 S. W. 407. 

It may be said, also, that in view of such theory on which 

the case was tried by appellant, no harm could possibly 

have resulted from the giving of such instruction, 

4. and under such circumstances the giving of the same 
does not constitute reversible error. 

In these instructions of which complaint is made, the jury 
was told, among other things, that **in this case in determin- 
ing whether or not failure of the defendant to furnish an 
exhaust-fan, if it did so fail, for the emery-wheel in ques- 
tion was the proximate cause of the injury of the plaintiff, 
if he was injured, you would have a right to consider 
whether or not the injury to plaintiff would probably have 
happened if the defendants had not failed to furnish such 
exhaust-fan. 10. If you should find from the evidence that 
plaintiff suffered the injuries complained of or some of them ; 
that such injuries were caused by dust from the emery- 
wheel in question striking him in the eye, and • • • you 
should find from the evidence that the failure of the defend- 
ant to have installed on the machine in question any exhaust- 
fan was not the proximate cause of plaintiff's injury, or if 
you should find that the plaintiff was injured by some sub- 
stance other than dust striking him at the time in question 
* • • then in either case, the plaintiff would not be en- 
titled to recover and you should find for the defendant." 

Instructions seven and eight given by the court were as 
follows : 



MAY TERM, 1912. 185 

Indianapolis Foundry Go. v. Lackey — 51 Ind. App. 175. 

" (7) The statutes of Indiana require that an employer 
operating emery-wheels shall provide exhaust-fans of suffi- 
cient power for the purpose of carrying oflE dust from such 
wheels. It is the claim of the plaintiff that this defendant 
failed to equip the emery-wheel in question with such ex- 
haust-fan and that becaiise of such failure the plaintiff was 
injured. In order to enable the plaintiff to recover he must 
show in addition to the other material facts alleged in his 
complaint that he was injured by the dust coining from the 
emery-wheel in controversy, and in considering that ques- 
tion the term 'dust' should be considered and construed hy 
you in accord with the ordina^'y and generally accepted 
meaning of the term, (8) There has been some conflict of 
evidence in this case as to whether or not an exhaust-fan 
upon the emery-wheel in question would have carried off 
particles of material of the size which injured the plain- 
tiff's eye. In this connection the court instructs you that 
at the time in question the law required emery-wheels to be 
e«iuipped with exhaust-fans of sufficient power to carry away 
dust from the use thereof. The law did not, however, re- 
quire ezhaust'fans of sufficient power to carry away other 
materials, and in this connection it will be necessary for you 
to determine whether or not the plaintiff was injured by dust 
from such emery-wheel, or whether he was injured b> some 
other material.*' 

It will be seen from these instructions that the court gave 
to the jury the law applicable to the real question in this 
ease, under appellant's theory of defense as announced on 
the trial, as favorable to it as the principles announced in 
Indianapolis Foundry Co. v. Bradley, supra, and in Muncie 
Pulp Co. V. Hacker, supra, would permit. 

Instruction six, given by the court, is not open to 

5. the objection urged against it. Its only effect is to 
tell the jury that *'if the tool or machine with which 

6. the employe is required to work is one which by stat- 
ute is required to be guarded in a certain way or 



186 APPELLATE COURT OP INDIANA. 

Indianapolis Foundry Co. v. Lackey — 51 lud. App. 175. 

equipped with certain attcLchments,*' etc., that he does not 
assume the risk of injury resulting therefrom. This is the 
law. Whiteley, etc., Castings Co. v. Wishon (1908), 42 Ind. 
App. 288, 85 N. E. 832 ; Davis v. Mercer Lumber Co. (1905), 
164 Ind. 413, 73 N. E. 899. 

The court clearly limits the subject of the instruction to 
the question of assumption of risk in such cases, and the fact 
that the language of the instruction included ** machinery 
required to be guarded" could not have misled the jury. 

On the third ground of the motion for a new trial, it is 
su£Scient to say that there was some evidence tending 

7. to support every material allegation of the complaint. 
The fourth ground of the motion is not argued by 

counsel. 

The fifth ground, viz., that the damages assessed by the 

jury are excessive, presents a question on which the verdict 

of the jury is conclusive, except in extreme cases, and 

8. does not, under the evidence in this case and the law 
applicable thereto, present reversible error. Illinois 

Cent. R. Co. v. Cheek (1899), 152 Ind. 663, 53 N. E. 641; 
City of Bluffton v. McAfee (1899), 23 Ind. App. 112, 53 N. 
E. 1058. 

We find no error in the record. Judgment is therefore 
aCBrmed. 

Note.— Reported in 97 N. E. 349. See, also, under (1) 26 Oyc. 
11.34; (2) 26 Cyc. 1392; (3) 3 Cyc. 242; (4) 38 Cyc. 1809; (5) 26 
Gyc. 1180; (6) 38 Cyc. 1602; (7) 3 Cyc. 349; (8) 3 Cyc. 381. As to 
negligence and contributory negligence, and pleading and evidence 
in that connection, under tlie master and servant law, see note to 
Brazil Block Coal Co. v. Oihson (Ind.) 98 Am. St. 496. On the 
question of a servant's assumption of risk of being injured by dust 
or splinters caused by the progress of the woric, see 25 L. R. A. 
(N. S.) 364. As to servant's assumption of risk of master's breach 
of statutory duty, see 6 L. R. A. (N. S.) 981; 19 L. R. A. (N. S.) 
(H6; 22 L. R. A. (N. S.) 634; 33 L. R. A. (N. S.) 646; 42 L. R. A. 
(N. S.) 1229. 



MAT TERM, 1912. 187 

Reed v. Bishop — 51 Ind. ApiJ. 187. 



Reed et al, t;. Bishop, Administrator. 

[Xa 8^153. Filed March 26, 1912. Rehearing denied May 29, 1912. 

Transfer denied July 5, 1912.] 

L Wills. — Probate. — Jurisdiction, — Personal Property, — ^Personal 
•property, as a general rule, Is subject to the law of the domicile 
of the testator, and the decision of a court of another state ad- 
oiltting to probate the will of a testator who was domiciled in 
tliat state, Is an adjudication of all questions relating to bequests 
therein of such property, p. 190. 

2. Courts. — Courts of Other States, — Prdbate of Will, — AnciUari/ 
Administration, — Effect. — ^The judgment of a court of another 
sUte admitting to probate the will of a testator who was domi- 
ciled In that state, Is not contravened or rendered less effective 
by ancillary administration on the personalty of such testator 
located In this State, since, on a substantial compliance with our 
laws, the executor is entitled to receive for distribution under 
the will any surplus In the hands of such ancillary administrator, 
p. 190. 

2. OouBTS. — Jurisdiction, — Appointment of Administrator, — Con- 
tent Between Foreign Executor and Resident Creditor, -^T^q cir- 
cuit court, under §2743 Bums 1908, §2228 R. S. 1881, has juris- 
dictioii over all matters Involved in a controversy between resi- 
dent creditors of a testator and foreign executors, who seek to 
have the will recorded and claim preference In the issuance of 
letters testamentary over letters of administration to one of such 
creditors, p. 191. 

t Wills. — Foreign WUls.—-> Recording.— -Proof. — Under §3151 
Boms 1908, §2593 R. S. 1881, providing for tlie filing and record- 
log of foreign wills, persons seeking to have a foreign will re- 
corded must first satisfy the court "that the Instrument ought to 
tte allowed as the last will of the deceased." p. 191. 

V Wills. — Foreign Wills, — Recording. — Appeal. — Matters Not 
i^hown by Record, — Presutnption, — Although it appears that an 
ex parte application to have a foreign will filed and admitted to 
record was verified, and that the copy was properly certified and 
authenticated. In the absence of any showing as to the evidence 
beard on the question of whether the instrument was the last 
will of the decedent, It may be presumed, on appeal of the appli- 
cants, that evidence was heard from which the court found that 
such instrument was not the last will of the decedent, p. 191. 

^ Wnxs. — Foreign WUls. — Denial of Record, — Harmless Error, — 
The denial of an ex parte application to have a foreign will filed 
and admitted to record, where it api>ears that the property left 



188 APPELLATE COURT OP INDIANA. 

Reed v. Bishop — 51 Ind. App. 187. 

by testator, In this State was personalty and insufficient to pay 
the claims of resident creditors, was harmless, since, if it should 
later appear that there is property in this State on which the 
will may operate, it would be the duty of the court, under §3151 
Bums 1908, §2593 R. S. 1881, on the production of such will or 
copy thereof by any person interested therein, to order it filed 
and recorded, p. 192w 

7. Wills. — Foreign Wills. — Denial of Records — Right of Foreign 
E-rccutor to Letters Testamentary. — Harmless Error. — ^Error in 
refusing to admit a foreign will to record is not harmful as af- 
fecting the right of a foreign executor to qualify in this State In 
preference to the right of a resident creditor to letters of admin< 
istration, since there is no statute giving such preference even 
if the will had been admitted to record, p. 192. 

8. Executors and Administbatobs. — Foreign Executors. — Resi- 
dent Creditors.— Preference.— 'Vuder §2740 Burns 1908, §2231 R. 
S. 18S1, providing that foreign executors, on the production of 
letters showing their appointment in another state, shall be en- 
titled to letters in this State in preference to all persons, "except 
creditors, legatees, and heirs of the deceased, entitled to distribu- 
tion, who are inhabitants of this State," a resident creditor is 
entitled to letters in preference to an executor of a foreign will 
who is a legatee and a non-resident, or to one who is an inhab- 
itant of this State, but is not a creditor, legatee or heir of the 
decedent p. 192. 

9. ExECUTOBS AND ADMINISTBATOBS. — Appointment. — Rights of 
Creditors. — Cashier of Bank. — ^A bank not being authorized by 
law to act as an administrator, its cashier is not entitled to 
letters of administration in preference to a creditor of the estate, 
who is eligible and qualified and makes his application within the 
time allowed by statute, although such bank is also a creditor. 
p. 194. 

> From Cass Circuit Court; John 8. Lairy, Judge. 

Applications by Claude C. Bishop and another for letters 
of administration on the estate of George R. Hoopes, de- 
ceased, who was a resident of Pennsylvania. Pending the 
proceedings thereon Harry G. Reed and another, as execu- 
tors under the will probated in Pennsylvania, sought to 
have the will admitted to record in this State and to have 
letters issued to themselves. Prom an order denying the 
admission of such will to record and appointing Claude C. 
Bishop administrator, this appeal is prosecuted. Affirmed. 



MAY TERM, 1912. 189 

Reed v. Bishop — 51 Ind. App. 187. 

G. E. Ross, for appellants. 
Rabb iSk Mahoney, for appellee. 

Mters, J. — ^On March 9, 1911, George R. Hoopes, a resi- 
dent of the state of Pennsylvania, departed this life testate 
in Cass county, Indiana. On March 20, 1911, the First Na- 
tional Bank of Logansport, Indiana, was a creditor of the 
decedent, and William W. Ross, its cashier, made applica- 
tion to the Cass Circuit Court, showing that decedent died 
in Cass county, leaving assets in that county, consisting of 
personal property of the value of ahout $7,000, that said es- 
tate was insolvent, and asked that letters of administration 
h issued to him as a representative of the largest creditor. 
On March 23, 1911, the last will of decedent, naming Flor- 
ence W. Hoopes, his wife, and Harry G. Reed, of Logans- 
port, Indiana, as executors, was probated in Chester county, 
Pennsylvania, and the persons so named in said Tvill as exec- 
utors were duly appointed, qualified and authorized to ad- 
minister said estate under the laws of Pennsylvania. On 
^larch 23, 1911, appellee applied to the Cass Circuit Court 
to be appointed administrator of the estate of said decedent 
in Cass county, and on the same day a large number of cred- . 
iters joined in a petition to the Cass Circuit Court, stating 
that said estate was insolvent, and asking that letters of ad- 
ministration be issued to said Bishop. On March 27, 1911, 
appellant Harry G. Reed tendered to the Cass Circuit Court 
a certified copy of said will and the proceedings relative " 
to the probate thereof, among other things showing the ap- 
pointment of himself and Florence W. Hoopes, as executor 
and executrix, respectively, and their qualification under 
the laws of Pennsylvania, and moved the court to order all 
of said proceedings recorded in the proper records of said 
<!Oiirt. At the same time said Reed and Hoopes applied to 
the court for letters testamentary, and in support of their 
applications the proceedings had in the state of Pennsyl- 
vania are fully shown; also that decedent left personal 



190 APPELLATE COURT OF INDIANA. 

Reed v. Bishop — 51 Ind. App. 1S7. 

property in Cass county, Indiana, of the probable value of 
$7,000, and negativing the specific grounds, proof of which, 
if made, would render them incompetent under §2737 Bums 
1908, §2222 E. S. 1881. On June 6, 1911, the motion of 
appellant Reed was overruled, and his application, and the 
applications of Florence W. Hoopes, and of William "W. 
Ross, were by the court denied, and the application of appel- 
lee, Claude C. Bishop, granted, and letters of administration 
issued to him. Bishop then qualified as such administrator, 
and is now acting in that behalf. Exceptions were reserved 
to each of these rulings, and by proper assignments of error 
they are now before this court for review. 

The controlling question for decision is not one where a 
nonresident executor is offering to file a copy of his letters 
as evidence of his appointment, in order that he may com- 
mence and prosecute a suit in any court of this State in his 
trust capacity, as contemplated by §§2814, 2816 Bums 1908, 
§§2296, 2298 R. S. 1881, nor is there any issue tendered as 
to the validity of said will, bringing the question within 
§3158 Burns 1908, §2600 R. S. 1881. But it involves only 
the right of preference between foreign executors and a 
resident creditor to administer on personal property within 
the jurisdiction of the Cass Circuit Court. 

Personal property, as a general rule, is subject to the 

law of the domicile of the testator, and under the facts in 

this case the decision of the Pennsylvania court, ad- 

1. mitting the will to probate, was an adjudication of 
all questions relating to bequests therein of such prop- 
erty. Evansville Ice, etc, Co. v. Whisor (1897), 148 Ind. 

682, 48 N. E. 592. The order and judgment of that 

2. court is not contravened nor rendered less eftective 
by ancillary administration in this State, for the rea- 
son that such foreign executors, on a substantial compliance 
with our laws, will be entitled to receive for distribution, -ac- 
cording to the will, any surplus in the hands of such ancil- 
lary administrator. 



MAY TERM, 1912. 191 

Reed v. Bishop — 51 Ind. App. 187. 

Beed and Hoopes presented to the Cass Circuit Court a 

copy of decedent's will, and the proceedings relative to its 

probate in the state of Pennsylvania, together with 

3. their letters testamentary issued by a Pennsylvania 
court, not for the purpose of having the will probated 

in Cass county, Indiana, but to be filed and recorded. With 
this showing they insist (1) that they were entitled to have 
said will and proceedings duly recorded in the proper rec- 
ords of Cass county; (2) that they were entitled to prefer- 
ence in the issuance of letters testamentary over letters of 
administration to a resident creditor of decedent. The Cass * 
Circuit Court had jurisdiction over all matters involved in 
this controversy (§2743 Bums 1908, §2228 R. S. 1881; WiU- 
iams v. Perrin [1880], 73 Ind. 57) and appellants, as well 
as appellee, invoked the laws of this State for authority to 
administer on decedent's estate in Indiana. 

Recognizing, as we must, the judicial acts of the Pennsyl- 
vania court, and conceding to Eeed and Hoopes all the au- 
thority vested in them by that court, then before they 

4. would be entitled to have the will and the probate 
thereof admitted to record as prayed, on the theory 

that they are interested therein, and that there is property 
"on which the will may operate", they must satisfy the court 
*'that the instrument ought to be allowed as the last will of 
the deceased". §3151 Burns 1908, §2593 R. S. 1881. 

The ex parte application of Reed to have the will filed and 

recorded was verified, and the copy appears to have been 

properly certified and authenticated, but the bill of 

5. exceptions does not show that no other evidence was 
heard on the question as to whether or not the instru- 
ment tendered to the court was the last will of the decedent. 
In the absence of this showing, and with every reasonable 

^ presumption in favor of the proceedings and judgment of 
the trial court, we might assume that other evidence was 
heard from which the court found that the instrument ten- 
dered was not the last will of decedent. But conceding 



192 APPELLATE COURT OF INDIANA. 

Reed v. Bishop — 51 Ind. App. 187. 

that the court erred in not permitting the will to be 

6. filed and recorded, no harm could possibly come to the 
applicant, for the reason that it appears from the ag- 
gregate amount of the claims against decedent, held by Indi- 
ana residents, that there is not, at least in this State, suffi- 
cient personal property to pay them, and for the further 
reason that should it later appear that there is property here 
on which the will may operate, it would be the duty of the 
court, when such will or copy thereof is produced by any 
person interested therein, to order it filed and recorded. 

§3151, supra. Nor was this error harmful as affect- 

7. ing the right of Reed and Hoopes, or either of them, 
to qualify as executors, for the reason that if the will 

had been admitted to record, there is no statute giving them 
preference over resident creditors. 

In this case the decedent died testate, and while he left 
assets in Cass county, he was a resident of Pennsylvania, 
where his will was duly probated, and executors appointed, 
who sought letters testamentary from the Cass Circuit Court 
in preference to the granting of letters of administration to 
a resident creditor. The will was not probated nor offered 
for probate, consequently §2737 Burns 1908, §2222 R. S. 
1881, which has reference to the issuing of letters when the 
will has been duly admitted to probate, can have no applica- 
tion to the facts before us. 

Sections 2742, 2743, 2746 Bums 1908, Acts 1901 p. 281, 
§§2228, 2231 R. S. 1881, when read together and in connec- 
tion with the facts disclosed by this record, furnished 

8. the procedure and controlled the action of the Cass 
Circuit Court in denying letters to appellants and 

granting them to appellee. Under §2742 Burns 1908, Acts 
1901 p. 281, where a resident of this State dies intestate, 
letters of administration must be issued to eligible and qual- 
ified applicants in the order of their preference, as provided 
by this statute. Cooper v. Cooper (1909), 43 Ind. App. 620, 



MAY TERM, 1912. 193 

Reed v. Bishop — 51 Ind. App. 187. 

88 N. E. 341. But as decedent was a nonresident, his execu- 
tors, under §2746, supra, on producing letters showing their 
appointment by the Pennsylvania court, were entitled to let- 
ters, in preference to all persons, ** except creditors, legatees, 
and heirs of the deceased, entitled to distribution, who are 
inhabitants of this state." Reed was an inhabitant of this 
State, but he was not a creditor, legatee or heir of decedent. 
Hoopes was a legatee and a nonresident. Appellee was a 
resident creditor, and under the section of the statute last 
cited was entitled to letters, in preference to either of these 
appellants. 

In the case of Emmons v. Gordon (1897), 140 Mo. 490, 
499, 41 S. W. 998, 62 Am. St. 734, it is said: *'But the 
weight of authority unquestionably is in accord with the 
rule announced by this court, through Sherwood, J., in Co- 
Imne v. Skinher [1874], 56 Mo. [357], 367, in which it is 
said: * So far as concerns the realty, a will beyond the juris- 
diction where it is probated is inoperative, and has no extra- 
territorial force or validity; and the executor of such will 
cannot, because of his appointment in accordance with the 
laws of one State, thereby acquire authority to sue for, or in 
any manner intermeddle with, the property or effects of his 
testator, whether real or personal, in another State, unless 
the yfm be there proven, or the laws of such State dispens- 
ing with the probate anew confer the requisite permis- 
sion.* " 

In the case of Fidelity Ins., etc., Co. v. Niven (1878), 5 
Honst. (Del.) 416, 432, 1 Am. St. 150, 159, it is said: ''The 
law of ancillary administration is founded on the duty of 
every government to protect its own citizens in the enjoy- 
ment of their own property and the recovery of their debts, 
at the same time having due respect to the rights of foreign 
creditors. When the estate of a deceased person is solvent, 
there is no diflSculty in appljdng its assets, and it is only in 
eases of insolvency that any question can arise as to the 
Vol. 51—13 



194 APPELLATE COURT OP INDIANA. 

Scott V. Scott— 61 Ind. App. 194. 

order of payment of debts, and in such cases the law of the 
situs prevails over the law of the domicile," 

As between William W. Boss and this appellee, it must be 

said that appellee is a creditor within the meaning of the 

statute, and Boss only a representative of a creditor 

9. not authorized by law to act as an administrator. If 
the bank could not act, we know of no rule of law, or 
statute, conferring on its representative or agent authority 
not possessed by his principal. Boss not being a creditor 
within the meaning of the statute {In re Owen's Estate 
[1906], 30 Utah 351, 85 Pac. 277-, Myers v. Cann [1894], 95 
Ga. 383, 22 S. E. 611 ; Glenn v. Reed [1891], 74 Md. 238, 24 
Atl. 155), he was not entitled to letters in preference to a 
creditor making his application within the time allowed by 
statute, and not shown to be ineligible or unqualified to act. 

Judgment affirmed. 

Lairy, J., not participating. 

Note.— Reported In 97 N. E. 1023. See, also, under (1) 40 Qyc. 
1374; (4) 40 Cyc. 1237; (5) 40 CJyc. 1358; (6) 40 Cyc. 1359; (8) 
18 cyc. 89. As to the effect within the state of the decedent's 
domicile of the probate of his will outside, see 113 Am. St 211. 



Scott v. Scott. 

[No. 8,118. Filed .October 8, 1912.] 

1. Tbiau — Receptian of Evidence, — Admissions of Parfp, — In a 
wife's action on a mutual benefit certificate, where another 
claimant filed a cross-complaint alleging that decedent had com- 
plied with all requirements to make cross-complainant his bene- 
ficiary, except that of surrendering the old certificate, which was 
prevented through the fraud and deceit of plaintiff, who had 
possession of it, evidence that plaintiff had stated, before the 
death of her husband, that eftie had possession of the certificate 
and intended to ke^ it, could have been properly admitted as 
a part of cross-complainant's case In chief, p. 196. 

2. Evidence. — Admissions of Party, — AdmisaihUUy. — -As a rule, the 
admissions of a party to the record are admissible against him. 
p. 196. 



MAY TERM, 1912. 195 

Scott t\ Scott— 61 Ind. App. 194. 

3w Appeal. — Review. — Harmless Error, — Exclusion of Evidence. — 
In a wife's action on a mutual benefit certificate, where another 
claimant filed a cross-complaint alleging that decedent had com- 
plied with all requirements to make cross-complainant his bene- 
ficiary, except that of surrendering the old certificate, which was 
prevented through the fraud of plaintiff who had possession of 
it, error, if any, in excluding evidence that plaintiff had stated, 
prior to the death of her husband, that she had the certificate 
and intended to keep it, was harmless, wliere there was no evi- 
dence to authorize a finding that plaintiff fraudulently prevented 
decedent from surrendering such certificate, p. 197. 

4. Appeal. — Review. — Evidence. — Fraud. — Equity. — The rule that 
equitj* will regard that as done which in good conscience ought to 
be done, in order to prevent injury to another through fraud and 
deceit, cannot be extended to work a reversal of a judgment for 
appellee in an action on a benefit certificate, where there was no 
evidence that appellee had fraudulently prevented decedent from 
surrendering such certificate and procuring a new one in favor 
of appellant p. 198. 

Prom Grant Circuit Court ; Henry J. Paulus, Judge. 

Action by Emma Scott against The Supreme Tribe of Ben 
Hut, in which Samuel Scott was later made a party. Prom 
a judgment for plaintiff, Samuel Scott appeals. Affirmed. 

F. W. Dundas and Meade 8. Hays, for appellant. 
Davis & Davis, 8. L. 8tricler and W. D. Lett, for appellee. 

Myers, J. — John M. Scott, at the time of his death, Oc- 
tober 10, 1910, was the holder of an insurance certificate in 
The Supreme Tribe of Ben Hur, of the value of $900. After 
the death of John M. Scott, appellee, the beneficiary named 
m the certificate, for the purpose of enforcing payment there- 
of, brought this action against said order. Decedent was 
a brother of appellant, and the husband of appellee. The 
Supreme Tribe of Ben Hur answered, admitting its liability, 
and averring that appellant was claiming some interest in the 
certificate, and asked that he be made a party to the action. 

Appellant appeared and filed a cross-complaint against 
appellee, to the effect that The Supreme Tribe of Ben Hur 
had illegally and wrongfully refused to cancel the old cer- 
tificate, and issue to John M. Scott a new one, naming cross- 



196 APPELLATE COURT OF INDIANA. 

Soott r. Seott— 51 Ind. App. 194. 

complainant as beneficiary; that decedent fully complied 
with all the rules and regulations of. said order entitling him 
to the requested change, except that he did not return the 
old certificate because of the fraud and deceit of appellee, 
who had possession of it. 

The record discloses that The Supreme Tribe of Ben Hur 
paid $900 into court for the benefit of the party entitled 
thereto, and on order of the court it was discharged &om 
further liability. Thereafter the action was continued be- 
tween appellant and appellee, as the only parties in interest. 
A trial before the court, without a jury, of the issues formed 
by a general denial to the complaint and cross-complaint, re- 
sidted in a finding and judgment in favor of appellee. 

Appellant's motion for a new trial was overruled, and 
this ruling is made the basis for the only assignment of 
error relied on for a reversal of the judgment. 

The only reason pointed out by appellant in his brief in 

support of his motion challenges the ruling of the court in 

sustaining appellee's objection to a question put by 

1. him to his own witness called in rebuttal, concerning 
a statement of appellee to the witness before the death 

of her husband, that she had possession of the certificate and 
intended to keep it. 

From the record it appears that appellee, to meet the case 
made by cross-complainant, in effect, testified that she and 
her husband, about nine years before that time, placed the 
certificate in a safety deposit box in the Marion National 
Bank, where it remained until after his death; also, that at 
the time she received a certain letter from her husband, said 
certificate, which he mentioned, was in the bank and not in 
her possession. 

As a rule, the admissions of a party to the record 

2. are admissible against him (Denman v. McMahin 
[1871], 37 Ind. 241) ; so, in this case, the admissions 

1. of appellee supposed by the question were admissible 
as a part of appellant's case in chief. However, they 



MAY TERM, 1912. 197 

Scott V. Scott — 51 Ind. App. 194. 

were not offered in that connection, but as tending to con- 
tradict appellee's testimony relative to her possession of the 
certificate. If, for the purpose claimed, the state- 

3. ments should have been admitted, still the judgment 
must be affirmed, for the reason that the error, if any, 
was harmless. The witness was the local scribe of the order 
of Ben Hur at Marion, and it is not altogether improbable 
that the statements indicated by the offer to prove may have 
been understood and acted on by those then interested as 
being literally true, yet there is no evidence tending to show 
that appellee took any steps or made any request on the 
bank or any of its officers or agents which could be construed 
as an objection to a delivery of the certificate to her hus- 
band, had he made a demand on the bank for it ; nor is there 
any evidence tending to show that such a demand was ever 
made, nor does it appear which of the two, or whether they 
jomtly, secured the use of the box from the bank. The evi- 
dence shows that the certificate and the other papers found 
in the box after the husband's death belonged to him. The 
fact, if important, that one of the two was to be recognized 
by the bank to the exclusion of the other, a finding by the 
trial court in favor of the husband in this respect would not 
have been an improper inference from the evidence. The 
by-laws of the order required a surrender of the certificate 
as a condition precedent to the issuing of a new one. There 
was an exception to this rule, but the applicant did not bring 
himself within it. The original certificate was not lost at the 
time he requested its cancelation and that a new one be 
issued in its place. For aught that appears, decedent knew 
he had a safety deposit box in the bank, and that he had 
placed the certificate in it. 

We have read all the evidence given in this cause, and we 
are convinced that had the excluded evidence been admitted, 
it would not have justified the court in finding appellee 
guilty of fraud and deceit, whereby the insured was pre- 
vented from returning the certificate in question to the in- 



198 APPELLATE COURT OP INDIANA. 

Drimmie r. Hendrickson — 51 Ind. App. 198. 

surer. True, as claimed by appellant, equity may be 
4. invoked to prevent injury to one by another through 

fraud and deceit, by declaring *'that as done which 
in good conscience ought to be done ' \ 1 Pomeroy, Eq. Jurisp. 
(3rd ed.) §364. But this equitable principle applicable to all 
property rights, and under which appellant seeks protection, 
cannot be extended to work a reversal of the judgment in 
this case, even though the proposed evidence had been re- 
ceived. 
Judgment affirmed. 

Note.— Reported In 99 N. E. 435. See, also, under (1) 38 Qyc. 
1355; (2) 16 Cyc. 977; (3) 38 Cyc. 1450; (4) 16 Oyc. 135. As to 
the admissibility of evidence of prior statements of a party, con- 
tradictory to his evidence at the trial, offered to impeach him, see 
82 Am. St. 39. 



Drimmie, Trustee, v. Hendrickson. 

[No. 7,693. Filed October 8, 1912.] 

1. Chattel Mobtoages. — Household Goods, — Possession of Goods. 
—Statutes.— ValUdMy.—Sectiom 8636, 8637 Burns 1908, Acts 1897 
p. 271, relative to the right of a mortgagee of household goods 
to the possession thereof, prohibiting the sale of such goods under 
any pow^r of sale contained In such mortgage, and providing 
for foreclosure thereof, are constitutional and valid, p. 199. 

2. Chattel Mortgages. — 'Household Goods, — Recovery by Assignee 
of Mortgagee.— Statutes,— Vnder §8637 Burns 1908, Acts 1897 p. 
271, providing that the mortgagee of household goods is not en- 
titled to their possession unless It Is so provided in the mortgage, 
and he takes actual possession at the time of the execution of 
the mortgage and holds possession continuously until sale, where 
a mortgagee of household goods failed to take possession of such 
goods when the mortgage was executed, his assignee under the 
mortgage could not replevin them; his sole remedy being by 
foreclosure as provided by §8636 Bums 1908, Acts 1897 p. 271. 
p. 200. 

3. Chattel Mortgages. — Household (}ood^. — Payments. — Failure 
to Execute Receipts.— Effect.— Vuder §8638 Burns 1908, Acts 1897 
p. 271, providing that the failure of the holder of a mortgage on 
household goods to execute receipts in a specified form for all 



MAY TERM, 1912. 199 

Drimmie v. Hendrlckson — 61 Ind. App. IdSw 

payments made on such mortgage shall render the same void, he 
can not recover in a suit for Its enforcement without proving 
the execution of the receipts necessary to preserve its validity, 
where it is shown that payments have heen made. p. 200. 
4. Appeal. — ReiHew. — Evidence. — Sutjlciency, — Where the evidence 
is conflicting, the decision of the lower court, under the strong 
presamption which obtains in its favor, will be held to be sui)- 
ported by suflBcient evidence, p. 200. 

Prom Superior Court of Marion County (77,959) : Clar- 
ence E. Weir, Judge. 

Action by Thomas L. Drimmie, trustee, against May Hen- 
drickson. Prom a judgment for defendant, the plaintiff ap- 
peals. Affirmed. 

Charles E. Averill, for appellant. 

Franklin McCray, Newton M. Taylor and Stuart A, 
Coulter, for appellee. 

Ibach, J. — This was an action in replevin, for possession 
of a piano, instituted by appellant, who failed to recover be- 
low, and contends in his motion for a new trial that the de- 
cision of the court is not sustained by sufficient evidence and 
is contrary to law. Appellant claimed the right to posses- 
sion of the piano as the assignee of a chattel mortgage ex- 
ecuted on it and other household goods by Lester A. Eck- 
man. Appellee, after the execution of this mortgage, pur- 
chased the piano from Mrs. Ella Eckman, who then had the 
piano in her possession and was the apparent owner, and 
appellee paid to her a consideration at least equal in value, 
as shown by the evidence. 

By statute (§§8636, 8637 Burns 1908, Acts 1897 p. 271), 
the mortgagee of household goods is not entitled to their 
possession unless it is so provided in the mortgage, 
1. and unless he took actual possession at the time the 
mortgage was executed, and holds possession continu- 
ously. He cannot sell the goods under a power of sale con- 
tained in the mortgage, but must foreclose the mortgage by 
judicial proceeding in the 'circuit or superior court. These 



200 APPELLATE COURT OF INDIANA. 

Drimmie t?. Hendrickson — 51 Ind. App. 198. 



statutes are constitutional and valid. Zumpfe v. Gentry 
(1899), 153 Ind. 219, 54 N. E. 805. 

Under these sections of the statute, as appellant's 

2. assignor did not take possession of the household 
goods on execution of the mortgage, but left them in 

the possession of the mortgagor, appellant could not recover 
them in an action of replevin, and his only remedy would 
have been to foreclose his mortgage. 

Under §8638 Burns 1908, Acts 1897 p. 271, where money 

is taken on a chattel mortgage, it is made the duty of the 

holder of the mortgage to execute receipts in a form 

3. specified in the statute, and if he fails to execute such 
receipts his mortgage shall be void. It appears in 

evidence that money had been taken on the mortgage in 
suit, and it is not shown that the receipts required by 
the statute were executed. The taking of money on the 
mortgage having been shown, appellant could in no event 
recover in a suit for its enforcement, without proving the 
execution of the receipts necessary to preserve its validity. 
But had the mortgage been shown to be valid, and 

4. even in the absence of a statute denying the right 
under the mortgage to the possession of the mortgaged 

goods, there was some conflict in the evidence as to whether 
the mortgagor was the owner of the property at the time it 
was mortgaged, or whether it was at that time the property 
of Mrs. Eckman. Also, no proof was furnished that J. Will 
Callahan, who purported to execute an assignment of the 
mortgage and note to appellant as attorney in fact for the 
mortgagee, had the authority to execute such assignment. 
So that even if the statutes above cited did not conclusively 
determine that appellant could not recover in this action, the 
decision of the lower court, under the strong presumption 
which obtains in its favor, would be supported by sufficient 
evidence, and we would not feel justified in reversing it on 
the evidence. 
Judgment affirmed. 



MAY TERM, 1912. 201 

Beeson i?. Pierce — 51 Ind. App. 201. 

Note.— Reported In 09 N. E. 436. See, also, under (1) 7 Cyc. G; 
ii) 3 Cyc. 360. As to the effect of the assignment by an attorney 
of a claim due his client, see 76 Am. Dec. 262. As to the rights of 
the owner of mortgaged chattels, see 16 Am. St. 499. 



Beeson v. Pierce, Executor. 

[Xo. 7,580. Filed May 17, 1912. Petition for rehearing withdrawn 

October 8, 1912.] 

L FBA.IJDS, Statute of. — Judicial Sales. — Judicial sales made under 
the supervision of a court are not within the statute of fraudi^, 
and are binding on the purchaser without any written contract 
or memorandum of sale. p. 204. 

2. ExECTTOBs AND ADMINISTRATORS. — Representative Capacity. — 
Sales of Real Estate, — An executor or administrator, in selling 
the lands of his decedent pursuant to an order of court, acts 
simply in a representative capacity, p. 204. 

3. Executors and Administrators. — Sales of Real Estate. — Con- 
firmation of Sale.— Vnder §2874 Bums 1908, §2357 R. S. 1881, re- 
qnhring an executor or an administrator to report the sale of his 
decedent's real estate to the court granting the order of sale, such 
sale is not fully consummated until ratified by the court, p. 2(M. 

4. Executors and Administrators. — Sales of Real Estate. — Estate 
Conveyed. — Warranties and Representations. — lAal)ility. — Notice 
of Limited Powers. — Persons purchasing lands sold by one in his 
capacity of executor or administrator, are chargeable with notice 
that he can sell no greater interest in lands offered than the de- 
ceased person actually possessed, so that no warranty or repre- 
aeotation as to title made by such executor or administrator, is 
binding cm the estate, unless the same was authorized by th(> 
will or by the order of court under which the sale proceeds, 
p. 204. 

•*>. Executors and Administrators. — Sales of Real Estate. — Mis- 
representations as to Title. — Liability. — The fraudulent repre- 
wntations made by an executor or administrator in connection 
with sale of his decedent's real estate, are his individual torts, 
for which he alone is liable in his individual capacity, p. 205. 

0. TmAL.— Findings. — Effect.— Where defendant sought to avoid 
a sale of rejil estate made to him by an executor on the ground 
of fraudulent representations as to title made by such executor, 
the failure of the .court's findings to include a finding as to 
whether any warranties or representations were made by sticli 
executor, was in effect a finding that such were not made. p. 20<». 

Prom Henry Circuit Court ; Ed Jackson, Judge. 



202 APPELLATE COURT OP INDIANA. 

Beeson v. Pierce — 51 Ind. App. 201. 

Action by Harvey E. Pierce, as executor of the last will 
of Milton Allen, deceased, against Ed Beeson. From a judg- 
ment for plaintiff, the defendant appeals. Affirmed. 

Barnard & Jeffrey, for appellant. 
Forkner & Forkner, for appellee. 

Ibach, p. J. — ^Appellee, as executor of the last will of 
Milton Allen, deceased, instituted this action to enforce a 
contract of sale of decedent's lands, made in his character of 
executor with appellant, and to recover the balance of the 
purchase money. 

The material allegations of the complaint are made to ap- 
pear from the finding of facts made by the court at the re- 
(juest of both parties. The substance of these findings is that 
Milton Allen, of Henry county, Indiana, died thereat tes- 
tate on May 20, 1909, the owner of certain described real 
estate in Wayne county, Indiana; that after his death his 
last will and testament was duly proved, established and ad- 
mitted to record in Henry county, by order of the Henry 
Circuit Court, and the same remains in full force and un- 
contested; that after the proof and establishment of said 
will Harvey E. Pierce, who was named therein as executor, 
was appointed by the court, and duly qualified ; that by the 
terms of the will the executor was authorized and directed 
to sell said real estate for the purpose of paying certain leg- 
acies; that said executor filed a petition praying an order 
of court to sell such lands ; that such lands were appraised 
at $900, and the court directed the executor to sell them at 
public sale on June 19, 1909 ; that pursuant to said order of 
sale the executor advertised and gave notice of the time and 
place of the sale, as required by said order, and on said day 
offered said real estate for sale at public outcry, and de- 
fendant bid therefor the sum of $1,072.50, and the same was 
struck oflf and sold to him, he being the highest bidder, and 
at the time, under the terms of the sale, and as a part of the 
consideration for the same, defendant paid to said executor 



MAY TERM, 1912. 203 



Beeson v. Pierce — 51 Ind. App. 201. 



Ui6 sum of $100, and took possession of said real estate, and 
made some changes and improvements thereon and placed 
some property in the buildings, which yet remains therein ; 
that after the sale the executor filed in said court his verified 
report of the same, which report was afterwards submitted 
to the court and confirmed by it, and the executor was 
ordered to execute and deliver to the purchaser a deed of 
conveyance conveying to him said real estate on the pay- 
ment of the balance of the purchase money, said sale being 
made for cash ; that on July 31, 1909, the executor prepared 
a deed in the statutory form, and duly signed and ac- 
knowledged the same, and tendered it to defendant, and de- 
manded payment of the balance of the purchase money, 
which defendant failed and refused to pay, and plaintiff 
has brought said deed into court and filed it for the use of 
defendant ; that by reason of the facts aforesaid the defend- 
ant became and is indebted to plaintiff in the sum of $972.50, 
which is a lien on said property as purchase money therefor. 
And the court further finds that plaintiff is entitled to re- 
cover in this case the sum of $972.50, and to have the same 
decreed a lien on said property, as and for the purchase 
money. The conclusion of law was stated in favor of plain- 
tiff, in accordance with the finding of facts. 

Appellant filed an answer in two paragraphs, also a cross- 
complaint, in which affirmative relief is asked, for the rea- 
son that appellee by fraud and misrepresentation of facts 
had induced appellant to purchase the land in question, and 
therefore he should be relieved from his contract in relation 
thereto. The cause waa tried by the court, without a jury, 
who found the facts as above, and judgment was entered ac- 
cordingly. 

No question has been raised by appellant as to the au- 
thority of appellee to prosecute an equitable action for a 
specific performance of this contract. "We are therefore not 
called on to determine this question, and do not do so. The 
only errors assigned which are argued are the following pre- 



204 APPELLATE COURT OP INDIANA. 

Beeson v. Pierce — 51 Ind. App. 201. 

sented by the motion for a new trial, viz., that the decision 
of the court is contrary to law and is not sustained by suffi- 
cient evidence, and that the finding of the court is not sus- 
tained by sufficient evidence- 
Judicial sales made by and under the supervision of a 
court are not within the statute of frauds, and are binding 
on the purchaser without any written contract or 

1. memorandum of sale, it being the confirmation of the 
sale by the court which takes it out of the statute. 

29 Am. and Eng. Ency. Law (2d ed.) 888; Browne, Stat, 
of Frauds §265. 

The theory on which the answer and cross-complaint were 
drawn, and on which the cause was tried, was that there 
could be no recovery if it was made to appear that the title 
to the land of decedent was in any manner defective, or if 
there were any representations made or guaranties given by 
the executor to induce the sale. These points are insisted on 
by appellant in his brief. 

No legal doctrine is more firmly established than 

2. this: that when an administrator or executor is en- 
gaged in the sale of the lands of his decedent under 
an order previously obtained, he acts simply in a rep- 

3. resentative and not in an individual capacity. Under 
the provisions of our code, such sales are under the 

complete guidance and supervision of the court granting the 
order to seU, and they are not fully consummated until rati- 
fied by the court. §2874 Bums 1908, §2357 R. S. 1881. 

Also in the making of the sale such executor or ad- 

4. ministrator undertakes to sell only the estate which 
such decedent owned at the time of his death ; he can 

sell no greater interest in the lands offered than the deceased 
person actually possessed. So that a person is chargeable 
with notice of the limited power and authority of an execu- 
tor or administrator while engaged in the sale of lands in 
such capacity. And if he buys he does so at his own risk, 
and no warranty or representation as to title made by the 



MAY TERM, 1912. 205 

Beeson v. Pierce — 51 Ind. App. 201. 

executor can bind the estate, however positive such promise 
or warranty may be, unless he is specifically authorized by 
the will itself, or by the order of the court under which the 
sale proceeds, to make such warranty, so that as between the 
purchaser and the estate, the rule of caveat emptor is stHctly 
applied. Loudon v. Robertson (1840), 5 Blackf. 276; Hoff- 
mm V. Hendry (1893), 9 Ind. App. 324, 36 N. E. 727, 53 
Am. St 351; Moody v. Shaw (1882), 85 Ind- 88; Riley v. 
Kepler (1883), 94 Ind. 308. 

In the early case of Loudon v. Robertson, supra, in which 
was involved the sale of lands of the decedent by commis- 
sioners appointed for that purpose, the court said: "It is 
the duty of a purchaser of real estate to search for incum- 
brances. The vendor is not bound to communicate to a pur- 
chaser patent defects, though he may not industriously con- 
ceal them. If the defects be such as may be discovered by 
a vigilant man, the purchaser must exercise that vigilance 
or suffer for his folly. * • • They were appointed to sell 
the real estate of George Titus, deceased, whatever it might 
be. Whether that estate was incumbered or unincumbered, 
it was their duty to sell it ; and if authorized to convey, they 
could only convey his right." This doctrine has been re- 
peated many times in more recent cases. Again, in the case 
otBums V. Galvin (1889), 118 Ind. 320, 20 N. E. 799, the 
court said: ''A purchaser of real estate who takes a con- 
veyance from an assignee, is in the same position, in respect 
to Hens and incumbrances existing thereon, as is one who 
purchases * * * at a sale made by an executor or admin- 
istrator. Unless otherwise ordered by the court, he takes the 
land subject to all prior incumbrances." 

In the case of Riley v. Kepler, supra, this language is used 
by the court: *'If he [the administrator] made false repre- 
sentations in the sale, that was his individual tort, 

5. for which he alone could be held individually liable." 

So in the case at bar, even if the executor had been 

guilty of fraudulent representations as to the title of dece- 



206 APPELLATE COURT OP INDIANA. 

Beeson v. Pierce — 51 Ind. App. 201. 

dent to a part of the land sold, he alone was individually 
liable, and in no sense could the estate be held answerable. 
An executor can not commit a tort as such. **If he commits 
a tort he commits it as an individual, and is liable as an in- 
dividual." Mills V. Kuykendall (1827), 2 Blackf. 47 ; Hold- 
erbaugh v. Turpin (1881), 75 Ind. 84, 39 Am. Rep. 124. 

An examination of the findings made in the trial court 

shows, however, that these material questions involved in this 

appeal have been determined against appellant. The 

6. court finds that decedent died '*the owner and in pos- 
session" of the land in suit, and so far as the making 
of any warranties or representations of title are concerned, 
on the part of the executor, the court fails to find that any 
such were made, and this was, in effect, a finding against ap- 
pellant, the burden being on him to prove this defense. 
There is some evidence tending to support the several find- 
ings of the court, and its conclusions of law were properly 
stated. 

Judgment affirmed. 

Note.— Reported In 98 N. B. 380. See, also, uniler (1) 20 C^c. 
236; (3) 18 Cj^c. 787; (4) 18 Cye. 827, 837; (5) 18 Cyc. 828. As to 
whether executors' or administrators' sales are within the statute 
of l*rauds, see note to M(jCoy v. McCoy (Ind.) 102 Am. St 243. 
As to the liability of a public officer for false representations In 
effecting a sale, see 18 Am. St 562. As to the bearing of cavefU 
emptor on Judicial sales, see 135 Am. St. 917. For a discussion of 
judicial sales as affected by the statute of frauds, see 7 Ann. Gas. 
1071. 



MAT TERM, 1912. 207 

Stimson r. Rountree — 51 Ind. App. 207. 

Stimson, Administrator, v. Rountree, 

Executor, et al. 

[No. 7,670. Filed October 9, 1912.] 

L ApPEAi. — Review. — Harmless Error. — Ruling on Demurrer to 
Answer. — Overruling a demurrer to a paragraph of answer, even 
if erroneous, will not work a reversal, where the evidence ad- 
missible under such answer is also admissible under the general 
denial and it appears from the record appellant was not harmed 
thereby, p. 211. 

2. Wells. — Legacies. — Interest, — As a general rule, a general leg- 
acy, with no time of payment specified, will draw interest only 
after the expiration of a year from the death of the testator, 
p. 211. 

3. Wills. — Legacies. — Payment. — Interest. — ^Under §2004 Burns 
1908, 12381 R, S. 1881, which postpones the payment of general 
legacies until after the expiration of one year from the granting 
of letters* where the earlier payment of a legacy had not been 
applied for and ordered pursuant to §§2902, 2903 Bums 1908, 
§2380 R, S. 1881, Acts 1883 p. 158, providing for payment, under 
certain conditions, at any time previous to the settlement of 
the estate, and no time of payment was specified in the will, 
the court properly refused to allow interest on a legacy until 
after the expiration of one year from the death of the testatrix, 
p. 212. 

4. Wills. — Legacies. — Construction. — Payment. — The provision of a 
wUl for the payment of a legacy In a specified sum, with direc- 
tions to the executor that "said sum or the portions thereof 
remaining", should be loaned by him, and that he pay the princi- 
pal and income derived therefrom to the legatee as her need there- 
for should arise, does not indicate an intention on the part of 
the testatrix to fix the time of payment of the legacy, nor the 
time when it should be loaned and interest charged thereon, but 
such legacy \s within the class of general legacies contemplated 
by §2004 Bums 1908, §2381 R. S. 1881, postponing the payment 
of general legacies until after the expiration of one year from 
the granting of letters, p. 212. 

o. Wills. — Legacies. — Interest. — Compound Interest. — It is only in 
extreme cases that the court Is warranted in compounding the 
Interest on a pecuniary legacy, p. 213. 

C. CouBTS. — Judgments. — Scope. — Courts should * so frame their 
judgments as to determine all the rights of the parties, both 
lej;al and equitable, within the issues and the facts, p. 214. 

'• KxEcuTORS AND Administbators. — Act'ion for Legacies. — Lietifi. — 
Enforcement. — Where a testator, whose estate coiisiste-d prln- 



208 APPELLATE COURT OP INDIANA. 

Stimson V. Rountree — 51 IndL App. 207. 

cipally of real estate, left a legacy in a i^ecifled sum, with 
directions to her husband, as executor, to loan said sum and 
pay the principal and income derived therefrom to the legatee 
as her need therefor should arise, and left the residue to her 
husband, and the husband refused to pay such legacy, a judg- 
ment for the administrator of such legatee, in an action therefor, 
in addition to declaring the amount to be a lien against such 
real estate, should also have included an order requiring the sale 
of the land or so much thereof as was necessary to pay the 
legacy, p. 214. 

From Boone Circuit Court ; Samuel R. Artman, Judge. 

Action by Robert B. Stimson, administrator of the estate 
of Lucy Stimson, deceased, against Charles Rountree, execu- 
tor of the will of Florence B. Rountree, deceased, and others. 
From a judgment for plaintiff, the plaintiff appeals. Modi- 
fied and affirmed. 

Crane & McCabe and R. B. Stimson, for appellant. 
W. T. Whitiington and R. H. WilUams, for appellee. 

HoTTEL, C. J. — This is a second appeal in this case. De- 
murrers were sustained to appellant's complaint in the court 
below, and on appeal the Supreme Court reversed the judg- 
ment and directed the trial court to overrule the demurrers. 
Stimson v. Rountree (1907), 168 Ind. 169, 78 N. B. 331, 80 
N. E. 149. 

Appellee Rountree, both as executor. and in his individual 
capacity, then filed four paragraphs of answer, the first of 
which, a general denial, was afterwards withdrawn. Demur- 
rers to the remaining paragraphs were sustained as to the 
second and third and overruled as to the fourth. Issues 
were closed by a reply in general denial. Appellant's mo- 
tion for judgment on the pleadings was overruled and the 
case tried by the court, which made a general finding in 
favor of appellant, to the effect that he was entitled, abso- 
lutely, to the sum of $3,000 out of the estate of Florence B. 
Rountree, deceased, with six per cent interest computed from 
the end of the first year after the death of the testatrix, a to- 
tal of $4,188 ; that appellant was not entitled to interest dur- 



MAY TERM, 1912. 209 

Stimson V, Rountree — ^51 Ind. App. 207. 

ing the year begiiming at the death of the testatrix ; and that 
said $4,188 should be a lien on the real estate of the testa- 
trix. Judgment on the findings. Appellant's motions to 
modify the judgment and for a new trial were overruled, 
and this appeal taken. 

The facts in the case, as disclosed by the averments of the 
complaint, necessary to an understanding of the questions 
here presented, are, in brief, as follows : Florence B. Roun- 
tree died testate in Montgomery county, Indiana, the owner 
of real estate of the probable value of $12,000, and personal 
property of the value of $100, leaving no debts or claims of 
any kind against her estate, except the legacies hereinafter 
mentioned. Her will, set out in the complaint, in one of its 
items gives her niece, Mary Stimson, $500. Item two of the 
will, which is the one involved in this appeal, provides as 
f oBows : 

**I give and devise, to my niece Lucy Stimson, the sum 
of Three Thousand (3,000) Dollars out of my estate; 
said sum to be held by my executor hereinafter named, 
in trust for said Lucy Stimson, who is an invalid, and 
likely to remain so during her life, and in consequence 
thereof likely to need portions of the principal of said 
sum from time to time ; it being my desire that in case 
she needs any portion of said principal sum from time 
to time, it be furnished to her as the need therefor may 
arise. Said sum, or the portions remaining ; to be loaned 
by my said executor with safe and sufficient security and 
the income therefrom as well as portions of the prin- 
cipal thereof, to be paid to my said niece as her com- 
fort and welfare may require from time to time : It 
being my will, however, that said sum of Three Thou- 
sand (3,000) Dollars shall be the absolute property of 
my said niece Lucy Stimson, the same being thus placed 
in trust for her in order that it may thereby be the 
more certainly applied to her needs from time to time 
as above provided. In case, however, she does not sur- 
vive my husband, Charles Rountree, and my niece, 
ilary Stimson, her sister, named in item one of this 
^11, then upon her (the said Lucy's) death, said sum 
or the portion thereof then remaining, shaU be divided 
equally between my said husband, Charles Rountree, 

Vol. 51—14 



210 APPELLATE COURT OP INDLAJ^A. 

Stimsou r. Roruntree — 51 Ind. App, 207. 

and my said niece, Mary Stimson; and if at the time 
of the death of the said Lucy, my said husband, Charles 
Rountree, shall not then be living, in that case, the 
half of said sum he would have taken had he then been 
living, shall go to my sister, Edna B. Stimson, and if 
neither my sister nor my said husband be living, at 
the time of the death of said Lucy Stimson, then in 
that case, the said Mary Stimson shall take the whole 
of what is remaining of said sum mentioned in this 
item." 

Item three of the will, gives, devises and bequeaths to her 
husband, Charles Rountree, all the residue of her property 
of every kind and character, whether real, personal or 
mixed ; and item four nominates and appoints said husband, 
Charles Rountree, the executor of the will. 

On February 12, 1902, said will was probated in said 
court, and Charles Rountree appointed and qualified as ex- 
ecutor thereof. All the persons named as legatees in said 
will survived the testatrix, and all except Lucy Stimson 
were still living when appellant^led this action. Lucy Stim- 
son died April 5, 1903, in Vigo county, intestate, and her 
father, Robert B. Stimson, qualified as administrator of her 
estate, and brought this action to recover the legacy men- 
tioned in item two of said will. Immediately after the death 
of said testatrix, Florence Rountree, her said husband, 
Charles, took possession of all the property left by said de- 
cedent at the time of her death, disposed of by said will, and 
has converted the same, with all the rents and profits thereof, 
to his own use, and has continuously since the death of said 
testatrix remained in the possession and enjoyment thereof. 
The rents and profits of said property, during the period of 
said Charles Rountree 's possession, were of the annual value 
of $1,000. The only bond given by said Charles Rountree 
was a bond for $200 only, which bond was given by him as 
executor of said will; that '*he wholly failed to qualify oir 
give bond as trustee of the three thousand dollars given by- 
said will to said Lucy Stimson, or, to invest for or pay to her 
said money or any part thereof, or any interest thereon. * ' 



MAY TERM, 1912. 211 

Stimson r. Rountree — 51 Ind. App. 207. 

The former appeal in this case settled the question that the 
bequest of the $3,000 was an absolute gift to Lucy B. Stim- 
son, and that the attempted disposition by the testatrix of so 
much of the same as might be left at the death of said Lucy 
was void, for repugnancy. Pursuant to that decision, the 
court below overruled the demurrer to the complaint, which 
had been before sustained, and on the trial rendered a judg- 
ment for appellant for $4,188. 

Appellant assigns as error the ruling of the court in over- 
ruling the demurrer to the fourth paragraph of answer filed 
by Rountree, both as an individual and as executor. 

1. We are of the opinion that any evidence admissible 
under this answer was admissible under the general 

denial, and it appears from the record in this case that 
Jio harm could have come from such ruling, if erro- 
neous. In this connection we may say that all the errors 
assigned and relied on by appellant present in one 
form and another the question of whether appellant was en- 
titled to have included in his judgment an additional year's 
interest, which turns on the question of whether interest 
should have been calculated on said $3,000 from the death 
of the testatrix. 

As a general rule, a general legacy, with no time of pay- 
ment specified, '*will draw interest only after the expiration 
of a year from the death of the testator." State, ex 

2. rel, V. Crossley (1879), 69 Ind. 203, 211; Case v. 
Case (1875), 51 Ind. 277; 2 Williams, Executors (5 

Am. ed.) 1283; Liipton v. Coffel (1911), 47 Ind. App. 446, 
MX. E. 799, 801; Clark v. Helm (1891), 130 Ind. 117, 119, 
29 N. E. 568, 14 L. R. A. 716; Brown v. Bernhamer (1902), 
159 Ind. 538, 540, 65 N. E. 580. For similar holdings in 
'>ther jurisdictions see Redfield v. Marvin (1906), 78 Conn. 
T04, 708, 63 Atl. 120; Estate of Eichelberger (1898), 7 Pa. 
Super. Ct. 401, 404; Warwick y^ Ely (1899), 59 N. J. Eq. 
44, 47, 44 Atl. 666; Gray v. Case School, etc. (1900), 62 
Ohio St. 1, 56 N. E. 484. 



212 APPELLATE COURT OP INDIANA. 

Stimson r. Rountree — 51 Iiid. App. 207. 

In enumerating classes of debts and liabilities of a dece- 
dent 's estate, and fixing the order of payment, general ** Leg- 
acies" occupies the last, or eighth place. §2901 Bums 

3. 1908, §2378 R. S. 1881. Section 2904 Bums 1908, 
§2381 R. S. 1881, postpones the payment of general 

legacies by the executor or administrator until '* after the 
expiration of one year from the granting of letters*'. Sec- 
tions 2902, 2903 Burns 1908, Acts 1883 p. 158, §2380 R. S. 
1881, provide a method of securing the payment of a por- 
tion of such legacy, under certain conditions, **at any time 
previous to the settlement of such estate. " It is not claimed 
that any application was made to the court under these sec- 
tions of the statute for the payment of said legacy, or any 
portion thereof, before the expiration of the year after the 
death of the testatrix. It seems manifest from the above 
authorities and the sections of the statute that the court be- 
low correctly refused to allow interest on said legacy tmtil 
after the expiration of the year from the death of the testa- 
trix, unless, by her will, she expressed or indicated a differ- 
ent intent. In fact, appellant, in effect, concedes the rule 
to be as above announced, but insists that an intent on the 
part of the testatrix in this case is evidence by said item of 
the will in question to provide **that an immediate income 
should accrue out of the $3,000 for the benefit of Lucy Stim- 
son in case the principal sum was not paid to her." 

We can see nothing in the language of this item of the 

will that indicates such intent. If the testatrix had so 

intended, it would have been easy for her, by ap- 

4. propriate and unambiguous language, to fix the time 
of payment of such legacy, or expressly charge the 

same with interest from the date of her death. To our 
mind, the language of this item of the will, if it can be 
said to indicate any intention on the part of the testatrix 
other than to provide a general legacy, Math provisions 
directing the executor to loan the same and pay the prin- 
cipal and income derived therefrom, as needod, etc., indi- 



MAY TERM, 1912. 213 

Stimson t?. Rountree — 51 Ind. App. 207. 

eates that the testatrix did not intend to require the trustee 
to loan the money immediately on her death, but contem- 
plated that he might pay out, under the provisions of said 
item of the will, a part of the principal before loaning the 
same. We cannot attach any other meaning to the clause 
''said sum or the portions thereof remaining to be loaned,*' 
etc. This item gives $3,000 out of the estate of testatrix, 
with no time of payment fixed, and says nothing about 
the payment of interest on said sum out of said estate 
from the date of the death of the testatrix. The interest 
or income was to come from the $3,000, and not from the 
«tate of the testatrix. 

The facts that the estate of the testatrix consisted en- 
tirely of real estate, that she had no ready funds out of 
which the legacy could be paid immediately on her death, 
and that the residue of her estate, after the payment of 
the legacies, was given to her husband, who was made ex- 
ecutor of her will, lend support to the idea that the testa- 
trix did not intend to charge the legacy with interest from 
her death. We can see nothing in the wording of this 
item of the will that necessarily indicates an intention on 
the part of the testatrix to fix the time of payment of said 
kgacy, or the time when the same should be loaned and in- 
terest charged thereon, and therefore nothing to take it out 
of the class of general legacies contemplated by the above 
statute, x>ostponing payment thereof until after the expira- 
tion of one year from the granting of letters. This conclu- 
sion is, we think, supported by the decisions of courts of all 
jorisdictions having a statute similar to our own. 

It is further contended by appellant that interest should 

be calculated on the $3,000 from the death of the testatrix 

with *' annual rests." It is only in extreme cases that 

5. this court is warranted in compounding interest. 

The facts of this case do not warrant the application 

of this rule. Niles v. Bowrd, etc, (1846), 8 Blackf. 158, 

159; Dufour v. Dufour (1867), 28 Ind. 421, 426; Peelle v. 



214 APPELLATE COURT OF INDIANA. 

StimsoQ V. Rountree — 51 Ind. App. 207. 

State, ex rel (1889), 118 Ind. 512, 518, 21 N. E. 288; 18 
Cyc. 263. 

Appellant next insists that under the issues and the proof 
made thereunder he was entitled to a personal judgment 
against Charles Rountree, a decree of foreclosure to satisfy 
the lien declared on the land, and an order compelling the 
executor to make the money out of the land and pay it to 
appellant without delay, and that his motion to modify the 
judgment should have been sustained in these respects. 

To the end that litigation may be concluded and the 

rights of the parties finally settled, the courts should so 

frame their judgments as to determine all the rights 

6. of the parties, both legal and equitable, within the 
issues and the facts. Spidell v. Johnson (1891), 128 

Ind. 235, 239, 25 N. E. 889; Faught v. Faught (1884), 98 
Ind. 470, 472. 

We think this case is one in which, under the issues and 

evidence, this court is warranted in bringing to its aid the 

equitable principle fibove announced, and that we 

7. should so modify this judgment as to give to appel- 
lant a complete remedy both legal and equitable, so 

that he may be certain of the collection of his judgment 
without delay and without further litigation. 

The declaring of a lien on the land for the amount of 
the judgment does not give this relief. We think the trial 
court should have gone further and ordered the executor to 
sell the land on which the lien was declared, or so much 
thereof as was necessary to create the fund with which to 
pay this legacy, if the residuary legatee, the executor, did 
not within thirty days from the final determination of the 
cause make such payment. In this connection it is insisted 
by the appellees that the proof showed the residuary lega- 
tee had made arrangement with himself as executor to fur- 
nish this fund. There was no showing that the money had 
ever been in fact turned over to the executor, or any re- 
port of the same made to the court. If Mr. Rountree, as 



MAY TERM, 1912. 215 

Stimson V. Rountree — 51 Ind. App. 207. 

residuary legatee, has turned to himself as executor the 
funds with which to pay such legacy, a fact which we un- 
derstand the proof does not show, he can in no way be harmed 
by the modification of the judgment above suggested. On 
the other hand, if said funds have not in fact been provided, 
the judgment in this case should make certain that they will 
be promptly provided by a sale of the real estate against 
which such legacy is a charge. 

Appellees have filed a cross-assignment of error. The 
questions attempted to be raised by the cross-assignment 
have been settled and adjudicated in the appeal of Stimson 
V. Rountree, supra. 

The judgment below is therefore aflSrmed, subject to the 
condition that it shall be so modified as to provide for and 
contain therein an order on the executor herein to sell the 
real estate on which the judgment is declared to be a lien, 
or go much thereof as may be needed for such purpose, and 
to apply the funds derived from such sale to the discharge 
of such judgment, such sale of such real estate to be made 
only in case the residuary legatee does not, within thirty 
days from the date this opinion is certified down to the 
court below pay and discharge appellant's judgment herein, 
the costs of this appeal to be taxed one-half to appellees 
and one-half to appellant. 

Note.— Reported In 99 N. B. 439. See, also, under (1) 31 Cyc. 
358; (2) 40 Cyc. 2004; (4) 40 Cyc. 2089; (5) 40 Cyc. 2106; (7) 40 
Crc 2059. As to when a conditional legacy begins to bear Interest, 
see 136 Am. St 476. As to the time from which general pecuniary 
ic^des draw Interest in the absence of a governing provision in 
tbe will, see 6 Ann. Cas. 525; Ann. Cas. 1912 B 244. 



216 APPELLATE COURT OF INDIANA. 

Princeton Coal, etc., Co. t?. Gilchrist — 51 Ind. App. 21G. 



Princeton Coal and Mining Company et al. 

V. Gilchrist et al. 

[No. 8,131). Filed October 10, 1912.] 

1. Motions. — Motions Affecting Merita of Action, — Appearance. — 
A motion affecting the merits of an action can only be made on 
full appearance to the cause, p. 220. 

2. Appearance. — Motion for Change of Venue. — Effect. — ^A motion 
for a change of venue recognizes the jurisdiction of the court 
over the persons who Join in the motion and invoke the aid of 
the court in that behalf, and the filing of such a motion is an 
admission of Jurisdiction, p. 220. 

3. Pleading. — Plea in Abatement. — Sufficiency. — A plea in abate- 
ment on the ground that another action involving the same mat- 
ters is pending in another court, is insufficient, where it is not 
averred that the parties to the prior action are the same as the 
parties to the pending action, p. 220. 

4. Mandamus. — Form of Action, — Parties. — An action in the na- 
ture of mandamus to compel a clerk to issue an execution on a 
Judgment, must be brought by the State on relation of the party 
seeking the relief, p. 221. 

5. Equity. — Decree and Enforcem^t. — Bill to Carry Decree Into 
Execution. — A bill in equity to carry an existing decree into 
execution will be sustained under circumstances which render the 
further aid of the court necessary; and even a person, not a 
party to the decree, when his rights are affected by it, may re- 
sort to the remedy, p. 221. 

6. Attorney and Client. — Compensation of Attorney Included in 
Amount of Judgment. — Enforcement of Judgment. — Bill in 
Equity. — Where, in an action by a minority stockholder against 
the majority stockholders to recover an amount due from them 
to the corporation, the Judgment against defendants required 
them to pay the money to the clerk of the court to be by hiin 
paid to the corporation after paying a stipulated amount to such 
minority stockholder's attorneys, and the Judgment was there- 
after satisfied at the instance of the coriwratiou without paying: 
the part awarded to the attorneys, such attorneys were entitled 
to recover the amount so awarded to them by a bill in equity to 
carry the Judgment into execution, p. 221. 

7. Equity. — Proceeding to Carry Decree Into Execution. — Jurisdic- 
tion. — Jurisdiction in an equitable proceeding to carry a decree 
into execution is in the court entering the original decree, p. 222. 

8. Corporations. — Stockholders. — Action Against Stockholders for 
Benefit of Corporation. — Attorneys' Fees. — ^In a suit by a minor- 



MAY TERM, 1912. 217 



Princeton Coal, etc., Co. v. Gilchrist — ^51 Ind. App. 21G. 

Itj stockholder against the majority stockholders to require the 
payment by them of money wrongfully withheld from the corpora- 
tion, the court had authority to provide in its decree against de- 
fendants that a specified sum out of the fund recovered should 
Ije paid to such minority stockholder's attorneys for their services, 
p. 223. 

Prom Knox Circuit Court; Orlando H. Cobb, Judge. 

Action by Alexander Gilchrist and others against the 
Princeton Coal and Mining Company and others. From a 
judgment for plaintiffs, the defendants appeal. Affirmed, 

Charles E. Barrett, Fred E. Barrett and John T. & Will 
H. Hays, for appellants. 

John JBT. Miller, Lucius C. Embree and Morton C. Embree, 
for appellees. 

Adams, P. J. — This was an action by appellees against 
appellants and Joseph O'Brien, clerk of the Pike Circuit 
Court. The action relates to a former suit, wherein Steele 
F. Gilmore was plaintiff and the appellants were defendants, 
and in which appellees hereih were attorneys for Gilmore, a 
minority stockholder in the Princeton Coal and Mining Com- 
pany. Gilmore charged that appellants Ogle and Hubbard, 
^ho owned a majority of the stock, were largely indebted 
to the company, and refused to pay said indebtedness. The 
action was begun in the Gibson Circuit Court, and venued 
to the Pike Circuit Court, where, on May 12, 1904, final 
judgment was rendered, decreeing that Ogle and Hubbard 
*aeh pay into the hands of the clerk of the Pike Circuit 
Coart the sum of $9,362.50, out of which the clerk was re- 
^iuired to pay plaintiff Gilmore 's attorneys, who are the 
appellees herein, the sum of $1,000, as expenses and attor- 
fi^y's fees, and to pay the remainder to the treasurer of the 
Princeton Coal and Mining Company. It was further ad- 
judged that in case either Ogle or Hubbard failed to make 
snch payment within 120 days, execution should issue, and 
on collection being made, the clerk should pay $1,000 thereof 
to said plaintiff's attorneys. An appeal was taken to the 



218 APPELLATE COURT OF INDIANA. 

Princeton Coal, etc., Co. i?. Gilchrist — 51 Ind. App. 216. 

Appellate Court of Indiana, where the judgment of the 
Pike Circuit Court was in all things affirmed. Princeton 
Coal, etc, Co. v. Gilmore (1906), 76 N. E. (Ind. App.) 787. 
From this judgment of affirmance an appeal was taken to 
the Supreme Court, under the third clause of §1394 Burns 
1908. While the appeal was pending, Gilmore sold his 
stock, and thereafter, at a special meeting of the sharehold- 
ers, a resolution was unanimously adopted, wherein it was 
recited that the findings of the circuit court were untrue; 
that the decree was unjust ; that Hubbard and Ogle did not 
owe the money, and should not be required to pay the same, 
and that the judgment should be satisfied. At this meeting 
all the shareholders were present in person or by proxy. 
Ogle and Hubbard owned and voted 1,000 shares of the 
1,150 shares issued and outstanding. Ogle also held the 
proxy of the then owner of the Gilmore shares. On the 
same day a similar resolution was adopted by the directors 
of the mining company, and an agent appointed to satisfy 
and release the judgment of record. Acting on this author- 
ity, the agent and attorney in fact did enter on the record 
of the Pike Circuit Court full satisfaction of the judgment. 
When these facts were brought to the attention of the Su- 
preme Court, the court decided that as between Ogle and 
Hubbard and the mining company, the release and satisfac- 
tion of the judgment left nothing for its decision but moot 
questions, and dismissed the appeal, but expressly declined 
to determine what effect the release and discharge of the 
decrees had as against any person or x>ersons, not parties to 
the appeal, claiming any right or interest in, or lien on, 
said decrees or the proceeds thereof. Princeton Coal, etc., 
Co. V. Gilmore (1908), 170 Ind. 366, 83 N. E. 500. 

The action from which this appeal is taken was com- 
menced in the Pike Circuit Court. By their amended com- 
plaint, appellees show in detail the facts leading up to the 
release and satisfaction of the judgment, and that the clerk 
of the Pike Circuit Court had refused to issue an executiou 



MAY TERM, 1912. 219 

Princeton Coal, etc., Co. v. Gilchrist — 51 Ind. App. 216. 

on said judgment, as the same appeared to be released and 
satisfied of record. The prayer is that the court decree 
that the judgment against Ogle and Hubbard, to the extent 
of $1,000 and interest from the date of rendition, is in full 
force, that the plaintiffs are entitled to execution thereon 
against the property of Ogle and Hubbard, and that the 
elerk be ordered and directed to issue such executions on 
the request of plaintiffs. 

The court sustained demurrers to the several pleas in 
abatement, overruled appellants' demurrer to the amended 
eompiaint, and sustained appellees' demurrer to appellants' 
answer. Appellants declining to plead further, and electing 
to stand on their exceptions to the several rulings of the 
court, it was adjudged and decreed that the judgment of 
the Pike Circuit Court, entered on May 12, 1904, is in full 
force and wholly unsatisfied to the extent of $1,000 and 
interest from that date; that plaintiffs are entitled to re- 
ceive and collect said sum, and have executions on said de- 
cree and judgment against the property of Ogle and Hub- 
hard respectively as in said decree prescribed ; that defend- 
ant Joseph O 'Brien, as clerk of the Pike Circuit Court, and 
his successors in office, are ordered by the court to issue ex- 
ecution in obedience to the precipe theretofore filed with him 
by plaintife before the commencement of this action, or on 
the future order of plaintiffs. 

After filing the appeal bond in the Knox Circuit Court to 
rtich the cause was venued, and in which it was tried, Al- 
fred M. Ogle died testate, and the executors of his will have 
Iwen substituted as appellants herein by the order of this 
court. 

The Princeton Coal and Mining Company, Willard W. 
Hahbard and the executors of the last will of Alfred M. 
Ogle separately assign error, and said executors and Hub- 
l>ard jointly assign error. These errors may be reduced to 
the following propositions : (1) The sufficiency of the joint 
and several pleas in abatement; (2) the sufficiency of the 



220 APPELLATE COURT OP INDIANA. 

Princeton Coal, etc., Co. v, Gilchrist — 51 Ind. App. 216. 

amended complaint; (3) the sufficiency ef the answers of 
Ogle and Hubbard to the amended complaint. 

It is averred in the joint plea in abatement of Ogle and 
Hubbard that neither is a resident of Pike county, that the 
Pike Circuit Court has no jurisdiction of their persons, and 
that the action should therefore abate. 

Pending a ruling on this plea, Ogle '^for and on behalf 
of the defendants", filed a motion for a change of venue 
from Pike County, which motion was sustained by the 
court, and the venue of the action changed to Knox county. 
Appellees insist that Ogle and Hubbard, by filing the mo- 
tion for a change of venue, entered a full appearance, and 
could not therefore question the jurisdiction of the Pike Cir- 
cuit Court over their persons. Whether the filing of a mo- 
tion for a change of venue constitutes a full appearance, has 
never been directly decided by the courts of this State. The 
rule seems to be that where a motion goes to the mer- 

1. its of the action, the same must be made on full ap- 
pearance. A motion for a change of venue, while not 

2. strictly affecting the merits of the action, necessarily 
recognizes the jurisdiction of the court over the per- 
sons who join in the motion and invokes the aid of the court 
in that behalf. The filing of such a motion has been held 
to be an admission of jurisdiction. Feedler v. Schroeder 
(1875), 59 Mo. 364; Baisley v. Bcdsley (1893), 113 Mo. 
544, 21 S. W. 29, 35 Am. St. 726. 

Ogle filed a separate plea in abatement on the ground that 

an action involving the same matters was pending in another 

court. Without setting out this separate answer in 

3. abatement, it is sufficient to say that it was clearly 
bad on account of uncertainty. Passing over the 

averments which are mere conclusions, it is not shown by 
any averment that the parties to the prior action are the 
same as the parties to the pending action. Needham v, 
Wright (1895), 140 Ind. 190, 195, 39 N. B. 510; Paxton v. 



MAY TERM, 1912. 221 

Princeton Coal,, etc., Co. t?. Gilchrist — 51 Ind. App. 216. 

Yincennes Mfg. Co. (1898), 20 Ind. App. 253, 260, 50 N. E. 

583. 

The sufficiency of the complaint must be determined in 

part by determining its theory. If, as appellants contend, 

the action is one of mandate, to compel the clerk of 

4. the Pike Circuit Court to issue an execution on the 
judgment of May 12, 1904, then appellants are right, 

as the action is not brought by the State of Indiana^ on the 
relation of appellees, and the weakness of the complaint is 
apparent. 

Appellees, however, insist that the action is not for 

5. a mandate, but is in the nature of a bill in equity 
to carry an existing decree into execution. Such a 

6. proceeding is an unusual one, but one that is recog- 
nized by the decisions and texts. In Linton v. Potts 

(1840), 5 Blackf. 396, 399, the court said: ''Bills to carry 
a former decree into execution are sometimes resorted to, 
though they are not very common, nor do the principles gov- 
erning them seem to be distinctly defined. Elementary 
writers of good authority, however, lay down the law to be, 
that such bills will be sustained, when, from the neglect of 
the parties, or some other cause, subsequent events have in- 
tervened, which render the further aid of the Court neces- 
sar}'; and even a person not a party to the decree, when his 
rights are aflEected by it, may resort to this remedy. Mitf . 
PL [Mitford, Ch. PL] 95; Cooper, Eq. PI. 99; Story, Eq. PI. 
(10th ed.] §343.*' 

In Puterbaugh, Ch. PI. and Pr. 279, the nature of bills to 
carry decrees into execution is considered, and it is said: 
"Sometimes from the neglect of parties or some other cause, 
it becomes impossible to carry a decree into execution with- 
<nit the further decree of the court. This happens, gen- 
erally, in cases where parties having neglected to proceed 
Bpon the decree, their rights under it become so embarrassed 
by variety of subsequent events, that it is necessary to have 



222 APPELLATE COURT OF INDIANA- 

l*rlnceton (Joal, etc., Co. v. Gilchrist — 51 Ind App. 21G. 

the decree of the coart to settle and ascertain them. Some^ 
times, such a bill is exhibited by a person who was not a 
party, or who does not claim under any party to the original 
decree, but who claims in a similar interest, or who is unable 
to obtain the determination of his own rights, till the de- 
cree is carried into execution." See, also, Story, Eq. PL 
(10th ed.) §429; Root v. Woolworth (1893), 150 U. S. 401, 
411, 14 Sup. Ct. 136, 37 L. Ed. 1123. It will, therefore, be 
seen that there is ample authority for holding such a form 
of action good. We think the complaint before us comes 
within the letter as well as the reason for the rule, and that 
there was no error in overruling the demurrer thereto. The 
action being an equitable proceeding to carry a de- 

7. cree into execution, it follows that jurisdiction was in 
the court entering the original decree. Oriffin v. 
Sperice (1881), 69 Ala. 393; Indiana, etc., R. Co. v. Will- 
iams (1864), 22 Ind. 198; Gregory v. Perdue (1867), 29 
Ind. 66; Scott v. Runner (1896), 146 Ind. 12, 44 N. E. 755, 
58 Am. St. 345. 

The separate answers of the Princeton Coal and Mining 
Company, Ogle and Hubbard are identical, and set out in 
cxtcnso the pleadings, findings and judgment in the action 
brought by Gilmore, the opinion of the Appellate Court 
aflSrming the judgment, the opinion of the Supreme Court 
dismissing the appeal, the record of the proceedings of the 
shareholders' meeting and directors' meeting, and the re- 
lease and satisfaction of the judgment by the authorized 
agent of the corporation. 

Without here considering the arrogant humor of the 
shareholders' resolution, wherein the court was rebuked and 
reversed, the obvious fact remains that the Princeton Coal 
and Mining Company, for whose benefit the action was 
originally waged, has released the judgment in so far as it 
was possible for that corporation to release it. If the judg- 
ment was the property of the mining company, and if ap- 
pellees had no enforceable claim to any part thereof, the re- 



MAY TERM, 1912. 223 

Princeton Coal, etc., Co. r. (Ulchrist — ^51 Ind. App. 216. 

lease was regular and sufficient, regardless of the number of 
shares owned by Ogle and Hubbard. But if the court in 
the original action was authorized to award counsel fees, 
and the award constituted a present and actual interest in 
the judgment or the proceeds thereof, and was not condi- 
tional nor contingent, then the release did not operate as 
against such allowance, ^nd the judgment in the case at bar 
must be affirmed. 

The judgment against Ogle and Hubbard was for $18,725, 
and was to be paid to the clerk of the court, who was directed 
to pay $1,000 thereof to appellees, and the balance to the 
treasurer of the company. The judgment further provided 
that on failure to pay within the time named, execution 
should issue. The judgment of affirmance of the Appellate 
Court was vacated by the appeal to the Supreme Court, 
where the appeal was dismissed. At the time of the re- 
lease, the judgment of the Pike Circuit Court was in full 
force, unreversed and unappealed from. Whether the judg- 
ment was right or wrong is of no present concern, if the 
court had jurisdiction to hear and determine the cause and 
make the allowance. The power to decide implies the power 
to decide "wrongly as well as rightly ; otherwise, there would 
be no reason for appellate tribunals. The controlling ques- 
tion therefore, is, Had the court jurisdiction to award coun- 
sel fees and provide for the payment of the same out of the 
proceeds of the judgment? If the court had such jurisdic- 
tion, the award cannot now be questioned collaterally. 

It will be recalled that the original action was a 

8. suit in equity by Gilmore, a minority stockholder, to 
recover for the corporation a large sum of money ow- 
ing by Ogle and Hubbard, who controlled the corporation. 
The judgment is not seriously challenged, except as to tho 
award of counsel fees, and then only to the extent that ther(* 
was no fund in the custody of the court out of which the al- 
lowance could be made. The question, as presented by the 
laets before us, is not free from doubt, but we think the rul(» 



224 APPELLATE COURT OP INDIANA. 

Princeton Coal, etc., Co, v, Gllcbrist — 51 Ind. App. 216. 

is and ought to be that equity will regard that as done which 
should be done ; that when a fund is ordered to be paid into 
court, the same will be deemed from that moment to be in 
the custody of the court for such further orders as the court 
shall make in regard to its application and distribution. 

We think it clear that in an equitable proceeding by a 
minority stockholder to require those in control of the af- 
fairs of a corporation to restore to it property or money 
wrongfully withheld, the court in its decree may provide 
that plaintiff be reimbursed, out of the fund recovered, for 
his costs, charges and counsel fees; and we fail to see any 
substantial difference between an action of this kind and one 
brought by a receiver for the same purpose, in which the 
power of the court to make such allowance is undoubted. 
3 Cook, Corporations (6th ed.) §879; Trustees v. Oreenough 
(1881), 105 U. S. 527, 26 L. Ed. 1157; Fox v. Hale & Nor- 
cross, etc., Mining Co. (1895), 108 Cal. 475, 41 Pac. 328; 
Kimble v. Board, etc. (1904), 32 Ind. App. 377, 66 N. E. 
1023. 

It has been held by the United States Supreme Court, as 
well as by this court, that in an action where an allowance 
may properly be made to the complainant on account of 
attorneys' fees, the same may be made directly to the attor- 
neys. Central R., etc., Co. v. Pettus (1885), 113 U. S. 116, 
124, 5 Sup. Ct. 387, 28 L. Ed. 915 ; Traylor v. Richardson 
(1891), 2 Ind. App. 452, 28 N. E. 205. In Central R., etc., 
Co. V. Pettus, supra, the court said: **When an allowance 
to the complainant is proper on account of solicitors' fees, it 
may be made directly to the solicitors themselves, without 
any application by their immediate client." 

Traylor v. Richardson, supra, was an action for divorce, 
in which fees had been allowed and ordered paid direct to 
counsel pendente Ute. Subsequently the case was dis- 
missed without decree. The defendant did not pay the 
counsel fees awarded, and a separate action was brought to 
recover the same. The judgment of the trial court for the 



MAY TERM, 1912. 225 

Cleveland, etc.. R. Co. v. Colson — 51 Ind. App. 225. 

amount of the allowance was affirmed by this court, al- 
though the statute only authorized the making of such or- 
ders, relative to expenses, as would insure the wife an effi- 
cient preparation of her case, and a fair and impartial trial 
thereof. 

There was no error in sustaining appellees' demurrer to 
the separate answers of appellants, and, for the same rea- 
sons, there was no error in overruling the separate motions 
to modify the judgment. 

The judgment is therefore affirmed. 

XoTE.— Reported in 99 N. E. 426. See, also, under (2) 3 Cyc. 
.jOS; (3) 31 Cyc. 180; (4) 2G Cyc. 396; (5) 16 Cyc. 500; (6) 4 Cyc. 
W. As to pleas in abatement, on ground of prior suit pending 
when the two suits vary as to parties, see 82 Am. St 593. As to at- 
torneys' fees as an element of damage, see 8 Am. St 158. 



The Cleveland, Cincinnati, Chicago and St. 
Louis Railway Company v. Colson. 

[No. 7,720. Filed October 11, 1912.] 

1. Cakuebs. — Injury to Passenger. — Complaint. — Allegation of 
yfgligence. — Sufficiency. — In an action by a passenger for in- 
juries received in a railroad collision, a complaint averring that 
on a certain date plaintiflP was a passenger on defendant's train, 
then being operated by it, and had paid his fare in cash, and 
after paying same, a collision, caused by defendant's negligence, 
occurred between the train on which plaintiff was riding and 
another train, whereby plaintiff without his fault or neglect was 
injured, sufficiently alleges defendant's negligence so as to with- 
stand a demurrer, pp. 227, 228. 

i I^LEADC^G. — Allegations. — Inferences. — Facts material and nec- 
essary to constitute a cause of action should be directly averred, 
as only Inferences necessarily arising from facts alleged will be 
indulged in determining the sufficiency of a pleading when tested 
by demurrer, p. 227. 

3. Camiebs. — Injury to Passenger. — Contributory Negligence. — 
Jury Question. — Whether a passenger on a train, in arising to his 
feet when a signal of danger was given and In remaining stand- 
ing nntil the collision occurred, causing hhu to fall against the 

Vol. 51—15 



226 APPELLATE COURT OF INDIANA. 

Cleveland, etc., R. Co. v. Colson — 51 Ind. App. 225. 

seat and onto the floor, was guilty of contributory negligence, was 
a question for the jury to determine, p. 228. 

4. Appeau — Review, — Instructions. — Misleadinif Jury, — In an ac- 
tion against a railroad company for injury to a i>assenger, an 
instructi<Mi, which, after enumerating the elements proper to be 
considered In estimating damages, concluded by stating that the 
jury should allow such damages as in its opinion, from all the 
facts and circumstances in eyldeuce, would be a fair and Just 
compensation for the injury sustained, was not misleading to the 
jury, when taiieu as a whole, p. 229. 

n. Appeal. — Revieic, — Harmless Error. — Refusal of Instruction, — 
Where, in an action for personal Injuries, the evidence was con- 
flicting on the question of whether the hernia complained of was 
an old injury, and the Jury in its answers to interrogatories 
found that it was not an old injury, the refusal of an instruction 
that, if the Jury found from the evidence that plaintiff had been 
ruptured before the occurrence of the accident complained of and 
that the injury was merely a recurrence of the original rupture, 
their finding shall be for defendant, was harmless, p. 229. 

G. EvmENCE. — Demonstrative Evidence, — Wound Made by Surgeon 
in Operating on Injury. — -In an action for personal Injuries, 
where there was evidence to show that a surgical operation was 
rendered necessary on account of the Injury resulting from de- 
fendant's negligence, the jury was entitled to all the evidence 
showing the extent and effect of the operation, including a view 
of the wound made thereby, p. 230. 

7. Appeal. — Objection to Evidence. — Record, — "So question is pre- 
sented on alleged error in admitting certain evidence, where tlie 
record discloses no objection made to such evidence at the time it 
was offered, p. 230. 

8. l*LEADiNG. — Oencral Denial, — Effect. — ^A general denial admits 
the capacity in which the defendant is sued. p. 231. 

9. Appeau — Review. — Evidence, — Sufficiency, — In an action by a 
passenger against a railroad company for personal injuries, where 
Iilaintiff testified that when he paid his fare defendant's con- 
ductor gave him a cash fare receipt, and such cash fare receipt 
was introduced in evidence, and plaintiff further testified that 
he knew that he was a passenger on defendant's train, the evi- 
dence was sufficient to Justify the jury in inferring that the rail- 
road and car on which plaintiff was injured was at the time of 
the injury in control of and being operated by defendant, p. 231. 

From Ripley Circuit Court ; Francis M, Thompson, Judge. 

Action by Henry Colson against the Cleveland, Cincin- 
nati, Chicago and St. Louis Railway Company. Prom a 
judgment for plaintiff, the defendant appeals. Affirmed, 



MAY TERM, 1912. 227 

Cleveland, etc., R. Co. v, Oolson — 51 Ind. A pp. 225. 

L. J. Hackney, Frank L, Littleton, J. 0. Cravens and 
r. S. Cravens, for appellant. 
Connelley & Connelley, for appellee. 

HoTTEL, C. J. — This is a suit by appellee for damages for 
personal injury alleged to have been sustained by him while 
a passenger on one of appellant's trains. From a judgment 
in appellee 's favor for $1,000 appellant appealed, and for 
a reversal of the case relies on the following properly as- 
signed errors: Overruling the demurrer to the second para- 
graph of complaint, and overruling the motion for new 
trial 

It is insisted that the second paragraph of com- 

1. plaint is insufficient in its averments of negligence, 
in that they are made ''by way of recital and not as 

statements of fact". These averments are, in substance, as 
follows: That on January 15, 1910, appellee was a passen- 
ger on one of appellant's trains then being operated by it, 
and had paid his fare in cash, and that while a passenger, 
and after paying said fare, *'a collision, caused by appel- 
lant's negligence, occurred between the train on which plain- 
tiff was riding and another train of the defendant near the 
city of North Vernon, by reason of which plaintifE without 
his fault or neglect was greatly injured and ruptured," etc. 
The rules of pleading require **that facts material 

2. and necessary to constitute the cause of action de- 
clared upon be directly averred, and that no essen- 
tial element be shown by way of recital or left to inference. 
Only inferences necessarily arising from facts alleged will 
be indulged in determining the sufficiency of a pleading 
when tested by demurrer." Cleveland, etc, R, Co, v. Per- 
kins (1908), 171 Ind. 307, 313, 86 N. E. 405. See, also, Chi- 
cago, etc., R, Co. v. McCandish (1907), 167 Ind. 648, 79 N. 
E. 903; Laporte Carriage Co. v. Sullender (1905), 165 Ind. 
290, 75 N. B. 270; Pittsburgh, etc., R. Co. v. Peck (1905), 
165 Ind, 537, 76 N. E. 163 ; Greenfield Gas Co. v. Trees 



228 APPELLATE COURT OP INDIANA. 

Cleveland, etc., R. Co. r. Colson — 51 Ind. App. 225. 

(1905), 165 Ind. 209, 75 N. E. 2; Malott v. Sample (1905), 
164 Ind. 645, 74 N. E. 245; Robertson v. Ford (1905), 164 
Ind. 538, 74 N. E. 1. 

The averment '* caused by appellant's negligence" 

1. standing alone, and unaided by the other averments 
with which it is connected in the pleading, would 
probably be open to appellant's criticism, and, under the 
above authorities, be insuflScient to charge actionable negli- 
gence. But, taken in its connection with tho other specific 
averment of the pleading that "a collision • • * oc- 
curred between the train on which plaintiff was riding and 
another train of the defendant • • • by reason of 
which plaintiff, without his fault, was • • • injured, ' ' 
we think any presumption that might otherwise be indulged 
against the pleader in favor of appellant having used that 
high degree of care necessary in such cases is completely 
overthown. Indianapolis St, R. Co. v. Schmidt (1904), 
163 Ind. 360, 71 N. E. 201 ; Pittsburgh, etc., R. Co. v. Higgs 
(1906), 165 Ind. 694, 707, 76 N. E. 299, 4 L. R. A. (N. S.) 
1081; Louisville, etc., R. Co. v. Taylor (1890), 126 Ind. 
126, 132, 25 N. E. 869 ; Terre Haute, etc., R. Co. v. Sheeks 
(1900), 155 Ind. 74, 56 N. E. 434; Cleveland, etc., R. Co. 
v. Newell (1885), 104 Ind. 264, 3 N. E. 836, 54 Am. Rep. 
312. It is questionable whether this averment, when taken 
in its entirety, can be said to fail directly to aver appellant 's 
negligence as a fact. It, at least, compels an inference of 
such negligence, and this, under all the above authorities, 
makes it suflScient to withstand the demurrer. 

In support of the motion for a new trial, it is urged 

3. that appellee's evidence shows him to be guilty of 
contributory negligence. This contention is based 
on certain evidence of appellee, to the effect that when a 
signal of danger was given, he arose to his feet, and that 
while so standing, the train collided, causing appellee to fall 
against the seat and onto the floor. It is insisted that ap- 



MAY TERM, 1912. 229 

Cleveland, etc., R. Ca r. Oolson — 51 Ind. App. 225. 

pellee should have remained in his seat, and that if he had 
done 80 he would not have received said injury. 

Under the evidence, the question of appellee being guilty 
of negligence contributing to his injury was clearly a ques- 
tion of fact for the jury. Stay v. Lomsville, etc., R. Co. 

1903), 160 Ind. 144, 152, 66 X. E. 615; Lowden v. Pcnnsyl- 
laniaCo. (1908), 41 Ind. App. 614, 619, 82 N. E. 941; J?a/- 
timore, etc., R. Co. v. Rosborough (1907), 40 Ind. App. 14, 
19, 80 N. E. 869. 

Objection is made to instruction eight, given by 

4. the court. This instruction, after enumerating the 
elements proper to be considered in estimating dam- 
ages, concludes as follows: ''And allow him such damages 
« in your opinion from all the facts and circumstances in 
(vidence, tuUl be a fair and just compensation for the injury 
h has sustained.'^ (We italicize that part objected to by 
appellant.) It is insisted that the instruction should have 
wnfined the jury *'to the facts and circumstances properly 
m evidence and relative to the question of injuries and dam- 
ages.'' The instruction in this case in its entirety is so 
■iifferent from those criticised and held improper in the 
cases relied on by appellant, that such cases give little or no 
•support to its contention. This instruction in the first in- 
stance properly restricted the jury in the matters to be 
^Qsidered in estimating the damage, and also in the closing 
paragraph, to which objection is urged, the jury was limited 
to a fair and just '^compensation for the injury he has su^- 
iQined'\ (Our italics.) Taking the instruction as a whole, 
it eould not have misled the jury. 

The refusal to give appellant's instruction four is 

5. urged as error. This instruction is as follows: *'lf 
you find from the evidence that plaintiff had been 

rnptured before the occurrence of the accident complained 
of and that the rupture for which he claims damages is mere- 
ly a recurrence or aggravation of the original rupture, even 



230 APPELLATE COURT OF INDIANA. 

Cleveland, etc., R. Co. v, Oolson — 61 Ind. Appw 225. 

though much more severe than the original rupture, it will 
be your duty under the issues in this case to find for the 
defendant as to such rupture, and you should in such event 
allow no damages whatever to the plaintiff on account of 
said rupture, for he has sued for an original rupture and 
not for a recurred or an aggravated rupture." It is insisted 
that under the averments of the complaint the hernia com- 
plained of was one caused by appellant, and that the proof 
showed an old hernia, aggravated by the accident. It is not 
necessary that we should decide whether, under the aver- 
ments of the complaint, appellant was entitled to an instruc- 
tion limiting the recovery on account of the hernia com- 
plained of to an original hernia, and preventing recovery on 
account of an aggravation or recurrence of an old hernia, 
because on this averment of the complaint there was a con- 
flict in the evidence, and the jury in its answer to interroga- 
tories found against appellant's contention. The instruc- 
tion was therefore harmless, and presents no reversible error. 
It is insisted that the court erred in permitting ap- 

6. pellee to exhibit to the jury the wound made by the 
surgeon in operating on the hernia. There was evi- 
dence tending to show that the surgical operation was ren- 
dered necessary on account of the injury alleged to have 
resulted from appellant's negligence. It follows that the 
jury was entitled to all the evidence showing the extent and 
effect of the operation, including a view of the wound made 
thereby. Citizens St R. Co. v. Willoeby (1893), 134 Ind. 
563, 33 N. E. 627; Freeman v. Hutchinson (1896), 15 Ind. 
App. 639, 43 N. E. 16; Louisville, etc, R, Co. v. Wood 
(1888), 113 Ind. 544, 549, 14 N. E. 572, 16 N. E. 197; Indi- 
ana Car Co. V. Parker (1885), 100 Ind. 181, 199, '200, and 
authorities cited. 

Error in admitting in evidence a cash fare receipt 

7. given to appellee by the conductor of the train on 
which he was injured is next urged. It is now in- 
sisted that this receipt was not identified as a receipt given 



MAY TERM, 1912. 231 

Cleveland, etc., R. Co. v. Oolson — 51 Ind. App. 225. 

to appellee, or given by the conductor or any other person. 
We find no such objection in the record made to the receipt 
when offered in evidence, and therefore no question is pre- 
sented by this ground of the motion for a new trial. 

Finally it is insisted that the evidence fails to show 

8. that appellant owned, operated or controlled the rail- 
road train on which appellee was a passenger. The 

9. general denial admits the capacity in which defendant 
was sued, and the cash fare receipt before referred 

to was introduced in evidence, and it shows that it was is- 
sued by appellant. Appellee testified that when he paid his 
fare the conductor of the train on which he was injured gave 
him a cash fare receipt. He further testified, in substance, 
on his direct examination, that he knew on what railroad 
company's train he was a passenger ; that he knew the name 
of such company, and that it was the Cleveland, Cincinnati, 
Chicago and St. Louis Railway Company, running from 
Cincinnati to Indianapolis and St. Louis, passing through 
Greensburg. 

There was sufficient evidence to justify the jury in infer- 
ring that the railroad and the car on which appellee was 
injured was at the time of the injury in control of and be- 
ing operated by appellant. This was sufficient under the 
law. Henry v. Epstein (1912), 50 Ind. App. 660, 95 N. E. 
275. 

Judgment affirmed. 

XoTE. — ^Reported in 99 N. E. 433. See, also under (1) 6 Cyc. 
•20; (2) 31 Cyc. 48; (3) 6 Cyc. 1482; (4) 38 Cyc. 1602; (5) 38 
<"yc 1811; (6) 17 Cyc. 204; (7) 2 Cyc. 1044; (8) 31 Cyc. 207; (9) 
'• Cyc 62S-32 Anno. As to when contributory negUgence is for tlie 
'^iurt to determine and when for the jury, see 8 Am. St. 840. For 
a discussion of the contributory negligence of a passenger in 
"tanding In a moving car or train, see 13 Ann. Cas. 122. 



232 APPELLATE COURT OP INDIANA. 

Continental Ins. Co. v. Guo — 51 Ind. App. 232. 



Continental Insurance Company v. Gue et al, 

[Xo. 7,558. Filed April 18, 1912. Rehearing denied October 12, 

1912.] 

1. Appeal.— /2t^7it of Appeal, — ^The rlgtit of appeal is granted only 
by statute, and must be invoked and presented In the manner 
and form provided by statute, p. 233. 

2. Appeal. — Vacation Appeal. — Parties. — ^A vacation appeal must 
be talten pursuant to §074 Bums 1908, Acts 1899 p. 5, and, in 
order to bring the appeal within the jurisdiction of the court, 
all coparties to the Judgment, or judgment defendants, must be 
joined as appellants, and If not so joined the appeal must be 
dismissed, p. 233. 

3. Appeal. — Parties. — ''Coparties" — "Coparties," as used in §674 
Burns 1008, Acts 1899 p. 5, providing for notice to coparties where 
a part of several coparties api)eal, means coparties to the judg- 
ment, or all the parties against whom the judgment is rendered, 
p. 234. 

4. Appeal. — Right of Appeal. — Necessary Party. — Dismissal. — 
Where, in an action on a fire policy, it was shown by the policy 
that the company's codefendant had an interest In the property 
destroyed, although the complaint alleged that she had no in- 
terest and her answer admitted such averment, she was a nec- 
essary party defendant in the lower court, and, being a Judg- 
ment defendant, was a necessary party appellant on appeal, and 
failure to make her such requires a dismissal of the ai^peal for 
want of jurisdiction, p. 235. 

From Martin Circuit Court ; Hileary Q. HougMon, Judge. 

Action by Clyde Gue against the Continental Insurance 
Company and another. Prom a judgment for plaintiff, the de- 
fendant insurance company appeals. Appeal dismissed. 

Carlos T. McCarty, for appellant. 
Frank E. Oilkisan, for appellee. 

Adams, J. — Appellant issued its policy of insurance to 
Clyde Gue and Louisa Gue, as owners of a certain dwelling- 
house and contents, indemnifying them for a certain term 
against loss or damage by fire. "Within the life of the policy, 
the house was wholly destroyed by fire, and this action was 
instituted by Clyde Gue against appellant and Louisa Gue. 



MAY TERM, 1912. 233 

Continental Ins. Co. v. Gue — 51 Ind. App. 232. 

The facts relating to the contract of insurance, the loss 
and proof of loss, are all set out in the complaint. It is 
also averred that at the time the insurance was written, and 
at the time the building was destroyed, plaintiff, Clyde Gue, 
was the sole owner of such building. 

In his complaint, plaintiff only sought to recover for the 
loss of the building, and averred that Louisa Gue had no in- 
terest therein, and that she was made a party defendant to 
answer for any interest which she might have or claim to 
have. Defendant Louisa Gue, who was the step-mother of 
plaintiff, appeared in person and filed answer, wherein she 
admitted the truth of the averments of the complaint. As 
to defendant insurance company, the cause was put at issue 
by answers and replies, and submitted to a jury. Verdict 
and judgment for plaintiff against said company in the sum 
of $346.01, and against Louisa Gue, that she had no interest 
in the property destroyed. 

In appellant's assignment of errors in this court, Clyde 
Gue and Louisa Gue are made appellees. This is a vacation 
appeal, and notice thereof was issued by the clerk of this 
comi; to both Clyde Gue and Louisa Gue as appellees. Ap- 
pellee Clyde Gue has filed a motion to dismiss the appeal, 
on the ground that this court has no jurisdiction, in that 
appellee Louisa Gue was not made an appellant in the as- 
signment of errors, and notified as an appellant. As this 
motion presents a jurisdictional question, it must be deter- 
mined before the case can be considered on its merits. 

It is well settled that there is no common-law right 

1. of appeal in this State. That right is one granted 
only by statute, and must be invoked and presented 

2. in the manner and form provided by statute. In a 
vacation appeal, the same must be taken pursuant to 

§674 Bums 1908, Acts 1899 p. 5, and in order to bring the 
appeal within the jurisdiction of this court all coparties to 
the judgment or judgment defendants must be joined as 
appellants. If not so joined, we have no jurisdiction to 



234 APPELLATE COURT OP INDIANA. 

Continental Ins. Co. v. Cue — 61 Ind. App. 232. 

determine the ease on its merits, and the appeal must be 
dismissed on the motion of a party or by the court on its 
own motion. Brown v. Brown (1907), 168 Ind. 654, 656, 
80 N. E. 535; Crist v. Wayne, etc, Assn. (1898), 151 Ind. 
245, 246, 51 N. B. 368; Michigan Mut. Life Ins. Co. v. 
Frankel (1898), 151 Ind. 534, 539, 10 N. E. 304; Abshire v. 
Williamson (1898), 149 Ind. 248, 252, 48 N. E. 1027. If 
all coparties to the judgment below are not made appellants 
on appeal, there is no compliance with the requirements of 
the statute; and making any of such coparties appellees is 
no better than not making them parties at all. Oregory v. 
Smith (1894), 139 Ind. 48, 53, 38 N. E. 395; Lee v. Mo- 
zingo (1896), 143 Ind. 667, 671, 41 N. E. 454. There can 
be but one appeal from the same judgment, and as all par- 
ties affected by the judgment have a right of appeal, the per- 
sons against whom the judgment is rendered must be made 
parties to the appeal as coappellants ; otherwise no jurisdic- 
tion is conferred on the appellate tribunal Yorde^mark v. 
Wilkinson (1895), 142 Ind. 142, 147, 34 N. E. 441; Benhow 
V. Garrard (1894), 139 Ind. 571, 573, 39 N. E. 162; Elliott, 

App. Proc. §144. By the term coparties, as used in 
3. §674, supra, is meant coparties to the judgment, or 

all the parties against whom the judgment is ren- 
ered. Oregory v. Smith, supra; Benbow v. Garrard, su- 
pra; Hadley y. Hill (1881), 73 Ind. 442. A defendant 
against whom a judgment is rendered on default has a right 
to appeal, without seeking to set aside the default, and may 
present for review the sufficiency of the facts stated in the 
complaint to constitute a cause of action against him and 
the jurisdiction of the court. Lee v. Mozingo, supra; Wilcox 
V. Monday (1882), 83 Ind. 335. 

It has been held that in an action against an insurance 
company and another claiming the proceeds of a policy as 
against the plaintiff, where the insurance company filed an 
interpleader asking an order to pay the full amount into 
court and be discharged from further liability, and where 



MAY TERM, 1912. 235 

Continental Ins. Co. v. Gue — 51 Ind. App. 232. 

an order was made, the money paid in as directed, and a 
general judgment rendered, the insurance company was a 
necessary party to the appeal, as there was no judgment for 
costs in its favor on the interpleader. Holderman v. Wood 
(1905), 34 Ind. App. 519, 522, 73 N. B. 199. 

Few questions have been more fully considered by our ap- 
pellate courts than the one presented by this motion. In 
addition to the authorities cited in support of the principles 
herein announced, we call attention to the following : Hay- 
mker v. Schneck (1903), 160 Ind. 443, 67 N. E. 181 ; Smith 
V. Fairfield (1901), 157 Ind. 491, 493, 61 N. E. 560; Owen v. 
Dresbach (1900), 154 Ind. 392, 394, 56 N. E. 22, 56 N. E. 
848; McKee v. Root (1899), 153 Ind. 314, 54 N. E. 802; 
Stults V. Gibler (1897), 146 Ind. 501, 45 N. E. 340; Roach 
T. Baker (1896), 145 Ind. 330, 43 N. E. 932, 44 N. E. 303; 
Midland R. Co. v. St Clair (1896), 144 Ind. 363, 42 N. E. 
214; Denke-Walier v. Loeper (1895), 142 Ind. 657, 42 N. 
E. 358; Ully v. Somerville (1895), 142 Ind. 298, 40 N. E. 
1088; Inman v. Vogel (1895), 141 Ind. 138, 40 N. E. 665; 
Wood V. Cities (1895), 140 Ind. 472, 474, 39 N. E. 160; 
Bozeman v. Kale (1894), 139 Ind. 187, 35 N. E. 828; Goiir- 
Uy V. Embree (1894), 137 Ind. 82, 36 N. E. 846; Hutts v 
Martin (1892), 131 Ind. 1, 30 N. E. 698, 31 Am. St. 412 
Burns v. Trustees, etc. (1903), 31 Ind. App. 640, 68 N. E 
915; Sohl V. Evans (1902), 29 Ind. App. 634, 62 N. E. 84 
Everett v. Fonts (1901), 26 Ind. App. 658, 60 N. E. 454 
Paxton V. Tyler (1898), 20 Ind. App. 455, 50 N. E. 45 
Parry v. Botkin (1896), 15 Ind. App. 83, 42 N. E. 964; 
WaUh V. Brockway (1895), 13 Ind. App. 70, 40 N. E. 29, 
41 N. E. 76. 

Louisa Gue is shown by the policy of insurance to have 
had an interest in the property destroyed, and therefore an 

interest in any recovery on said policy. It is true, 
4. the complaint alleged that she had no interest in the 

property destroyed, and her answer admitted this 
averment, but to establish this fact and require the insur- 



236 APPELLATE COURT OP INDIANA. 

Rutherford School Tp. r. Craney— 51 Ind. App. 230. 

ance company to pay the whole recovery to plaintiff, Louisa 
Gue was a necessary party defendant in the court below. 
There was no judgment rendered in her favor in that court. 
The judgment was against her, from which she had at least 
a right of appeal. Whether she desired to appeal or not 
is immaterial. That she could or could not successfully 
prosecute an appeal, if taken, is likewise immaterial. We 
are not here concerned about the merits of the case. We 
are dealing only with the legal status of the parties. Louisa 
Gue was a judgment defendant in the court below, and, 
therefore, a necessary party appellant on appeal. Failure 
to make her such party in the assignment of errors and 
bring her in by notice are such omissions as to give this 
court no jurisdiction. 

The appeal is therefore dismissed. 

Note.— Reported in 98 K E. 147. See, also, under (1)2 Cj'c. 
517; (2) 2 Cyc. 758; (3) 2 Cyc. 8G4; (4) 2 Cyc. 78,-1 ; 3 Cyc. 185. 



Rutherford School Township v. Craney. 

[No. 7,705. Filed October 15, 1912.] 

1. Schools and School Districts. — Teachers. — Action for Com- 
pcnaaiion. — Complaint. — Allegations, — Suffleicncy. — rnder §6590 
lUirns IOCS, Acts 1007 p. 14G, fixing the minimum daily wages of 
toadiers for teaching in the public schools, and §G508 Burns 1908, 
Acts 1003 p. 52'S, making school oflScers liable to a penalty for fail- 
ure to pay the teachers employed by them at- least the minimum 
wage provided by statute, a complaint by a teacher to recover for 
services, averring a written contract to teach a township school for 
a term of 120 days, the wages she was to receive, that she taught 
120 days, the amount paid to her, and the amount due to her 
under the minimum wage scale, and also under the terms of the 
contract, was sufficient without averring that the township ad- 
visory l)oard had made provision for the money to pay her sal- 
ary » or that at the time of making the contract the trustee had 
sufficient funds on hand with which to pay it. p. 237. 

2. Pleading. — Complaint. — Bufflcieney. — A complaint against a 
debtor, which states the facts creating a liability, Is generally 
sufliciont without referring to his ability to ixiy. p. 239. 



MAY TERM, 1912. 237 

Rutherford School Tp. v. Craney — 51 Ind. App. 236. 

3. Schools and School Districts. — Teachers. — Action for Com- 
liaisation. — Ansicers. — Sufficiency. — Answers, In a teacher's action 
for comiwnsation, admitting the execution of the contract sued on, 
but averring that it was one that the trustee had no authority to 
make, because, at the time, he did not have sufficient funds, and 
would not receive sufficient funds from the various levies made, 
to pay the wages agreed on, and that the advisory board had not 
authorized him to contract an indebtedness in excess of funds on 
hands and to be received from levies made, do not state a defense 
to the action, since It is mandatory on a township trustee to 
continue the schools for at least 120 days, as provided by §6411 
Bums 1908, Acts 1809 p. 424, to employ teachers to teach such 
schools, and to pay at least the minimum wage provided by 
10599 Bums 1908, Acts 1907 p. 146. p. 239. 

4. Schools and School Distbicts. — Teachers, — Action for Com- 
pensation, — Answers, — Allegations, — Conclusions, — Allega- 
tions contained In answers to a teacher's action for compensation, 
that the trustee did not have sufficient funds at the time of mak- 
ing the contract and would not receive sufficient funds from the 
various levies made and that all the funds which would be ac- 
quired during said school year were not sufficient to pay plaintiff 
under the contract, were conclusions of the pleader and without 
legal effect p. 241. 

Prom Martin Circuit Court ; Hileary Q. Houghton, Judge. 

Action by Ruth Craney against Rutherford School Town- 
ship, of Martin County. From a judgment for plaintiff, 
the defendant appeals. Affirmed. 

Prank E, Cfilkison, for appellant. 
William P, Dennigan, for appellee. 

Ibach, J. — This action was brought by appellee against 
appellant to recover a sum of money which she claims is 
due her for teaching in the public schools of appellant town- 
ship, and for services performed while acting as janitor of 
the school building in which she taught. The latter de- 
mand, however, was denied by the trial court. 

It appears from the complaint that appellee agreed in 

writing to teach one of the township schools for a term of 

120 days at $2.69 per day, or forty-five cents per 

1. day in excess of the minimum per diem provided by 

law for a teacher of her average grade. It is averred 



238 APPELLATE COURT OP INDIANA. 

Rutherford School Tp. v. Craney — 51 Ind. App. 236. 

that at the time she entered into the contract with the town- 
ship trustee she held a twelve-months teacher's license, and 
that at the examination for license she received a general 
average of eighty-nine and eight-tenths per cent. The mini- 
mum wages to be paid all licensed teachers in the public 
schools of this State are provided for by statute. The statute 
in force at the time the contract before us was executed pro- 
vides "that the daily wages of teachers for teaching in the 
public schools of the state shall not be less, in the case of 
beginning teachers, than an amoimt determined by multi- 
plying two and one-half cents by the general average given 
such teacher in his highest grade of license at the time of 
contracting." §6599 Burns 1908, Acts 1907 p. 146. The 
statute also provides for an increased minimum wage when 
the teacher has had a successful experience for one school 
year of not less than six months. It is further provided 
by statute that "all school officers shall comply with the 
provisions of this act and shall pay the teachers employed 
by them no less than the amount to be determined by sec- 
tions one and two of this act. School officers who shall be 
adjudged guilty of violating any of the provisions of this 
act shall be fined in any amount not exceeding $100 for 
such offense." §6598 Bums 1908, Acts 1903 p. 528. 

In the complaint now under consideration there is no 
averment as to the length of time appellee had taught prior 
to the date of her contract with appellant ; and for the pur- 
pose of determining the sufficiency of the complaint this is 
not essential, for the averments are sufficient to show the 
employment, by a written contract, of appellee by appel- 
lant to teach in the schools of Rutherford township, and that 
she taught 120 days, and the sum total received by her was 
$174.47, instead of $268.80, to which she was entitled under 
the minimum wage scale, or $322.20 under the terms of the 
contract. By statute it was the plain duty of the township 
trustee to contract in writing with some teacher to teach the 
school involved here, and it was not necessary to aver that 



MAY TERM, 1912. 239 

Rutherford School Tp. v. Craney— 51 Ind. App. 236. 

the township advisory board had previously made provision 
for the money with which to pay appellee's salary, which 
the statute says must be paid her, or that at the time of 
making the contract the trustee had sufficient funds on 
hands with which to meet it. In the construction of 

2. a pleading it is generally sufficient to state the facts 
which create a liability without referring to the debt- 
or s ability to pay, and we know of no reason why the rule 
should be any different in this class of cases. The demurrer 
to the complaint was therefore rightfully overruled, the 
averments being sufficient to state a cause of action. Har- 
mony School Tp. V. Moore (1881), 80 Ind. 276; Kiefer v. 
Troy School Tp. (1885), 102 Ind. 279, 1 N. E. 560. The rec- 
ord also brings to us a consideration of the second and third 
paragraphs of answer, to each of which a demurrer for 
want of facts was sustained, and separate exceptions saved. 

The second paragraph of answer admits the execution of 

the contract sued on, but avers that such contract was one 

that the trustee of the township had no authority to 

3. make, because at the time of making the contract he 
did not have sufficient funds, and would not receive 

sufficient funds from the various levies made, to pay ap- 
pellee the wages agreed on ; that the advisory board had not 
authorized the trustee to contract an indebtedness in excess 
of the funds on hands and those to be received from such 
levies; in short, the effect of the averments of this answer 
is that the contract was in excess of any authority given to 
the trustee, and he being thus unauthorized to make the 
contract, the township could not be held under it. The 
same general averments appear in the third paragraph, with 
the additional ones that when the trustee discovered there 
would be a deficiency in the fund out of which the teachers 
were to be paid, he certified that fact, with others, to the 
county superintendent of schools, that the county superin- 
tendent examined said statement and forwarded it to the 
Jtate superintendent of schools, who received it, but did 



240 APPELLATE COURT OP INDIANA. 

Rutherford Sfliool T|>. t\ Crauey— 51 Ind. Ai)p. 236. 

not issue an order on the auditor of state in favor of ap- 
l)ellant for the amount necessary to complete the term of 
school, for the reason that there were at the time no funds 
in the state treasury available for that purpose. 

The statute makes it mandatory on the township trustee 
to continue the schools of his township for a period of at 
least 120 school days (Acts 1899 p. 424, §6411 Burns 1908), 
to employ teachers to teach such schools, and to pay at least 
the minimum wage provided (§6599, supra) y and makes the 
trustee liable to a fine on his failure so to do. Again, §6675 
Burns 1908, Acts 1901 p. 470, provides that ** every parent, 
guardian, or other person in the State of Indiana, having 
control or charge of any child or children between the ages 
of seven and fourteen years, inclusive, shall be required to 
send such child or children to a public, private or parochial 
school * • •y for a term or period not less than that of 
the public schools of the school corporation where the child 
or children reside,*' etc. 

It is quite evident from the language of our Constitution, 
and from the sections of our statutes just referred to, that the 
cause of education in Indiana is held in the highest esteem 
and considered of the highest importance, and the legisla- 
ture in providing for a township advisory board never in- 
tended that such board should be given authority which 
would permit it to interfere with the strict mandates placed 
on the officers of the schools and the parents and guardians 
having the care and custody of children of school age Ad- 
visory Board, etc, v. State, ex rcL (1905), 164 Ind. 295, 73 
N. E. 700. The duty rests primarily upon the State to pro- 
vide means for educating her young people, and the State 
has designated certain officials to have supervision over 
her schools, and has, by statute, declared what their duties 
are, and how they are to be exercised, under penalties, and 
then, when the schools are equipped in accordance with the 
statute, the law makes it equally imperative on the person 
controlling children of school age to send them to school. 



MAY TERM, 1912. . 241 

Kutherford School Tp. v. Craney — 51 Ind. App. 236. 

The legislature, in its wisdom, intended to make the duty 
one of the highest concern, both on the part of the trustee 
and on the part of the parent or guardian, and left no dis- 
cretionary power in any one, so far as the minimum term 
of school is concerned and so far as the minimum wage is 
concerned. To this extent, at least, it may be correctly 
stated, that the legislature has furnished the contracts which 
the several trustees must sign with the teachers of the town- 
ship public schools. It is certain that the legislature was 
determined that all children of school age should have at 
least 120 days of school each year, and should be taught by 
competent teachers, fixing the salary on the basis of the 
grades received at their examination, to be increased with 
their experience in teaching. 

The statute also provides that 'Hhe school trustees of the 
several townships, towns and cities shall have power to levy 
annually a tax not exceeding fifty cents on each hundred 
dollars of taxable property and twenty-five cents on each 
taxable poll, which tax shall be assessed and collected as 
the taxes of the state and county revenues are assessed and 
collected, and the revenue arising from such tax levy shall 
constitute a supplementary tuition fund, to extend the terms 
of school in said townships," etc. §6443 Burns 1908, Acts 
1903 p. 409. 

There is no averment in the answer that such a tax was 

ever levied by the trustee of the township here involved, or 

that a deficiency of funds remained after such levy 

4. had been made. Statements of the pleader's conclu- 
sions, unaccompanied by a statement of the facts from 
which such conclusions are drawn, are without legal efiEect. 
Such is the allegation of each paragraph of the answer un- 
der consideration: **That he did not have sufficient funds 
at the time of making the contract and would not receive 
snfficient funds from the various levies made"; that all the 
funds which would be acquired during said school year, etc., 
Vol. 51—16 



242 APPELLATE COURT OF INDIANA. 

Lautsch r. Aiidree — ^51 Iiid. Ai)p. 242. 

were not sufficient to pay plaintiff under said contract. It 
is possible, perhaps, that such conditions might arise in some 
township in the State whereby such township would be un- 
able, under the provisions of the law, to create school rev- 
enues sufficient to continue the schools for the minimum 
period, and the township trustee might thereby be excused 
for conducting such schools for a less term, but no such 
facts are averred in the answer, and likewise no averment 
which could in anywise be construed to constitute a defense 
to the action for the minimum wage due appellee. We 
therefore hold that the answers are wholly insufficient to 
state a defense to so much of the complaint as refers to the 
minimum term taught by appellee and the minimum wage 
sought to be recovered, and the demurrers were properly 
overruled. Appellant has failed to present any question as 
to the amount of the judgment obtained by appellee in the 
court below, consequently we are not required to consider it 
here. 
Judgment affirmed. 

Note.— Reiwrted In 90 N. E. 485. Seo, also, under (1, 3) 35 
Cye, 1106; (2) 31 Cyc. 101; (4) 31 Cyc, 40. 



Laatsch et al. v. Andree. 

[No. T.ChSo. Filed October 10, 1012.] 

1. Appeal. — Briefs. — Briefs on appeal must be so prepared that 
all the qiu'stionR presented by the assignment of errors can be 
determined from an examination of the briefs without referonco 
to the record, p. 243. 

2. Appeal. — 5rtr/.s. — Statement of Record. — Ruling on Demurrer. 
— No question is presented as to the ruling of the trial court on 
a demurrer to the complaint, where neither the demurrer nor its 
substance is set out In the briefs, p. 243. 

3. Appeal. — Briefs. — Statement of Record. — Motion for New Trial. 
— ^No question arising on the motion for a new trial can be pre- 
sented on appeal, unless the briefs set out a copy of such motion, 
or give its substance, p. 244. 



MAY TERM, 1912. 243 

Laatsch r. Andree — ^51 Ind. App. 242. 

From Lake Superior Court ; Virgil 8. Reiter, Judge. 

Action by Ernest Andree against Gus A. Laatsch and 
another. Prom a judgment for plaintiff, the defendants 
appeal. Affirmed. 

John M. Stinson, for appellants. 
James K. Stinson, for appellee. 

Laiby, J. — ^Appellee brought this action against appel- 
lants to recover on a written lease for the unpaid balance 
of rent claimed to be due. This appeal is taken from a 
judgment in favor of appellee for $70, and $17 attorney's 
fees. 

The brief of appellants fails to contain (1) a concise state- 
ment of so much of the record as fully presents the errors 
and exceptions relied on, (2) a condensed recital of the evi- 
dence in narrative form, so as to present the substance clear- 
ly and concisely; (3) or, under a separate heading of each 
error relied on, separately numbered propositions or points, 
stated concisely and without argument or elaboration, to- 
gether with the authorities relied on in support of them. 

It has been held repeatedly by the courts of this State 

that the briefs must be so prepared that all the questions 

presented by the assignment of errors can be deter- 

1. mined by the court to which the case is appealed by 
examining the briefs, without reference to the record. 

Chicago, etc., R. Co. v. Newkirk (1911), 48 Ind. App. 349, 

9^3 N. E. 860; Chicago Terminal etc., R. Co. v. Walton 

(1905), 165 Ind. 253, 74 N. E. 1090. In this case the errors 

relied on for reversal are set out in appellants' brief. 

2. The first two refer to the sufficiency of the complaint. 
A copy of the complaint is not set out in appellants' 

brief, but a statement of what purports to be the substance 
of the complaint is contained in the briefs of both appellants 
^d appellee, and this will be treated as a compliance with 
the role in this respect. Unless the demurrer or its sub- 
stance is set out in the brief, this court cannot know the 



244 APPELLATE COURT OP INDIANA. 

Laatsch v. Andree — 51 In(L App. 242. 

grounds on which the demurrer was based; and as neither 
the demurrer to the complaint nor the substance thereof is 
contained in either brief, no question as to the ruling of 
such demurrer is presented. Aydelott v. Collins (1895), 144 
Ind. 602, 43 N. B. 867; Chicago Terminal, etc., B. Co. v. 
Walton, supra. The only objection urged against the com- 
plaint in appellants' brief is that there is a want of proper 
parties defendant. On an examination of the briefs, we 
have no way of knowing that this was assigned as a cause 
for demurrer. 

The other questions argued by appellants would be prop- 
erly presented under an assignment that the court erred in 
overruling appellants' motion for a new trial, as they 

3. all relate to the suflSciency of the evidence. The mo- 
tion for a new trial is not set out in either of the 
briefs, and the substance of such motion is not given. It 
does not appear from the briefs, therefore, that the insuffi- 
ciency of the evidence to sustain the finding was assigned 
as a cause for a new trial. It has been held repeatedly by 
this court and the Supreme Court that no question arising 
on the motion for a new trial can be presented on appeal, 
unless the briefs set out a copy of such motion, or give its 
substance. Reeves & Co. v. Gillette (1911), 47 Ind. App. 
221, 94 N. E. 242; Talbott v. Town of Newcastle (1907), 169 
Ind. 172, 81 N. E. 724. 

The judgment of the lower court is presumed to be cor- 
rect, and as no error is shown the judgment is affirmed. 

Note.— Reported in 99 N. B. 451. See, also, under (1) 2 Cyo. 
1014. 



MAY TERM, 1912. 245 

CHeveland, etc., B. Co. v. Jones — 51 Ind. App. 245. 



The Cleveland, Cincinnati, Chicago and St. 
Louis Railway Company v. Jones. 

[No. 7,667. Filed October 16, 1912.] 

1. Carriers. — Injury to Passengers, — *P<isse7iger on Baggage Plat- 
form at Invitation of Carrier, — ^Licensees. — ^A person, present at a 
railroad depot for the purpose of taking passage on a train, in 
going upon the baggage platform at the request of defendant's 
agents to remove some of the contents of his trunk, which had 
been found to be too heavy for transportation as baggage, was not 
a licensee so as to exempt the defendant from liability for in- 
juries caused by its negligence while he was on such platform, 
p. 249. 

2. Carriers. — Injury to Persons on Depot Platform. — Compladnt, — 
Allegation of Negligence. — Sufficiency, — ^In an action against a 
railroad company for injuries received by plaintiff In falling into 
a hole in defendant's baggage platform, the allegations of the 
complaint, that while plaintiff was on the platform for the pur- 
pose of removing part of the contents of his trunk, defendant's 
agents, while in the line of their duty ^'negligently Jerked said 
sample case off of said scales, and negligently Jerked the same 
against this plaintiff, while standing upon said platform and 
negligently knocked and pushed this plaintiff backward, a few 
feet" Into a hole In the platform two or three feet square, which 
was negligently left open, uncovered and unguarded in any way, 
into which plaintiff fell, are sufficiently certain In the stiitc- 
ment of facts constituting the alleged negligence, and the motion 
to make the complaint more specific was properly overruled, 
p. 250. 

3. Damages. — Personal Injuries. — Excessive Damages. — Under evi- 
dence showing that plaintiff, at the time of his injury, was a 
traveling salesman twenty-seven years of age, earning from $0()0 
to $1,000 a year, that he was confined to a bed and was under 
treatment in a hospital for three weeks, that two or three months 
after the accident he returned to his work, but was unable to 
perform same without assistance, that he never recovered from 
the injury to his back and to his left leg, and was compel leil to 
accept employment at nearly half the salary he formerly received, 
a verdict of $3,500 will not be disturbed on the ground that it 
was excessive, p. 251. » 

i Appeau — Review, — Verdict. — Evidence. — Credibility of Witness. 
—That the testimony of appellee is wilfully contrary to that 
which he gave on a former trial, will not Justify the court on 
appeal to disregard his testimony and set aside the verdict on the 



246 APPELLATE COURT OF INDLAJ4A. 

Cleveland, etc., R. Co. v. Jones — 51 Ind. App. 245. 

Insufficiency of the evidence, since the question was one for the 
jury to determine as affecting the credibility of the witness and 
the weight to be given his testimony, p. 251. 

5. Negligence. — Presumptions. — Contributory Negliffence. — There Is 
no legal presumption that a plaintiff's Injury was caused by his 
own negligence, p. 252. 

6. Cabbiebs. — Injury to Persons on Depot PUUform. — Verdicts — 
— Evidence, — Sufficiency, — ^In. an actlcn against a railroad com- 
pany for injuries received by plaintiff in falling Into a hole 
In defendant's baggage platform, where it was admitted that 
plaintiff, on the day of the Injury, delivered several trunks for 
transportation as baggage, and that defendant's agents discovered 
that one of the trunks was too heavy to be checked as baggage, 
and, although the evidence as to what followed was conflicting, 
two witnesses testified that plaintiff was called to the platform 
to lighten such trunk in order that it might be checked, the 
plaintiff can not be held to have been a mere licensee so as to'^ 
justify setting aside a verdict In his favor as being contrary to 
law. p. 252. 

7. Cabbiebs. — Injury to Persons on Depot Platform, — Vegligence, 
— Instructions. — Where plaintiff, who had delivered baggage at a 
railroad station for transportation, was requested by defend- 
ant's agent to go upon the platform to lighten a trunk that had 
been found too heavy to be checked, the defendant owed him 
the duty of keeping such platform reasonably safe for his use, 
and In an action against the company for injuries received in 
falling into a hole in such platform, an Instruction defining neg- 
ligence as the failure to do what a reasonable and prudent per- 
son would ordinarily have done under the circumstances, or do- 
ing what such perscMi would not have don^, was not erroneous 
for failure to Include the proposition "that the conduct must be 
in respect of that which it Is the duty of the party to 4o or to 
leave undone." p. 253. 

8. Negligence. — Elements, — T6 constitute actionable negligence, 
there must be a duty owing to plaintiff, a failure to perform that 
duty, and a resulting injury, p. 253. 

9. Negligence. — Injury to Licensee. — ^No liability exists in favor 
of a mere licensee who Is Injured as the result of ordinary neg- 
ligence, p. 253. 

10. Cabbiebs. — Injury to Persons on Depot Platform. — Instructions. 
— In an action against a railroad company for injuries received 
by plaintiff while on the defendant's baggage platform with ref- 
erence to his baggage,* an instruction that if defendant's agent 
in charge of baggage, when he found it was overweight, was au- 
thorized by defendant to invite and direct the passenger owning 
it to come upon the platform, etc., is not objectionable on the 



MAY TERM, 1912. 247 

Clevelaud, etc., R. Co. v. Jones — 51 Ind- App. 245. 

theory that it attempts to define defendant's duty to the public 
generally on the theory of an implied invitation, p. 254. 
11 Cabbiebs. — Injury to Persons on Depot Platform, — Instruc- 
tions. — In an action against a railroad company for injuries to 
plaintiff in falling through a hole in defendant's baggage plat- 
form, while he was there at the invitation of the defendant with 
reference to his baggage, an instruction that if defendant main- 
tained a hole in said platform, it was defendant's duty to exer- 
cise ordinary care to guard said hole and either keep the lid on 
same or to surround with guards so as to protect a passenger 
while performing his duty in relation to baggage, and in the ex- 
ercise of ordinary care, from falling into said hole, leaves the 
character of guards to be used, as well as the manner of placing 
them, open to the exercise of ordinary care by defendant, and 
was not erroneous, p. 254. 

12. Appeal. — Review. — Harmless Error. — Instructions. — In an ac- 
tion against a railroad company for injuries to plaintiff in fall- 
ing into a hole in defendant's baggage platform, an instruction 
which made appellee's recovery depend on an affirmative finding 
of facts entirely inconsistent with the theory that he was a mere 
licensee, was not prejudicial to appellant on the ground that it 
ignored the question as to whether appellee was a mere licensee, 
p. 255. 

13. Trial. — Instructions, — Assuming Facts, — ^An instruction may 
properly assume facts that are undisputed, p. 255. 

14. Appeal. — Review. — Instructions. — Omission Covered by Other 
Instruciions. — An instruction is not objectionable on the ground 
that it leaves the jury to determine the material allegations of 
the complaint, where the objection raised is covered by other in- 
stmctions of the series of which it is a part p. 255. 

15. Appeal. — Review. — Instructions. — Contributory Negligence.^-- 
An instruction In a personal Injury case, on the subject of con- 
tributory negligence, which in effect told the jury that if plain- 
tiff in any manner contributed or helped to produce the injury 
complained of, he could not recover, and the verdict should be for 
defendant, was not erroneous, p. 256. 

16. Appeau — Review. — Harmless Error. — Instructions. — Prepon- 
derance of Evidence. — An Instruction as to preponderance of the 
evidence was not objectionable for stating that "the preponder- 
ance of the evidence in a case is not alone determined by the 
number of w^itnesees testifying to a particular fact or state of 
facts," where, when taken as a whole and in connection with the 
other instructions, the jury could not have been misled, nor ap- 
pellant harmed, thereby, p. 256. 

17. Appeal. — Review. — Instructions. — Preponderance of Evidence. 
—An instruction on the preponderance of evidence is not erro- 



248 APPELLATE COURT OF INDIANA. 

Cleveland, etc., R. Co. v, Jones — 51 IncL App. 245. 

ncous on the ground that it does not require certain material 
facts to be proved by a preponderance of the evidence, where the 
court, in other Instructions, told the jury what facts were ma- 
terial and that each one must be proved by a preponderance of 
the evidence, p. 250. 

18. Appeal. — Rovicw, — Harmless Error, — Instructions, — Delihera- 
tian of Jury. — An Instruction to the Jury, stating that "your de- 
liberation should be calm, and your verdict such as responds to 
law and the facts, and meets the approval of your own eon- 
science," was not rendered erroneous by the last clause, where 
the jury had been correctly Informed that it was the exclusive 
judge of the facts, but must take the law as given by the court, 
p. 257. 

19. Cabbiebs. — Injury to Persons on Depot Platform. — Trial. — Ad- 
mission of Evidence. — In an action against a railroad company 
for injuries received by plaintiff in falling into a hole in defend- 
ant's baggage platform, while he was there at the invitation of 
defendant's agent to look after his baggage that had been foimd 
too heavy to be checked as such under defendant's rules, evi- 
dence of the weight of baggage that might under such rules be 
checked over defendant's road was admissible, p^ 257. 

From Morgan Circuit Court ; Joseph W. Williams, Judge. 

Action by John W. Jones against The Cleveland, Cincin- 
nati, Chicago and St. Louis Railway Company. From a 
judgment for plaintiflE, the defendant appeals. * Affirmed. 

Frank L. Littleton, John W. Kern, McNutt & Bain, and 
John J. Kelly, for appellant. 

Wymo7id J. Beckett and Watson & McOinnis, for appellee. 

Myers, J. — In the court below appellee recovered a judg- 
ment against appellant on account of injuries sustained by 
falling through an opening, two or three feet square, in the 
floor of appellant's baggage room in Anderson, Indiana. 

Appellant's demurrer to appellee's complaint, its motion 
to make the complaint more specific, and its motion for a 
new trial were each overruled, and these rulings are sepa- 
rately assigned as error. 

It is insisted that the demurrer should have been sus- 
tained, for the reason that the complaint shows that ap- 
pellee, at the time of his injury, was on appellant's prem- 



MAY TEEM, 1912. 249 

Cleveland, etc., R. Co. v. Jones — 51 Ind. App 245. 

ises as a mere licensee, and appellant owed him no 
1. duty to refrain from negligently injuring him. The 

complaint, among other facts, states that appellant, on 
February 14, 1906, was a common carrier of passengers for 
hire, and as such operated a depot at Anderson, Indiana, for 
the accommodation of passengers and their baggage. Ap- 
pellee, at that time, was a traveling salesman, carrying with 
him trunks, containing samples of wares sold by him, which 
he deUvered to appellant at its said depot for transporta- 
tion. They were then placed on trucks, and carried to a 
platform on which appellant maintained scales for weigh- 
ing trunks and sample cases, for the purpose of determining 
their weight for transportation as baggage. By weighing 
these trunks, it was discovered that one, according to the 
rules of appellant, was too heavy to be transported as bag- 
gage, and, at appellant's request to lighten it, appellee, at 
appellant's invitation, went to and on the platform where 
the trunks were located, for the purpose of removing a part 
of the contents of the one excessive in weight, when an agent 
or employe of appellant carelessly and negligently caused a 
trunk to fall against appellee, thereby negligently knocking 
and pushing him backward, and, without his fault, into said 
hole in the platform near said scales, negligently maintained 
and left open, uncovered and unguarded, and through which 
he fell, striking the bottom thereof, about twelve feet below, 
with his body, limbs and head, greatly injuring him. That 
he was at said depot to take passage on one of appellant's 
trains then about due to arrive. 

Appellant, in support of its contention, cites the case of 
^'annon v. Cleveland, etc, R. Co. (1902), 157 Ind. 682, 62 
X. E. 8, but in that case there was no invitation on the part 
of the company to the plaintiff to go on its premises, while 
in this case appellee's presence at appellant's depot was to 
take, as a passenger, one of its trains soon to arrive, and 
his presence in the baggage room was at the invitation of 
appellant, and with reference to a matter to their mutual in- 



250 APPELLATE COURT OP INDIANA. 

Cleveland, etc., R. Co. v, Joaee — 51 Ind. App. 245. 

terest and advantage. These facts completely refute the 
contention of appellant that appellee, when injured, was 
on the premises of appellant as a mere licensee. Pittsburgh, 
etc, R. Co. V. Simons (1907), 168 Ind. 333, 79 N. E. 911; 
Illinois Cent. B. Co. v. Oriffin (1897), 80 Fed. 278, 25 C. C. 
A. 413; Toledo, etc., R. Co. v. Orush (1873), 67 111. 262, 16 
Am. Rep. 618. 

There was no error in overruling the motion to make the 

complaint more specific. The motion was directed to that 

part of the complaint relied on as stating the facts 

2. which constituted the alleged negligence of appellant. 
Referring to that part of the complaint, it is stated, 
in substance, that while appellee was on the platform for 
the purpose of removing a part of the contents of the trunk, 
appellant's agents, while in the line of their duty, *' negli- 
gently jerked said sample case off of said scales, and negli- 
gently jerked the same against this plaintiff, while standing 
upon said platform and negligently knocked and pushed this 
plaintiff backward, a few feet'' into a hole in the platform 
two or three feet square, which was negligently left open, 
uncovered and unguarded in any way, and into which, with- 
out fault on his part, he fell, and was severely injured. 

How the accident occurred, and the acts of negligence re- 
lied on for a recovery, are shown with that certainty as 
fully to apprise a person of common understanding as to the 
nature of the action, and what he is called on to meet. Such 
being the force of the questioned allegations of the com- 
plaint in this case, we must hold that the complaint is suffi- 
cient as against the motion, and is supported by the ruling in 
the case of Pittsburgh, etc., R. Co. v. Simons, supra, where- 
in the court said on page 339: "A plaintiff is required to 
charge his cause of action in direct and certain terms, yet 
he is not required to go into an elaboration of details be- 
yond what is reasonably necessary fully and distinctly to 
inform the defendant of what he is called upon to meet." 

In support of the motion for a new trial, it is insisted 



MAY TERM, 1912. 251 

Cleveland, etc., R. Co. r. Jones — 51 Ind. App. 245. 

that the damages assessed by the jury were excessive. The 
verdict was for $3,500. Appellee at the time he was 

3. injured was twenty-seven years of age, and physically 
sound. He was a traveling salesman, earning from 

$900 to $1,000 a year. His business required him to handle 
trunks containing samples of the goods he was selling. Short- 
ly after appellee was injured, he was assisted on a train, and 
was taken to Indianapolis and to a hotel, where he remained 
in bed three or four days, and from there he was taken to a 
hospital, where he received treatment for three weeks. Two 
or three months after the accident he returned to work, but 
was unable to handle the trunks without assistance. Several 
parts of his body were injured, and he never recovered from 
the injury to his left leg or the injury to his back. Because 
of his physical condition he was compelled to accept employ- 
ment at nearly half the salary he had received and was re- 
ceiving at the time of the accident. Under this evidence, 
which is practically undisputed, and all the evidence in the 
caae bearing on the question of his damages, we are not per- 
suaded that the jury acted with prejudice, partiality or cor- 
ruption in making its assessment. This conclusion prevents 
us from disturbing the judgment on account of excessive 
damages. Cleveland, etc, B. Co, v. Hadley (1908), 170 
Ind. 204, 215, 82 N. E. 1025, 84 N. E. 14, 16 L. R. A. (N. 
S.) 527, 16 Ann. Cas. 1; Louisville, etc., Traction Co, v. 
^nead (1911), 49 Ind. App. 16, 93 N. E. 177; Southern Ind, 
Gas Co. V. Tyner (1912), 49 Ind. App. 475, 97 N. E. 580. 

In support of the motion for a new trial, it is insisted, 

also, that the verdict of the jury is not sustained by 

sufficient evidence, and that it is contrary to law. 

4. In this connection, and with reference to the suf- 
ficiency of the evidence, the point is made that 

appellee's testimony was wilfully contrary to that which 
he gave on a former trial, and for that reason this 
court should disregard this testimony, and if it is dis- 
regarded, the verdict is without evidence to support it. 



252 APPELLATE COURT OP INDL^NA. 



Cleveland, etc., E, Co. i?. Jones — 51 Ind. App. 245. 

The question thus preeented was one for the jury. If it be 
true, as asserted by counsel, that appellee as a witness had 
wilfully made contradictory statements, still it would not 
be within our province to say which statements were false, 
and which were true. Contradictory statements of a witness 
go to his credibility, and are considered by the jury in de- 
termining the weight to be given his testimony. We have 
read practically all the evidence presented by the record in 
this case, and we cannot say that the evidence does not sup- 
port the verdict. There is no legal presumption that 

5. the injury was the fault of the appellee, as held in the 
case of Lake Erie, etc., B. Co. v. Stick (1896), 143 

Ind. 449, 462, 41 N. E. 365, or that no reasonable theory is 
apparent from any legitimate evidence to warrant the con- 
clusion of the jury, as held in the case of Cleveland, etc., R. 
Co. V. MUler (1898), 149 Ind. 490, 508, 49 N. E. 445, and 
therefore these cases are not in point. 

It is said that the verdict is contrary to law, because the 

evidence shows that appellee at the time of his injury was 

on appellant's premises as a mere licensee. The point 

6. made is that he was at a place in the depot where he 
had no right to be. Some of appellant's witnesses 

say he entered the baggage room of the depot without any 
invitation. It is admitted that on the day of the accident 
appellee delivered to appellant's agents several trunks, and 
they were taken into the baggage room, where, by weighing 
them, said agents discovered that one was too heavy to be 
checked as baggage. As to what then took place, there is 
some conflict. Two witnesses say that the person in charge 
of appellant's baggage room weighed the trunks on a pair of 
scales kept there for that purpose ; that one of the trunks 
was over weight, and that appellee was called into the room 
to lighten it, in order that it might be checked. This state 
of the record on the point made will not justify us in order- 
ing a new trial. 

It is claimed that instructions two, six and seven, tendered 



MAY TERM, 1912. 253 

Cleyeland, etc., R. Co. r. Jones — 51 Ind. App. 245. 

by appellee and by the court given to the jury, and instruc- 
tions two, five, seven and eleven, given to the jury by the 
court on its own motion are erroneous. 

Instruction two is challenged on the ground that it en- 
tirely ignores the proposition **that the conduct must be in 
respect of that which it is the duty of the party to do 

7. or to leave undone." In this particular, it reads as 
follows: *' Negligence is the failure to do what a 

reasonable and prudent person would ordinarily have done 
under the circumstances of the situation, or doing what 
such a person under the existing circumstances would not 
have done. In other words, negligence is the failure to ex- 
ercise ordinary care." 

In all cases of actionable negligence, there must be a duty 

owiag by defendant to plaintifiE, a failure to perform that 

duty, and a resulting injury. If this was a case where 

8. the injured was a mere licensee, then, of course, there 
would be no liability on account of the alleged negli- 

9. gence. Fdris v. Hoherg (1893), 134 Ind. 269, 276, 
33 N. E. 1028, 39 Am. St. 261. The purpose of the 

7. instruction was to define negligence. It was appli- 
cable to the case as made by the complaint, and within 
the evidence. Appellant maintained a depot for the use of 
all persons coming there intending to travel on its trains, 
and, in connection therewith, a room for the accommodation 
of the baggage of such persons. Whether or not appellee 
was m the baggage room or on the platform by invitation of 
^pellant, was a question of fact the jury by its verdict set- 
tled in appellee's favor. That fact thus settled made it the 
duty of appellant to use ordinary care to keep the room or 
platfonn reasonably safe for appellee's use, and its neglect 
in this regard to do what a reasonably prudent person would 
ordinarily have done, or the doing of that which an ordi- 
narily prudent person would not have done, amounted to 
negligence. Such was the effect of the instruction, and 
therefore it was not erroneous. 



254 APPELLATE COURT OF INDIANA. 

Cleveland, etc., R. Co. v. Jonet) — 51 Ind- App. 245. 

Two objections are urged against instruction six: (1) 

That the instruction attempts to define defendant's duty to 

the public generally on the theory of an implied in- 

10. vitation; (2) that it tells the jury the defendant 
should have guarded the hole in one of two ways only. 

As to the first objection, it may be said that the instruction 
applied to passengers generally. But fairly interpreted, 
that part of the instruction which told the jury, in sub- 
stance, that if appellant's agent in charge of baggage, when 
]Vd found it was over weight, was authorized by appellant to 
invite and direct the passenger owning it to come upon the 
platform, etc., does not contemplate an implied invitation, 
for the* words '* invite and direct," as used, indicate an 
affirmative act on the part of the agent before action on the 
part of the passenger. 

The second objection cannot be sustained, for the reason- 
that the language of the instruction, relative to a guard, is 
not subject to the limitation sought to be placed on it 

11. by appellant. That part of the instruction to which 
objection is made reads as follows: **And if you 

shall find that the defendant did maintain in said platform 
a hole about two and one-half (2^) feet square, it was the 
duty of the defendant to exercise ordinary care to guard 
said hole and either keep the lid upon the same or to sur- 
round with guards in such a way as to protect a passenger 
while in the performance of his said duty in relation to said 
baggage, and while in the exercise of ordinary care, from 
falling into said hole and receiving injuries." Placing a 
lid over the hole is recognized as one way of guarding it. 
Other ways are recognized by the words **or to surround 
wnth guards," which leave the character or kind of guards 
to be used, as well as the manner of placing them, open to the 
exercise of ordinary care by appellant. The objection is not 
well taken for another reason. The complaint charges ap- 
pellant with maintaining an unguarded hole in the platform. 
The uncontradicted evidence shows that there was a hole in 



MAY TERM, 1912. 255 

Cleveland, etc., R. Co. i?. Jones — ^51 lud. App. 245. 

the platform about two and one-half feet square ; that it was 
open, and no claim is made that it was attempted to be 
guarded. In this respect the instruction cannot be construed 
as presenting a case to the jury different from that pre- 
sented by the complaint, or in conflict with the case as it 
went to the jury on the evidence. 

Instruction seven, requested by appellee, is said to be er- 
roneous for the following reasons: (1) Because it ignores 
the question as to whether plaintiff was a mere li- 

12. censee; (2) it assumes that appellant had negligently 
left open and unguarded a hole in the floor of the 

ri. platform. Neither of these objections is well taken. 
By this instruction appellee's recovery was made to 
depend on an affirmative finding of facts entirely inconsist- 
ent with the theory that he was a mere licensee. Hence ap- 
pellant was not thereby prejudiced, and this objection must 
I)e considered groundless. The second objection is also un- 
tenable, for the reason that if it be conceded that the in- 
struction assumes there was an unguarded hole in the floor 
through which appellee fell, and whereby he was injured, 
still the instruction would not be erroneous, for the reason 
that the facts assumed are not in dispute. 

Instruction two, given by the court on its own motion, is 

claimed to be erroneous, for the reason that the jury is left 

to determine the material allegations of the complaint. 

14. This assertion of counsel is not entitled to serious con- 
sideration, for when this instruction is read in con- 
nection with the series of which it is a part, and with two 
instructions tendered by appellant and given to the jury, it 
^ill be seen that the question here raised has been fully cov- 
<^red. The purpose of this instruction, to reaffirm that plain- 
tiff had the burden of proof, is clear. The jury had been 
instructed as to the specific facts necessary for the plaintiff 
to prove by a preponderance of the evidence in order to 
^Jfwke out his case, also, in case he failed to establish any one 
of these facts, the finding should be for the defendant. 



256 APPELLATE COURT OP INDIANA. 

Cleveland, etc., R. Co. r. Jones — 51 Ind. App. 24^. 

The objection to instruction five is without merit. It is 

on the subject of contributory negligence, and the jury, in 

effect, was informed that if appellee in any manner 

15. contributed or helped to produce the injury com- 
plained of, he could not recover, and the verdict 

should be for the defendant. The instruction, on the whole, 
was favorable to appellant. 

It is insisted that the court erred by giving to the jury 

on its own motion instruction seven. The first objection 

would be sustained, if it could be said that the jury 

16. was told that it might consider the preponderance of 
the evidence on the side having the greater number 

of witnesses. The ** witnesses are not to be counted by the 
jury or court trying the case in order to determine upon 
which side is the preponderance." Warren Constru<:t%on 
Co. V. Powell (1909), 173 Ind. 207, 89 N. E. 857, 859. While 
the word ** alone" in the sentence **the preponderance of 
the evidence in a case is not alone determined by the number 
of witnesses testifying to a particular fact or state of facts" 
takes the instruction to the line 'bordering on error, yet, when 
it is read as a whole, and in connection ^\^[th the other in- 
structions given, our conclusion must be that the jury could 
not have been misled nor aj^pellant harmed by it. 

The second objection is that it does not require certain 
material facts to be proven by a preponderance of the evi- 
dence. The instruction is not open to this construc- 

17. tion, for the reason that the court in other instruc- 
tions told the jury what facts were material, and thai 

each one must be proved by a proponderance of the evidence. 
So that the clause ''determine upon which side is the weight 
or preponderance of the evidence as to each material fact 
required to be proven by a preponderance of the evidence" 
will not be deemed erroneous. 

Appellant assails the latter part of instruction eleven. 



MAT TERIL liiI2. 



«.»• 



Tudi reads as fo^vs: ^*Your deliberation should b^ oahii. 
and yoor Terdiet s^^eh as re^Mods to law and the 

IS. faets. and =i«ets the approTal of voor own eon- 

acioiee/* The alleged error is that it permits the 

j^iTT to netum a verdiet reached through an arbiter — con> 

ix-irsce — that is governed bjr no known lawB. Pcop/c* v. 

>-8«jrr 1S57., 7 CaL 140. 

Tlk jury had been eorreetlj informed that it was the ex- 
I.^Te judge of the facts, bot most take the law as given 
';" the conrt. Keeping in mind the province of the jury 
■i^ fixed, the instruction in question may be regarded as 
supplementing the former instruction, and as a caution con- 
< trning the elements forming the basis on which to rest the 
vtrdicL The last clause of the instruction was secondary, 
>) that if the verdict was in accordance with the law and the 
facts, no harm was done if supplemented by a conviction of 

Lastly, it is claimed that the court erred in admitting cer- 
tain testimony. The testimony to which objection is made 
had reference to the weight of baggage, which, under 

19. the rules of appellant, might be checked over its roa<l. 
One of the witnesses was not, at the time of the trial, 
an agent of apx>ellant, but was shown to be aeiiuainted with 
the rules of appellant on the subject of checking baggage. 
Another witness was the ticket and freight agent of appel- 
lant at ilartinsville. Rule six, governing the transportation 
of baggage by appellant, was read in evidence. Its language 
was plain and certain. We have read all the testimony of 
these witnesses, and the testimony of appellant's baggages 
master and his two assistants at Anderson, Indiana, and all 
practically agree on the disposition of baggage tendered to 
appellant for transportation as such. The evidence admit- 
ted over objection along this line was not erroneous, and if 
it were technically objectionable, it was not of such impor- 
tance as to justify us in reversing the judgment. The record 
Vol. 51—17 



258 APPELLATE COURT OP INDIANA. 



Walter A. Wood, etc., Mfg. Co. v, Angemeler — 51 Ind. App. 258. 

in this case, as a whole, affirmatively shows that a fair and 
impartial trial was had, and a correct result reached. 
Judgment affirmed. 

NoTR.— Reported In 99 N. E. 503. See, also, under (1) 6 Cyc. 
536; (2) 6 Cyc. 620; (3) 13 Cyc. 130; (4) 3 Cyc. 349; (5) 29 Cyc. 
596; (6) 6 Cyc. 628-32 Anno.; (7) 29 Cyc. 649; (8) 29 Cyc. 419; 
(9) 29 Cyc. 449; (12) 38 Cyc. 1809; (13) 38 Cyc. 1667; (14) 38 
Cyc. 1782; (15) 29 Cyc. 653; (16, 17, 18) 38 Cyc. 1778; (19) 6 Cyc. 
628-New Anno. As to who is a trespasser and who a licensee with- 
in the law of carriers, see 30 Am. Rep. 687. As to the several ele- 
ments of damage recoverable in personal injury actions, see 75 Am. 
Dec. 268. As to defendant's liability if, when the accident occurred, 
plaintiff was on the dangerous premises by his invitation in con- 
templation of law, see 100 Am. St. 196. As to what is an exces- 
sive verdict in an action for personal injuries not resulting in 
deatli, see 16 Ann. Cas. 8; Ann. Cas. 1013 A 1361. To whom rail- 
roads owe the duty of keeping station platform safe, see 20 K R. 
A. 527. 



Walter A. Wood Reaping and Mowing Manu- 
facturing Company et al. v. Angemeier et al. 

[No. 7,919. Filed October 16, 1912.] 

1. Appeal. — Assignment of Errors. — Rulitigs on Demurrers. — 
Question Not Presented, — ^Where at least two demurrers to a 
complaint were filed, one by each attorney representing a sepa- 
rate group of defendants, the ruling on each demurrer was an in- 
dependent ruling and an assignment of error that "the court 
erred In sustaining the demurrers of the appellees to appellant's 
complaint" presents no question thereon, since it falls to sepa- 
rate or identify such separate independent rulings as being er- 
roneous, p. 259. 

2. Appeal. — Assignment of Errors. — Failure to Make Assignment 
Specific. — Dismissal. — ^Where the only question attempted to be 
presented on appeal Is the sufficiency of a complaint as against 
the separate demurrers of each group of defendants, a fail n re. 
in the assignment of error, to separate or identify the separate 
independent rulings on such demurrers as being erroneous, war- 
rants a dismissal of the appeal, p. 260. 

3. Corporations. — Stockholders* Liability for Debts. — Unearned 
Dividends. — Statutes. — ^Tlie stockholders of an insolvent oorporn- 
tion whose charter has not expired by limitation, forfeiture, or 



MAY TERM, 1912. 259 



Walter A. Wood, etc., Mfg. Co. v. Angemeler — 51 Ind. App. 258. 

otherwise, by receivliig unearned dividends from it, are not 
tfaereby made liable to its creditors, under §4051 Burns 1908, 
13007 K. S. 1881, making the stockholders of a corporation liable 
for the payment of its debts If any part of the capital stock shall 
be withdrawn and refunded to the stockholders before the pay- 
ment of all such debts, but such liability is restricted to stock- 
holders of corporations continuing as bodies corporate after the 
expiration of their charters under §4050 Bums 1908, §3006 B. 
S. 1881, p. 2eo. 

From Vanderburgh Circuit Court ; C. A. DeBruler, Judge. 

Action by the Walter A. Wood Heaping and Mowing Man- 
ufacturing Company and others against Nicholas Angemeier 
and others. From a judgment for defendants, the plain- 
tiffis appeal. Affirmed. 

Elmer Q. Lockyear, Funkhouser & Funkhouser, Walker 
i' Walker, and Van Buskirk & Osbom, for appellants. 
Wm. Reister and W. M, Wheeler, for appellees. 

HoTTEL, C. J. — This is a suit by the creditors of the 
*'Evansville Implement and Farmers' Supply Company", 
a eori)oration, against the stockholders of such corporation, 
to enforce a statutory liability under §4051 Bums 1908, 
53007 E. S. 1881. 

The only question attempted to be presented by the ap- 
peal, is the sufi&ciency of the complaint as against demur- 
rers. The assignment of error relied on to present 

L this question is as follows: ''The court erred in sus- 
taining the demurrers of the appellees to the appel- 
lant's complaint." It will be observed that this assignment 
^ its language indicates that the ruling on more than one 
'lemurrer is relied on for reversal. That more than one de- 
aiurrer was filed, is also disclosed by the record. At least 
two were filed, one by attorneys representing one group of 
defendants, and the other by attorneys representing another 
group of defendants. The form of the demurrer, or the 
averments of the pleading to which it was addressed, might 
lave been of such a character as to make the ruling correct 



260 APPELLATE COURT OP INDIANA. 

Walter A. Wood, etc., Mfg. Co. v. Angemeler — ^51 Ind. App. 258. 

as to one of the demurrers and erroneous as to the other. 
Each ruling was independent of the other, and each pre- 
sents to this court a separate, independent ruling, either or 
both of which may or may not be erroneous, depending, in 
each instance, on the form and grounds of the demurrer and 
the sufficiency of the averments of the pleading to which it 
is addressed, to state a cause of action against either or all 
of the parties to such demurrer. 

The assignment of errors in this case in no way separates, 
specifies or identifies these separate independent rulings as 
being erroneous. This court in the case of Spitzer v. Miller 
(1905), 35 Ind. App. 116, 73 N. E. 833, in discussing this 
question, said at page 117 : "The statute (§667 Bums 1901, 
§655 R. S. 1881) and rule four of this court require that an 
assignment of error shall be specific, and the rule expressly 
requires that each specification shall be complete in itself. 
Each supposed error must be specified; the specifications 
must be distinct. Each specification in itself alone must be 
sufficient to require the court on appeal to review some ac- 
tion of the court below, and it myst not be addressed to a 
number of separate supposed errors," (Our italics.) See, 
also, §696 Burns 1908, §655 R. S. 1881 ; Rule 4, Sup. and 
App. Court; Clear Creek Tp. v. Rittger (1895), 12 Ind. 
App. 355, 39 N. E. 1052 ; Baldwin v. Sutton (1897), 148 Ind. 
591, 47 N. E. 629, 47 N. E. 1067; ElUott, App. Proc. §§299, 
308, and authorities cited. 

For this failure in the assignment of errors properly to 

separate and specify the particular errors attempted to be 

presented, the above authorities warrant a dismissal 

2. of the appeal, but an examination of the complaint in 
this case, convinces us that each demurrer thereto was 

properly sustained. The complaint proceeds on the theory 
that §4051 Burns 1908, §3007 R. S. 1881, applies to 

3. the stockholders of all corporations mentioned in the 
provisions of the act of which said section is a part, 

even though the charter of such corporation has not expired 



MAY TEEM, 1912. 261 

Walter A. Wood, etc., Mfg. Co. v, Angemeier — 51 Ind. App. 258. 

as provided in §4050 Bums 1908, §3006 B. S. 1881, and that 
each individual stockholder who receives an unearned divi- 
dend from an insolvent corporation, by said §4051, supra, 
is made liable to each creditor and all the creditors of such 
corporation for the full amount of the indebtedness due 
them from such corporation. 

This court would hesitate to put upon the section of stat- 
ute in question a construction that would make a stock- 
holder who innocently receives an unearned dividend from 
a corporation, concerning the financial management and con- 
dition of which he generally knows little or nothing, liable 
for all the debts of such corporation. Such an interpreta- 
tion and construction would seem so unjust and unreason- 
able that to justify the same such a meaning should be ex- 
pressed in terms clear, certain and unambiguous in the sec- 
tion of statute involved. To adopt such a construction of 
this section would be neither within its spirit nor letter. 
On the contrary, the express letter and words of §4051, 
supr<i, clearly limit its application to those corporations 
mentioned in the preceding section ''whose charters shall ex- 
pire by limitation, forfeiture, or otherwise." 

The complaint was bad on the theory on which it was 
predicated, and the demurrer thereto was properly sus- 
tained, for which reason the judgment below is afilrmed. 

Note.— Reported in 99 N. E. 500. See, also, under (1) 2 Cyc. 
9W, 989; (2) 3 Cyc 185; (3) 10 Cyc. 665. As to the effect of a 
statutory extension of the company's existence, after the explra- 
tioQ of its charter life, for the maintaining and defending suits, 
see 134 Am. St 312. 



262 APPELLATE COURT OF INDLAJ^IA. 

Wheeler r. Loescb— 61 Ind. App. 262^ 

Wheeler et al. v. Loesch et al. 

[No. 7,514. Filed October 17, 1912.] 

1. Deeds. — Construction, — Wills. — ^Where it appears from an in- 
strument having the formalities of a deed, that the maker in- 
tended to convey an estate, to vest upon the execution of the pa- 
per, su<^ instrum^it will be construed to operate as a deed; but 
if it appears that the estate is reserved to the grantor during 
his life, and that the instrument Is to take effect only on his 
death, It will be construed to be testamentary In character, p. 
264. 

2. Deeds. — Validity. — Postponement of Possession of Property Con^ 
veyed. — ^A deed may be valid, although it withholds possessicm 
from the grantee until the death of the grantor, p. 265. 

3. Deeds. — Delivery, — Escrow, — Wills. — ^Where a deed is executed 
and delivered to a third person to be kept until the grantor's 
death, and has passed out of the grantor's dominion and bey(Ad 
his power of recall, it is not a testamentary disposition of prop- 
erty, since such delivery operates to pass the title to the grantee, 
p. 265. 

4. Wills. — Concurrent Deeds. — Execution, — Where a will and 
deeds are executed at the same time, any necessity for looking 
to all the instruments in ascertaining the testator's intention, 
will not alone make them a part of the will. p. 265. 

5. Wills. — Contest. — Complaint, — Reference to Concurrent Deeds. 
— ^Where, on the same day, prior to the execution of his will, a 
testator executed deeds showing his intentlcm to convey a pres- 
ent title and delivered them to a bank to be held for delivery to 
the grantees at his death, without any provision for their recall 
by him, title to the property described was thereby passed to the 
grantees, and, although mentioned In the will, such deeds were 
not a part of that instrument, so that, in an action to contest 
such will, all reference to such deeds was properly stricken from 
the complaint p. 265. 

6. Wills. — Validity, — Disposition of Estate Same as Provided by 
Statute. — Contest. — ^Where a will makes no other disposition of 
property than the law would make, the devisees will take under 
the statute of descents, and the will is a mere nullity and not 
subject to contest p. 266. 

From Perry Circuit Court ; C W. Cook, Judge. 

Action by Christina Wheeler and others against Peter 
Loesch and others. From a judgment for defendants, the 
plaintifiBs appeal. Affirmed. 



MAY TERM, 1912. 263 

Wheeler v. Loesch — 51 IncL App. 262. 

John W. Ewing, and WilUam H. Roose, for appellants. 
Wm. M, Waldschmidt and Stotsenburg & Weathers, for 
appellees. 

Ibach, J. — Appellants brought this action against ap- 
pellees to contest the will of Jacob Loesch. Four para- 
graphs of complaint, each substantially in the form permit- 
ted by §3154 Burns 1908, §2596 R. S. 1881, were filed, the 
first of which was withdrawn. It is averred in the remain- 
ing paragraphs of complaint that at the same time the will 
was executed, and as a part of the same transaction, two 
deeds were executed, which purported to convey certain de- 
scribed lands to John and Peter Loesch. The theory of the 
complaint is that these deeds, to which the will makes refer- 
ence, became a part thereof by the doctrine of the incorpo- 
ration of extrinsic documents into a will, and should be con- 
sidered therewith as parts of the same testamentary disposi- 
tion of property. The court, on motion, struck out from the 
several paragraphs of complaint the allegations by which 
appellants sought to have the deeds considered as a part 
of the will, and revoked. This ruling of the court is as- 
signed as error. To the complaint as it then stood the court 
sustained a demurrer for want of facts. This ruling is also 
assigned as error. 

The will attached to each paragraph of complaint is in 
the following words, omitting the formal parts : 

*'Item 1. I have this day deeded to my son Peter 
Loesch, the 23| acre tract of land known as our home 
place, and to my son John Loesch, the 17 acre tract 
which I bought of Amelia Hyde, the consideration of 
said deeds being that said Peter and John Loesch shall 
keep and care for me until my death, and pay the ex- 
pense of my last illness and burial, said deeds are de- 
livered to Cannelton State Bank to be held by it .and 
delivered to the grantees therein named after my death. 

"Item 2. The remainder of my property, of which I 
may die the owner, excepting the two tracts of land 
deeded as stated above, I devise and bequeath, one fifth 
to my son John Loesch, one fifth to my son Peter Loesch, 



264 APPELLATE COURT OF TNDLAJ^A. 

Wheeler v, Loesch— 51 Ind- App. 282. 

one fifth to Christina Wheeler, my daughter, one fifth 
to the children of my daughter, Anna Hyde, deceased, 
and one fifth to Mary L. Polk, deceased" 

In each of the deeds referred to, Jacob Loesch ** conveys 
and warrants'* to the grantee, for $1 and other considera- 
tion, certain described lands. It is set out as the further 
consideration that the grantee and his brother shall care 
for the grantor during his lifetime, and pay the expenses of 
his last illness and burial, and it is then set forth that ''this 
deed shall be delivered by the Cannelton State Bank, who 
shall hold it until the death of the grantor, to the grantee 
after the death of the grantor." 

In this action nothing could be tried save the validity of 
the will, and the validity of the execution of the deeds could 
not be (questioned, unless they must be considered as a part 
of the will. If these deeds, at the time of their execution 
and delivery to the bank, passed title to the land described 
to the sons John and Peter, such lands are no part of the 
estate, reference to the deeds in the complaint was immate- 
rial, and the averments were properly stricken out, for in 
such case the deeds formed no part of the will. If the deeds 
were merely a part of a testamentary disposition of prop- 
erty, and did not pass title at the time of execution and de- 
livery to the Cannelton State Bank, they must be considered 
as a part of the will, and the court erred in striking from 
the complaint the averments relating to the deeds. 

**An instrument, having otherwise the formalities of a 
deed, will be construed to operate as a deed, whenever it ap- 
pears therefrom that it was the intent of the maker 

1. to convey any estate or interest whatever, to vest 
upon the execution of the paper. If, however, it ap- 
pears that all the estate which it was the purpose to convey 
was reserved to the grantor during his life, and the deed 
was only to take effect upon the death of the grantor, it will 
be construed to be testamentary in its character." Spencer 



MAY TERM, 1912. 265 

Wheeler v. Loesch— 51 Ind. App. 262. 

V. Bobbins (1886), 106 Ind. 580, 584, 5 N. E. 726. A 

2. deed may be valid and yet withhold possession from 
the grantee until the death of the grantor. If an 

instrument passes present title, but postpones enjoyment 
of the estate until the grantor's death, it is a deed; if both 
title and enjoyment are postponed, it is a will. Stroup v. 
Straup (1895), 140 Ind. 179, 187, 39 N. E. 864, 27 L. R. A. 
523; Wilson v. Carrico (1895), 140 Ind. 533, 40 N. E. 50, 
49 Am. St. 213; Emmons v. Harding (1904), 162 Ind. 154, 
70 N. E. 142, 1 Ann. Cas. 864; Tansel v. Smith (1912), 49 
Ind. App. 263, 93 N. E. 548, 94 N. E. 890. 

Where a deed is executed and delivered to some third 

party to be kept until the grantor's death, and the deed 

has passed out of the grantor's dominion and beyond 

3. his power of recall, it is not a testamentary disposi- 
tion of property, but the law considers that title 

passes to the grantee when the instrument is delivered to 
the third person, and delivery to such third person is, for 
the purpose of passing title, equivalent to delivery to the 
grantee. 8t Clair v. Marquell (1903), 161 Ind. 56, 67 N. 
E. 693; Stout V. Rayl (1896), 146 Ind. 379, 45 N. E. 515; 
Owenv. WiUiams (1888), 114 Ind. 179, 15 N. E. 678; Cates 
V. Cates (1893), 135 Ind. 272, 34 N. E. 957. See, also, cases 
cited above. 

Where a will and deeds are executed at the same time, it 

may be requisite to look at all the instruments in order to 

ascertain the testator's intention, but this alone Avill 

4. not prevent the deeds from passing title to the prop- 
erty described therein, or make them a part of the 

will. Copeland v. Summers (1894), 138 Ind. 219, 35 N. E. 
514, 37 N. E. 971. 
In the case before us, the deeds were executed prior to 
the execution of the will, on the same day. An inten- 

5. tion to convey present title is shown by the use of the 
words ** conveys and warrants" in the deeds. The de- 



266 APPELLATE COURT OP INDIANA. 

Wheeler v. Loesch — 51 Ind. App. 262. 

livery of the deeds to the Cannelton State Bank to hold un- 
til the grantor's death, and then deliver to the grantees, 
passes dominion out of the grantor's hands, since no provi- 
sion is made for their recall, and is a sufficient delivery to 
pass title to the grantees. Therefore, title vested in the 
grantees at the time of the delivery to the bank, and the 
deeds were valid as such, and were not a part of the will, 
though mentioned in it. The court properly sustained the 
motion to strike out from the complaint reference to these 
deeds. 

Appellants have cited the case of Mortgage Trust Co. v. 
Moore (1898), 150 Ind. 465, 50 N. E. 72, but in that case 
it was not claimed that the deed which was held a part of 
the will had ever been out of the grantor's possession. In 
the case of Jones v. Loveless (1885), 99 Ind. 317, also cited, 
the court held that, under the circumstances, the deed had 
never passed out of the grantor's dominion, so that neither 
case is authority, where the deed has been delivered out of 
the grantor's dominion. 

There yet remains the consideration of the court's action 

in sustaining the demurrers to the different paragraphs of 

complaint. This was in form an ordinary complaint 

6. under the statute to contest a will. Since, as we have 
seen, the testator had parted with his title -to the 
property described in the deeds, his will merely devised the 
property which he owned at his death, in the proportions in 
which it would descend at law ; that is, in equal proportions 
to the living children and the heirs of the deceased children, 
the heirs of each deceased child taking the part which the 
parent would have taken if alive. A devise in a will, that 
gives the same estate which the devisee would take under the 
statute of descents, is a nullity, and the devisee takes as an 
heir, by descent, and not under the will. So a will which 
makes no other disposition of property than the law would 
make is a nullity, and not subject to contest. Davidson v. 



MAY TERM, 1912. 267 

F. Bimel Co. v. Ilarter— 51 Ind. App. 2G7. 

Koehler (1881), 76 Ind. 398. The demurrers were properlj' 
sustained. 
Judgment affirmed. 

XoTE.— Reported in 09 X. E. 502. See, also, under (1) 13 Cyc. 
.')21; (2, 3) 13 Cyc. 569; (4) 40 C?yc. 1085. As to the essential 
characteristics of a will, as distinguished from those of a deed, see 
SO Am. St 487, 494. As to acceptance and intent as determlniuj; 
facts on the question of delivery of a deed, see 53 Am. St. 544. As 
to anomalous writings having aspects of both a will and a deed, 
see 89 Am. St 497. As to provision for a wife by testament with 
what she would have been entitled to without it, see 33 Am. Rep. 
420. When deed will be deemed testamentary in character, see 1 
U R. A. (N. S.) 315. 



F. Bimel Company v. Harter. 

[No. 7,56a Filed May 8, 1912. Rehearmg denied October 17, 1912.] 

1. Master and Sebvant. — Injury to Servant, — Complaint. — Allega- 
tions. — Sufficiency, — Relation of Master and Servant. — The aver- 
ments of a complaint against a master for personal Injuries to 
a servant, that defendant was ''engaged in the operation of a 
manufacturing plant" and that "plaintiff was engaged as a work- 
man in and about said plant, and was then and there doing a 
work and exercising a skill In the running of a machine then 
and there situate", are sufficient, when considered with the other 
material allegations, to show that the relation of master nnd 
servant existed between the parties at the time of the injury, 
p. 272. 

2. Masteb and Sebvant. — Injury to Servant, — Unguarded Ma- 
chine, — Duty of Master, — Complaint. — Sufficiency, — ^In an action 
by a servant against the master for injuries caused by coming in 
contact with an unguarded set-screw in defendant's factory, the 
averments of the complaint showing the relation of master and 
servant, that defendant was the sole operator of the factory in 
which was located the countershaft about which plaintiff was 
required to work, and that a certain set-screw was attached to 
such countershaft which defendant permitted to remain un- 
guarded, and that it was practicable to guard it without impair- 
ing its use, show a legal duty owing from defendant to guard 
wch set-screw, under §8029 Bums 1908, Acts 1899 p. 231. p. 273. 

3. Master and Sebvant. — Injury to Servant. — Complaint. — Allcga- 
<<on«,— flfcope of Employment. — ^A complaint in an action against 



268 APPELLATE COURT OP INDIANA. 

F. Blmel Co. v, Harter— 51 Ind. App. 267. 

the master for injury to the servant, alleging that plaintiff was 
engaged as a workman doing a work and exercising a skill In the 
running of a certain machine which was driven by a belt conr 
nected with a pulley attached to an overhead countershaft, that 
it was part of plaintiff's work to put such belt In order and keep 
it properly adjusted, and that in adjusting such belt plaintiff 
mounted a scaffold for the purpose of placing the belt over the 
countershaft, and that, while stooping to receive the belt from a 
fellow workman, he came in contact with an unguarded set-screw 
which caused the injuries, is not open to the objection that it 
fail9 to show that plaintiff was acting within the line of his 
duty. p. 274. 

4. Master and Sebvaitt. — Injury to Servant. — Unguarded Ma- 
chine. — Complaint. — Notice. — In a servant's action for personal 
injuries, an allegation in the complaint that the department of 
inspection of the State had ordered defendant to cover or guard 
the set-screw which caused the Injury, was proper as showing 
notice to defendant of its unguarded condition, although such 
notice is not necessary, p. 274. 

5. NEaLiGENCE. — Contributory Negligence. — Complaint. — Allega- 
tions. — Specific averments, in a complaint for personal injuries, 
showing that plaintiff was not free from fault, will overcome a 
general allegation that he was without fault p. 274. 

6. Mabteb and Servant. — Injury to Servant. — Contributory Negli- 
gence. — Complaint. — Sufficiency, — In a servant's action for per- 
sonal injuries, where the specific averments of the complaint do 
not set forth facts necessarily in conflict with the general allega- 
tion of freedom from fault, the plaintiff's freedom from con- 
tributory negligence is sufliciently shown as a matter of pleading, 
p. 274. 

7. Master and Servant. — Injury to Servant. — Evidence. — Sufft- 
cicn-cy to Show That Servant Was Acting in Line of Duty. — 
Evidence showing that an employe was employed to operate a re- 
saw, the power to run which was conveyed by means of a belt 
connected to a pulley on an overhead countershaft, that the belt 
had become stretched and too loose to run the machine, that 
plaintiff removed it and shortened it, climbed upon a scaffold to 
put It on the countershaft, and, while stooping to receive it from 
a fellow workman, came in contact with a set-screw on another 
countershaft and was injured, was sufliclent to warrant the jury- 
In finding that plaintiff was at the time engaged at a work re- 
quired of him in the operation of the resaw. p. 275. 

8. Master and Servant. — Dangerous Machinery. — Duty to Guard. 
—Statutes.— VndeT §8029 Bums 1908, Acts 1899 p. 231, requiring 
the guarding of set-screws in factories, it is the duty of the em- 
ployer to guard all set-screws, wherever located, if the employes 
are required to go about them. p. 270. 



MAY TERM, 1912. 269 



F. Bimel Co. v. Harter— CI Ind. App. 267. 



9. Masteb and Servant. — Injury to Servant. — Unguarded Machine. 
-^Amumption of Risk. — Contributory Negligence, — In actions for 
pereonal injuries caused by tlie employer's failure to guard dan- 
gerous machinery as required by §8029 Burns 1908, Acts 1899 p. 
231, there is no assumption of risk, but the law of contributory 
negligence applies^ p. 276. 

10. Xexsliqence. — Contributory Negligence. — Burden of Proof. — In 
negligence cases the burden is on defendant to prove contributory 
negligence, p. 276. 

11. Master and Servant. — Injury to Servant — Contributory Ncg- 
Ugcnce. — Where an employe, having knowledge that there Is a 
safe way and also a dangerous way to do the work he is en- 
gaged to perform, voluntarily adopts the dangerous way, without 
direction from his employer, and is injured thereby, he cannot 
recover, although it is flhown that the employer was also negli- 
gent p. 277. 

12. Master and Sesvant. — Injury to Servant. — Contributory Neg- 
ligence. — Ansu^ers to Interrogatories. — In an action for injuries 
to an employe by coming in contact with an unguarded set-screw 
while he was on a scaffold for the purpose of replacing a belt on 
an overhead countershaft, where the answers to interrogatories 
showed that plaintiff was familiar with the condition of the 
scaffold and knew of the set-screw on a rapidly revolving counter- 
shaft near to the one on which he desired to place the belt, that 
be could have replaced the belt by climbing on the west board of 
the scaffold, and that it would have been safer to have mounted 
on the west board than on the east board, that there were ladders 
that he could have used, but that there was no evidence that he 
knew of such ladders or that it would have been safer to use 
them, and it further appeared from such answers that the injury 
was not received until after he had mounted in safety to the 
platform, contributory negligence as a matter of law is not shown 
and the answers are not in conflict with a general verdict for 
plaintiff, p. 277. 

13. Appeau — Review. — Refusal of Instructions. — Presumptions. — 
Where the attention of the court on appeal is not called to any 
evidence to which a requested instruction was applicable, it will 
be presumed that such instruction was irrelevant and properly 
refused, p. 279. 

U. Appeal. — Revietc. — Refusal of Instructions. — Where a re- 
quested Instruction was covered by an instruction given by the 
conrt on its own motion, its refusal was proper, p. 279. 

15. Master and Servant. — Injury to Servant. — Unguarded Ma- 
<!^ine.-'Evidcnce. — Admissibility. — In an action by an employe for 
tajnries in coming in contact with an unguarded set-screw, the 
admission of evidence showing that notice of the defective condi- 
tion of the .««et-S(TPv; was served on the emplnyor l)y the Stnte 



270 APPELLATE COURT OP INDIANA. 

F. BImel Co. v, Harter— 51 Ind. Aih^. 2(57. 

Factory Inspector, was proper and could not have harmed defend- 
ant, since it was his duty to guard all set-screws regardless of 
notice, p. 279. 

10. Evidence. — Admissibility. — Clothing; Worn hy Injured Person. 
— In an action by an employe for i)ersoiial injuries caused by his 
clothing coming in contact with a set-screw, the clothing worn at 
the time of the Injury constituted real evidence and was properly 
shown to the Jury for their consideration, p. 280. 

17. Evidence. — Admissibility. — Similar Facts. — Custom. — Previous 
Use of Scaffold. — In an action by an employe for injuries caused 
by coming in contact with a set-screw, while standing on a scaf- 
fold for the purpose of replacing a l)elt on a countershaft, evi- 
dence that the scaffold had previously been used for similar pur- 
poses was proper to show custom, and knowledge on the part of 
defendant that workmen in the course of their labor were going 
about the set-screw, p. 280. 

From Jay Circuit Court ; John F. LaFollette, Judge. 

Action by Frank Harter against the F. Bimel Company. 
From a judgment for plaintiff, the defendant appeals. Af- 
firmed. 

Smith & Moran and SUverburg, Bracken & Gray, for ap- 
pellant. 
Frank H. Snyder and Whitney E. Smith, for appellee. 

Ibach, p. J. — This was an action by appellee against ap- 
pellant to recover damages for personal injuries. The 
amended complaint was in a single paragraph, and was held 
sufficient by the trial court on demurrer. Appellee's an- 
swer was a general denial. There was a jury trial, result- 
ing in a verdict and judgment for appellee. The assign- 
ment of errors presents to this court the action of the trial 
court in overruling the demurrer to the amended complaint, 
and in overruling the motions for judgment on the answers 
to interrogatories, for a new trial, and in arrest of judg- 
ment. The grounds for the motion for a new trial are that 
the verdict is not sustained by sufficient evidence, and is con- 
trary to law. 

The amended complaint is founded on the failure of ap- 
pellant to guard or countersink a certain set-screw, as is 



MAY TERM, 1912. 271 

F. Bimel Co. i\ Harter— 51 Ind. App. 267. 

enjoined by §9 of the factory a^t of 1899 (Acts 1899 p. 231, 
§8029 Burns 1908). It avers, in substance, that defendant 
is a corporation engaged in the operation of a manufactur- 
ing plant at the city of Portland, Indiana, for the manufac- 
ture of spokes, hubs, and handles ; that plaintiff was engaged 
as a workman in and about said manufacturing plant, and 
was then and there doing a work and exercising a skill in 
the running of a machine then and there situate, known as 
a "resaw"; that an overhead countershaft in said factory 
supplied the power to said resaw, and al)out six feet east of 
such countershaft there was another overhead countershaft, 
which supplied power to another machine, called a ''slab- 
ber"; that this countershaft was supported by hangers, and 
was kept from moving lengthwise by collars thereon, one of 
which was made fast by a set-screw, the head of which pro- 
jected out from the collar one and one-half inches ; that the 
belt by which the resaw was driven ran on a pulley on the 
eoTmtershaf t, to the west of the countershaft from which the 
set-screw projected ; that for the purpose, among others, of 
adjusting the belt to the aforesaid pulley, a scaffold was sus- 
pended about three feet below the shaft operating the 
resaw; that among the things to be done by the plaintiff in 
bis said work, was that of putting in order said belt, and 
keeping the same adjusted for said use; that said belt be- 
came slack and loose, and, as a necessary part of his work, 
plaintiff cut the belt, shortened and relaced it, whereupon 
it became necessary to, and the plaintiff did, mount the 
scaffold for the purpose of placing it over^ the overhead 
countershaft; that the slabber countershaft from which the 
set-screw projected was in motion, and the set-screw was 
revolving rapidly, that after he had mounted on the scaffold, 
it became necessary to, and the plaintiff did, lean forward 
and stoop downward to receive the belt, which was being 
landed to him by a fellow workman ; that he rose with the 
belt from said stooping position and in so doing came in con- 
tact with the set-screw, his clothing was caught thereon, and 



272 APPELLATE COURT OP INDIANA. 



F. Bimel Co. v, Harter— 51 Ind. App. 267. 



he was carried rapidly around the shaft, and was severely 
and permanently injured; that his injuries were sustained 
wholly without fault on his part, but were received through 
the fault, carelessness and negligence of defendant in per- 
mitting the set-screw to be uncovered and unguarded; that 
the chief inspector of the department of inspection of the 
State of Indiana had before that time directed defendant 
to cover and countersink said setnscrew ; that it was the duty 
of defendant properly to guard said set-screw for the safety 
of plaintiff as a workman for said manufacturing plant, 
but defendant failed to guard the same, and suffered the 
set-screw to be and remain unguarded and uncovered ; that 
it was practicable to countersink or cover it without im- 
pairing its usefulness, or the usefulness of the manufactur- 
ing plant. 

Appellant first urges against the sufficiency of the com- 
plaint, that it does not state facts showing that the relation 
of master and servant existed between the parties at 
1. the time appellee was injured. It is averred that de- 
fendant was "engaged in the operation of a manu- 
facturing plant,'' and that the "plaintiff was engaged as a 
workman in and about said plant, and was then and there 
doing a work and exercising a skill in the running of a ma- 
chine then and there situate.'' As shown by the pleadings, 
defendant was the operator of this manufacturing plant; 
no other person was interested therein ; the person engaged 
to operate the machine described was plaintiff, and the ma- 
chine was in defendant's factory. These are averments of 
facts, and, when considered with the other material allega- 
tions, we are forced to the conclusion that they are suffi- 
cient to show that the relation of master and servant existed 
between the parties at the time plaintiff was injured. Hoi- 
comb V. Normcm (1911), 47 Ind. App. 87, 91 N. E. 626; 
Hay V. Bash (1906), 37 Ind. App. 167, 76 N. E. 744; I. P. 
Force Handle Co. v. Hisey (1913), 52 Ind. App. — , 96 N. 
E. 643. 



MAY TERM, 1912. 273 



F. Bimel Co. v. Harter— 51 Ind. App. 267. 



It is next claimed that the facts alleged do not show the 
existence of any duty toward plaintiff, that such duty must 
be made to appear from the direct and positive aver- 
2. ments, and not from inferences, and that the allega- 
tion that it was the duty of the defendant to guard 
the set-screw is the statement of a mere conclusion, and not 
a fact. We have no dispute with appellant on the legal prop- 
osition contained in this statement, but we fail to see where 
this well-established rule has been violated in the case at 
bar. We have held that the averments of the complaint 
show the relation of employer and employe. They show 
that appellant was the sole operator of the factory in which 
was located the countershaft about which appellee was re- 
quired to work, and attached to this countershaft was a cer- 
tain set-screw, which under the statute was one of the kinds 
of machinery which it was the imperative duty of appellant 
to guard. It appears that appellant had permitted this par- 
ticular set-screw to remain unguarded and uncovered, and 
that it was practicable to ** countersink or cover it without 
impairing its use, and without interfering with the useful- 
ness of appellant's manufacturing plant." These facts, to- 
gether with the remaining averments of the complaint, show 
a legal duty owing from appellant to appellee under §8029, 
supra. A breach of this statutory duty is the negligence 
complained of, and this duty arose at once when the rela- 
tion of master and servant was formed between the parties. 
The complaint contains sufficient averments of facts to made 
it good against this objection. King v. Inland Steel Co. 
(1912), 177 Ind. 201, 96 N. E. 337, 97 N. E. 529; Ameri- 
ca Car, etc., Co. v. Vance (1912), 177 Ind. 78, 97 N. E. 
327; United States Cement Co. v. Cooper (1909), 172 Ind. 
599, 88 N. E. 69; Pittsburgh, etc., R. Co. v. lAghtheiser 
(1904), 163 Ind. 247, 71 N. E. 218, 71 N. E. 660. 

The further objection that the complaint does not show 
that appellee was acting within the line of his duty is not well 
Vol. 51—18 



274 APPELLATE COURT OP INDIANA. 

F. Bimel Co. r. Harter— 51 Ind. App. 267. 

taken. From the allegations of the complaint the 

3. clear conclusion is that in doing the things which he 
is alleged to have been doing just prior to and at the 

time of his injury, he was acting within the scope of his em- 
ployment. 

We do not consider that the allegation that the depart- 
ment of inspection for the State of Indiana had ordered ap- 
pellant to cover or guard the set-screw in question is 

4. at all controlling, and, so far as it affects the sufB- 
ciency of the complaint, it may be treated as an aver- 
ment showing notice to appellant of the unguarded condi- 
tion of the offending set-screw, and for this purpose it is 
proper, although such notice is not necessary. 

Appellant also insists that the complaint shows that ap- 
pellee was guilty of contributory negligence in going on 
the scaffold to a revolving countershaft eleven feet 

5. above the floor without any order or requirement on 
the part of appellant. We find it averred that plain- 
tiff was without fault, but regardless of this, if the specific 

averments showed that he was not free from fault, 

6. this general averment would be overcome by the spe- 
cific ones. Pittsburgh, etc, B. Co. v. Martin (1901), 

157 Ind. 216, 61 N. E. 229; Wolfe v. Peirce (1900), 24 Ind. 
App. 680, 57 N. E. 555. We do not think that the inference 
would naturally follow from the facts pleaded that appellee 
unnecessarily mounted the scaffold, and that he was guilty 
of contributory negligence in so doing. The averments show 
directly that he went on the scaffold to do what his contract 
of employment required him to do. It is shown that the 
belt which he was repairing and readjusting was an essential 
connection with the resaw. When it was out of repair, the 
resaw was useless, and for this reason the act of adjusting 
the belt became a part of his duty. The general averment 
that plaintiff was without fault controls, unless it clearly 
appears from the specific averments that he was guilty of 
contributory negligence, and as the specific averments do 



MAY TERM, 1912. 275 

F. Bimel CJo. v. Harter— ^51 Ind. App. 267. 

not set forth facts necessarily in conflict with the general 
allegation of freedom from fault, the plaintiff's freedom 
from contributory negligence is sufficiently shown as a mat- 
ter of pleading. 

Under the proposition that the verdict is contrary to law 
and is not sustained by sufficient evidence, appellant con- 
tends, (1) that there is no evidence to show that appellee 
was acting within the scope of his employment or within 
the line of his duty when he mounted the scaffold; (2) that 
the set-screw was properly guarded; (3) that the evidence 
discloses that appellee was guilty of contributory negligence 
in mounting a scaffold seven and a half or eight feet above 
the floor, under the revolving slabber countershaft, in at- 
tempting to place the belt over the resaw countershaft six 
feet distant from the revolving countershaft, without any 
direction on the part of appellant, and at a time when ap- 
peDee knew that the resaw countershaft was not in motion, 
bnt knew that the slabber countershaft with the set-screw 
attached was revolving rapidly, and that he was guilty of 
contributory negligence in selecting a dangerous way to do 
the work, when a safer way was open to him. 

Examination of the evidence shows the following facts 
proven: Appellee was engaged to operate a resaw in ap- 
pellant's factory, the power to run which was con- 

7. veyed by means of a belt and pulley from a counter- 
shaft about eleven feet above the floor. A parallel 
countershaft was suspended about six feet to the east of the 
resaw countershaft, and about three feet below these coun- 
tershafts was constructed a scaffold, made of three boards, 
each about eight inches wide, with intervals between them, 
and between the east board and the center board the belt 
moved which operated the resaw. The belt, by use, had be- 
come stretched and too loose to run the resaw. Appellee re- 
moved it, shortened and relaced it, climbed on the scaffold 
to put it on the countershaft, and was stooping to receive it 
from the workman handing it to him from below when his 



276 APPELLATE COURT OF INDIANA. 

F. Bimel Co. v. Harter--51 Ind. App. 267. 

clothing came in contact with the set-screw. We might con- 
tinue with the discussion of the facts disclosed by the evi- 
dence in this regard, but we are of the opinion, from the 
digest here set forth, that the jury was warranted in finding 
that appellee was at the time of his injury engaged at a 
work required of him in the operation of the resaw, that is, 
engaged with its connection with the motive power, so that 
the power could be communicated to the resaw, and he be 
enabled thereby to operate the same. The fact that the set- 
screw was in a position eleven feet above the factory 

8. floor, if it further appeared from the evidence that 
the laborers were not required to go about it, would 

certainly make the guarding of the same unnecessary. The 
evident intention of the legislature in passing the factory act 
was to protect, so far as it may reasonably be done, all la- 
borers in factories using dangerous machinery about which 
the laborers are required to go in doing the work required 
of them. All set-screws, wherever located in appellant's 
factory, would come under the requirements of the act, if the 
workmen were required to go about them. By reason of 
that act the only necessary requisite for guarding it was 
that some laborer was required to go about it in doing his 
work. This fact alone constituted it a source of danger, and 
it should have been guarded under our laws. Greeii v. 
Amenccm Car, etc., Co. (1904), 163 Ind. 135, 71 N. E. 268 ; 
United Staies Cement Co. v. Cooper, supra. 

It has been held repeatedly that in cases such as 

9. this the doctrine of assumption of risk does not 
apply, but the law of contributory negligence does 

10. apply. The burden was on appellant to show that 
appellee was guilty of contributory negligence, and 
it seems to us, from the evidence, that the jury was fully 
justified in finding that appellee was not guilty of such neg- 
ligence as contributed to his injury. *^It is a statement of 
a rule to which ohviotisly there can he no exception, that the 
negligence or misconduct of the plaintiff or of the person 



MAY TERM, 1912. 277 

F. Bimel Oo. t?. Harter— 51 Ind. App. 267- 

kiUed or injured, in order to bar a recovery of damages, 
must have sttstained such a relation to the accident that, hut 
for such negligence, the accident would not have happened," 
(Out italics.) 1 Thompson, Negligence §221. 

If it could be said to appear from the answers to the in- 
terrogatories that while appellee knew there was a safe way 
to do the work at which he was engaged when in- 

11. jured, and also fully knew and understood that there 
was a dangerous way to perform the same work, and 

without direction from appellant, but on his own volition he 
accepted the dangerous way, and because he used this dan- 
gerous way he was brought into contact with the offending 
set-screw and was injured, there could be no recovery, al- 
though it should appear that appellant himself was negli- 
gent, and it would be the duty of the court to say as a 
matter of law that his own conduct was such negligence that 
but for it the accident would not have happened. Wabash 
Paper Co. v. Wehb (1896), 146 Ind. 303, 45 N. B. 474; Con- 
solidaied Stone Co. v. Redmon (1899), 23 Ind. App. 319, 55 
N. E. 454; American Coa*, etc, Co, v. \ance, supra. 

Appellant insists that the answers to interrogatories show 

that appellee could have replaced the belt in safety, either 

by climbing upon the west board of the platform un- 

12. der the shaft not in motion to which no set-screw was 
attached, or by using a ladder to do the work, but 

that instead he selected a dangerous way. Among the facts 
found, in answer to interrogatories, bearing on this point, 
are the following: Plaintiff was familiar with the condi- 
tions of the scaffold, countershafts and set-screw, knew the 
slabber countershaft was revolving at great speed, and that 
the set-screw was located on it, and there were no condi- 
tbns of danger about the countershaft and set-screw of 
which he was ignorant prior to the time of his injury. He 
could have thrown the belt over the countershaft which 
mpplied power for the resaw, by climbing upon the west 
board or boards of the scaffold, and it would have been 



278 APPELLATE COUET OP INDL&NA. 

F. Blmel Co. v. Harter— 51 Ind. App. 267. 

safer for him to have mounted upon the west board than 
upon the east board or boards. There were ladders which 
he could have used, but there was no evidence that he knew 
of such ladders, and no evidence that it would have been 
safer to use such ladders than to mount upon the scaffold. 
There was no evidence that he could have mounted upon 
the west board or boards without coming in contact with 
the set-screw by which he was injured, likewise no evidence 
that if he had climbed upon the west board it would have 
been possible for his clothing to have come into contact with 
the set-screw (so that these findings neutralize each other) . 
There was no evidence that he mounted on the east side. 
The injury complained of was not caused hy plaintiff ^s 
mounting upon the east board or boards. After he had 
mounted upon the scaffold, he was standing with one foot 
on the east board and one foot on the middle board, was 
stooping in order to receive the belt, which was being passed 
up to him, and as he rose from the stooping position his 
clothing came in contact with the set-screw. From these 
findings it appears that the manner of his mounting did not 
cause his injury, and that he mounted in safety to the plat- 
form. It does not appear that he could have mounted in a 
safer manner, nor that he mounted on the east side, nor that 
if he had mounted on the west side he could have received 
the belt in any safer manner than if he had mounted on the 
east side. It does not appear from the findings nor the evi- 
dence that he could have replaced the belt from the scaffold 
without placing his foot upon the east board, or that he 
could have done the work in any different position or differ- 
ent manner after mounting the scaffold. We do not find 
the answers to the interrogatories in confiict with the gen- 
eral verdict, and we find sufficient evidence from which it 
can be said that reasonable men might differ as to whether 
appellee's conduct was such as to constitute contributory 
nofirligence, so that the question of his contributory negli- 
gonce is a question of fact, not of law, and the jury having 



MAT TERM, 1912. 279 

F. Bimel Go. v. Harter— 61 Ind. App. 267. 

found by its general verdict that he was not guilty of con- 
tributory negligence, that verdict will not be set aside. 

Error has been assigned in the giving of certain instruc- 
tions and the refusing of others. Having carefully consid- 
ered all the instructions given, in their application to the 
evidence, we believe that when the instructions are taken as 
a whole they fairly presented the law of the case, and did 
not mislead the jury in any way prejudicial to appellant. 

As to instruction seven, requested by appellant and re- 
fused, our attention is not directed to any evidence which 
would make the same applicable. It will be pre- 

13. sumed, therefore, that the instruction was irrelevant 
and properly refused. Instruction eleven, so far as 

14. proper, was covered by instruction two, given by the 
court of its own motion, and was rightly refused. The 

notice served by the chief' inspector on appellant was such 
as was included in his general powers to inform appellant 
of the fact that the set-screw in suit was unguarded, and by 
instruction two the jury was told that it could only con- 
aider this notice and the evidence of the inspection as show- 
ing notice to appellant of the unguarded condition of the 
aet-Bcrew, and for no other purpose, and that the chief in- 
spector and his deputies do not have the power to require 
any machinery or piece of machinery to be guarded other 
than those specifically designated by statute. 

It is also insisted that the court erred in admitting certain 
evidence. The notice served by the factory inspector was 
proper, although unnecessary, as tending to show 
15. notice on the part of appellant of the defective con- 
dition of the set-screw, and this was the only purpose 
for which it was permitted to go to the jury. It was proper 
for witness John Fitzgibbon to testify to being the deputy 
factory inspector, that he had inspected the factory, and 
Ittd notified appellant of the unguarded condition of set- 
wpewB therein. This evidence also went to show notice to 
the owner. Besides, this evidence could not be held harmful 



280 APPELLATE COURT OF INDLAlNA. 

F. Bimel Co. r. Barter— 61 Ind. App. 267. 

to appellant because it is not denied that the set-screw was 
unguarded when appellee was injured. It was in fact imma- 
terial whether appellant had notice of the unguarded condi- 
tion, since it was his absolute duty to guard all set-screws 
about which workmen were required to go. 

There was no error in allowing the clothing worn by ap- 
pellant at the time of the injury to be shown to the jury. 
It formed a part of the accident itself, and the jury 

16. was entitled to consider the condition of the clothing, 
as real evidence in connection with all the other acts 

and circumstances in the case. 

The evidence of appellee and of witness Harshman, that 
the scaffold was used for changing belts on the counter- 
shafts and similar purposes, was proper as tending 

17. to show custom, and knowledge thereof on the part 
of appellant, since such knowledge would be notice to 

appellant that workmen in the course of their labor were 
going about this set-screw. 

No reversible error having been shown, the judgment is 
affirmed. 

Note.— Reported In 98 N. E. 360. See, also, under (1, 3) 26 Cye. 
iaS4; (2) 26 Cyc. 1389; (4) 26 Cyc. 1390; (6) 26 Cya 1399; (7) 
26 Cyc. 1441; (8) 26 Cyc. 1134; (9) 26 Cyc. 1180, 1230; (10) 20 
Cyc. 601; (11) 26 Cyc. 1257; (12) 26 Cyc. 1482, 1513; (13) 3 Cyc. 
303; (14) 38 Cyc. 1711; (15) 26 Cyc. 1422; (16) 17 Cyc. 292; (17) 
26 Cyc. 1430. As to what complaint must show in an action for 
injuries caused, as alleged, by defendant's negligence, see note to 
Mt. Vernon v. Duawicliet (Ind.), 54 Am. Dec. 470. As to the suf- 
ficiency of notice by the servant to the master of the dangerous 
condition of the machine, etc., see 109 Am. St. 437. As to con- 
tributory negligence as a defence by a master who has violated a 
statute looking to the keeping of the machinery safe for the serv- 
ant, see 87 Am. St 586. Injury to servant from projecting screws 
in moving machinery, see 48 L. R. A. 96. 



]VIAY TERM, 1912. 281 

Marks v. Mariotte — 51 Ind. App. 281. 



Marks, Administratrix, v. Mariottb. 

[No. 7,817. Filed October 18, 1912.] 

t Appeal. — Record, — Matters Not in Record. — Bill of Emceptions. 
—Evidence, — ^Where no order-book entry is disclosed by the rec- 
ord showing that a transcript of the evidence was ever filed, nor 
that it was presented to the Judge for his approval within the 
time given for filing bills of exceptions, nor that the bill of ex- 
ceptions was ever filed, the evidence is not in the record, under 
{657 Burns 1908, Acts 1897 p. 244, providing that evidence may 
be made a part of the record only by being incorporated into a 
bill of exceptions, p. 282. 

2. Appeal. — Record. — Failure to Incorporate Evidence, — ^Where 
tlie evidence is not in the record by bill of exceptions, questions 
requiring an examination of the evidence cannot be reviewed, 
p. 283. 

Prom the Superior Court of Allen County; Joseph W. 
Adair, Special Judge. 

Action by Octavia Marks, administratrix of the estate of 
Charles Q. Marks, deceased, against Horace Mariotte. From 
a judgment for defendant, the plaintiff appeals. Affirmed, 

PhU B. Colerick and WilUam C. Ryan, for appellant. 
Harper & Eggeman and Leonard, Rose & Zollars, for 
appellee. 

Mters, J. — This was an action brought by appellant 
against appellee, to recover damages on account of the death 
of Charles Q. Marks, which was caused February 9, 1905, by 
his falling into an elevator shaft maintained by appellee in 
a building in the city of Fort Wayne owned and occupied 
by him. 

The issues, formed by a complaint in three paragraphs 
and an answer in general denial, were submitted to a jury 
for trial. At the close of appellant's evidence the court, 
over her objection, instructed the jury to return a verdict 
in favor of appellee. A verdict was returned as directed 
by the court, and judgment was rendered against appellant 



282 APPELLATE COURT OP INDIANA. 



Marks v. Mariotte — 51 Ind. App. 281. 



and in favor of appellee. On May 17, 1909, appellant's mo- 
tion for a new trial was overruled, and ninety days ^ven to 
file **a bill of exceptions". The overruling of .the motion 
for a new trial is the only error assigned under which any 
question is presented or discussed. 

The questions argued by appellant to sustain her motion 
are attempted to be presented only by the assignments that 
the evidence is insufScient to support the verdict, and error 
of the court in instructing the jury to return a verdict for 
appellee. Each of the questions for review requires an ex- 
amination of the evidence. 

To meet appellant's contention, the i>oint is made that the 
evidence is not in the record. The record discloses an order- 
book entry of July 31, 1909, showing that appellant 

1. presented her bill of exceptions, which, on that day, 
was signed by the court, but there is no entry show- 
ing that this bill was ever filed, nor does such a bill of excep- 
tions appear in the record. There is attached to the record 
what purports to be the longhand manuscript of the ofS- 
cial reporter's shorthand notes of the evidence taken at the 
trial, which bears the indorsement **Bill of Exceptions". 
It also has the file mark of the clerk of the court below 
stamped thereon, of date May 5, 1910. On the margin of 
the certificate of the official reporter we find the following 
words: '* Presented for signing and filing this Slst day of 
August, 1909. Joseph W. Adair, Special Judge." Also 
the words: "May 5, 1910. Approved and filed this 5th 
day of May, 1910. David V. Whiteleather, Special Judge.'* 
The record discloses that each person making the indorse- 
ment on said certificate was at the time of making such in- 
dorsement special judge, appointed in this case. There is 
no order-book entry showing the filing of any bill of excep- 
tions, unless it can be said that the showing made with refer- 
ence to the longhand manuscript of the evidence is sufficient. 

Under §657 Burns 1908, Acts 1897 p. 244, the evidence is 
made a part of the record only by being incorporated into 



MAY TERM, 1912. 283 

Clendenln t?. Pickett— 51 Ind. App. 283. 

a bill of exceptions. There is no attempt to comply with 
this statute. Further, it does not appear from any order- 
book entry that a transcript of the evidence was ever filed, 
nor is it shown that the same was presented to the judge 
for his approval until August 31, 1909, which was after the 
time given by the court for filing bills of exceptions. 

For the various reasons suggested, the evidence is not in 

the record and the alleged errors of the court in its ruling 

on the motion for a new trial cannot be reviewed. 

2. Rector v. Druley (1909), 172 Ind. 332, 88 N. E. 602 ; 
TaijlorY. Canaday (1901), 155 Ind. 671, 57 N. E. 524, 
59 N. E. 20; Walters v. Walters (1907), 168 Ind. 45, 79 N. 
E, 1037. 

Judgment affirmed. 

XoTt— Reported in 90 N. E. 501. See, also, under (1) 2 Cye. 
1083; (2) 3 Cyc. 164. 



Clendenin V. Pickett. 

[No. 7,707. Piled October 20, 1912.] 

1 XtriBANCE. — Private 'Nuisance, — Action to Enjoi/n, — Complaint, 
Sufflciencp, — ^A complaint to enjoin defendant from maintain- 
tng a private nuisance, alleging that defendant erected buildings 
within twenty-five rods of plain tifTB residence, that he collected 
In and about such buildings the carcasses of animals which were 
snbmitted to processes, whereby unwholesome, noxious, etc., 
gase« and odors were given od and permeated plaintifTs dwell- 
uig-house, greatly annoying, injuring and incommoding plaintiff 
and his family in the use and enjoyment of the premises, etc., is 
aifflcient, under §8291-293 Burns 1908, §8289-291 R. S. 1881, de- 
fining what shall constitute a nuisance and providing that the 
wne may be enjoined or abated on the action of any person 
whose property is injuriously affected, or whose personal enjoy- 
nipnt is lessened thereby, p. 284. 

• PusAOfiNO. — Demurrer. — Admissions. — ^A demurrer to a plead- 
^ admits the truth of all facts well pleaded, p. 285. 

From Wayne Circuit Court ; Henry C. Fox, Judge. 



284 APPELLATE COURT OF INDIANA. 

Clendenin v. Pickett— 51 Ind. App. 283. 

Action by William H. Pickett against William S. Clen- 
denin. From a judgment for plaintiff, the defendant ap- 
peals. Affirmed. 

Henry U. Johnson, Freeman & Freeman, for appellant. 
Bobbins & Bobbins, for appellee. 

Laiby, J. — Appellee sued appellant in the Wayne Circuit 
Court and obtained a decree enjoining appellant from main- 
taining on his land a fertilizer plant, alleged to constitute 
a private nuisance. Appellee also obtained a judgment for 
$150 damages. The only error assigned and argued on ap- 
peal is the action of the trial court in overruling appellant's 
demurrer to the complaint. 

The only objection urged against the complaint is that 

the facts averred do not show that the offensive odors and 

stenches created by appellant in the conduct of his 

1. business were of such a character as essentially and 
materially to obstruct the use of appellee's property, 
or such as essentially to interfere with his comfortable en- 
joyment of the same, within the meaning of our statute on 
the subject of nuisances. The sections bearing on this sub- 
ject, being §§291-293 Burns 1908, §§289-291 R. S. 1881, are 
as follows: Section 291. ** Whatever is injurious to health, 
or indecent, or offensive to the senses, or an obstruction to 
the free use of property, so as essentially to interfere with 
the comfortable enjoyment of life or property, is a nuisance^ 
and the subject of an action." Section 292. '^Such action 
may be brought by any person whose property is injuriously 
affected, or whose personal enjoyment is lessened by the 
nuisance.'* Section 293. ** Where a proper case is made, 
the nuisance may be enjoined or abated, and damages recov- 
ered therefor." 

Without setting out the complaint at length, it is sufficient 
to state that it alleges, in substance, that defendant erected 
buildings on his land, within twenty-five rods of plaintiff's 
residence, and that he collected in and about said buildings 



MAT TERM, 1912. 285 

Catholic Order of Foresters v. CJoUins — 51 Ind. App. 285. 

the carcasses of animals, which were there steamed, boiled 
and submitted to other processes, whereby unwholesome, nox- 
ious, disagreeable and offensive gases and odors were given 
off, and that the air which surrounded and permeated plain- 
tiff's dwelling-house was at all times laden with these un- 
wholesome, injurious and noxious gases and odors. The 
complaint further avers : * * The plaintiff and his family have 
been then and there and thereby at all times, and still are 
greatly annoyed, injured and incommoded in the use, pos- 
session, occupation and enjoyment of said dwelling house 
and premises, and the peace, comfort and happiness of the 
plaintiff and his family disturbed and destroyed, and the 
said dwelling house of plaintiff and his real estate and prem- 
ises greatly depreciated in rental value, and damaged and 
rendered unfit and unsuitable for occupation or use." 

The demurrer admits the truth of all facts well 

2. pleaded. Simply to call attention to the averments 
of the complaint is sufficient to demonstrate the fal- 
lacy of appellant's contention. The complaint is clearly 
good. 

The judgment of the trial court is affirmed. 

XoTE.— Reported In 99 N. E. 530. See, also, under (1) 29 Cyc. 
1241; (2) 31 Cyc. 333. As to the nature and elements of private 
noisauce, see 118 Am. St 869. 



Catholic Order op Foresters v. Collins. 

[No. 7,727. Filed October 30, 1912.] 

1. Appeal. — Law of tJie Case, — ^Where, on appeal, the question re- 
mains the same as that decided in a former appeal, the former 
derision is the law of the case. p. 290. 

2. I^csuKANCE. — Warranties, — ^If the answers contained In an ap- 
plication for mutual benefit insurance, and relied on for breach 
of warranty, were made in a separate, independent application 
or instrument, In no way referred to or made a part of the cer- 
tificate of insurance, they must be regarded as representations 
only, and not as warranties p. 291. 



286 APPELLATE COURT OP INDIANA. 

Catholic Order of Foresters v. Collins — 51 Ind. App. 285. 

3. INSUBANCK. — Policy, — Application, — Construction. — When the 
application for insurance is made a part of the policy, both in- 
struments must be construed together as one contract {^.282. 
294. 

4. Insurance. — Warranties, — Construction, — ^Warranties in a con- 
tract of insurance are not to be created or extended by construc- 
tion, but must arise from the fair interpretation and clear In- 
tendment of the words used by the parties, and In case of doubt 
as to the intent of the parties, the court should favor that coa- 
struct Ion which will relieve the assured of the obligation of a 
warranty, p. 292. 

5. I Ns USANCE. — Applica lion, — Representations, — Warranties, — ^Rep- 
resentations In an application for insurance need only be sub- 
stantially true, so far as they are material to the risk, but war- 
ranties must be strictly true in every particular, whether material 
or immaterial, p. 292. 

G. Insurance. — Contract, — Warranties, — ^The parties to a contract 
of insurance may settle for themselves that representations in 
the application shall be deemed material and, when they have 
done so, the applicant cannot afterwards show that a fact which 
the parties have thus declared material to be truly stated to the 
insurer, was in fact immaterial, p. 293. 

7. Insurance. — Mutual Benefit Insurance. — Application, — Con^ 
struction, — Warranties, — ^Where the application was made a part 
of a mutual benefit certificate, and the contract when read in 
its entirety contained no contradictory or doubtful provisions, 
and clearly provided that the answers of the assured in his ap- 
plication for membership shall "each and all" be treated as true 
in fact, and that the assured "warrants said answers and each 
of them to be true in fact", and agrees that, in case any answer 
is untrue, all rights of himself and his beneficiary are forfeited, 
the answers of the assured in his application must be treated as 
warranties, p. 294. 

8. Insurance. — Mutual Benefit Insurance, — Warranties. — Breach, 
— An steers to Interrogatories. — ^In an action on a mutual benefit 
certificate, in which, by the terms of the entire contract, the an- 
swers in the application are deemed to be warranties, answers by 
the Jury to interrogatories showing that within the three years 
preceding the date of his application the assured had sought and 
obtained the advice and services of physicians for physical ail> 
ments, show falsity of assii red's answer of "nothing" to the 
question in his application, "When and for what has medical a4l- 
vice been sought within the last three years?" and that there 
had been a breach of warranty as to such answer, p. 294. 

9. Insurance. — Warranties. — Breach^ — Avoidance of Contract, — • 
Return of Premiums. — ^The insurer has a right to avoid a con- 
tract of Insurance for the breach of a warranty, but, if it elects 



MAY TERM, 1912. 287 

Catholic Order of Foresters v. Collins — 51 Ind. App. 285. 

80 to do, it must offer to restore and tender back that which has 
been received by it on the contract, and it may then plead such 
breach of warranty and its offer of tender as a defense, pw 297. 

10. Trial. — Verdict. — Answers to Interrogatories. — Everything is 
presumed in favor of the general verdict, and before a motion 
for judgment on the answers to interrogatories, notwithstanding 
such verdict, can be sustained, there must be such irreconcilable 
conflict between such answers and the general verdict that the 
latter cannot stand, p. 297. 

11. iNsuBANCEw — Action on Mutual Benefit Certifloate. — Breach of 
Warranty. — Answers to Interrogatories. — In an action on a mu- 
tual benefit certificate, a breach of warranty by the assured is a 
matter of defense, so that answers by the jury to interrogatories 
which show a breach of warranty only will not control a gen- 
eral verdict for plaintiff, which is a finding against defendant as 
to all other material averm^its of its answer setting up such 
breach, p. 298. 

12. Afpeai.. — Review. — Verdict. — Answers to Interrogatories, — ^Ifo- 
tUm for Judgment on Answers. — What May Be Considered. — ^In 
considering a motion for judgment on the answers to interroga- 
tories notwithstanding the general verdict, the court can look only 
to the pleadings, the verdict and the answers to the interroga- 
tories, p. 298. 

13. INSUBANCE. — Action on Mutual Benefit Certifloate. — Evidence. 
Sufficiency. — Breach of Warranty. — ^Where, in an action on a 
mutual benefit certificate the undisputed evidence showed that 
there was a breach of warranty by the assured in his failure to 
answer a question in his application truthfully, the evidence was 
not sufficient to sustain a verdict for plaintiff, p. 208. 

14. Insurance. — Mutual Benefit Insurance. — Breach of Warranty. 
—Medical Advice. — Instructions. — In order to defeat recovery 
nnder a mutual benefit certificate for breach of warranty in an 
application that the Insured had not sought medical advice 
•irtthin the last three years" the advice must have been sought 
within the three years preceding the date of the application, and 
instructions fixing the time as within the three years preceding 
the issuing of the certificate were erroneous, p. 300. • 

Prom Superior Court of Marion County (69,896) ; Vinson 
('drier, Judge. 

Action by Mary Alice Collins against the Catholic Order 
of Foresters. Prom a judgment for plaintiff, the defendant 
appeals. Reversed. 

Edmund S. Cummings, Edward P. Honan, Michael A. 
Ryan and John C. Ruckelshaus, for appellant. 



288 APPELLATE COUET OP INDIANA. 

Catholic Order of Foresters v. Collins — 51 Ind. App. 285. 

Merrill Moores, Walter Myers, James P. Boyle, Charles W, 
Moores, and John Ogden, for appellee. 

HoTTEL, C. J. — This is a suit by appellee, the sole benefi- 
ciary of an insurance certificate issued by appellant to James 
Edward Collins, husband of appellee, to recover on such cer- 
tificate. This is a second appeal, a former judgment in ap- 
pellant's favor having been reversed by this court on account 
of the error of the lower court in giving a peremptory in- 
struction in appellant's favor. Collins v. CathoUc Order of 
Foresters (1909), 43 Ind. App. 549, 551, 88 N. E. 87. A 
trial by jury resulted in a verdict for appellee, with which 
were returned answers to interrogatories. Motions by appel- 
lant for judgment on the answers to interrogatories and for 
a new trial were overruled, and exceptions to each ruling 
saved by appellant, after which judgment was rendered on 
the verdict for appellee. The rulings on said motions pre- 
sent the errors on which appellee relies. As no question is 
presented on the pleadings, we need only set out enough of 
their substance to present the questions which are relied on 
for reversal. 

The complaint is the usual complaint in such cases, and 
avers that on December 3, 1903, decedent, James E. Collins, 
signed a written application for membership in said order, 
his acceptance by the order, his initiation as a member of St. 
Joseph Court No. 1109, the issuing by the order on December 
23, 1903, of the benefit certificate in suit for $1,000, with ap- 
pellee as its beneficiary. The application for membership, 
together with the medical examiner's certificate thereon and 
the written approval of J. P. Smyth, M. D., high medical 
examiner of said order, and the certificate of insurance, are 
made part of the complaint. 

It is further averred that the certificate was not delivered 
to Collins, but was delivered to the St. Joseph Court, and 
kept by it ; that Collins died April 6, 1904 ; that at the time 
of his death, decedent was a member in good standing in 



MAY TERM, 1912. 289 

Catholic Order of Foresters v. Collins — 51 Ind. App. 285. 

said order ; that plaintiff demanded said certificate, and de- 
fendant refused to deliver it; that plaintiff made proof of 
death, and that she and her deceased husband performed all 
the conditions of said policy on their part to be performed, 
and that she demanded payment of the sum due on said 
policy, which was refused by defendant. Defendant an- 
swered by the general denial and by a special answer setting 
up a misrepresentation of the facts in procuring the issuing 
of the certificate sued on and a breach of the warranties 
therein contained. The questions and answers of the insured 
relied on and pleaded in the special answer are of those con- 
tained in that part of the ''Application for Membership" 
designated ''Applicant's Certificate", and are a part of the 
medical examination and are as follows : 

(1) *" Q. Have you ever had any severe illness or injury, 
or under gone any surgical operation ? A. First finger index 
right hand. (2) Q. State when, give particulars, and name 
of yonr attending physician ? A. Have not been sick since 
childhood* Diseases of childhood. (3) Q. Have you fully 
recovered t A. Yes. (4) Q. Have you had any of the fol- 
lowing complaints, diseases or symptoms? Any disease of 
the longs T A. No. (5) Q. Spitting or raising blood? A. 
Xo. (6) Q. Any disease of the bowels? A. No. (7) Q. 
Habitual cough? A. No. (8) Q. La Grippe? A. No. (9) 
Q. When and for what has medical advice been sought 
within the last three years ? A. Nothing. (10) Q. Is there 
anything to your knowledge or belief, in physical condition, 
family or personal history, or habite, tending to shorten 
your life, which is not distinctly set forth in this applica- 
tion? A. No." The answer avers, in substance, that rely- 
ing on the truth of these answers the insured was accepted 
by the order, and the certificate of insurance issued ; that by 
the terms of the contract the insured expressly warranted 
said answers to be true, that they were, in fact, false, etc. 

Judging from the court's statement of the facts of the for- 
VoL. 51—19 



290 APPELLATE COURT OP INDIANA. 

C?atholIc Order of Foresters v. Collins — 51 Ind. App. 285. 

mer appeal, the case comes to us on the same pleadings and 
issues, except that an amendment of the special answer, prob- 
ably suggested by the opinion in that case, has been made 
showing the amount of the fees, dues and assessments re> 
ceived by appellant on the contract, a tender of the same by 
appellant to appellee, and a refusal by appellee to accept the 
same or any part thereof. 

The former decision of this case by this court is the law 

of the case in so far as it applies to the facts now pleaded 

on the evidence introduced thereunder, where the 

1. question remains the same as that decided on the orig- 
inal appeal. City of Logansport v. Humphrey (1886) , 
106 Ind. 146, 6 N. E. 337; Keller v. Gaskill (1898), 20 Ind. 
App. 502, 50 N. E. 363; Brunson v. Henry (1898), 152 Ind. 
310, 52 N. B. 407; Fort Wayne Iron, etc., Co. v. Parsell 
(1912), 49 Ind. App. 565, 94 N. E. 770; Indiana Union 
Traction Co. v. Pring (1912), 50 Ind. App. 566, 96 N. E. 
180. 

The certificate sued on promises and binds appellant to 
pay appellee the sum of $1,000, subject to certain ''express 
stipulations and conditions" therein set forth, which are, 
by the express terms of such certificate, made part thereof. 
The conditions and stipulations, controlling the questions 
here presented, are as follows: " (1) The statements made 
by said member in the proposition blank signed by him at 
the time of his proposal as a member of said Catholic Order 
of Foresters are hereby acknowledged and declared by him 
to be warranties and to be made a part of this contract. 
(2) The representations and agreements made and sub- 
scribed by him in the application and medical examiner *s 
blanks and the answers given and certified by him to the 
medical examiner are hereby acknowledged and declared by 
him to be warranties and to be made a part of this con- 
tract." 

Again, in that part of the application for membership 



MAY TERM, 1912. 291 

Catholic Order of Foresters v, Ck)llln8 — 51 Ind. App. 285. 

designated '^ Applicant's Certificate", and following the 
answers made in the medical examination, the insured cer- 
tifies as follows: **I do hereby certify and declare that the 
answers given by me to the above questions are each and 
all true in fact, and I do hereby warrant said answers and 
each one of them to be true in fact, and I do hereby agree 
that, should any answer so made by me be untrue, that then, 
and in such case, I do hereby forfeit the rights of myself 
and my beneficiary or beneficiaries and of any and all other 
persons whomsoever to any and all benefits and privileges 
of the Order including all claims and demands by virtue of 
any benefit certificate, that may have been issued to me by 
said Order, including all moneys paid by me to said Order 
for any purpose whatsoever. James Edward Collins.'* 

In the application for membership, following the state- 
m^ts of the insured himself, he made a like statement, 
with additional language as follows: ''Or should any con- 
cealment of facts be made by me in this application. • • •» 
I do hereby forfeit," etc. 

The controlling question presented by the errors relied 
on by appellant in the court's ruling on each of said mo- 
tions is, in effect, the same, the question being presented in 
the first motion by the facts found by the jury in its an- 
swers to interrogatories, and in the second motion by the 
facts disclosed by the evidence. We will, therefore, in dis- 
cussing the ruling on the first motion indicate the legal prin- 
ciples which we think controUing in the case. These prin- 
ciples are : 

(1) If the answers relied on for the breach of warranty 
were made in a separate, independent application or instru- 
ment, in no way referred to or made part of the cer- 
2. tificate of insurance, they must in such case be re- 
garded as collateral to the contract of insurance, 
and as representations only. Citizens Ins. Co, v. Hoffman 
(1891), 128 Ind. 370, 373, 27 N. E. 745; Presbyterian Mut. 



292 APPELLATE COURT OF INDIANA. 



Catholic Order of Foresters v. Collins — 51 Ind. App. 285. 

Assur. Fund v. Allen (1886), 106 Ind. 593, 7 N. E. 317; 
Campbell v. New England, etc, Ins. Co. (1867), 98 Mass. 
381, 389. 

(2) *'It is well settled that the policy and application, 
when the latter is made a part of the former, must be con- 
strued together as one contract." Indian^ etc., Ins. 

3. Co. V. Rundell (1893), 7 Ind. App. 426, 430, 34 N. E. 
588. See, also, Mutual Ben. Life Ins. Co. v. MiUer 

(1872), 39 Ind. 475; Movlor v. American Life Ins. Co. 
(1884), 111 U. S. 335, 341, 4 Sup. Ct. 466, 28 L. Ed. 447; 
First Nat. Bank v. Hartford Fire Ins. Co. (1877), 95 U. S. 
673, 675, 24 L. Ed. 563. 

(3) In construing this contract in its entirety we are 
admonished by the frequent expressions of this court and 

the Supreme Court, and by the courts of other juris- 

4. dictions, that warranties **are not to be created or 
extended by construction.'* They must arise, if at 

all, from the fair interpretation and clear intendment of 
the words used by the parties. Where there are contradict- 
ory provisions, ambiguities or uncertainties, or where the 
contract has been so framed as to leave room for construc- 
tion rendering it uncertain or ''doubtful whether the par- 
ties intended the exact truth of the applicant's statements 
to be a condition precedent to any binding contract," the 
court should favor that construction which will relieve the 
assured of the obligation of a warranty. Indiana, etc., Ins. 
Co. V. Rundell, supra; Moulor v. American Life Ins. Co., 
supra; First Nat. Bank v. Hartford Fire Ins. Co., supra, 
678; Northwestern, etc., Ins. Co. v. Hazelett (1886), 105 
Ind. 212, 216, 4 N. E. 582, 55 Am. Rep. 192 ; Rogers v. Phe- 
nix Ins. Co. (1890), 121 Ind. 570, 576, 23 N. E. 498; Metro- 
politan Life Ins. Co. v. Johnson (1911), 49 Ind. App. 233, 
94 N. E. 785, 788. (4) If the answers of the assured in his 
application can be construed as representations mere- 

5. ly, they need be only substantially true, so far as such 
representations were material to the risk, but if they 



MAY TERM, 1912. 293 

Catholic Order of Foresters v. Collins — 51 Ind. App. 285. 

must be construed as warranties, then they **cannat be devi- 
ated from in the smallest particular whether material or 
immaterial/' On this point, in addition to authorities last 
above cited, see MtUtuU Ben, Life Ins. Co. v. Miller, supra, 
486; Phoenix Ins. Co. v. Benton (1882), 87 Ind. 132, 137; 
Campbell v. New England, etc., Ins. Co., supra, 389 ; Metro- 
politan Life Ins. Co. v. McTague (1887), 49 N. J. L. 587, 
591, 9 Atl. 766, 60 Am. Bep. 661 ; Cobb v. Covenant, etc., 
Assn. (1891), 153 Mass. 176, 177, 26 N. E. 230, 10 L. E. A. 
666, 25 Am. St. 619 ; White v. Provident Sav., etc.. Society 
(1895), 163 Mass. 108, 114, 39 N. E. 771, 27 L. E. A. 398. 

(5) ** 'The parties may, by the frame and contents of the 

papers, either by putting representations as to the quality, 

history, or relations of the subject insured into the 

6. form of answers to specific questions, or by the mode 
of referring to them in the policy, settle for them- 
selves that they shall be deemed material. And when they 
have done so the applicant for insurance cannot afterwards 
be permitted to show that a fact, which the parties have thus 
declared material to be truly stated to the insurers, was in 
fact immaterial, and thereby escape from the consequences 
of making a false answer to such a question. ' 
• • • 'While it may well be that a misrepresentation of 
a matter which does not affect the risk, and is not material 
in some cases, as is claimed, will not avoid the policy, and 
whether it is material is a question for the jury, such rule 
hag, we think, no application where, by the terms of the 
policy, misrepresentations are converted into warranties by 
astipulation that an untrue answer will avoid the policy.' " 
Cerysv. State Ins. Co. (1898), 71 Minn. 338, 339, 340, 73 N. 
W, 849. See, also, Cobb v. Covena/nt, etc., Assn., supra; 
MUler y. Mutual, etc., Ins. Co. (1871), 31 Iowa 216, 232, 7 
Am. Rep. 122. 

We have already indicated that the certificate sued on, by 
its express terms, makes the application for membership a 
part of such insurance contract. Whether the answers to 



294 APPELLATE COURT OF INDIANA. 

Catholic Order of Foresters v. Collins — 51 Ind. App. 285. 

the questions contained in such application shall be 
3. treated as warranties or as representations merely, 
must, therefore, under the above authorities, be de- 
termined from the language of the entire contract. Apply- 
ing the rules of construction above announced to the 

7. language of the provisions of this contract, above 
indicated as being important and controlling of this 

question, we are forced to the conclusion that the answers 
of the assured in his application must be treated as war- 
ranties. 

The contract, when read in its entirety, contains no con- 
tradictory or doubtful provisions. The language of the 
several provisions above quoted is clear, certain and positive 
that the answers of the assured in his application for mem- 
bership shall ''each and all" be treated as true in fact, and 
that the assured ''warrants said answers and each one of 
them to be true in fact", and agrees that in case any answer 
is untrue all rights of himself and his beneficiary, including 
all claims and demands by virtue of the benefit certificate, 
are forfeited. One of the express conditions on which the 
certificate was issued was that said answers were by the ac- 
sured "acknowledged and declared by him to be warranties 
and to be made a part of this contract." 

If it could be said that, under the language of the con- 
tract, the answers could be treated as representations, they 
are by the terms and language of the contract converted 
into warranties so far as their materiality is concerned, and 
controlled by the line of cases cited under legal proposition 
five, given above, which prevents the question of the materi- 
ality of such answers being a question of fact for the jury 
trying the cause. 

So in its last analysis, the question which we must deter- 
mine in this case, is whether any one of said answers 

8. is false. This question must be determined from the 
jury's answers to interrogatories, in so far as it can 



MAY TERM, 1912. 295 

Catholic Order of Foresters r. CJoUins — 51 Ind. App. 285. 

have influence in determining whether the court erred in 
overruling the motion for judgment on such answers. 

The particular interrogatories, and the answers thereto, 
relied on by appellant as presenting the facts so antagonis- 
tic to and inconsistent with the general verdict as to entitle 
it to judgment on its motion, are as follows : 

'^(21) Did James Edward Collins seek and obtain the 
advice and services of physicians for physical ailments at 
any time from Dec. 3, 1900, up to December 3d, 1903 » A. 
Yes. 

(22) Did Dr. Hugh Cowing, of Muncie, Indiana, treat 
professionally James Edward Collins, and perform an opera- 
tion on him for piles during his married life with plaintiff, 
before December 3rd, 1903 f 

A. Yes. 

(26) Did James Edward Collins, within the period of 
three years, prior to December 3rd, 1903, seek medical ad- 
vice and attention for physical ailments ? 

A. Yes. • • • 

(30) Did James Edward Collins seek medical advice and 
attention and obtain medicine from Doctor William J. Mal- 
loy, for some physical ailment on October 10th, 1903 f 

A. Yes. • • • 

(41) Did Dr. Henry M. Winans make an examination cf 
James Edward Collins, microscopically examining the spu- 
tum of said Collins, on March 12th, 1901, for tuberculosis? 

A Yes. • • • 

(44) Did Dr. Henry M. Winans examine the sputum of 
James Edward Collins for tuberculosis once subsequent to 
March 12th, 1901, prior to December 3rd, 1903 ? 

A Yes." In so far as these answers to interrogatories 
affect, or are claimed to affect, or to be inconsistent with, the 
answer of the assured to any question other than No. 9, 
gi^^en above, we think the former opinion controlling and the 
lav of the case. As to all the other answers made by the 



286 APPELLATE COURT OP INDIANA. 

Catholic Order of Forestera v, Collins--51 IncL App. 285. 

3. I NSUBAWCE. — Policy, — ApplicatUm, — Construction. — When the 
application for insurance Ib made a part of the policy, both In- 
struments must be construed together as one c<mtract pp.282. 
294. 

4. INBUKA.NCE. — Worrontica. — Construction. — ^Warranties in a con- 
tract of insurance are not to be created or extended by ccmstr no- 
tion, but must arise from the fair Interpretation and clear in- 
tendment of the words used by the parties, and in case of doubt 
as to the intent of the parties, the court should favor that con- 
struction which will relieve the assured of the obligation of a 
warranty, p. 292. 

5. I NSUKANCB. — Application. — Representations. — Warrawties. — ^Rep- 
resentations in an application for insurance need only be sub- 
stantially true, so far as they are material to the risk, but war- 
ranties must be strictly true in every particular, whether material 
or immaterial, p. 292. 

6. IKSURANCE. — Contract, — Warraniies. — ^The parties to a contract 
of insurance may settle for themselves that representations in 
the application shall be deemed material and, when they have 
done so, the applicant cannot afterwards show that a fact which 
the parties have thus declared material to be truly stated to the 
insurer, was in fact immaterial, p. 293. 

7. INSUBAWCB. — Mutual Benefit Insurance. — ApplioaUon, — Cot^ 
struction. — Warranties, — ^Where the application was made a part 
of a mutual benefit certificate, and the contract when read in 
its entirety contained no contradictory or doubtful provisions, 
and clearly provided that the answers of the assured in his ap- 
plication for membership shall ''each and all*' be treated as true 
in fact, and that the assured "warrants said answers and each 
of them to be true In fact", and agrees that, in case any answer 
is untrue, all rights of himself and his beneficiary are forfeited, 
the answers of the assured in his application must be treated as 
warranties, p. 294. 

8. Insurance. — Mutual Benefit Insurance, — Warranties. — Breach, 
— Ansiccrs to Interrogatories. — In an action on a mutual benefit 
certificate, in which, by the terms of the entire contract, the an- 
swers in the application are deemed to be warranties, answers by 
the Jury to Interrogatories showing that within the three years 
preceding the date of his application the assured had sought and 
obtained the advice and services of physicians for physical ail- 
ments, show falsity of assu red's answer of "nothing" to the 
questioQ In his application, "When and for what has medical ad- 
vice been sought within the last three years?" and that there 
had been a breach of warranty as to such answer, p. 294. 

9. Insurance. — Warranties. — Breach^ — Avoidance of Contract. --^ 
Return of Premiums. — ^The Insurer has a right to avoid a con- 
tract of Insurance for the breach of a warranty, but, If it elects 



MAY TERM, 1912. 287 

Catholic Order of Foresters v. Collins — 51 Ind. App. 285. 

BO to do, it must offer to restore and tender back that which has 
been received by it on the c(Hitract, and it may then plead such 
breach of warranty and its offer of tender as a defense, p. 297. 

10. Trial. — Verdict. — Answers to Interroga4orie8, — Everything is 
presuBied in favor of the general verdict, and before a motion 
tot judgment on the answers to interrogatories, notwithstanding 
such verdict, can be sustained, there must be such irreconcilable 
conflict between such answers and the general verdict that the 
latter cannot stand, p. 297. 

11. iNsusANCB. — Action on Mutual Benefit Ceriifloate, — Breach of 
Warranty, — Answers to Interrogatories, — In an action on a mu- 
tual benefit certificate, a breach of warranty by the assured is a 
matter of defense, so that answers by the jury to interrogatories 
which show a breach of warranty only will not control a gen- 
eral verdict for plaintiff, which is a finding against defendant as 
to all other material averm^its of its answer setting up such 
breach, p. 298. 

12. Afphal. — ^Review, — Verddct. — Answers to Interrogatories. — Mo- 
tion for Judgment on Answers, — Wlvat May Be Considered. — ^In 
considering a motion for judgment on the answers to interroga- 
tories notwithstanding the general verdict, the court can look only 
to the pleadings, the verdict and the answers to the interroga- 
tories, p. 298. 

13. Insurance. — Action on Mutual Benefit Certifloate. — Evidence. 
—Sufficiency. — Breach of Warranty. — ^Where, In an action on a 
mutual benefit certificate the undisputed evidence showed that 
there was a breach of warranty by the assured in his failure to 
answer a question in his application truthfully, the evidence was 
not sufiicient to sustain a verdict for plaintiff, p. 298. 

14. Insurance. — Mutual Benefit Insura/nce. — Breach of Warranty. 
—Medical Advice. — Instructions. — In order to defeat recovery 
nnder a mutual benefit certificate for breach of warranty In an 
application that the insured had not sought medical advice 
**within the last three years" the advice must have been sought 
within the three years preceding the date of the application, and 
instructions fixing the time as within the three years precedins: 
the issuing of the certificate were erroneous, p. 300. • 

Prom Superior Court of Marion County (69,896) ; Vinson 

Carter, Judge. 

Action by Mary Alice Collins against the Catholic Order 
of Foresters. Prom a judgment for plaintiff, the defendant 
appeals. Reversed. 

Edmund S. Cummings, Edward P. Honan, Michael A. 
ftyan and John C. Ruckelshaus, for appellant. 



298 APPELLATE COURT OP INDIANA. 

Catholic Order of Foresters v. CulUns — 51 Ind. App. 285. 

were true, the conflict between the answers and the 

11. general verdict would be irreconcilable, but such 
breach of warranty, being a defense, the answers, 

showing the breach only, will not control the general ver- 
dict, which is a finding against appellant as to all other 
material averments of the special answer on which the an- 
swers to interrogatories are silent. The omission of inter- 
rogatories on this element of defense may have resulted from 
the agreement of the parties, which was made part 

12. of the evidence. In this it was agreed that said ten- 
der of fees and premiums was made to appellee, aud 

she refused to accept the same. But under the repeated 
expressions of this court and the Supreme Court, in consid- 
ering this motion we can look only to the pleadings, the ver- 
dict and the answers to interrogatories. Inland Steel Co. v. 
Smith (1907), 168 Ind. 245, 248, 80 N. E. 538; Consolidated 
Stone Co. v. Summit (1899), 152 Ind. 297, 300, 53 N. E. 
235; Indiana, etc., Gas Co. v. Long (1901), 27 Ind. App. 
219, 222, 59 N. E. 410. 

It follows that there was no error committed in overrul- 
ing this motion. 

We are, however, confronted with the same question in 
the consideration of the motion for a new trial. The uncon- 
tradicted evidence in the case shows just what the 

13. jury found, viz., that on several occasions between 
December 3, 1900, and December 3, 1903, the assured 

had obtained the advice and service of a physician. Appel- 
lee testified, in substance, as follows : That the assured had 
a spell of sickness in December, 1900, when he was visited 
and treated by Doctor "Winans ; that she had gone on a visit 
to her father's home after December 15, 1900, and close to 
December 21, 1900, and while there was called to her home 
in Muncie because of the sudden illness of her husband ; that 
she got home before the Christmas holidays, and learned that 
Doctor "Winans had been treating her husband, and he called 
after she got home ; that the assured was confined about the 



MAY TERM, 1912. 299 

Catholic Order of Foresters v. Collins — 51 Ind. App. 285. 

houae, in and out, about three weeks, and was confined to 
his bed about four or five days ; that the doctor pronounced 
hjs aihnent a heavy cold, bordering on pneumonia ; that she 
thought this was one of the occasions when the doctor exam- 
ined his sputum. She further testified that she and her hus- 
band called on Doctor Malloy at his office in October, 1903, 
when the doctor prescribed for her husband and gave him 
medicine ; that on October 19, 1903, Doctor Winans visited 
their home, and treated her husband professionally ; that he 
was then complaining of his stomach, and was vomiting; 
that the assured had bilious attacks in the years 1901, 1902 
and 1903, and that on these occasions he would sometimes 
have the doctor come to see him at his home, and sometimes 
would go to the doctor's office. The doctors also testified to 
visits and treatments during said period, but we think we 
have set out enough of the undisputed evidence on this 
subject to indicate that the assured did not answer question 
nine truthfully or in good faith, and that there was a breach 
of the warranty made by said answer. 

It follows that the verdict of the jury was not sustained 
by sufficient evidence, and that for this reason appellant's 
motion for a new trial should have been sustained. 

The inconsistency between the general verdict and the an- 
swers of the jury to interrogatories would indicate that they 
did not regard answer nine, given above, of the assured in 
his application for membership as materially affecting the 
risk of insurance, and that such answer should not, there- 
fore, prevent a general verdict in appellee's favor. It may 
not, therefore, be improper to remark in this connection that, 
in our judgment, the ends of justice would be best subserved 
if, in all cases of this character, the statements and answers 
of the assured could be construed as representations merely, 
which need be only substantially true in so far as they ma- 
terially affect the risk. In many states there has been legis- 
lative enactment to this effect, but in our own State there 
has been no such legislation, and inasmuch as it is the court's 



300 APPELLATE COURT OF INDLAJ^A. 

Southern R. Co. v. Crone — 51 Ind. App. 300. 

duty to construe the law as it finds it, and not to make it, 
we must be satisfied with that construction which necessarily 
results from the application of the law as it now is to the 
facts presented in each particular case. 

Instructions two and seven, given by the court, were erro- 
neous, in that they fixed the time in which the assured must 
have sought medical advice in order to defeat recov- 

14. cry as being within the three years preceding the 
issuing of the benefit certificate, which was December 
23, 1903, instead of three years from the date of the appli- 
cation, which was December 3, 1903. Li view of the fact 
that there will be no occasion for repeating this error at 
any subsequent trial, we deem it unnecessary to determine 
whether the same was harmless. 

Judgment reversed, with instructions to the court below 
to grant appellant's motion for a new trial, and for further 
proceedings not inconsistent with this opinion. 

Note.— R^orted in 99 N. E. 745. See, also, under (1) 3 Cyc. 
305; (2, 4, 7) 29 Cyc. 86; (3) 29 Cyc. 67; (5) 25 Cyc. 805; (9) 29 
Cyc. 92; (10) 38 Cyc. 1927; (11) 29 Cyc. 252; (13) 29 Cyc. 244; 
(14) 29 Cyc. 251. As to the distinction between warranties and 
representations by the party to be insured, see note to CotUinental 
Life Ins. Co, v. Yung (Ind.), 3 Am. St. 636. As to the significance 
to be attached to attendance by and consulting a physician, in an 
ai)plicant*s statement on inquiry before the issue of policy, see 3 
Am. St 637. Conclusiveness of prior decisions on subsequent ajv 
peals, see 34 L. R. A. 321. 



Southern Railway Company v. Crone. 

[Xo. 7,719. Filed October 31, 1912.] 

1. CARBrRBS. — Injury to Passengers. — Assault and Battery. — Com- 
plaint, — Sufficiency. — In an action against a railroad company for 
an assault and battery committed on a passenger by defendant's 
agents, the complaint was not open to the objectlwi that it did 
not aver that the agent who did the assaulting was in the line of 
duty, where it was alleged that "defendant by Its employes, serv- 
ants and agents" assaulted and beat plaintiff, since defendant 



MAY TERM, 1912. 301 

Southern R. Co. v. Crone — 51 Ind- App. 300. 

could not have ccMnmltted the act through its agents or employes 
unless they were acting in the line of duty, piv 304, 306. 

2. Casriebs. — Injuries to Passengers. — Assa/ult and Battery. — Is- 
sues. — Proof. — In an acticHi against a railroad company for an 
assault and battery committed on a passenger, under the Issue 
tendered by the allegation of the complaint that "defendant by 
its employes, servants and agents" committed the assault and 
battery, it must be proved that the act was committed by an 
agent, employe or servant of defendant, and that such person 
was at the time in the line of his duty. p. 305. 

3. Damages. — Excessive Damages. — Appeal. — A cause will not be 
reversed on appeal on the ground of excessive damages, unless 
the damages assessed are so large as to Induce the belief that 
the Jury acted from iNreJudice, partiality or corruption, p. 305. 

1 Cabuebs. — Injury to Passengers. — Assault and Battery. -^Dam- 
ages. — ^A verdict of $325 for plaintiff in an action for assault and 
battery conunitted on him by defendant's agents, while he was 
a passenger on defendant's train, will not be disturbed on the 
giound that the damages are excessive, p. 305. 

5. Actions. — De/Mteness of Theory. — Appeal. — An action must 
proceed to judgment on some definite legal theory, and, on ap- 
peal, the parties must be held to the theory on which the case 
was tried, p. 306. 

Ck Cabkiebs. — Injury to Passengers. — Theory of Recovery. — Appeal. 
^Wbere the complaint, in an action against a railroad company, 
proceeded on the theory that the defendant, by and through its 
agents and employes, committed an assault and battery on plain- 
tiff while he was a passenger on defendant's train, and the cause 
vras tried on that theory, a Judgment for plaintiff cannot be sui>- 
ported on aiq)eal on the theory that defendant owed plaintiff tlie 
duty of protecting him from the assault of its agents or em- 
ployes, p. 306. 

7. Appeal. — Review. — Evidence. — Determining Sufflcicncy. — Tlie 
coart, on ai^eal, in determining the sufficiency of .the evidence, 
will look only to that which is most favorable to the general 
Tcrdlct p. 30T. 

8. Appeal. — Review. — Verdict. — Evidence. — Sufficiency. — -In an ac- 
tion against a railroad company for an assault and battery com- 
mitted on plaintiff by defendant through its agents and em- 
ployes, where there was some evidence from which the Jury 
might have drawn the infer^ice that the agent or employe who 
committed the act was at the time acting within the scope of his 
authority, the verdict will not be disturbed on the ground of in- 
Bofflcient evidence, p. 308. 

8. Cabbtkhs. — Injury to Passengers. — Assault and Battery. — Evi- 
dence. — Agency. — ^Tn an action against a railroad company for nn 



302 APPELLATE COURT OP INDIANA, 

Soatbem R. Co. v. Crone — 51 Ind. App. 300. 

assault and battery alleged to have been committed by defend- 
ant through its agent or employe, evidence that the person who 
committed the act had been known to prosecute persons for be- 
ing intoxicated on trains, and also for Jumping on and off trains, 
was admissible as tending to prove agency, or that he was in the 
employ and service of defendant, p. 308. 

10. Trial. — Evidence, — Limiting Effect. — Inatructions. — ^Where evi- 
dence admitted is applicable to a particular feature of the case, 
its effect and purpose may be controlled by instructions, p. 309. 

11. Cabbiebs. — Injury to Passengerg, — Agsault and Battery, — 
Agent, — Instructions. — In an action against a railroad company 
for an assault and battery alleged to have been committed by de^ 
fendant through its agent or employe, an instruction beginning 
with a statement of the nature of the action and closing by 
stating that it is claimed by plaintiff that the assault was com- 
mitted by a named person, who is claimed by the plaintiff to 
have been at the time a duly authorized agent of the def«idant, 
was not erroneous in failing to Include the words "in the line of 
his duty", since it did not attempt to state the entire law of 
the case, or to state the elements necessary to a recovery, p. 309. 

12. Appeal. — Review, — Instructions, — AppUcahiUty to Evidence, — 
An instruction is applicable to the evidence where the evidence 
is of a character to warrant an inference by the Jury to which 
such instruction is applicable, p. 310. 

13. Cabbiebs. — Injury to Passengers. — Assault and Battery, — It^ 
structions. — Agency. — In an action against a railroad company 
for an assault and battery alleged to have been committed by de- 
fendant through its agent, an instruction that it was not neces- 
sary that plaintiff prove the employment of the agent who is 
charged to have committed the assault by direct and positive 
evidence, but that agency may be established by proof of circum- 
stances alone, is not open to the objection that it practically tells 
the Jury that proof of agency is sufficient to diarge defendant 
with the assault p. 310. 

14. CABBiiats. — Injury to Passengers. — Assault and Battery. — 
Harmless Error. — Instructions. — In an action against a railroad 
company by a passenger for assault and battery, an instruction 
that even though the plaintiff had misbehaved so as to Justify his 
expulsion from the train, still, if the Jury found from the evi- 
dence that more force was used than was necessary, the defend- 
ant would be liable, though open to the criticism that it assumes 
that plaintiff was ejected and that force was used, was harmless, 
since the Jury in finding from the evidence that more force than 
was necessary was used in ejecting plaintiff, would necessarily 
be required to find that plaintiff was ejected and that force was 
used. p. SlOi 



MAY TERM, 1912. 303 

Southern R. Co. v. Crone — 51 Ind. App. 300. 

15. Cahbiebs. — Injury to Passengers, — Assault and Battery, — 
Agents, — Instructions. — In an action against a railroad company 
for an assault and battery, on the theory that the act was com- 
mitted by defendant through its agents, an Instruction that '*the 
law places on the railroad company the burden of safely and 
properly carrying its passengers, and if it intrusts this duty to 
servants, the law holds the company responsible for the manner 
in which such servants execute it, and the company is obliged to 
protect its passengers from violence from its servants," contained 
an element inapplicable to the issues tendered and was preju- 
dicial to defendant p. 311. 

16. Cabbiebs. — Injury to Passengers, — Assault and Battery, — In- 
structions. — Justification for Assault, — An instruction, in an ac« 
tlon by a passenger against a railroad company for assault and 
battery, that the intoxication of plaintiff "would not Justify an 
agent or servant of defendant in committing an assault upon 
him, if one was committed, unless the plaintiff was boisterous or 
violating some rule of the ♦ ♦ * company,'* was not objection- 
able, p. 312. 

17. Appeal. — Review. — Instructions. — Authorizing Damages With- 
out Reference to Evidence. — ^An instruction authorizing the jury 
to assess damages for physical suffering, mental agony, shame and 
hmuiliation, without reference to the evidence or any finding on 
either of such subjects, is erroneous, p. 313. 

1& Cabbiebs. — Injury to Passengers, — Assault and Battery. — Inr 
structions. — Exemplary Damages. — In an action by a* passenger 
against a railroad company for assault aud battery committed 
by its employe, an instruction that if the jury found that the 
wrongful act was 4one in a spirit of oppressive malice or wan- 
toness, it might add such exemplary damages as, from all the 
circumstances, it deemed just, correctly stated the law. p. 313. 

19. Tbial. — Improper Admission of Evidence. — Instructions. — 
Where evidence either properly or improperly admitted, is likely 
to be considered for a purpose not permitted by the issues ten- 
dered, it Is proper that the jury be instructed that such evidence 
is not to be considered, p. 314. 

20. Appeal. — Review. — Instructions. — Wilful Wrong. — An instruc- 
tion which simply tells the jury that "the doctrine of contribu- 
tory negligence does not apply to a wrong wilfully committed," 
is not open to the objection that it assumes that there was a wil- 
ful wrong, p. 314. 

21. Cabbiebs. — Liability for Torts of Servant. — Failure of Servant 
to Wear Badge. — ^In an action by a passenger against a railroad 
company for an assault and battery committed by defendant's 
agent, defendant cannot avoid liability on the ground that such 
agent did not wear a badge as required by §5263 Burns lOOS, 



304 APPELLATE COURT OP INDIANA. 



Southern R. Co. v. Crone — 51 Ind. App. 300. 



§3917 R. S. 1881, providing that trainmen shall wear on their 
hats or caps a badge of their office, etc. p. 315. 

From Floyd Circuit Court ; William C. Uiz, Judge. 

Action by Clem Crone against the Southern Railway Com- 
pany. From a judgment for plaintiff, the defendant ap- 
peals. Reversed, 

Alex P. Humphrey, Edward P. Humphrey, John D. Wei- 
man, and Waiter V. BvMeit, for appellant. 

John W. Ewing, William H. Roose, and Major W. Funk, 
for appellee. 

HoTTEL, C. J. — ^Appellee brought this action against ap- 
pellant to recover damages for an alleged assault on appellee 
while he was a passenger on one of appellant's trains. From 
a verdict and judgment in favor of appellee in the sum of 
$325, appellant prosecutes this appeal 

The complaint is in two paragraphs, and the averments 
of each are, in all material respects, the same. The suffi- 
ciency of each paragraph was questioned by a demurrer, 
which was by the court overruled and exceptions saved. The 
only answer was a general denial. 

A motion for new trial was overruled. The rulings on 
said demurrer and motion are relied on for reversal. 

It is insisted that neither paragraph of the complaint is 

sufficient, because of the absence of an averment ''that the 

agent or servant who did the assaulting was in the 

1. line of duty." In this connection, we should remark 
that because of the wording of the assignment of 
error, which calls in question this ruling, if either paragraph 
be sufficient, no available error is presented thereby. This, 
however, is unimportant, because in each paragraph the 
averment questioned by appellant's objection is the same. 
This averment is as follows: ''Said defendant by its em- 
ployees, servants and agents violently, insolently and bru- 
tally assaulted, struck and beat this plaintiff about the head, 
face and body," etc. Appellant could not have commitfed 



MAY TERM, 1912. 305 

Son them R. Co. v. Crone — 51 Ind. App. 300. 

the assault through its agent, servant or employe 

2. except such person was acting in the line of his duty, 
and such an averment necessitates not only proof that 

an agent, employe or servant of appellant committed such 
assault, but the further proof that such person was in the 
line of his duty as such agent, employe of servant when he 
committed the assault. We now make these observations 
because of other questions that arise in the case. 

The suflSciency of the complaint against the objections 
made has been expressly decided by the Supreme Court and 

this court Wabash R. Co. v. Savage (1887), 110 
1. Ind. 156, 159, 9 N. B. 85 ; Indianapolis St. R. Co. v. 

Slifer (1905), 35 Ind. App. 700, 74 N. E. 19; Citi- 
zens St. R. Co. V. Clark (1904), 33 Ind. App. 190, 71 N. E. 
53, 104 Am. St. 249; Feighner v. Delaney (1898), 21 Ind. 
App. 36, 51 N. E. 379. 

In support of its contention that the court erred in its 
rulings on the motion for a new trial, it is first insisted by 

appellant that the damages are excessive. The rule 

3. seems to be general with courts of appellate jurisdic- 
tion that this ground of a motion for a new trial will 

be of no avail in such courts except in cases where the dam- 
ages assessed by the jury are so large that they induce the 
belief on the part of such court that the jury must have 
acted from prejudice, partiality or corruption. Such has 
been the frequent expression of this court and the Supreme 
Court. Louisville, etc., R. Co. v. Kemper (1899), 153 Ind. 
618, 53 N. B. 931 ; Chicago, etc., R. Co. v. B ester (1911), 47 
Ind. App. 141, 93 N. B. 1039, and authorities cited. 

4. The amount of the judgment in this case cannot be 
said to be so excessive as to induce in the minds of 

the court the belief above indicated. 

It is insisted that the verdict of the jury is not sustained 
by sufficient evidence, and that it is contrary to law. As the 
same reasons are urged in support of each of said grounds 
Vol. 51—20 



306 APPELLATE COURT OP INDIANA. 



Southern R. Co. v. Crone — 51 Ind. App. 300. 

of the motion, they will be considered together. The sub- 
stance and effect of appellant's contention is as follows: (1) 
*' Every case must proceed to judgment upon some definite 
legal theory, and upon appeal, the parties must be held to 
the theory upon which the case was tried." (2) That 
both paragraphs of the complaint were drawn on the theory 
that appellee was assaulted by a servant of appellant, act- 
ing within the line of his duty, and not on the theory that 
there was a failure on the part of appellant, as a carrier, to 
protect appellee from the assaults of one of its servants. (3) 
That the evidence fails to show anything more than that 
the person who committed the assault on appellee was a ser- 
vant of appellant, and that there was no evidence that such 
servant was acting in the line of his duty, or within the 
scope of his employment when he committed such assault. 
The first proposition is a legal one, supported by authority. 
Oolitic Stone Co. v. Ridge (1908), 169 Ind. 639, 644, 

5. 83 N. E. 246, and authorities cited; Diggs v. Way 
(1899), 22 Ind. App. 617, 621, 51 N. E. 429, 54 N. E. 

412; Elliott, App. Proc. §§489, i90; Adams v. Davis (1886), 
109 Ind. 10, 21, 9 N. E. 162. 

We agree, also, with appellant in its contention that the 

complaint in this case proceeds on the one definite theory 

only, viz., that appellant violently, brutally and in- 

6. solently committed the assault by and through its 
agent, etc., and not that it failed to protect appellee 

from the assault. In this connection, it is insisted by ap- 
pellee that inasmuch as he was a passenger on appellant's 
train, appellant owed him the duty of protecting him from 
assault and injury, and that liability for injury resulting 
from a breach of such duty is not made to depend on the 
injury ** being committed by one acting within the scope of 
his employment." As supporting this contention, appellee 
relies on the following cases: Citizens St, B, Co, v. Clark, 
supra; Dickson v. Waldron (1893), 135 Ind. 507, 34 N. E. 



MAY TERM, 1912. 307 

Southern R. Co. i\ Crone — 51 Ind. App. 300. 

506, 35 N. E. 1, 24 L. B. A. 483, 41 Am. St. 440 ; Baltimore, 
etc., B. Co. V. Davis (1909), 44 Ind. App. 375, 89 N. E. 403. 

There can be no doubt but that the general rule is as 
claimed by appellee, and that it is supported by the author- 
ities cited, as well as by many others that might be cited. 
We think, however, that inasmuch as the carrier is not an 
iosiirer of the safety of its passengers while on its trains, 
there should be and are exceptions to this general rule. But 
we need not here discuss these exceptions, because, as to 
the question under discussion, appellee is in no position to 
invoke the benefit of the rule, for the reason that he has 
tendered no pleading to which it is applicable. Neither 
paragraph of the complaint proceeds on the theory that ap- 
pellant permitted appellee to be assaulted by, or failed to 
protect him from the assault of the agents, servants or em- 
ployes of appellant, but, on the contrary, each paragraph 
proceeds on the theory that by and through its agents ap- 
pellant itself committed the assault. 

Under the authorities first above cited, appellee is bound 

by the theory of his complaint, and may not be permitted, on 

appeal, to ask that his judgment in the court below be sup- 

I)orted on a theory different from that presented by 

7. the complaint on which his case was tried and his 
judgment obtained. In determining the sufficiency 
of the evidence to support this theory, we are required to 
look alone to that most favorable to the general verdict, 
which is a finding that every fact essential to a recovery 
under such theory was sustained by the evidence. Chicago, 
etc., B. Co. V. Vandenherg (1905), 164 Ind. 470, 482, 73 
N. E. 990; Heath v. Sheetz (1905), 164 Ind. 665, 667, 74 
K. E. 505; MazeUn v. Bouyer (1893), 8 Ind. App. 27, 29 
K E. 154, 

While an examination of the evidence has impressed us 
^th the belief that there is but little, if any, direct evidence 
that can be said to indicate that the servant or employe 



308 APPELLATE COURT OP INDIANA. 

Southern R. Co. v. Crone — 51 IncL App. 300. 

of appellant who committed the assault was acting 

8. within the scope of his authority when he committed 
it, yet there was some evidence from which the jury 

might have drawn such inference. This conclusion is sup- 
ported by the decisions of this court and the Supreme Court. 
Grand Rapids, etc., R. Co. v. King (1908), 41 Ind. App. 
701, 706, 83 N. E. 778 ; Dickson v. Waldron, supra, 517, 518, 
and authorities cited; Bamett v. Oluting (1892), 3 Ind. 
App. 415, 29 N. E. 154, 29 N. E. 927; Henry v. Heeh 
(1888), 114 Ind. 275, 16 N. E. 606, 5 Am. St. 613. It fol- 
lows that said grounds of the motion for a new trial do not 
present reversible error. Delaware, etc., Tel. Co. v. Fiske 
(1907), 40 Ind. App. 348, 351, 81 N. E. 1110; Heaston v. 
Odllagker (1908), 41 Ind. App. 20, 22, 83 N. E. 252; Secor 
V. Skiles (1886), 106 Ind. 98, 100, 5 N. E. 897. 

Error in admitting certain evidence of Charles Goss, to 

which exception was properly saved, is urged. In response 

to the question, **What did Mr. Peck do, if any- 

9. thing, in the way of prosecuting people for criminal 
offenses connected with the Southern Railway Com- 
pany?" the witness answered : **I have known him to prose- 
cute fellows for being intoxicated on trains several times, 
and also for jumping on and off of trains.'' 

It is insisted that there was no claim that the servant or 
employe of appellant who committed the assault was at- 
tempting to arrest appellee for intoxication, or that he was 
trying to arrest him for jumping on or off trains, and that 
the answer in no way showed the authority of Peck to put 
passengers off of the train. It was necessary that appellee 
should prove Peck's agency, and while this evidence may 
not have tended to prove that Peck was acting within the 
scope of his employment at the time of the alleged assault, 
yet we think, under the law, it was proper as tending to 
prove agency, or that Peck was in the employ and service 
of appellant. Indiana, etc., R. Co. v. Adamson (1888), 
114 Ind. 282, 290, 15 N. E. 5; 31 Cyc. 1662, 1663; Jewett 



MAY TERM, 1912. 309 

Southern R. Co. r. Crone — 51 Ind. App. 300. 

V. Lawrenceburgh, etc., B. Co. (1858), 10 In A 539, 543. 
Its effect and purpose, or the particular feature of 

10. the case to which it was applicable, could be reached 
and controlled by instructions rather than by objec- 
tion to its admission. 

The court, at appellee's request, gave fourteen instruc- 
tions, to each of which objections are urged. These objec- 
tions are not of suflScient importance and weight in each in- 
stance to justify the extension of this opinion by setting out 
each of the same. 

Objection is made to instruction one, in that it emits the 

words '*in the line of his duty". The instruction begins 

with a statement of the nature of the action, and 

11. closes with the clause objected to, which is as follows : 
''And it is claimed by the plaintiff that said assault 

• • • was committed by one J. T. Peck, who is claimed 
by the plaintiff to have been a duly authorized agent of the 
defendant at the time of the commission of the act com- 
plained of." This instruction does not incorrectly state 
appellee's claim, so far as it goes. Under the theory of his 
complaint he did claim that the person who assaulted him 
was the authorized agent of appellant. This theory also 
involved the further claim that such agent, at the time he 
eommitted the assault, was acting within the scope of his 
authority as such agent; but inasmuch as the instruction 
did not attempt to state the entire law of the case, or to 
state the elements of the cause of action necessary to be 
proven to entitle appellee to recovery, we think the omis- 
sion harmless. Appellant had its theory of the case in this 
respect as fully and favorably covered by instructions given, 
at its instance, as the law justifies. Taking the instructions 
as a whole, we are convinced that no possible harm could 
have resulted from the omission in this instruction of the 
qualifying words suggested by appellant. 

It is conceded that instruction two and three are correct 
statements of abstract propositions of law, but it is insisted 



310 APPELLATE COURT OP INDIANA. 



Southern R. Co. i*. Crone — 51 Ind. App. 800. 

that they are ^'inapplicable to the circumstances and evi- 
dence here". These instructions have the approval of the 
Supreme Court in cases which we think authorize their ap- 
proval here. Instruction four has the approval of 

12. both the Supreme Court and this court, but appel- 
lant asserts that it is not applicable to the evidence. 

The evidence was of a character to warrant an inference 

by the jury to which the instruction was applicable. The 

fifth instruction is objected to on the ground that it 

13. practically tells the jury that proof of agency is suffi- 
cient to charge appellant with the assault committed 

by its agent Peck. This instruction is not open to the criti- 
cism made. It simply tells the jury that it was **not neces- 
sary that the plaintiff prove the employment of the agent 
who is charged to have assaulted • • • him by direct 
and positive evidence," but that "agency may be estab- 
lished by proof of circumstances alone." The instruction 
is supported by authority. Bamett v. Oluting, supra, 420 ; 
Indiana^ etc, R. Co, v. Adamson, supra. 

Instruction six, objected to, is as follows: "You are in- 
structed that in this case even though the plaintiff had mis- 
behaved himself in such a manner and to such an 

14. extent as to justify his expulsion from the train by 
the defendant's agents and servants, still if you find 

from, the evidence that such agents or servants used more 
force than was necessary in ejecting the plaintiff from the 
train, the defendant would be liable and your verdict should 
be for the plaintiff." The general principle involved in 
this instruction has the approval of the Supreme Court in 
the case of Chicago, etc., R. Co. v. BiUs (1885), 104 Ind. 13, 
3 N. E. 611, and is supported by other authority. Hovr- 
ever, we think the wording of the instruction is open to the 
criticism made by appellant, that in its last clause it as- 
sumes that appellee was ejected and that force was used. 
The assumption is so involved in the fact which the court 
requires that the jury must find from the evidence that it 



MAT TERM, 1912. 311 



Sontbem R. Co. v. Crone — 51 Ind. App. 300. 



becomes harmless. The instruction predicates liability on 
the condition that the jury *'find from the evidence that 
such agents • • • used more force than was necessary 
in ejecting plaintiff," etc. The jury could not find this 
fact without also finding that ^'appellee was ejected and 
that force was used." 

The seventh instruction is as follows: ''You are in- 
structed that the law places upon the railroad company the 
burden of safely and properly carrying its passen- 

15. gers, and if it intrusts this duty to its servants, the 

law holds the company responsible for the manner in 

which such servants execute it, and the company is obliged 

to protect its passengers from violence from its servants.'* 

It is contended by appellant that **to say it 'is obliged to 
protect its passengers from the violence of its servants' not 
only introduces a conflicting theory into this case, but such 
statement is not the law under many conditions and circum- 
stances." From this clause of the instruction we think the 
jury may have understood that appellant, under the law, 
was required to insure the safety and protection of its pas- 
sengers from the assault of all its servants, regardless of 
whether they were in charge of such train, or had anything 
to do with its control or operation. In other words, the 
jury may have understood from this instruction that if an 
employe of appellant, serving it in a capacity entirely re- 
mote from the operation or control of its passenger-trains, 
but riding as a passenger on such train, should assault one 
of the other passengers, appellant would be liable for such 
assault, even though each of appellant's servants in charge of 
such train exercised the highest degree of care and caution, 
and did everything in his power to anticipate and prevent 
such assault. We do not think this is the law. It is true that 
this instruction has a qualified approval of the Supreme 
Court in the case of Louisville, etc., R. Co. v. Kelly (1884), 
92 Ind. 371, 47 Am. Rep. 149, where it is said: "It is 
sometimes proper to give a general statement of the duty 



312 APPELLATE COURT OF INDIANA. 



Southern R. Co. r. Crone — 51 Ind. App. 300. 



of carriers, and when the statement is a correct one, even 
though not strictly necessary under the evidence, there is 
no material error." 

Judge Elliott, in approving the instruction, recognized 
that there may be exceptions to the general rule declared 
therein, and that **if the violence could not have been fore- 
seen or prevented by the highest degree of care, the carrier 
would be absolved from liability,'' but stated that, as a gen- 
eral rule, the announcement was correct, and could not be 
deemed erroneous in the particular case in which it was 
given. 

The evidence in this case shows that Peck was not one of 
the regular trainmen in charge of such passenger-train, and, 
even if the issue tendered by the complaint had authorized 
the announcement of the general rule contained in the in- 
struction, we think the evidence is such as to suggest that 
harm might result to appellant from announcing the same 
without indicating the exceptions to the rule, or otherwise 
limiting or qualifying the instruction. But, as we have 
already indicated, the theory of this complaint is that ap- 
pellant by its agents committed the assault This being the 
theory of the complaint the general rule stated in the in- 
struction contained an element inapplicable to the issues 
tendered, and, in our judgment, prejudicial to appellant 

The ninth instruction simply tells the jury, in eflfect, that 

the intoxication of appellee ''would not justify an agent or 

servant of the defendant in committing an assault 

16. upon him if one was committed unless the plaintiff 
was boisterous or violating some rule of the • • • 
company. " It is conceded that this is a correct statement of 
the law ''under certain conditions so far as it goes'' but 
contended that it makes appellant "liable for any agent 
whether in the line of his duty or not." The objection is 
not well taken. There is no attempt in the instruction to 
enumerate the elements of liability, but, on the contrary, 



MAY TERM, 1912. 313 

Southern R. Co. v. Crone — 51 Ind. App. 300. 

it only purports to tell the jury when intoxication in such 
a case will and when it will not justify an assault. 

The tenth instruction is objected to, and is as follows: 

"You are instructed that if you find from the evidence 

that the defendant company was guilty of wrongfully 

17. ejecting the plaintiff from its train of cars and that 
the assault on the plaintiff, if any, was unprovoked, 

was wilful or malicious, and was perpetrated in a rude or 
msolting manner, evincing an intent to wound and injure 
the plaintiff's feelings and bring him into contempt and dis- 
grace in the estimation of the public, then the case is one 
justifying the imposition by the jury of exemplary damages, 
and the jury are instructed that in estimating the proper 
amount of such damages, they may take into consideration 
the position, character, standing, influence and feeling of the 
plaintiff and may assess damages for physical suffering, men- 
tal agony, shame and humiliation." The latter part of this 
instruction authorizes the jury to assess damages for physi- 
cal suffering, mental agony, shame and humiliation, without 
reference to the evidence on either of said subjects, and 
without reference to any finding by the jury that appellee 
had in fact been shovm to have experienced any physical 
suffering, mental agony, shame or humiliation. This was un- 
doubtedly error, and it was such an error as might neces- 
sarily be harmful to appellant. 

The concluding sentence in instruction eleven is objected 
to, and is in these words : ** And if you find from the testi- 
mony that the wrongful act was done in a spirit of 

18. oppressive malice or wantonness, you may add to such 
compensatory damages such exemplary as, from all 

the circumstances, you may deem just." This instruction is 
approved in the case of Jeff€rsonville 22. Co. v. Rogers 
(1871), 38 Ind. 116, 122, 10 Am. Rep. 103. The case at bar 
Wng one where exemplary damages, under the conditions 
expressed in the instruction, are authorized, the reason for 



314 APPELLATE COURT OP INDIANA. 

Southern II. Co. t\ Crone — 51 Ind. App. 300. 

the holding in the cases relied on by appellant does not exist. 
Ckveland, etc., R, Co. v. Dixon (1912), post, 658, 96 N. E. 
815, 819. 

Instruction thirteen told the jury that inasmuch as de- 
fendant had not pleaded justification for the assault and 
battery complained of, that any evidence introduced 

19. for that purpose should not be considered by it. Ap- 
pellant insists that it is the business of the court to 

instruct within the issues, and that this instruction was out- 
side the issues and harmful. If the court had admitted evi- 
dence, either properly or improperly, that was likely to be 
considered for the piUT)08e mentioned when there was no 
issue tendered that permitted its consideration for such pur- 
pose, we think it was proper for the court to instruct the 
jury on this subject. This conclusion is supported by au- 
thority. N orris V. Casel (1883), 90 Ind. 143; Fetrow v. 
Wiseman (1872), 40 Ind. 148, 157. 

It is admitted that instruction fourteen is a correct state- 
ment of the law, but it is objected that the instruction as- 
sumes that there was a wilful wrong. The instruction 

20. does not assume that there was any wrong committed 
wilful or otherwise, but simply tells the jury that 

*'the doctrine of contributory negligence does not apply to a 
wrong wilfully committed." 

Instruction fifteen is objected to because it assumes that 
there was injury. The instruction begins by saying **if you 
find from the evidence that the plaintiff was wilfully thrown 
• * • (and) thereby received some injuries.'* We need 
only say with reference to appellant's instructions, that but 
three out of seventeen tendered were refused. The first was 
a peremptory instruction for defendant, and, in view of the 
evidence, properly refused. The eleventh in so far as it was 
proper, was covered by other instructions. 

By instruction seventeen, defendant would have been re- 
lieved of liability for an act of Peck's in assaulting appellee 
while assisting him from the train, even though at the time 



MAY TERM, 1912. 315 

Pittsburgh, etc., R. Oo. v. Atkinson-- 61 Ind. App. 315. 

he was acting as the agent of appellant, in the line 
21. of his duty, provided only that he (Peck) had not 
compUed with §5263 Bums 1908, §3917 R. S. 1881, 
which requires that trainmen shall wear on their hats or 
caps a badge of their office, etc. It can hardly be seriously 
contended that appellant could take advantage of the neglect 
of its own agent to comply with the law of the State to re- 
lieve it from liability for the acts of such agent. 

On account of the errors committed by the court below in 
giving appellee's instructions seven and ten, given above, the 
motion for a new trial should have been sustained. 

Judgment reversed, with instructions to the court below 
to grant a new trial, and for further proceedings consistent 
with this opinion. 

NoTK— Reported in 99 N. E. 762. See, also, under (1) 26 Cyc. 
1271; (2, 9) 6 Qrc 628-New Anno.; (3) 3 Cyc. 381; (4) 13 Cyc. 
121; (5, 6) 2 Cyc. 670; (7, 8) 3 Cyc. 349; (10, 19) 38 Cyc. 1756; 
(11. 13) 26 Cyc 1578; (12) 38 Cyc. 1612; (14) 38 C?yc. 1809; (17)' 
13 Cyc 238; (18) 13 Cyc. 244; (20) 38 Cyc. 1663. As to the lla- 
blUty of a railroad company for assault by its servants upon a 
passenger, see 32 Am. St. 95. Liability of carrier for assaults by 
employes up<xi passengers, see 14 L. R. A. 738; 17 L. R. A. (N. S.) 
T61;40L.B. A. (N S.) 999. 



The Pittsburgh, Cincinnati, Chicago and St. 
Louis Railway Company v. Atkinson. 

IXo. 7,406. Filed ^finuary 31, 1912. Rehearing denied June 18. 
1912. Transfer denied November 1, 1912.] 

t Afpeai*. — RetHew, — Demurrer. — Exceptions to Conclusions of 
Late. — ^Where exceptions to the trial court's conclusions of law 
raise the same questions as the demurrer to the complaint, and 
the facts found are in accord with the evidence and substantially 
foHow the allegations of the complaint, a decision as to such con- 
elnalons necessarily determines the correctness of the ruling on 
tlie demurrer, p. 318. 

1 EMnrENT Domain. — Qrwnt of Railroad Right of Way. — Extent 
i^ Right. — Damages. — The grant of a railroad right of way does 



316 APPELLATE COUBT OP INDIANA. 

Plttsbnrgh, etc., R. Oo. v. Atkinson — 61 Ind. App. 315. 

not carry the right to go beyond Its limits, and an assessment 
of damages for a right of way does not Include compensation for 
wrongful acts after the acceptance of a deed or the making of an 
appropriation, p. 319. 

3. Municipal CtoRPOBAxiows. — Streets, — Cliange of Oradc, — lAa- 
hility, — Municipalities may establish grades and improve their 
streets in accordance therewith, and no liability will follow 
simply from the fact that the grading results in an injury to 
some private proprietor, p. 319. 

4. Municipal Corpobations. — Streets. — Improvement, — ContracL — 
Liability. — Special Damage to Abutters, — ^While a municipality 
may contract with a third person to make street improvements 
which it is authorized to make, and such person will not be 
liable in damages so long as the work is carefully and skilfully 
done in the manner authorized, it cannot legally authorize one 
of its streets to be invaded so as to cause special or x>oculiaF 
damage to an abutting owner, without making the wrongdoer 
liable for such damage, p. 320. 

5. Eminent Domain. — ChAmge of Railroad Chrade. — Municipal Or- 
dinance Authorizing Change. — Liability of Railroad Company. — 
A municipal ordinance which established the g^rade of a street 
only so far as it was crossed by the tracks of a railroad, au- 
thorized the railroad comixany to raise its tracks and right of 
way so as to conform to such grade, and required that the street 
and sidewalks be caused to conform to sudi grade at the sole 
expense of the company, did not authorize the construction of 
such work so as to exempt the company from liability for dam- 
ages to an abutting owner resulting from the change in such 
street, since such ordinance was for the accommodation of the 
railroad company and not for that of the general public, p. 320. 

C. Waters and Watercourses. — Surface-Waters, — Special Find- 
ings. — ^A special finding showing that a railroad company raised 
its roadbed and tracks to conform to the grade of a street as es- 
tablished by an ordinance, and that the change caused the sur- 
face-water to flow over and upon plaintiflTs lot and into her well, 
and that loose dirt and gravel were by said surface-water washed 
on plalntifTs lot, does not show a liability against defendant, 
since it is not a finding that defendant collected a surplus of 
surface-water and discharged it in a body onto plalntlfTs lot. 
p. 322. 

7. Waters and Watercourses. — Railroads. — Liability for Flow of 
Surface-Water. — ^The liability of a railroad company as to 
surface-water is the same as that of any other landowner, it 
being liable only when it collects surface-water on its land in a 
volume, or in a channel, and turns such water onto the lands of 
an adjoining owner, to his damage, p. 323. 



MAT TERM, 1912. 317 

Pittsburgh, etc., R. Co. t?. Atklnson-^l Ind. App. 315. 



8L Railboaos. — lAabHity for Flow of Water from Stock Cars. — ^A 
railroad company is liable In damages, where water thrown by 
its servants into stock cars in passing trains, falls therefrom and 
carries the offal from the stock onto the land of plaintiff, thereby 
destroying her well and rendering her premises unsanitary and 
damaging their value, p. 323. 

9. Appeal. — Review. — Special Findings.— Afflrmance.— Where, in 
an action against a railroad company for damages to abutting 
property caused by the flow of surface-water thereon and the 
change of grade of the street and railroad track, the facts found 
do not render appellant liable for turning surface-water onto ap- 
pellee's land, but sufliciently show the liability of appellant on 
other grounds and damage therefrom to the full extent of the 
ludgment, the judgment will be affirmed, p. 324. 

Prom Jay Circuit Court ; John F. LaFollette, Judge. 

Action by Martha Atkinson against The Pittsburgh, Cin- 
cinnati, Chicago and St. Louis Railway Company. From a 
judgment for plaintiff, the defendant appeals. Affirmed. 

G. E. Ross, for appellant. 

Charles H. Shockney, and James J. Moran, for appellee. 

Ibach, p. J. — In the first paragraph of appellee's com- 
plaint it is averred that certain streets in the town of Red- 
key had been graded to conform to the original grade of 
appellant's railroad tracks, and that appellee had graded 
and filled her lot abutting on Union street, one of the streets 
which had been so graded; that afterwards appellant 
changed its grade, which required a change of the grade of 
said Union street along and in front of her property, and 
where such street crossed the right of way of appellant ; that 
the work in building such grade was so carelessly and negli- 
gently done as to collect on its tracks and right of way sur- 
face-water, together with water which was taken from a tank 
and used to wash its dirty and filthy stock cars, and turn the 
same on her lot, and thereby her premises were made unin- 
habitable for dwelling purposes. 

In the second and last paragraph it is alleged that for 
more than twenty years appellant had maintained its road on 
a certain grade, and that Union street in the town of Redkey, 



318 APPELLATE COURT OP INDIANA. 

Pittsburgh, etc., R. Co. v. Atklnscm— 51 Ind. App. 315. 

on which appellee's lot abutted, had been improved to con- 
form to such grade, and that appellee had iSlled and graded 
her lot, at a large expense, to correspond with the street 
grade, so that she would have free and uninterrupted access 
thereto, and that appellant afterward changed its grade by 
raising the same, and thereby the street along and in front 
of her property was required to be raised eighteen inches, 
and as a consequence thereof free access to her property was 
materially and permanently interfered with. 

A separate demurrer to each paragraph was overruled and 
exception taken. Issues were formed by a general denial. 
The cause was tried by the court without the intervention 
of a jury. There was a special finding of facts, conclusions 
of law, and judgment thereon in favor of appellee, notwith- 
standing the motion of appellant for judgment in its favor. 
The errors assigned call in question the conclusions of law, 
together with the other rulings of the court above men- 
tioned. 

The questions presented by appellant with reference to the 

overruling of the separate demurrers are also raised by the 

exceptions to the conclusions of law, and as the facts 

1. found were conceded in the argument to be in accord 
with the evidence, and substantially follow the allega- 
tions of the complaint, it will not be necessary for us to dis- 
cuss the rulings of the court on the demurrers, for the deci- 
sion of one necessarily determines the other. Goodmne v. 
Cadwallader (1902), 158 Ind. 202, 61 N. E. 939. 

Appellee concedes the rule of law, that a railroad company 
has the right to improve, repair or change its roadbed, and 
raise or lower the grade thereof, when in its judgment any 
such change would improve the road or increase its efficiency, 
without being liable to respond in damages to an abutting 
property owner, upon the thttry that such improvements do 
not constitute additional bujoens not included in the original 
appropriation. It is insisted, however, that if in making any 
such change of grade the work is done in a careless and neg- 



MAY TERM, 1912. 319 

Pittsburgh, etc., U. Co. r. Atkinson — 51 Ind. App. 315. 

-p-T^^ ^11^^ I I ■ I __■ ■ - —^ 

ligent maimer, or the railroad company goes outside of its 
right of way for the purpose of building approaches on the 
highway necessarily raised on account of its having raised 
its tracks and roadbed at such highway crossing, and dam- 
ages result to the abutting property owner, the railroad com- 
pany must then answer for the damages sustained. Without 
deciding as to the correctness of the concession. of appellee, 
as applied to this case, it is clear that her insistence is sup- 
ported by principle and by direct authority. 

This court has held, in considering a case very similar to 

the present, that **the grant of a right of way does not carry 

the right to go beyond its limits, and the owner is not 

2. compensated by an assessment of damages for a right 
of way for wrongful acts after the acceptance of a 

deed or the making of an appropriation." Baltimore, etc., 
R. Co. V. Quillen (1904), 34 Ind. App. 330, 334, 72 N. E. 
661, 107 Am. St. 183. 

Appellant contends, however, that if any damage resulted 
to appellee by reason of the work complained of, she cannot 
recover, because the improvement was all done by, under 
and by virtue of an ordinance duly adopted by the town of 
Redkey ; that by reason of such ordinance the grade of Union 
street was established, and the grade of said roadbed was 
raised to correspond with said established grade, and the ap- 
proaches on Union street were built agreeably to the provi- 
sions of the ordinance, so as to restore such highway to its 
original usefulness. Appellant's position would be correct, 
and such ordinance would excuse at least a part of the dam- 
age sustained by appellee, if it can be said to be an ordinance 
establishing a grade on Union street *' solely for public ac- 
commodation". Chicago, etc, R. Co, v. Johnson (1910), 45 
Ind. App. 162, 90 N. E. 507. 

The law is well settled th^^nunicipalities may establish 
grades and improve th^P streets in accordance there- 

3. with, and no liability will follow, simply because of the 
fact that the grading results in an injury to some pri> 



320 APPELLATE COURT OF INDIANA. 

Pittsburgh, etc., R. Co. v. Atkinson — 51 Ind. App. 315. 

vate proprietor. It is also well settled that since the 

4. town of Redkey is authorized by law to improve its 
streets according to established grades, it might con- 
tract with a third person to make such. improvements, and 
such person would not be required to respond in damages, so 
long as the work was carefully and skilfully done, and in the 
manner authorized and directed by such municipality. This 
is on the theory that the improvement is one of public use 
and benefit, and the party whose property was made less 
easy of access by reason of such general improvement shared 
in the general benefit, and he cannot be heard to complain, 
in the absence of a statute giving redress therefor. 

It is equally true, however, that the common council of a 
city, or the board of trustees of an incorporated town, can- 
not legally authorize one of its streets to be invaded so as to 
cause special or peculiar damage to the abutting owner, with- 
out making the wrongdoer liable for such damage. Town of 
Rensselaer v. Leopold (1886), 106 Ind. 29, 31, 5 N. E. 761 ; 
mine V. New York Cent., etc, R. Co, (1886), 101 N. Y. 98, 
4 N. E. 536, 54 Am. Rep. 661. 

One of the main questions involved in this appeal then is, 
Does the ordinance in question save appellant from respond- 
ing in damages to appellee for constructing the ap- 

5. proaches on Union street, along and in front of her 
property, in such a manner as materially to interfere 

with the ingress to and egress from her lot? This leads us to 
an examination of the court's finding nine, and so much 
thereof as is essential to a full consideration of this branch 
of the case we set out in full : ** The board of trustees of the 
town of Redkey, by ordinance duly passed, established the 
following grade for Union street, to-wit: 'Beginning at a 
point in the center of said street 160 feet south of the center 
of the main track of the Pittsburgh, Cincinnati, Chicago & St. 
Louis Railway Company • • • running thence northerly 
along the center of said street 135 feet in an ascending grade 
• • • running thence northerly on a level grade 40 feet, 



MAY TERM, 1912. 321 

Pittsburgh, etc., R. Co. v. Atkinson — 51 Ind. App. 315. 

thence northwardly on a descending grade 85 feet to a point 
in the center of said street. • • • That the Pittsburgh, 
etc., Railway Company is hereby authorLzed and granted per- 
mi^ion to raise its tracks and right of way at the intersection 
with said Union street so that its tracks shall conform to the 
grade herein established, and in so doing said railroad com- 
pany shall cause said streets to conform to the grade herein 
established at their own sole expense and without any cost or 
expense to said town of Redkey. That said railway company 
shall be and is hereby required to make all cross streets inter- 
secting with that part of Union street affected by the grade 
herein established of easy approach of proper grade and shall 
cause and make all of the sidewalks in any and all of said 
streets to be constructed in a safe and workmanlike manner 
and to conform to the grade of the street so as to insure ease 
of approach and safety to the traveling public and shall sup- 
ply and put in all necessary drainage, the entire cost thereof 
to be borne by said railroad company. That said railway 
company shall be and is hereby required to construct that 
portion of said streets upon which the grade is herein estab- 
lished to conform to said grade. ' ' 

This court in the case of Chicago, etc, B. Co, v. Johnson, 
supra, said: **The reasoning applicable to the change of 
grades by a city does not therefore apply to a grant of power 
to a commercial railroad to change the grade and occupy the 
street with its tracks, and wherever it fails to appear that 
the change of grade is made solely for the public accommo- 
dation the railroad making it must answer for the conse- 
quences. ' ' By the above finding it is made to appear that the 
ordinance does not establish the grade for Union street, but 
only for the portion where the same is crossed by the tracks 
of the railroad company, and the portion whereon the ap- 
proaches to such railroad crossing must be built. It appears 
from this finding that the ordinance was adopted by the town 
of Redkey to accommodate appellant, rather than the public, 
Vol. 51—21 



322 APPELLATE COURT OP INDIANA. 



Pittsburgh, etc., R. Co. v. Atkinson— 51 Ind. App. 315. 

who doubtless would have been better suited had the crossing 
remained in its original condition. We are forced to con- 
clude that by the adoption of this ordinance there was an 
effort made to do indirectly what could not have been done 
directly, and it therefore furnished no license to appellant to 
construct the work complained of, and to deprive appellee of 
recovering such damages as she might be able to show actu- 
ally came to her on account of the building of the approaches 
and embankments constructed in front of her property, and 
depriving her of free access thereto. The board of trustees 
of the town of Redkey had the power to fix the grade of its 
streets and improve them for the public good as streets, but 
an ordinance evidently passed only to fix a grade so far as it 
might affect appellant, and not the general public, is not in 
accord with the purpose of the law, and will not relieve ap- 
pellant from liability. Such is the effect of the finding of the 
court. 

That portion of the court's finding nine which relates to 
the charge of turning surface-water from appellant's right 
of way onto appellee's lot is as follows: **In the 
6. month of May, 1903, defendant raised its said rail- 
road, roadbed and grade at the point where the same 
is crossed by said Union street, to conform to the grade of 
said Union street as established by said ordinance and at 
the same time graded and improved that part of said Union 
street to conform to said grade so established by said ordi- 
nance ; • • • that the change of said grade of said rail- 
road and roadbed and of said Union street until May, 1905, 
when said lot was filled prior to the commencement of this 
suit, caused the surface-water falling on said railroad and 
roadbed and on said Union street and a part of the adjoin- 
ing lands to flow over and upon plaintiff's said lot and 
into her said well. That loose dirt and gravel from 
said roadbed and said street were by said surface-water 
washed upon plaintiff's said lot and standing there 
caused a slime to be and stand upon said lot for 



MAY TERM, 1912. 323 



Pittsburgh, etc., R. Co. v. Atkinson — 51 Ind. App. 315. 

a considerable length of time after each heavy rain." 
This is not a sufficient finding that appellant collected a 
surplus of surface-water on its right of way and discharged 
it in a body on appellee's lot, but finds simply that the 
surface-water which flowed onto her lot was surface-water 
which flowed there naturally, and for which appellant can- 
not be held responsible, for it does not appear that appel- 
lant in anyway increased or altered the natural flow of sur- 
face-water to the damage of appellee. The liability 

7. of a railroad company as to surface-water is the same 
as that of any other landowner. It may repel sur- 
face-water flowing onto its land from other lands, without 
any liability to an adjoining owner. It is not liable for the 
natural flow of surface-water from its land onto that of an 
adjoining proprietor, but is liable only when it collects sur- 
face-water on its land into a volume or into a channel, and 
turns such water onto the lands of an adjoining owner, to 
his damage. 

The court's finding ten is in part as follows: **The de- 
fendant had erected and maintained a water tank on its 
right of way, and the defendant's servants threw 

8. water from such tank into stock cars in passing trains 
containing hogs and which water fell after passing 

through said cars upon such roadbed carrying with it from 
said cars some of the offals of said stock, a part of which 
was carried across said right of way and passed over and 
upon plaintiff's said lot." Finding thirteen shows that the 
washing of the contents of such cars onto plaintiff's prem- 
ises by appellant destroyed her water well, and rendered 
her premises filthy, unsanitary and undesirable as a home 
and residence lot, and greatly damaged their value. These 
findings show strong grounds for relief, for the acts of appel- 
lant therein set out are such as the law will not justify, and 
for damage occasioned thereby appellant must answer to 
appeUee. It appears from other findings that the property 
which appellee owned abutting on appellant's right of way 



324 APPELLATE COURT OP INDIANA. 

IMttsburgh, etc., R. Co. r. Atkinson — 51 Ind. App. 315. 

and Union street had been filled to correspond with 
9. the previous grade of the street, had been improved 
with a house and other buildings, and that the por- 
tion not covered by the buildings was used for gardening. 
It also appears that by reason of the change in the grade of 
the street and the railway roadbed, as set forth above, her 
lot was rendered less accessible from the streets, that its sur- 
face drainage was destroyed, that prior to the bringing of 
this action, she, in order to make her lot accessible, and to 
prevent the surface-water and filthy water aforesaid from 
washing onto her premises, and to make of said premises 
a fit and healthful place to live, and a safe and pleasant 
home, filled her lot with soil, and raised its grade to a height 
of eighteen inches above its previous grade, and raised her 
buildings in conformity, and in such work expended the sum 
of $325; that the rental value of her premises before the 
change in grade of defendant's roadbed was $9 per month, 
and immediately after, by reason of such change, and by 
reason of filth from stock cars being washed down and de- 
posited on said premises, was $3 per month; that the rea- 
sonable value of her premises before the change of grade in 
the roadbed and approaches thereto was $1,000, and immedi- 
ately after, by reason of such change, was $550. As conclu- 
sions of law the court stated that appellee was entitled to 
recover from appellant the sum of $450 in damages, and 
her costs. 

From the facts found, appellant would not be liable for 
turning surface-water onto appellee's land, but, as we have 
seen, the finding of facts sufficiently shows liability of ap- 
pellant on other grounds, and damage therefrom to the full 
extent of the judgment. 
The judgment is affirmed. 

Note. — Reported in 97 N. B, 353. See, also, under (1) 3 Cyc, 
223; (2) 15 Cyc. 995; (3) 28 Cyc. 839; (4) 28 Cyc. 1086; (5) 15 
Cyc. 064; (6, 7) 40 Cyc. 643; (8) 33 Cyc. 642; (9) 3 Cyc. 221. As 
to changing street grade from the level of abutting property con- 



MAY TERM, 1912. 325 

Jndy r. Woods — 51 Ind. App. 325. 

sidered in the aspect of a "taking" from the property owner, see 
16 Am. St 615 ; see, also, note to Mordhurat v. Ft. Wayne, etc, Co. 
(Ind.) 106 Am. St 265. As to adjacent landowners' rights and 
duties inter sese with respect to flowage, see 85 Am. St 707; see, 
also, note to Baltimore^ etc, R. Co. v. Quill<pn (Ind.) 107 Am. St. 
190. On the question of the liability of a railroad for conducting 
sarface-water through its embankment and onto the property of 
an adjoining owner, see 12 L. R. A. (N. S.) 68a 



Judy v. Woods. 

[Na 7,677. Filed November 7, 1912L1 

1. Pleadiko. — Counterclaim. — Cross-Complaint, — Su/ftcicnoy.— 
For the purpose of determining the 8ufl3clency of a counterclaim, 
it is not material w^hether it has been treated as a counterclaim 
or cross-complaint, since in either case the pleading must state a 
cause of action in favor of defendant p. 326. 

2. Appeal.— ^We/«. — Failure to Set Out Assignment of Errors. — 
Errors Presented. — Where appellant failed to set out in his brief 
any assignment of errors or to indicate where any such assigii- 
ment could be found in the record, he will be limited to the 
errors as presented therein tinier the head of ''errors relied on 
for reversal." p. 327. 

3. Appeal. — Assignment of Errors. — Questions Presented. — An as- 
signment that "appellee's cross-complaint does not state facts 
sufficient to constitute a cause of action against appellant," chal- 
lenges the sufficiency of the pleading as a whole, and not the 
sufficiency of each separate paragraph, p. 327. 

4. Appeal. — Pleading. — Challenging Sufficiency for First Time on 
Appeal. — ^All intendments are in favor of a pleading challenged 
for the first time on appeal, and if a complaint does not wholly fail 
to state some essential element, and states facts sufficient to Imr 
another suit for the same cause, it will be held sufficient to sus- 
tain the Judgment p. 328. 

o. Appeal. — Assignment of Errors. — Attacking Sufficiency of 
Pleading as a Whole. — ^Where, on appeal, the sufficiency of a 
pleading as a whole is attacked, and any paragraph thereof is 
sufficient, no reversible error is presented, p. 328. 

C Appeal. — Review. — Harmless Error. — Ruling- on Demurrer. — 
Form of Demurrer. — Demurrer to Counterclaim. — Where a plead- 
ing, styled a paragraph of answer, was In fact a counterclaim, a 
demurrer thereto on the ground that It did not state facts suf- 
ficient *'to constitute a defense to plaintiflTs complaint or either 
paragraph thereof," did not raise the question of the sufficiency 



326 APPELLATE COURT OP INDIANA. 



Judy V, Woods — 51 Ind- App. 325. 



of the pleading to state a cause of action, no available error re- 
sulted from overruling the same. p. 328. 

7. Appeal. — Review, — Questions Waived, — Motion for New Trial. 
— ^The grounds of a motion for a new trial are waived on appeal 
by failing to present any question thereon, p. 329. 

8. Appeal. — Briefs. — Statement of Evidence. — ^Appellant's failure 
to set out in his brief any of the oral evidence, or to refer by 
page or line to the record where any of the evidence can be 
found, does not entitle him to a consideration of any question 
presented by the evidence, p. 329. 

9. Appeal. — Review, — Harmless Error, — Overruling Motion for 
New Trial. — Sufficiency of Evidence, — Where all the paragraphs 
of a cross-complaint were sufficient as against the attack made 
on them, and either had sufficient evidence for its support, no 
available error is presented on the overruling of a motion for a 
new trial on the ground of insufficient evidence to support a ver- 
dict for cross-complaint, p. 330. 

From Newton Circuit Court ; John S. Imry, Judge. 

Action by John F. Judy against William L. Woods. From 
a judgment for defendant, the plaintiff appeals. Affirmed. 

Stansbury & Billings, and T, B, Cunningham, for appel- 
lant. 

William Darroch, Oeorge A, Williams, and Frank Foltz, 
for appellee. 

HoTTEL, C. J. — ^Appellant brought this action against ap- 
pellee to recover certain money alleged to be due him on 
account of a partnership business which had been cox^ducted 
by the parties. Appellee filed an answer to appellant's com- 
plaint in eleven paragraphs, the eighth, ninth and tenth of 
which asked for aflSrmative relief. Issues were joined and 
the cause tried by a jury, which returned a verdict for ap- 
pellee in the sum of $800. 

Appellant insists that the eighth, ninth and tenth para- 
graphs of appellee's answer constitute in fact a cross-com- 
plaint, while appellee designates the eighth para- 

1. graph an answer, and the ninth and tenth paragraphs 

counterclaims. We think that each paragraph falls 

within the definition of a counterclaim, as expressed by stat- 



MAT TERM, 1912. 327 

Judy V. Woods — ^51 Ind. App. 325. 

ute and the decisions of this co.urt and the Supreme Court. 
§355 Burns 1908, §350 R. S. 1881, and authorities cited. 
But for the purposes of the questions presented by appel- 
lant's brief it is not material whether they be treated as 
cross-complaints or counterclaims. In either case, each 
should show a cause of action in favor of appellee against 
appellant. S toner v. Smft (1905), 164 Ind. 652, 654, 655, 
74 N. E. 248; Blue v. Capital Nat. Bank (1896), 145 Ind. 
518, 520, 43 N. E. 655; Flanagan v. Beitemier (1901), 26 
Ind. App. 243, 247, 59 N. E. 389; Leach v. Bains (1897), 
149 Ind. 152, 163, 48 N. E. 858; Schmidt v. Zahrndt (1897), 
148 Ind. 447, 456, 47 N. E. 335 ; Blaney v. Postal (1894), 10 
Ind. App. 131, 34 N. E. 849; Conger v. Miller (1886), 104 
Ind. 592, 4 N. E. 300. While, as stated, we regard these 
pleadings as counterclaims, appellant, in his errors relied 
on, and throughout his brief, treats them as cross-complaints, 
and to avoid confusion we will hereafter so designate them. 
Appellant, in his brief, nowhere sets out any as- 

2. signment of error, nor does he refer to or indicate 
where any such assignment will be found in the rec- 

3. ord. He does, however, under the head 'of **The 
errors relied on for reversal'*, set out the following: 

(1) The court erred in overruling appellant's motion for a 
new trial, on the ground that the verdict is not supported 
by the evidence. 

(2) Appellee's cross-complaint does not state facts suffi- 
cient to constitute a cause of action against appellant. Ap- 
pellant should be confined and limited to the errors as thus 
presented. It will be observed that the second error re- 
lied on is so worded as to indicate that the sufficiency of 
such cross-complaint is challenged for the first time on ap- 
peal, and that its sufficiency as a whole, and not the suffi- 
ciency of each separate paragraph, is challenged. That this 
is the character of the challenge is further indicated by the 
first statement in appellant's argument, which is as follows : 
"The first point appellant wishes to present is the sufficiency 



328 APPELLATE COURT OP INDLM^A. 

Judy V. Woods — 51 Ind. App. 325. 



of the three paragraphs of cross-complaint to withstand the 
assignment of error that they do not state facts sufficient to 
constitute a cause of action." 

Where a pleading is challenged for the first time on ap- 
peal **all intendments are in favor of the pleading, and if 
there is not a total failure to state some essential ele- 

4. ment of the rights of recovery, and the complaint 
states facts sufficient to bar another suit for the same 

cause of action, the verdict cures all other defects, and the 
complaint will be held sufficient to sustain the judgment." 
Oliver Typewriter Co, v. Vance (1911), 48 Ind. App. 21, 95 
N. E. 327, and cases cited. 

Where the attack is against the sufficiency of a pleading 

as a whole, and not against the separate paragraphs thereof, 

if any paragraph is sufficient, no reversible error is 

5. presented. Roberts v. Wolfe (1905), 165 Ind. 199, 
74 N. E. 990; City of South Bend v. Turner (1911), 

156 Ind. 418, 422, 60 N. E. 271, 83 Am. St. 200; United 
States Express Co, v. Rawson (1886), 106 Ind. 215, 219, 6 
N. E. 337; Chicago, etc., R. Co. v. Daily (1897), 18 Ind. 
App. 308, 47 N. E. 1078. 

We deem it unnecessary to set out these several para- 
graplis of cross-complaint. We have no doubt as to their 
sufficiency against the character of the attack here made. 
AVe should remark in this connection that appellant under 
the heading **What the issues were" shows that there was a 
demurrer to said eighth paragraph of answer. An exam- 
ination of the assignment of errors discloses also that 

6. the second error assigned is that *'the court erred in 
overruling appellant's demurrer to the eighth para- 
graph of appellee's answer." The other paragraphs are 
not so attacked, but the third assignment is the same as that 
indicated in the errors relied on above. So it is disclosed 
by the record that appellant did, in fact, challenge the suffi- 
ciency of said eighth paragraph by demurrer in the court 
below. A further examination of the record, however, dis- 



MAY TERM, 1912. 329 

Judy r. Woods — 51 Ind. App. 325. 

closes that the ground of the demurrer was that said para- 
graph ''does not state facts sufficient to constitute a defense 
to plaintiff's complaint or either para>graph thereof.'^ We 
have already indicated that this pleading is in fact, a coun- 
terclaim and appellant concedes that it is a pleading asking 
affirmative relief, to wit, a cross-complaint. This being true, 
the ground of the demurrer as stated did not raise the ques- 
tion of the sufficiency of the pleading *'to state a cause of 
action'% and no available error resulted from overruling the 
same. Blue v. Capital Nat. Bank (1896), 145 Ind. 518, 520, 
43 N. B. 655; Campbell v. Routt (1873), 42 Ind. 410, 412, 
417; Flanagan v. Beitemier, supra. Thus it appears that 
if we should give appellant the benefit of his second assign- 
ment of error, above set out, to which, for the reasons indi- 
cated, he is not entitled under the rules, no question would 
be presented thereby, because of his error in the ground of 
his demurrer. 

Appellant has failed to present any ground of the 

7. motion for new trial, other than the insufficiency 
of the evidence to support the verdict. The other 

grounds of the motion are therefore waived. 

In what purports to be a ''Condensed recital of the evi- 
dence", in appellant's brief, none of the oral evidence is set 
out, and no reference is made by page or line of the 

8. record, indicating where any of the evidence will be 
found. This is not such a compliance with the above 

rule as would ordinarily entitle appellant to a consideration 
of any question presented by the evidence. But, in this con- 
nection, we should state that appellant states in his brief 
that "the question sought to be brought in review concern- 
ing the sufficiency of the evidence • • * is with reference 
to the alleged agreement set out in the first paragraph of 
the cross-complaint" (being the eighth paragraph of an- 
swer). It is insisted that this agreement constituted the 
basis of such paragraph, and that it had no evidence what- 
ever for its support, and that therefore "it is not possi!)K: 



330 APPELLATE COURT OF INDIANA. 

Huffman v. Huffman — 51 IndL App. 390. 

to give any recital of the evidence concerning the agreement 

counted on" in such paragraph. If it should be conceded, 

as appellant insists, that this paragraph has no evi- 

9. dence for its support, it would avail him nothing, be- 
cause all the paragraphs of cross-complaint being 
good as against the attack here made, if either had sufficient 
evidence for its support, this ground of the motion for a 
new trial will present no available error. Toledo, etc, R. Co, 
V. Mylott (1893), 6 Ind. App. 438, 441, 33 N. B. 135; Ross 
V. Thompson (1881), 78 Ind. 90, 99. 

When we consider the contract, made part of paragraphs 
nine and ten, in connection with the oral evidence explain- 
ing the same, as set out in appellee's brief, we are convinced 
that these paragraphs had some evidence supporting each of 
their material averments, and that the jury was warranted 
in returning the verdict it did. 

Appellant has failed in his brief to present any available 
error, and the judgment is therefore affirmed. 

Note.— Reported In 09 N. E. 792. See, also, under (1) 31 Cyc. 
226; (2) 2 Cyc. 1014; (3, 5) 2 Cyc. 989; (4) 2 Cyc. 691; (6) 31 
Cyc. 358; (7) 2 Cyc. 980; (8) 2 Cyc. 1015; (9) 3 Cyc. 383. As to 
the nature, scope and office of a counterclaim under the code, see 
note to Woodruff v. Gumer (Ind.) 89 Am. X>ec. 482. 



Huffman, by Next Friend, v. Huffman, 

Guardian. 

[No. 8^6. Filed November 7, 1912.] 

1. Mabbtaoe. — Void Marriage. — Insane Persons, — By statute 
(§§8360, 1059, 1060 Burns 1908, §§5325, 1024. 1025 R. S. 1881) a 
marriage is void where either party is insane or idiotic at the 
time of such marriage, p. 334. 

2. Mabriaoe. — Void Marriage. — Decree of Nullity. — Property 
Rights. — ^The rule that all property questions between husband 
and wife are presumed to be adjudicated by a decree of divorce, 
does not apply to a decree of nullity rendered in a proceeding to 
have a marriage declared void. p. 335. 

3. Husband and Wife. — Wife^s Inchoate Interest in Husband^a 
Real Estate. — Time of Vesting. — Judicial Sale. — Sale hy Ouard- 
ian. — ^A guardian's ex parte sale of real estate is a judicial sale 



MAY TERM, 1912. 331 

Huffman v, Huffman — 51 Ind. App. 330. 

within the meaning of §3052 Burns 1908, §2508 R. S. 1881, that 
Tests title in the wife, as to her inchoate interest, on the judicial 
sale of her husband's real estate, p. 335. 

4. Husband and Wife. — Wife*8 Inchoate Interest in Husband's 
Real Estate, — Void Marriage, — Judicial Sale, — One who Is not in 
law the wife of her nominal husband cannot take an interest In 
his real estate on a Judicial sale thereof, since such right is de- 
pendent upon statute, and §3052 Burns 1908, §2508 R. S. 1881, 
gives such right only to one who bears the legal relation of wife 
to the owner of the real estate sold. k>. 335, 338. 

5. Guardian and Wabd. — Ex Parte Orders, — Current Reports, — 
Modification, — Matters pertaining to the settlement of a guardian 
with his ward remain in fieri until the final settlement account 
is approved and the guardian discharged, and, while ex parte 
orders, current reports and other matters passed on by the court 
are prima facie correct, they may be set aside, modified or cor- 
rected, if the requirements of justice so demand p. 335. 

6. BlABBiAOE. — Annulment, — Settlement of Guardianship. — Allow- 
ance to Wife, — Support, — ^While the right of a wife to support by 
her husband depends primarily on the existence of the marriage 
relation, and a woman, not validly married. Is not entitled to 
support from her alleged husband In a legal sense of the term, 
where a woman, whose marriage was void because of the insanity 
of the man at the time, was brought into the supposed marital 
relation without fault on her part and in good faith discharged 
the duties of a wife toward him, and allowances were made and 
ordered transferred to her private account out of funds coming 
into her hands as his guardian, to be used for her support, and 
8he was permitted to retain half the rents from property at the 
time supposed to be owned by them by entireties, the court in 
passing on her final report as such guardian, filed after a decree 
had been rendered declaring the marriage null, did not abuse its 
discretion In allowing such credits, since under such circum- 
stances a court may invoke equitable principles to avoid injus- 
tice, p. 336. 

Prom Allen Circuit Court; Richard K, Erwin, Special 
Judge. 

Exceptions by Alonzo A. Huffman, by his next friend Hu- 
bert C. Chenneour, to the report and final settlement of 
Annie J. Huffman, guardian of Alonzo A. Huffman. From 
an adverse judgment, the exceptor appeals. Reversed, 

Arthur W, Parry, for appellant. 
Tkil B, Colerick, for appellee. 



332 APPELLATE COURT OP INDIANA. 

Hultman v. Huffman — 51 Ind. A[)p. 330. 

Pelt, J. — This action was begun by the filing of excep- 
tions to the report and final settlement of Annie J. Huffman, 
guardian of Alonzo A. Huffman, a person of unsound mind. 
The exceptions were filed by Hubert C. Chenneour, as next 
fiiend of Alonzo A. Huffman. 

Appellant has separately assigned error based on each of 
the exceptions to the report of the guardian, and also that 
the court erred in overruling appellant's motion for a new 
trial. 

The new trial was asked for on the ground that the deci- 
sion of the court was contrary to law, that it was not sus- 
tained by suflBcient evidence, and that the court erred in its 
rulings on each of its exceptions to the final report, num- 
bered respectively one, two, three, four, five, six and seven. 

The material facts of this case show that the guardian and 
her ward were married in 1876 ; that they lived together as 
husband and wife until the year 1904, when he was com- 
mitted to an asylum for the insane ; that in Pebruary, 1908, 
appellee was appointed guardian of his estate; that at the 
time of her appointment her said ward was the owner of a 
piece of real estate at Roanoke, Indiana, and they jointly 
owned another piece of real estate at the same place, and on 
her petition and the order of the court, these properties were 
sold, the former for $655, the latter for $200 ; that they also 
owned a piece of real estate in the city of Port Wayne, Indi- 
ana, purchased in 1905 for $1,800, with her husband's money, 
w hile he was out of the asylum on a furlough, title to which 
was taken jointly in their names; that on April 21, 1910, 
appellee filed in the Allen Circuit Court a suit against said 
Alonzo A. Huffman, to have their marriage annulled, on the 
ground that at the time it was solemnized he was of unsound 
mind and incapable of entering into a marriage contract, 
whiteh was unknown to her at the time ; that such proceedings 
were had in said case by the service of summons and the ap- 
pointment of a guardian ad litem; that on December 9, 1910, 
issues were formed, a trial had, and the court found that at 



MAY TERM, 1912. 333 

Ilufifman v. HuflPman — 51 Ind. App. 330. 

the time of their marriage said Alonzo A. Hufifman was a 
person of unsound mind, and thereupon adjudged and de- 
creed that the marriage of appellee and said Huffman was 
null and void, and further adjudged that the title to the real 
estate heretofore purchased in their names and situate in 
Port Wayne, Indiana, be held by them as tenants in com- 
mon; that on December 1, 1910, appellee filed her final re- 
port and settlement as guardian of her said ward, covering 
the period from her appointment in February, 1909, to the 
date of her report ; that thereupon, on June 9, 1911, by per- 
mission of the court, appellant herein, presented a petition 
to the court asking to be appointed as next friend in said 
guardianship, and to be permitted to file exceptions to said 
final report, which petition was duly granted, and thereupon 
exceptions to said report were filed, in substance as follows : 
(1) That appellee was not then and never had been the 
wife of her ward, and was not entitled to claim credit as 
shown in item ten of her report for the sum of $418.33 as her 
share of the proceeds of the sale of real estate so made as 
aforesaid and claimed by her as the wife of said Huffman ; 
(2) that she was not entitled to the sum of $239.40 retained 
by her for support as the alleged wife of her said ward, the 
same being $11.40 per month for twenty-one months; (3) 
guardian claims credit for $34.34 paid out as taxes on real 
estate, title to which was in their names jointly, but the ward 
was liable for only one-half thereof; (4) of the claim for $70 
as a credit for money paid out in making repairs on the real 
estate owned by herself and her ward as tenants in common, 
the ward should be charged with only one-half of the amount ; 

(5) that on February 27, 1909, the Allen Circuit Court or- 
dered the guardian to place the sum of $200 at interest for 
the benefit of her ward ; that she should be charged with the 
sum of $12 interest, which was not shown in her report; 

(6) that the rental value of the Port Wayne property held 
by joint title was $20 per month ; that appellee Dceupied and 



334 APPELLATE COURT OP INDLANA. 

IIiifrDinn r. Huffman — 51 Ind. App. 330. 

used the same for two years and five months ; that she should 
charge herself with one-half of the rental value thereof, or 
the sum of $270. 

A trial was duly had on said exceptions, and thereupon the 
court found for appellant in the sum of $100, on exception 
one, being item ten of said report, and also sustained excep- 
tion three for $17.22 for taxes and exception four for $35, 
or one-half the amount paid out for repairs. The court ren- 
dered judgment thereon in the language following: **That 
the said ward is entitled to contribution from said Annie J. 
Huffman for $35 for repairs and $17.25 for taxes out of the 
amounts claimed by said guardian for taxes and repairs ex- 
pended on the real estate owned by said ward and said guar- 
dian in the city of Fort Wayne, Indiana, as tenants in com- 
mon, as claimed by items three and four of said report, re- 
spectively, and finds for said guardian and against said ward 
as to all other items claimed in said report, and the court 
finds for said next friend and against said guardian for 
$100 on exception No. 1, and for said guardian as to the 
balance of said exception." 

On February 27, 1909, appellee filed her petition in the 
Allen Circuit Court praying for an allowance for mainte- 
nance of herself as wife of her ward, and the court allowed 
her the sum of $200, from the sale of real estate, and further 
ordered that $200, received from the sale of lot twenty-nine 
(being the lot at Roanoke, Indicuaa, owned jointly), be placed 
at interest until further order of the court ; that on April 11, 
1910, on petition of appellee, she was ordered by the Allen 
Circuit Court to transfer to her own account for her own use 
and for the improvement of her ward's property **the bal- 
ance of all the money in her hands as guardian, to wit:'* the 
sum of $101.01. 

By statute a marriage in this State is void where 

1. either party is insane or idiotic at the time of such 
marriage. §8360 Bums 1908, §5325 R. S. 1881; 
§§1059, 1060 Bums 1908, §§1024, 1025 R. S. 1881. 



MAY TERM, 1912. 335 

Huffman v. Huffman — 51 Ind. App. 330. 

In Henneger v. Lomas (1896), 145 Ind. 287, 298, 44 N. E. 

462, it is said: **An action for divorce is brought for the 

purpose of dissolving a marriage, while a nullity suit 

2. is brought for the purpose of having a void marriage 
declared void, or a voidable marriage judicially made 

void. In the divorce suit the marriage is recognized as valid 
and adjudged to be dissolved from the date of the decree, 
but in the nullity suit the marriage is not recognized, but is 
adjudged void, that is, that there was no marriage, and the 
rights of the parties are the same as if the marriage had 
Dever taken place. 1 Bishop, Mar. and Div. (1891 ed.) §§259, 
271. It follows that the rule established in this State that 
all property questions between husband and wife are pre- 
sumed to be adjudicated in the decree of divorce does not 
apply to a decree of nullity, and can, therefore, have no 
application to this case." See, also, 1 Bishop, Mar., Div. and 
Sep. §618; 2 Bishop, Mar., Div. and Sep. §1596; Inhabitants 
of Winslow V. Inhabitants of Troy (1902), 97 Me. 130, 53 
Aa 1008 ; 26 Cyc. 864. 

A guardian's ex parte sale of real estate is a judicial 

3. sale within the meaning of the statute that vests title 
in the wife as to her inchoate interest on the judicial 

sale of her husband's real estate. §3052 Burns 1908, §2508 
B. S. 1881; Sell v. Reiser (1911), 49 Ind. App. 101, 96 N. 
E. 812. 

Appellee's right to claim her one-third interest in funds 

derived from the sale of her ward's real estate depends on 

the statute. The statute gives such right only to the 

4. one who bears the legal relation of wife to the owner 
of the real estate sold. Appellee was not in law the 

wife of her ward, and cannot take an interest in his real 
estate by virtue of a relation that did not exist. 
It is the law of this State that matters pertaining to the 
settlement of a guardian with her ward remain in 

5. fieri until the final settlement account is approved 
and the guardian discharged. Ex parte orders, cur- 



336 APPELLATE COURT OF INDIANA. 

Huffman t\ Huffman — 51 Ind. App. 330. 

rent reports and other matters passed on by the court are 
prima facie correct, but remain within the control of the 
court, and before final settlement and discharge of the guard- 
ian may be set aside, modified or corrected, if the require- 
ments of justice demand such action. State, ex rel., v. Peter- 
sen (1905), 36 Ind. App. 269, 273, 75 N. E. 602; State, ex 
nl, V. Wheeler (1891), 127 Ind. 451, 454, 26 N. E. 552, 26 
N. E. 1008. 

A wife 's right to support by her husband, or from 

6. his estate, depends primarily on the existence of the 
marriage relation. But the question presented in 
this case is on a different footing from what it would be if 
it arose on an application for support which was resisted on 
the ground that the marriage was void. In February, 1909, 
appellee was allowed the sum of $200 for support, and on 
April 11, 1910, she petitioned the court for permission to 
transfer to her private account for her own use the balance 
of funds in her hands as guardian, amounting to $101.01, 
and the order was granted. The suit to annul the marriage 
was not filed until April 21, 1910, and the decree annulling 
the marriage was not entered until December 9, 1910. She 
had received the money in pursuance of the order, or by 
the sanction of the court, before she filed her final report. 
The court had the power to open up the whole matter of al- 
lowances and orders previously made, if any sufficient rea- 
son in law or equity was shown to justify such action. The 
court, in considering the exceptions, refused to do so, and 
presumably for the reason that the demands of justice did 
not demand such action. 

"While appellee is not now in a position to claim a credit 
for support in the technical and legal sense of that term, 
we think it was not beyond the power of the court to allow 
her credit for the money so obtained and used by her as 
aforesaid, while she was nominally the wife of her ward and 
recognized the marital relation. 

It has been held in other jurisdictions that on the annul- 



MAY TERM, 1912. 337 

Huffman r. Huffman — 51 Ind. App. 330. 

ment of a marriage void ab initio, where the supposed wife 
was free from fault, the court may award her a sum in gross 
as compensation in the nature of damages, or decree an 
equitable division of property, though powerless to award 
alimony in the strict and technical meaning of that term. 
Strode v. Strode (1867), 3 Bush (Ky.) 227, 230, 96 Am. 
Dee. 211; Werner v. Weryier (1898), 59 Kan. 399, 53 Pac. 
127, 41 L. R. A. 349, 68 Am. St. 372 and notes ; Fuller v. 
Fuller (1885), 33 Kan. 582, 587, 7 Pac. 241; Barber v. Bar- 
ber (1887), 74 Iowa 301, 305, 37 N. W. 381. The fact that 
such claim may have been denominated support money, 
when the legal relation of husband and wife did not in fact 
exist, will not compel its disallowance now, if it has any 
basis in either law or equity to support it. A claim to an 
interest in real estate or funds derived from its sale, de- 
pending on the marital relation, cannot be sustained where 
the legal relation does not exist, but the money used by the 
supposed wife with the approval of the court, while recogniz- 
ing the marital relation, does not depend on the same legal 
proposition, but has a basis in equity where the woman acted 
in good faith and is free from fault of which the law takes 
cognizance. The exception is in effect the same as a suit to 
recover back the money previously allowed by the court and 
nsed by appellee. 

The amount does not evidence any extravagant expendi- 
ture, and in view of the court's orders we must presume 
the money was actually needed. While she was not legally 
the wife of her ward, she is not shown to have been in any- 
way culpable, and was in a position to merit some consid- 
eration at the hands of the court. Where a woman is brought 
into such relation without fault on her part, and innocently 
and in good faith discharges the duties of a wife, and in 
every M-ay recognizes the marital relation, and it turns out 
that the marriage was in fact void from its inception, she 
is nevertheless on equitable and humanitarian principles 
Vol. 51—22 



338 APPELLATE COURT OP INDIANA. 

Huffman r. Huffman-^Sl Ind. App. 330. 

entitled to be supported by the man to whom she sustains 
such relation. We are not here called on to pass on the ques- 
tion as it would arise if an application was before us look- 
ing to future support, and was resisted on the ground of 
a void marriage, but we are asked to hold that support money 
actually allowed and used while the marriage relation was 
so recognized, shall be accounted for to the husband's estate 
by the supposed wife. In such a situation, the court is 
called on to administer justice, and may invoke equitable 
principles to avoid injustice. 

On the facts of this case, we cannot say that the trial 
court, in allowing the credit denominated support money, 
abused its discretion, or that the demands of justice require 
the interference of this court to change the ruling on such 
exception. The court had a perfect right to consider the 
item of rent for the ward's half of the property occupied 
by the wife as a residence, and the item of interest, in the 
same light as the so-called support item, for by the previous 
order of the court the final balance of all funds in the guard- 
ian 's hands was allowed her for personal use. The fact that 
the claim is not in the strict legal sense *' support" money, 
because of the invalid marriage, does not affect the merits of 
the question, for the court will look through the mere form 
or wording of the claim to its substance. Henneger v. Lo- 
masy supra, 300; Bishop v. Redmond (1882), 83 Ind. 157. 
When the marriage was annulled, the real estate supposed 
to be held by entireties was shown to be in fact held by 
appellee and her ward as tenants in common. But 

4. her relation to the real estate to which her ward alone 
held title was not changed by the guardian's sale, 
and the fact that the marital relation was at the time of the 
sale recognized as existing cannot assist her in claiming title 
to the one-third thereof or the money derived from its sale. 
She was not legally his wife, and cannot therefore claim 
property depending on a valid marriage. 

For the error in allowing appellee credit for the one-third 



MAY TERM, 1912. 339 

Cleveland r. Emerson — 51 Ind. App. 339. 

part of the money derived from the sale of her ward's real 
estate, the motion for a new trial should have been sustained. 
The judgment is reversed, with instructions to the lower 
court to sustain the motion for a new trial and for further 
proceedings in accordance with this opinion. 

XoTE.--Reported in 99 N.B. 769; See, also under (1) 26 Cyc. 843; 
(2) 20 C?5rc. 919; (3) 14 Cyc. 927; (4) 14 Cyc. 889; (6) 26 Cyc. 
918. As to the property of parties to a marriage after the latter is 
adjudged to be void, see 96 Am. St. 270. Division of property upon 
annulment of marriage, see 36 L. R. A. 844. Power, upon annulling 
a marriage to require man to provide for support of woman or 
child, see 5 L. R. A. (N. S.) 767. Alimony in suit to annul mar- 
riage, see 3 L. R. A« (N. S.) 192. 



Cleveland v. Emerson et al. 

[No. 7,963. Filed November 7, 1912.] 

1. Statutes. — Repeal, — Repeal hy Implication, — ^Although the re- 
peal of statutes by implication is not favored, where two incon- 
sistent statutes relating to the same subject-matter, but passed 
at diflTerent times, are to be construed, tl^e court will hold the 
earlier statute to be repealed by implication, p. 343. 

2. Statutes. — Repeal, — Subject-matter Covered by Neio Act. — 
Where a new act covers the whole subject-matter of a former 
act, it is the intention that the new act shall take the place of 
tiie old one, and the old law is repealed, p. 343. 

3. False Imprisonment. — Totcn Clerk. — Judicial Powers. — Stat- 
utes.— Section 27 of the cities and towns act (§9001 Burns 1908. 
Acts 1905 p. 210) defines the powers and duties of a town clerk, 
and §32 of said act (§9009 Burns 1908) provides a method of en- 
forcing penal ordinances different from that provided in the act 
of 1901 (Acts 1901 p. 57, §4346 Burns 1901) making it the duty 
of a town clerk to enforce the ordinances of the town, and vest- 
ing him with the powers of a justice of the peace, and the latter 
act, though not repealed in express terms, was clearly within the 
purview of the act of 1905 and was repealed by implication, so 
that a town clerk in issuing a warrant for the arrest of a person 
charged with violating an ordinance, and a town marshal in 
serving such warrant, were acting without authority of law and 
were trespassers, p. 343. 

4. Appeal. — Action for False Imprisonment. — Review. — Instruc- 
tions. — In an action for damages for false imprisonment, simply 



340 APPELLATE COURT OP INDIANA. 



Cleveland v, Emerson — 51 Ind. Ai){). 339. 



stating the issues to the Jury is not a sufficient compliance with 
§558 Burns 1908, subd, 5, §533 R. S. 1881, requiring the court to 
give general InRtructlons to the Jury, but the court should also 
have stated the law relating to false imprisonment, p. 344. 

5. Tbial. — Instructions, — Duty of Court, — Although parties desir- 
ing ppeclal instructions given must present same to the court, 
§558 Burns 1908, subd. 5, §533 R. S. 1881, makes it mandatory on 
the court, at the conclusion of the argument, to give general in- 
structions to the Jury. p. 344. 

0. False Imprisonment. — Instructions, — Officers, — Defense. — ^In an 
action for false imprisonment on a warrant issued by a town 
clerk and served by the town marshal, an instruction telling the 
Jury that the fact that the defendants were the duly elected and 
acting clerk and marshal of the town "is not a complete defense 
to the action," was erroneous, since such fact constitutes no de- 
fense to the action, p. 344. 

7. Fai^e Imprisonment. — Instructions. — Assumption of Fact. — 
Jury Question. — In an action for false Imprisonment, an instruc- 
tion which told the Jury that, in determining the question of 
damages, it had a right to take into consideration that the officers 
had investigated as to their authority in the prosecution, and as 
to the guilt of plaintiff and her motive in committing the act with 
which she was charged, was erroneous in that it assumed that 
such investigation had been made, when the existence of such fact 
was a question for the Jury to determine, p. 344. 

8. False Imprisonment. — WaiTant Issued by Town Clerk, — Proof 
Essential to Recovery. — ^To entitle plaintiff to recover in an action 
for false imprisonment on a warrant issued by a town clerk, it 
was only necessary for her to show that defendants Imposed an 
unlawful restraint on her freedom of movement or action, p. 345. 

9. False Imprisonment. — Malice, — Exemplary Damages, — In an 
action for false imprisonment, it is not necessary to aver that the 
Imprisonment was either wrongful, unlawful, malicious or with- 
out probable cause, to Justify a Jury in assessing exemplary dam- 
ages, since if the imprisonment is extra-judicial, without legal 
process, It is false imprisonment, and the right of recovery Is not 
limited to compensatory damages, p. 345. 

10. False Imprisonment. — Instructions, — Evidence. — In an action 
for false imprisonment, an instruction which told the Jury that if 
it believed that plaintiff, by her actions and conduct, invited and 
encouraged the proceeding complained of, and was conniving at 
her own imprisonment, she could not recover, was inapplicable 
and misleading, where the evidence merely showed that plaintiff 
knew that the ordinance under which she was arrested had been 
passed, that she had been advised that the act giving the tovrn 
clerk Judicial powers had been repealed, and that she had said 



MAY TERM, 1912, 341 



Cleveland r. Emerson— 61 Ind. App. 339. 



Bhe knew her act was a violation of the ordinance, but that she 
was "going to give them a pull." p. 346. 

11. Appeal. — Revieio. — Instructions, — VcrdicU — Presumptions. — 
Where only one Instruction was given by the trial court that 
authorized a verdict for defendant, it must be presumed that 
such verdict was returned on such instruction, p. 346. 

12. Appeal. — Reversal. — Judgment. — Nominal Damages. — ^Whlle a 
judgment will not be reversed to enable the complaining party 
to recover nominal damages, this rule does not apply where there 
was evidence on which the Jury, under proper instructions, might 
be warranted in awarding more than nominal damages, p. 347. 

Prom PoBey Circuit Court; Herdis F. Clements, Judge. 

Action by Kate Cleveland against Zachariah T. Emerson 
and another. From a judgment for defendants, the plain- 
tiff appeals. Reversed, 

Roscoe U. Barker, for appellant. 
James H. Blackburn, for appellees. 

Adams, P. J. — ^Action by appellant against appellees for 
false imprisonment. Trial by jury, with verdict and judg- 
ment for appellees. The single error assigned and relied on 
for reversal is that the court erred in overruling appellant's 
motion for a new trial. 

The causes for a new trial set out in the motion are that 
the court erred in giving to the jury certain instructions of 
its own motion and other instructions at the request of ap- 
pellees, and failing to give general instructions; also that 
the verdict of the jury is not sustained by sufl&cient evi- 
dence and is contrary to law. There is little, if any, dis- 
pute as to the facts material to the determination of the 
appeal 

It is admitted, without contradiction, that on May 14, 
1908, Cynthiana was an incorporated town of Posey county, 
Indiana; that appellees Emerson and Gudgel were respect- 
ively the duly elected, qualified and acting town clerk and 
town marshal; that on and before said date there was an 
ordinance of the town of Cynthiana making it unlawful 
for any person to throw ** soapsuds or waste water'' into 



342 APPELLATE COURT OP INDIANA. 



Cleveland v, Emerson — 61 Ind. App. 339. 

the streets of said town, which ordinance prescribed a pen- 
alty of not more than $5 for the violation thereof; that on 
said day appellee Gudgel filed an affidavit with appellee 
Emerson, town clerk, sworn to before said clerk, charging 
appellant with unlawfully violating said ordinance ; that on 
this affidavit Emerson, as town clerk, issued a warrant for 
the arrest of appellant, and placed the same in the hands 
of Qudgel to execute ; that Gudgel did execute the warrant 
by taking appellant into his custody on said day, and bring- 
ing her before the town clerk, where, appellant refusing to 
plead or defend, evidence was heard, appellant found guil- 
ty, and the maximum fine assessed; that appellant was in 
the custody of the appellees and restrained of her liberty 
for about three hours. 

It is obvious that the controlling question relates to the 
right of the town clerk on May 14, 1908, to exercise judi- 
cial functions, and involves the question ^l^ether the act 
of February 28, 1901 (Acts 1901 p. 57, §4346 Burns 1901), 
making it the duty of a town clerk to enforce the ordinances 
of the town, and vesting him with the powers of a justice 
of the peace as defined by law, was then in force. If this 
act was in force on said date, the imprisonment in ordinary 
course was lawful, and, regardless of the guilt or innocence 
of the appellant, the clerk and marshal were acting within 
the powers given to them by law. If, however, said act 
was repealed by the enactment of §27 of the act in force 
April 15, 1905 (Acts 1905 p. 219, §9001 Bums 1908), then 
the assumption of such powers by the clerk and marshal was 
unlawful and wrongful, and appellees were trespassers, and 
liable to persons injured by such unlawful assumption of 
power. 

The act of 1901, supra, defines the duties and powers of 
a town clerk. Section 27 of the act of 1905, supra, like- 
wise defines the duties and powers of a town clerk. Sec- 
tion 32 of the act of 1905 (Acts 1905 p. 219, §9009 Bums 



MAY TERM, 1912. 343 

Cleveland v. Emerson — 51 Ind. App. 339. 

1908), provides for the prosecution of violations of town 
ordinances, having penalties affixed. 

While it is true that the repeal of statutes by im- 

1. plication is not favored, it is the settled law of this 
State that where two inconsistent statutes relating 

to the same subject-matter, but passed at different times, 
are to be construed, the court will give eflEect to the latest 
expression of the legislature, and will hold the earlier stat- 
ute to be repealed by implication. 8ta4;e, ex rel., v. Board, 
etc. (1908), 170 Ind. 595, 85 N. E. 513; State, ex rel, v. 
District Court, etc. (1909), 107 Minn. 437, 120 N. W. 894; 
Kkuss V. Citizens Nat. Bank (1911), 46 Ind. App. 683, 689, 
93 N. B. 558; 1 Lewis's Sutherland, Stat Constr. (2d ed.) 
§247; Black, Interp. of Laws 115; Endlich, Interp. of Stat. 
§185. 

It is also a recognized rule in this jurisdiction that 

2. where the new act covers the whole subject-matter of 
a former act, the evident intention is that the new 

act shall take the place of the old one, and the old law is 
repealed, because the circumstances evince the intention that 
the old law in the form it was is no longer to exist. Thomas 
V. Town of Butler (1894), 139 Ind. 245, 259, 38 N. E. 803; 
State, ex rel, v. Board, etc. (1885), 104 Ind. 123, 129, 3 
N. E. 807. 

The cities and towns act of 1905 includes a legis- 

3. lative expression of the powers and duties of town 
clerks, provides a different method of enforcing penal 

ordinances, and repeals all former laws within the purview 
of the act. The act of 1901 was not repealed in express 
terms, but was clearly within the purview of the act of 1905, 
and was repealed by implication. This was the holding of 
the trial court in passing on the complaint and answers. It 
therefore follows that appellee Emerson, in issuing the war- 
rant and assuming judicial powers he did not possess, and 
appellee Gudgel, in serving the unlawful warrant and tak- 



344 APPELLATE COURT OP INDIANA. 

Cleveland r. Emerson — 51 Ind. Aj^. 330. 

ing appellant into custody, were acting without authority 
of law, and were trespassers. 

Complaint is made that the trial court gave no 

4. general instructions to the jury. The court, as a 
part of the instructions, read the complaint and an- 

5. swer, but in a case of this kind, it is not sufficient 
simply to state the issues. It is the rule that where 

parties desire special instructions, it is their duty to pre- 
sent such instructions to the court, but there is a difference 
between special instructions and general instructions. By 
§558 Burns 1908, subd. 5, §533 R. S. 1881, it is made man- 
datory on the court, at the conclusion of the argument, to 
give general instructions to the jury. 

This was an action for false imprisonment, and it was 
the duty of the court to state the law to the jury relating 
to false imprisonment. Otherwise, the jury could not know 
whether an unlawful act had been committed or not, and 
could not intelligently consider the evidence. No such in- 
struction was given, nor was any instruction given to the 
jury of the elements to be taken into consideration in as- 
sessing damages, if the finding should be for the plaintiff. 
The court of its own motion instructed the jury 

6. as follows: '*The fact that the defendant Zachariah 
T. Emerson and the defendant Alvin E. Qudg^l were 

7. the duly elected and acting clerk and marshal of the 
town of Cynthiana respectively, is not a complete 

defense to this action. However, you have the right, in de- 
termining this case on the question of damages, to take into 
consideration the fact that the officers aforesaid had in- 
vestigated and attempted to find out whether or not 
they had judicial authority in the prosecution, and whether 
or not the defendant was actually guilty of the offense with 
which the officers attempted to charge her, and whether or 
not she sought the imprisonment with a view to bringing 
suit against the officers for damages." 

The first part of the instruction, in which the jury is 



MAY TERM, 1912. 345 

Cleveland v. Emerson — 51 Ind. App. 339. 

told that the fact that defendants were the duly elected 
and acting clerk and marshal of the town is not a complete 
defense to the action, is clearly erroneous. The admitted 
fact set out is no defense to the action, and the court prop- 
erly sustained a demurrer to an answer setting up such 
fact in justification. The concluding part of the instruc- 
tion is also erroneous, in that it assumes as a fact that the 
defendants had investigated the question of their authority, 
the guilt of the plaintiff, and her motive in violating the 
ordinance. Whether such investigation was made by de- 
fendants, was a question for the jury. 

To entitle plaintiff to recover in some amount, it 

8. was only necessary for her to show that defendants 
imposed an unlawful restraint on her freedom of 

movement or action. Efroymson v. Smith (1902), 29 Ind. 
App. 451, 455, 63 N. E. 328. 

Other instructions given by the court at the re- 

9. quest of defendants relate to matters which might 
be considered by the jury in fixing the amount of 

damages, in the event the finding was for plaintiff. Ap- 
pellant insists that these instructions were erroneous, for 
the reason that the unlawful acts charged in the complaint 
were not averred to have been done maliciously, and as 
only compensatory damages are claimed, evidence in mitiga- 
tion of damages cannot be received. There is no merit in 
this contention. It is not necessary to aver in a complaint 
for false imprisonment that such imprisonment was either 
wrongful, unlawful, malicious or without probable cause. 
If the imprisonment is extrajudicial, without legal process, 
it is false imprisonment. Colter v. Lower (1871), 35 Ind, 
285, 9 Am. Rep. 735; Carey v. Sheets (1877), 60 Tnd. 17. 
Nor does the law limit the right of recovery to compensa- 
tory damages. Without any averment of malice, the jury 
has a right to assess exemplary damages, when the facts 
justify such assessment. Such damages do not necessarily 
depend on malice, but may be awarded when the wrongful 



346 APPELLATE COURT OP INDIANA. 

Cleveland r. Emerson — 51 Ind. App. 380. 

act is wilfully done in an oppressive manner, or with a 
reckless disregard of the rights of the complaining party. 
Uarness v. Steele (1902), 159 Ind. 286, 289, 64 N. E. 875; 
Farman v. Lauman (1881), 73 Ind. 568. 

The court also, at the request of defendants, in- 

10. structed the jury as follows: **If you believe from 
the evidence that the plaintiff, Kate Cleveland, by 

11. her actions and conduct invited and encouraged the 
proceeding complained of, and was conniving at her 

own imprisonment, either for the purpose of bringing an 
action for damages or for any other purpose, your verdict 
should be for the defendants." 

As this was the only instruction given by the court which 
aijthorized a verdict for defendants, it must be presumed 
that the verdict was returned on this instruction. It is 
doubtless true that where the evidence discloses a state of 
facts whereby it is clearly shown that a defendant in an ac- 
tion of this kind connived at and sought his own imprison- 
ment, such facts would be a bar to his right of recovery. 
We have, however, carefully read the evidence, and find 
no proof in the record from which such an inference might 
lawfully be drawn. The evidence shows that appellant after 
the passage of the ordinance did empty her tubs into a ditch 
which was constructed for her benefit at the side of the 
street. It is also shown that she had knowledge of the 
ordinance, and had indirectly been advised by Mr. Kilroy 
that the act giving a town clerk the powers of a justice of 
the peace had been repealed; that she said on one or two 
occasions, when told that her act was a violation of the 
ordinance, that she knew it, but was "going to give them a 
puir*. Her violation of the ordinance cannot be considered 
as affecting her right of recovery ; neither can the fact, that 
she had been advised of the lack of authority in the town 
clerk to issue a warrant. She could not know that the oflS- 
cers would not proceed against her in a manner authorized 
by law, and her expression of ** giving them a pull" could 



MAY TERM, 1912. 347 

Cleveland v. Emerson — 51 Ind. App. 339. 

not warrant such an inference. The instruction was not 
applicable to the evidence, and was, therefore, misleading 
and erroneous. 

It is finally contended by appellees that even if the judg- 
ment is erroneous, there has been no showing made of any- 
thing more than nominal damages, and that this court 

12. will not reverse a judgment to enable the complain- 
ing party to recover nominal damages. The last state- 
ment is a correct expression of the law, but we cannot say 
that the evidence, under proper instructions of the court, 
would warrant only nominal damages. Wounded pride, 
hmniliation and mortification, resulting from a public arrest, 
are proper elements to be taken into consideration in assess- 
ing damages in a case of this kind. Such damages are 
compensatory, and the amount is to be determined by the 
jury under the evidence. We have also seen that exemplary 
damages may be awarded where the wrongful act is done 
in a wanton manner or with a reckless disregard for the 
rights of the complaining party. In this case, the evidence 
shows that appellee Gudgel, after receiving the warrant from 
appellee Emerson, deputized one McReynolds to assist him 
in making the arrest, in anticipation of trouble ; that they 
went to the home of appellant, and in the presence of her 
invalid husband, her children and her grandchildren, put 
her under arrest. They used no violence, but commanded 
her to come with them, which she did without protest ; that 
they took her through the principal business street of the 
town, and to the office of the clerk, where many people were 
gathered, and where she was held in custody for the period 
of three hours. She testified that she went with the officers 
because the marshal had a club, and she knew that she must 
go; that she was humiliated, and has been ashamed to go 
to church or to public meetings, on account of the disgrace ; 
that she has been made nervous, and cannot sleep on account 
of brooding over her arrest. 

For error of the court in overruling the motion for a new 



348 APPELLATE COURT OP INDLiNA. 

Snider t\ Greer-WilkinBon Lumber Co. — 61 Ind. App. 34a 
■ ■ ■ '■■■■ i ■ ^^—1 

trial, the judgment is reversed, with instructions to the trial 
court to sustain said motion, and for further proceedings in 
accordance with this opinion. 

Note.— Reported in 09 N. E. 796. See, also, under (1) 36 Cyc. 
1071, 1073; (2) 36 Cyc. 1077; (3) ID Cyc. 334; (5) 38 Cyc. 1594; 
(6) 19 Cyc. 374; <9) 19 Cjc. 371; (11) 3 Cyc. 313; (12) 3 Cyc. 
444, 446. As to instructions based ui)on matters assumed to be facts 
but not proved at the trial, see 14 Am. St. 44. As to absence of 
authority, or of due process, as ground of action for false imprison- 
ment, see 67 Am. St 413. Liability of officer for making an arrest, 
see 51 L. U. A. 193. 



Snider et al. v. Greer-Wilkinson Lumber 

Company. 

[No. 7,360. Filed January 5, 1912. Rehearing denied March 29, 
1912. Transfer denied November 8, 1912.] 

1. Contracts. — Contract for Benefit of Third Persons. — Enforce- 
ment, — Parties. — ^A contract may be entered into for the primary 
benefit of third persons not parties thereto, and, in such case, 
the persons for whose benefit the contract is ma4e may maintain 
an action on it in their own names, p. 351. 

2. Contracts. — Puhlic Buildings, — Contractor's Bond. — Liability 
for Labor and Material. — A bond to secure the performance of a 
contract for the construction or repair of public buildings that 
are not subject to liens, inures to the benefit of persons furnish- 
ing material or labor in the performance of such contract, only 
where there Is an express stipulation, either In the contract or 
bond, that the contractor shall pay all claims for labor and mate- 
rial, p. 352. 

3. Contracts. — Public Buildings. — Contractor's Bond.-^onstruc- 
Hon. — Liability for Labor and Material. — Although a contract for 
the repair of a public school building contained no agreement on 
the part of the contractor to pay claims for labor and material, 
where the bond contained a condition providing for the payment 
by the contractor of all Indebtedness incurred by him in carrying 
out the contract, such condition will be construed as having been 
made for the benefit of third persons so as to render the sureties 
on such bond liable in an action by such third persons for labor 
or material furnished, notwithstanding such persons are not en- 
titled to liens and the bond provided that it was for the use and 
benefit of all persons who may become entitled to liens under the 
contract, p. 353. 



MAY TERM, 1912. 349 



I 



Snidor r, Greer-Wilklnson Lumber Co. — 51 Ind. App. 348. 

4. Contracts. — Public BuUdinga. — Contractor' 8 Bond, — Construc- 
tion. — Liability for Labor and Material, — Condition Reetrictvng 
Liability to Persons Entitled to Liens. — ^While the maxim ex- 
pressio unius est exclusio alteritts applies to the construction of 
contracts, all contracts are to be read and understood In the 
light of the law applicable thereto, and where a bond to secure 
the performance of a contract to repair a school building con- 
tained a condition providing for the payment by the contractor of 
all indebtedness incurred by him in carrying out the contract, the 
further provision therein restricting the benefit of the bond to 
persons who may become entitled to Hens does not have the 
effect of excluding any one from the benefit of the bond, since 
such building is not subject to a Hen in favor of any one, and 
such bond will be held to inure to the benefit of all persons to 
whom the contractor may become indebted on account of such 
contract, p. 353. 

5. Bo^^Ds. — Conditional Provision for Attorney's Fees, — Validity of 
Ccmdit/on.— Section 9089 Burns 1908, §5518 R. S. 1881, providing 
that agreements to pay attorney's fees, depending on any condi- 
tion, and made a part of any bill of exchange, acceptance, draft, 
promissory note, or other written evidence of indebtedness, are 
illegal and void, does not apply to such an agreement contained 
in a bond given by a contractor to secure faithful performance, 
p. 356. 

From Delaware Circuit Court ; J, O. Leffler, Judge. 

Action by the Greer- Wilkinson Lumber Company against 
David M. Snider and another. From a judgment for plain- 
tiff, the defendants appeal. Affirmed. 

Will P, Koons and George H. Koons, for appellants. 
McClellan & Hensel, Leonard A. Outhrie, and Ball & 
^eedham, for appellee. 

LuRY, J. — ^Appellee brought an action against appellants 
to recover on a bond executed by Edmund S. Petro, as prin- 
cipal, and said appellants, as sureties. The School City of 
Muncie on May 16, 1908, let a contract to said Petro for the 
improvement of a school building in said city, and the bond 
in question was executed for the purpose of securing the 
proper performance of said contract. Appellee was at the 
time a corporation engaged in the retail lumber business, 
and, as such, furnished material to said contractor, which 



350 APPELLATE COURT OP INDLiNA. 

Snider r. (ireer-Wllkinson Lumber Co. — 51 Ind. App. aiS. 

material was used in making repairs on said school build- 
ing, and this action was brought to recover from the sure- 
ties on the contractor's bond for the material so furnished. 
The contract entered into between Petro and the School 
City of Muncie is made an exhibit of the complaint, as is 
also the contractor's bond. Appellee seeks to hold the sure- 
ties on the bond, on the theory that the bond executed by 
them bound the contractor and his sureties to pay for all 
material furnished and used in making the repairs under 
said contract. The contract is quite lengthy and it is not 
necessary to a proper understanding of the points involved 
in the case to set it out in full. 

The bond, executed by said Petro and appellants as sure- 
ties, is as follows : 

**Know all men by these presents that we Edmond S. 
Petro and Lawrence H. Klus and David M. Snider, of 
the City of Muncie, Delaware County, State of Indiana, 
are held and firmly bound unto the Board of Trustees 
of School City of Muncie, of said County and State as 
well as to all persons who may become entitled to liens 
under the contract hereinbefore mentioned in the sum 
of four thousand six hundred and fifty ($4650.00) dol- 
lars, lawful money of the United States of America, to 
be paid to the Board of Trustees of School City of Mun- 
cie and to said parties who may be entitled to liens, 
their executors, administrators and assigns; for which 
payment well and truly to be made, we bind ourselves, 
one and each of our heirs, executors and administra- 
tors, jointly and severally, firmly by these presents. 
Sealed with our seals; dated this 16th day of May, 
1908 ; The condition of this obligation is such that if 
the above bounded Edmond S. Petro, his executors, 
administrators or assigns shall in all things, stand to 
and abide by, and well and truly keep and perform the 
covenants, conditions and agreements of the above men- 
tioned contract, entered into by and between the said 
Edmond S. Petro and the said Board of Trustees of 
The School City of Muncie, dated on the 16th day of 
May, 1908 for the construction of the work or works 
mentioned in the foregoing contract and shall duly and 
promptly pay and discharge all indebtedness that may 
be incurred by the said Edmond S. Petro in carrying 



MAY TERM, 1912. 351 

Snider t?. Greer-Wilkinson Lumber Co. — 51 Ind. App. 348. 

oat the said contract, and complete the same free of all 
mechanic 's liens, and shall truly keep and perform the 
covenants, conditions and agreements in the said con- 
tract and in the within instrument contained, on his 
part to be kept and performed, at the time and in the 
manner and form therein specified, as well as all costs, 
including attorney 's fees, in enforcing the payment and 
collectioi> of any and all indebtedness incurred by said 
Edmond S. Petro in carrying out said contract, then 
the above obligation shall be void, else to remain in 
full force and virtue. This bond is made for the use 
and benefit of all persons who may become entitled to 
liens under the said contract according to the provi- 
sions of law in such cases made and provided, and may 
be sued upon by them as if executed to them in proper 
person. In testimony whereof etc.. Signed; Edmond 
S. Petro, Lawrence H. Klus, and David M. Snider." 

It is the contention of appellants that the complaint is 
not sufficient to state a cause of action against the sureties 
on the bond, for the reason that the bond sued on shows 
on its face that it was intended only for the protection of 
the School City of Muncie and all persons who may become 
entitled to Uens; and that as appellee was not entitled to 
a lien, it does not faU within the class for whose benefit the 
bond was executed, and for that reason it cannot maintain 
an action on the bond. 

If the bond was intended to inure to the benefit of per- 
sons who might furnish material for such repairs, and who, 
under the law, were not entitled to acquire a lien therefor 
against the building, the complaint states a cause of action ; 
but if it was not so intended, the complaint is insufficient, 
and the demurrer thereto should have been sustained. 

The parties to the bond were the School City of ^Inncio 

on the one hand and the contractor and his sureties on tlni 

other. But it is claimed on behalf of appellee that 

1. certain provisions of the bond were made for the ben- 
efit of third persons. A contract may be entered into 
between two or more parties for the primary benefit of third 
persons not parties to the contract, and, in such a case, the 



352 APPELLATE COURT OF INDIANA. 

Snider r. Greer-Wilkinson Lumber Co. — 51 Ind. App. 348. 

persons for whose benefit the contract is made may maintain 
an action on it in their own names. This proposition is not 
controverted by appellant and is well supported by author- 
ity. WilUams v. Markland (1896), 15 Ind. App. 669, 44 
N. E. 562; Jtidson v. Romaine (1893), 8 Ind. App. 390, 35 
N. E. 912; Waterman v. Morgan (1888), 114 Ind. 237, 16 
N. E. 580; Carnaha/n v. Totisey (1884), 93 Ind. 561; Knight 
& JiUson Co. V. Cattle (1909), 172 Ind. 97, 87 N. E. 976, 
27 L. R. A. (N. S.) 573. 

It has frequently been held in this State that a bond given 

to secure the performance of a contract for the construction 

or repair of public buildings which' are not subject 

2. to liens inures to the benefit of persons furnishing 
material or labor in the performance of such con- 
tracts, where there is an express stipulation, either in the 
contract or bond, that the contractor shall pay all claims for 
labor and material. Knight & Jillson Co. v. Castle, supra; 
Ochs V. M. J. Carnahan Co. (1908), 42 Ind. App. 157, 76 
N. E. 788, 80 N. E. 163 ; Brown v. Markland (1899) , 22 Ind. 
App. 652, 53 N. E. 295. A stipulation, to the effect that 
the contractor shall pay all claims for labor and material 
when contained in a contract for building or repairing a 
public structure not subject to liens, can be of no direct 
financial benefit to the public corporation for which the 
structure is built, or its agents who let the contract, for the 
reason that neither such corporation nor its agents can be 
held personally responsible for such claims, and they can- 
not be enforced as liens against tjie building. As persons 
furnishing material or performing labor are the only ones 
who can be benefited by such a stipulation, this furnishes 
a reason for holding, in such a case, that an agreement of 
this character is intended primarily for their benefit. King 
V. Downey (1900), 24 Ind. App. 262, 56 N. E. 680; United 
States Fidelity, etc., Co. v. American Blower Co. (1908), 41 
Tnd. App. 620, 84 N. E. 555. The sureties on a contractor's 
bond cannot be held liable to persons having claims for ma- 



MAY TERM, 1912. 353 

Snider r. Oreer- Wilkinson Lumber Co. — 51 Ind. App. 348. 

terial or labor, unless there is an express agreement in the 
contract, or a condition in the bond, requiring the contractor 
to pay such claims. OreenfiM Lumber, etc., Co. v. Parker 
(1902), 159 Ind. 571, 65 N. E. 747. 

It is admitted by all parties to this appeal that the 

3. contract does not contain any agreement on the part 
of the contractor to pay claims for labor and mate- 

4. rial, but it will be observed from an examination of 
the bond heretofore set out that it contains a con- 
dition to the effect that if the contractor shall duly and 
promptly pay and discharge all indebtedness that may be 
incurred by him in carrying out the contract, and ^hall com- 
plete the same free of all mechanic's liens, the bond shall 
become void, else to remain in full force. Here is a condi- 
tion providing for the payment by the contractor of all 
indebtedness incurred by him in carrying out said contract, 
which must be construed under the authority of the cases 
cited as having been made for the benefit of third persons. 

It is contended on behalf of appellant that the bond on 
its face specifies the particular class of third persons for 
whose benefit it is made, and that no person other than 
those included within the class so specified can derive any 
benefit from its provisions. The maxim expessio unius est 
exclusio alterius applies to the construction of contracts. 
Cree v. Bristol (1895), 33 N. Y. Supp. 19, 12 Misc. 1 ; Ham- 
merquist v. Swensson (1891), 44 111. App. 627; Higgins v. 
Eagleton (1895), 34 N. Y. Supp. 225, 13 Misc. 223; 2 Par- 
sons, Contracts •515. 

An examination of the bond sued on shows that on its 
face it is made to the School City of Muncie as well as to 
aD persons who may become entitled to liens under said 
contract, and the penalty of the bond is made payable in 
like manner. Following the condition, the bond contains 
this provision : 

''This bond is made for the use and benefit of all per- 
sons who may become entitled to liens under the said 
Vol. 51—23 



354 APPELLATE COURT OP INDIANA. 



V 



Snider r. (Ireer-Wllkliison Lumber Co. — 51 Ind. App. 348. 

contract according to the provisions of law in such cases 
made and provided, and may be sued upon by them as 
if executed to them in proper person." 

Appellants insist that the bond is explicit as to the per- 
sons for whose benefit it was made, and as to those who may 
sue On it ; and that as appellee does not fall within the class 
of persons entitled to acquire liens, it cannot sue and recover 
on the bond. 

All contracts are to be read and understood in the light 
of the law applicable thereto. If the language of the con- 
tract has a certain and definite meaning when considered in 
connection with the law applicable to the subject-matter 
with which it deals^ the parties will be presumed to have 
intended that it should have the legal effect which such lan- 
guage implies. If the language used creates certain rights 
and imposes certain obligations, neither party to such eon- 
tract can be heard to say that he did not intend that it 
should have the effect which the law gives to it. Bice v. 
Dtvight Mfg. Co. (1848), 2 Gush. (Mass.) 80; Clark v. City 
of Boston (1901), 179 Mass. 409, 412, 60 N. E. 793; Whech 
ton V. Fay (1875), 62 N. Y. 275; Clark v. lAllie (1867), 39 
Vt. 405; United States v. McDowell (1884), 21 Fed. 563. 

The subject-matter of the contract and bond here in con- 
troversy was the repair of a public school building. Under 
the laws of this State this building could not be subjected 
to a lien for a claim of any character in favor of any person, 
and the bond sued on must be considered and understood in 
the light of this well-settled law. 

If the bond does classify the persons to whom the con- 
tractor might become indebted in carrying out the contract, 
and designates one class of such debtors as the persons to 
be benefited by the condition of the bond, then all other 
persons not included in the class so specified must be ex- 
cluded from its benefits. 

The only class of third persons named and designated in 
the bond as entitled to its benefits is ^' all persons who may 



MAY TERM, 1912. 355 

Snider v. Greer-WIlklnson Lumber Co. — 51 Ind. App. 348. 

become entitled to liens under the contract hereinbefore 
mentioned." The class thus named does not include any 
person, for the reason that no one under any circumstances 
could become entitled to hold a lien under the contract men- 
tioned As no one is included within the class named, it 
must necessarily follow that the naming of such class cannot 
have the efifect to exclude any one, by the application of the 
maxim expressio umus est exclusio altenus. No person can 
be excluded from the benefits of the conditions of this bond 
if otherwise entitled thereto, unless some person or class of 
persons is expressly named and designated as entitled to 
such benefits. If in carrying out such contract it were possi- 
ble that the contractor could incur a single item of indebted- 
ness which might, under the law, become a lien on the build- 
ing, or if a single person, by furnishing material or labor, 
or in any other way aiding in carrying out said contract, 
might become entitled to a lien, then such person holding 
sueh claim would be within the class designated in the bond 
as entitled to its benefits, and he might sue and recover on 
such bond, and all others would be excluded. 

When the words employed to indicate the class of persons 
for whose benefit the bond was executed are considered in 
the light of the law, and in connection with the contract for 
the performance of which the bond was given, they are with- 
out force, and are meaningless. The bond must therefore 
be treated the same as though such words had been omitted. 

The case of Owinn v. Wright (1908), 42 Ind. App. 597, 
86 N. E. 453, is cited and relied on by appellants. Nothing 
in that case is at variance with the conclusion reached or the 
reasoning employed in this opinion. 

The case of Smith v. Bowman (1907), 32 Utah 33, 38, 88 
Pac. 687, 9 L. R. A. (N. S.) 889, cited by appellants, is a 
case directly in point. In that case, the bond sued on was 
given to secure the performance of a contract for the con- 
struction of a college building, which under the laws of Utah 
could not be subjected to a mechanic's lien, and it was in all 



356 APPELLATE COURT OF INDLAJSFA. 

Snldi^r V. (rreer-WilklDson Lumber Co. — 51 Ind. App. 348u 



essential respects the same in form as the bond sued on in 
this case. Smith furnished material for the construction of 
the building under said contract, which was not paid for, 
and he brought an action on the bond. It was held that he 
could not recover. From an examination of the opinion in 
that case, it will appear that the court, in construing the 
bond, treated the class of persons designated therein as enti- 
tled to its benefits as real, and did not recognize that such 
classification was only apparent. Without further review- 
ing this opinion, it is sufficient to say that we can neither 
assent to the conclusion nor agree with the reasoning by 
which it is reached. 

One of the express conditions of the bond was to the eflfect 
that the contractor should duly and promptly pay and dis- 
charge all indebtedness incurred in carrying out said con- 
tract. This stipulation was clearly intended, as we have 
said, for the benefit of persons to whom said contractor 
might become indebted on account of said contract. As the 
language of the contract does not have the effect to limit the 
persons entitled to such benefit to those entitled to liens, it 
must follow that appellee may maintain an action on said 
bond. The complaint was in other respects sufficient, and 
the demurrer was properly overruled. 

The motion for a new trial calls in question the correct- 
ness of the rulings of the trial court in giving certain in- 
structions to the jury, and in refusing to give certain other 
instructions requested by appellant. These instructions pre- 
sent in another form the same question presented by the 
demurrer to the complaint. For the reasons already given, 
we are of the opinion that the instructions given properly 
state the law, and that the court committed no error in re- 
fusing to give the instructions requested by appel- 

5. lants. The provision in the bond in reference to at- 
torney's fees is valid, and the court did not err in 
instructing the jury that, in case it found for plaintiff it 
should award a reasonable attorney's fee. It has been held 



MAY TERM, 1912. 357 



Indianapolis Traction, etc., Co. v. Crawley — 51 Ind. App. 357. 

that §9089 Burns 1908, §5518 R. S. 1881, providing that 
agreements to pay attorney's fees, depending on any condi- 
tion, shall be illegal and void, applies only to bills of ex- 
change, acceptances, drafts, promissory notes and other like 
written evidences of indebtedness. American Surety Co. v. 
Lauber (1899), 22 Ind. App. 326, 53 N. B. 793. 
Finding no error in the record, the judgment is affirmed. 

Note.— -Reported in 06 N. E. 960. See, also, under (1) 9 Cyc. 
3T7; (2) 28 Cyc. 1(H1; (4) 9 Cyc. 582, 584; (5) 5 Cyc. 853. As to 
the right of a third person to enforce a contract made for his bene- 
fit, see 39 Am. St 531. 



Indianapolis Traction and Terminal Company 

V. Crawley. 

[Xo. 7,322. Filed November 15, 1911. Rehearing denied June 6, 
1912. Transfer denied November 8, 1912.] 

L Neouoence. — Proximate Ca/use, — Contributory Negligence. — 
Where the right to recover is predicated on the negligence of de- 
fendant, such negligence must be shown to be the proximate cause 
of the injury in order to sustain a verdict for plaint IfiP, and, if 
plaintUTs negligence or want of care contributed in any way to 
the injury, there can be no recovery, although the negligence of 
defendant is conceded, p. 362. 

2. Negligence. — Contributory yegligcnce. — Question for Jury. — 
Contributory negligence is a question of fact for the jury, unless 
the facts in evidence are undisputed, or are such that only a sin- 
gle Inference can be drawn therefrom, in which event it becomes 
a question of law for the court, p. 362. 

3. Negligence. — Contributory Negligence. — Knowledge of Dangcf\ 
— Care Required. — One who is employed in a place of danger must 
use his senses, exercise his reasoning faculties, and do all that 
a careful and prudent man would do under the circumstances to 
avoid injury, and if his employment is such as to give rise to 
noises, whereby he is deprived of the sense of hearing, greater 
precautions must be taken to avoid injury than would otherwise 
be necessary, p. 362. 

4. Street Railroads. — Injury to Persons on Traelcs. — Contribu- 
tory Negligence. — Question for Jury. — ^Where plaintiff, who was 
stnick by defendant's streot-car, while he was engaged in clean- 
ing a street, could not hear the approach of the car on account 



358 APPELLATE COURT OF INDL^NA. 

Indianapolis Traction, etc., Co. v, Crawley — 51 Ind. App. 357. 

of the noise he caused by pushing his shovel pan, and, while 
traveling slowly for a distance of from fifty to one hundred feet 
in the performance of his work, failed to look for the approach of 
cars, although knowing that cars were constantly run over the 
tracks and that the noise he was making would Interfere with 
his hearing their approach, the question of whether his failure 
to observe the approach of the car, was such contributory negli- 
gence as would be the proximate cause of the injury, was for the 
Jury. p. 3G3. 
5. Street KAiifiOADS. — Injury to Persona on Tracks, — Duty to 
Avoid Injury. — Where one Is engaged in cleaning a street upon 
which Btreet-cars are operated, the duty of avoiding a collision 
rests equally upon him and upon those operating sucli cars, and 
while he has a right to go upon the tracks for the purpose of 
cleaning the street, such right must yield to the right of the com- 
pany to run its cars over such tracks, p. 364. 

From Hamilton Circuit Court ; Ira W. Christian, Judge. 

Action by Charles W. Crawley against the Indianapolis 
Traction and Terminal Company. Prom a judgment for 
plaintiff, the defendant appeals. Reversed. 

F. Winter, Kane & Kam,e, and W. H. Latta, for appellant. 
M. M. Bachelder, for appellee. 

Adams, J. — ^Appellee was injured on April 6, 1908, by 
being struck by a street-car operated by appellant At the 
time of his injury, appellee was a street cleaner in the em- 
ploy of the city of Indianapolis, and was engaged in clean- 
ing that part of Central avenue near Thirty-third street, 
lying between the west rail of the car tracks and the west 
curb of the paved street. In the performance of his work, 
appellee used a steel shovel pan, about eighteen inches wide, 
with a wooden handle six feet long. This pan he pushed 
along the paved street until filled, when he emptied it at 
the curb. 

It is charged in the complaint that the motorman operat- 
ing the car ran it at a speed of about twenty miles an hour ; 
that he did see, or, by the use of due diligence, could have 
seen plaintiff for a distance of three or four squares, but 
that he carelessly operated said car southward on the west 



MAY TERM, 1912. 359 

Indianapolis Traction, etc., Co. v. Crawley — 51 Ind. App. 357. 

track at the same rate of speed, without giving any signal or 
warning, and knowing that plaintiff was not aware of the 
approach of the* car; that by virtue of the carelessness and 
negligence of defendant, and its motorman the plaintiff was 
struck and injured. As appellant does not seriously ques- 
tion the complaint, and as we think it clearly states a cause 
of action, it is not necessary to set out the complaint in 
greater detaiL 

The issue was made by an answer in denial, and the cause 
was submitted to a jury, resulting in a verdict for appellee. 
Motion for a new trial was overruled, and judgment ren- 
dered on the verdict. The only error assigned and argued 
is that the court erred in overruling appellant's motion for 
a new trial. 

The account of the injury, as given by appellee on the 
witness-stand, is, that on the morning of his injury he had 
started to clean the paved part of Central avenue, west of 
the car tracks, at Thirty-fourth street ; that he pushed his 
pan southward from Thirty-fourth street about 300 feet, 
when he emptied it at the curb ; that he then returned and 
continued to push the pan along the side of the west track ; 
that he had his left foot on the west rail of the track as he 
proceeded southward ; that when he entered on the track he 
looked north, and there was no car coming; that there was 
nothing to obscure his view for a distance of 300 or 400 feet ; 
that the pan was making a noise, the pavement was rough, 
and he could only proceed slowly; that he did not see and 
did not hear the car approaching, and did not hear smy 
gong or other warning; that at the time he had good eyesight 
and good hearing ; that he had filled his pan and was in the 
act of turning the same to the curb when he was injured ; 
that he was struck on the right side, when his face was 
practically to the west; that he was struck by the front of 
the car, but was not struck by the guard; that the handle 
of the shovel was about at his waist line, and projected be- 
yond his body probably six inches. 



360 APPELLATE COURT OF INDIANA. 



Indianapolis Traction, etc., Co. v. Crawley — 51 Ind. App. 357. 

The view of the case taken by appellant is that appellee, 
as the car approached, was not standing in such close prox- 
imity to the track as to be struck by the car until after the 
front end passed, and that in turning to the west he brought 
the handle of his shovel in contact with the middle of the 
car, which resulted in his injury. This view is supported by 
the physical fact that appellee was not struck by the fender 
or guard, which, the evidence shows, was the same width as 
the car. If appellee had been standing on the track, or near 
enough to the track to be struck by the car, he would have 
been struck first by the fender. Appellee, however, insists 
that he was struck by the front end of the car, and this view 
is supported by the verdict of the jury. 

Appellant earnestly insists that the fourth instruction ten- 
dered by appellee, and given by the court to the jury, is 
erroneous. This instruction is long, and is intended to cover 
the facts and the law of the case, according to the theory of 
appellee. After setting out the relative rights of the parties, 
the instruction proceeds : "And I instruct you that if from 
the evidence you find that this plaintiff at said time of said 
injury was in the employ of the city of Indianapolis for the 
purpose of and engaged in cleaning the said street in ques- 
tion in said city and was employed for the purpose of clean- 
ing all that part of said street which lies between the west 
(•(Ige of the west rail of the west tracks on said street and 
the west curb, and at the time of said injury was upon the 
west rail of said track, or so close thereto that a car passing 
thereon could not pass without striking him, and while in 
said position he was cleaning such part of said street as the 
city required him to clean, then I instruct you that the 
plaintiff had a right to be at said place at said time, and the 
rights of the street car company were not superior to the 
rights of said plaintiff at said time. And if you further 
find from the evidence that when the plaintiff entered upon 
said place he used the precaution and looked north for the 
purpose of ascertaining whether any street-cars were in sight 



MAY TERM, 1912. 361 

Indianapolis Traction, etc., Co. v, Crawley — 51 Ind. App. 357. 

and that none were in sight, and there was an unobstructed 
view between him for a distance north of three hundred feet 
or more, and he then entered upon said track and continued 
southward pushing a steel pan shovel upon the brick and rail 
and adjacent pavement thereto, which shovel was making a 
noise, and that he did not hear any approaching cars or any 
gongsoundedof any approaching car, then I instruct you that 
said plaintiff was not necessarily guilty of contributory neg- 
ligence which would be a proximate cause of his injury, but 
that the question of such contributory negligence is for the 
jnry. And under such circumstances it would be the duty 
upon defendant's motorman, if you find that he entered 
upon said street at said time with his car at a distance from 
300 to 350 feet north of the said plaintiff and operated his 
car on the same track upon which the plaintiff was working, 
and in the direction towards plaintiff, to use ordinary care 
for the purpose of determining whether or not the plaintiff 
was upon said track or was in such proximity to said track 
that plaintiff would be struck by said car by attempting to 
propel said car past plaintiff. And if under such circum- 
stances you find that said motorman had an unobstructed 
view of said plaintiff at a distance of 300 feet or more away 
from him, and saw the plaintiff in such position or could 
have seen him by the use of due diligence, it was the duty 
of such motorman to take all due precautions to guard 
against inflicting any injury unnecessarily upon plaintiff. 
And it was his duty under such circumstances to keep such 
a control of his car and to sound such alarms as might be 
reasonably necessary to warn the plaintiff of the approach- 
ing danger; and under such circumstances said motorman 
would have no right to infer or presume that the said plain- 
tiff would hear said car coming or know of its approach un- 
less said alarms were given or approach made known. And 
shotdd you find that said motorman failed to use such care 
for the purpose of notifying said plaintiff of the approach 
of said car, then I instruct you that it would be such negli- 



362 APPELLATE COURT OP INDIANA. 

Indianapolis Traction, etc., Co. v. Crawley — 51 Ind. App. 357. 

gence upon the part of the defendant as would make the 
defendant company liable for all injury and damage done 
to the plaintiff, because of such injury, as is alleged in plain- 
tiff's complaint, unless you further find that the plaintiff at 
said time was guilty of contributory negligence approximat- 
ing said injury ; and it does not necessarily follow because 
the plaintiff did not use due care in looking around to see 
whether any car was coming or not that that fact would be 
such contributory negligence on the part of plaintiff that 
would be the proximate cause of the injury." 

This being an action in which the right to recover is pred- 
icated on the negligence of defendant, such negligence must 
be shown by the evidence to be the proximate cause of 

1. the injury, in order to sustain a verdict for plaintiff. 
But where the negligence of the defendant is con- 
ceded, there can be no recovery if the plaintiff's negligence 
or want of care contributed in any way to the injury com- 
plained of. City of IndianapoUs v. Cook (1884), 99 Lid. 
10, 11. 

Contributory negligence is a question of fact for the jury, 

unless the facts in evidence are undisputed, or are such that 

only a single inference can be drawn therefrom, in 

2. which event the question of contributory negligence 
becomes one of law for the court. Korrady v. Lake 

Shore, etc., R, Co. (1892), 131 Ind. 261, 263, 29 N. E. 1069; 
Rogers v. Leyden (1890), 127 Ind. 50, 57, 26 N. E. 210; In- 
dianapolis St, R, Co. V. O'Donnell (1905), 35 Ind. App. 312, 
316, 73 N. E. 163, 74 N. E. 253 ; Loidsville, etc., R. Co. v. 
Williams (1898), 20 Ind. App. 576, 580, 51 N. E. 128; Buek- 
ner Chair Co. v. Feulner (1905), 164 Ind. 368, 372, 73 N. E. 
816; Indianapolis St. R. Co. v. SUfer (1905), 35 Ind. App. 
700, 705, 74 N. E. 19. 
It is the duty of one employed in a place of danger to use 
his senses, to exercise his reasoning faculties, and to 

3. do all that a careful and prudent man would do under 
the circumstances to avoid injury. And if the em- 



MAY TERM, 1912. 363 

Indianapolis Traction, etc., Co. v. Crawley — 51 Ind. App. 357. 

ployment is such as to give rise to noises^ whereby one is 
deprived of the protection of the sense of hearing, then 
greater precautions are to be taken to avoid injury than 
would otherwise be necessary. Oleson v. Lake Shore, etc., 
ft. Co. (1896), 143 Ind. 405, 411, 42 N. E. 736, 32 L. R. 
A. 149. 

Appellee, in the case at bar, could not hear the approach- 
ing car on account of the noise he was making in pushing 
his shovel pan. While traveling slowly for a distance 

4. of from fifty to one hundred feet, in the performance 
of his work, appellee did not look for the approach of 
cars, although he knew that cars were being constantly run 
over the tracks on or near which he was working, and that 
the noise he was making would interfere with his hearing 
the approach of the car. Under such circumstances, it was 
error for the court to instruct the jury that **it does not 
necessarily follow because the plaintiff did not use due care 
in looking around to see whether any car was coming or not 
that that fact would be such contributory negligence on the 
part of plaintiff that would be the proximate cause of the 
injury." The jury, being the exclusive judge of the facts, it 
was for it to say whether the failure to observe the approach 
of a car, under the circumstances, was such contributory neg- 
ligence as would be the proximate cause of the injury. Lotc- 
ispUle, etc., R. Co, v. Kemper (1899), 153 Ind. 618, 629, 53 
N. E. 931. 

The court having instructed the jury that the burden of 
showing contributory negligence was on defendant, such bur- 
den required defendant to show that plaintiff did not use due 
care, and for this purpose defendant offered evidence tend- 
ing to prove that plaintiff was not injured in the manner 
complained of, but was injured by his own negligence, after 
the car had partially passed him. The instruction, however, 
amounted to a declaration that the failure to use due care 
was not necessarily negligence as a matter of law. This was 
the leading question in controversy, and having been deter- 



\ 



364 APPELLATE COURT OF INDL^A. 



/ 



Indianapolis Traction, etc., Co. t?. Crawley — 51 IncL App. 357. 

mined by the court, there was little for the jury to pass 
on, except to assess the damages. The instruction was clearly 
an invasion of the right of the jury to consider the conduct 
of plaintiff in the determination of the question of contribu- 
tory negligence. 

Again, the instruction advised the jury that if plaintiflE 
was in the employ of the city of Indianapolis, and engaged 

in the work of cleaning the street, over which defend- 
5. ant's tracks were laid, and that at the time of the 

injury he was on the track engaged in the work of 
his employment, or so near thereto that a car could not pass 
without striking him, *'then I instruct you that the plain- 
tiff had a right to be at said place at said time, and the 
rights of the street car company were not superior to the 
rights of said plaintiff at said time." This part of the 
instruction is, to say the least, confusing, and might easily 
be understood by the jury to mean that if plaintiff, in the 
discharge of the duties of his employment, was so near the 
track that a car could not pass without striking him, he had 
a right to remain in such place, notwithstanding the ap- 
proach of the car. It might be inferred by the jury that 
the car had no right to proceed, except on the supposition 
that plaintiff would remain in the same position, and if the 
car did strike him, the act of the defendant's motorman 
would be a wilful wrong. There is no contention that the 
complaint in this case proceeds on the theory of a wilful 
injury. If plaintiff had a right to be at the place where he 
was at the time he was struck by the car, and the rights of 
the company were not superior to the rights of plaintiff at 
such time, it follows that plaintiff was not bound to antici- 
pate any danger from the operation of cars on the track, 
and could not be held to be negligent in failing to use pre- 
caution to guard against being injured. This was not a 
proper statement of the measure of duty owing by the par- 
ties to each other. The duty to avoid a collision rests equally 
on each party, and while the right of appellee to be on the 



MAY TERM, 1912. 365 

Cndle V. Mcintosh — 51 Ind. App. 365. 

tracks of appellant for the purpose of cleaning the street is 
undoubted, this right must yield to the right of appellant to 
run its cars over such tracks. 

The fourth instruction was clearly erroneous, and was 
prejudicial to appellant. Other questions presented by the 
record and argued may not again arise, and hence are not 
considered. 

The judgment is reversed, with directions to the trial court 
to sustain appellant's motion for a new trial, and for further 
proceedings not inconsistent with this opinion. 

Note.— Reported In 96 N. E. 3J>2. See, also, under (1) 29 Cyc. 488, 
507; (2) 29 Cyc. 628, 631; (3) 29 Cyc. 512; (4) 36 Cyc. 1622; (5) 
3t> Cyc. 1529. As to the duty one Is charged with, on approaching 
a railroad track, to be watchful and prudent, see 20 Am. St 114. 
As to the duty of a person working near street-car tracks to look 
out for his own safety, see 15 L. R. A. (N. S.) 282. 



Cadle V. McIntosh. 

[No. 7,736. Filed November 8, 1912.] 

1. LiBKL AND Slander. — Pleading. — Proof. — In an action for slan- 
der, where defendant was charged with saying that plaintiff was 
a thief, a drunkard and a gambler, the plaintiff, to establish his 
case, was required to prove only the publication by defendant <jf 
the libelous language concerning him, as alleged in the complaint. 
p. 369. 

2. Libel and Slander. — Privileged Communications. — Absolute 
Privilege. — Right of Action. — The law of libel and slander recog- 
nizes two classes of privileged communications, absolute and 
qualified, and, where the communication Is made under such cir- 
cumstances as to constitute an absolute privilege, no right of 
action acrues, even though the words would be otherwise action- 
able, p. 370. 

3. Libel and Slander. — Privileged Communications. — Qualified 
Privilege. — Action. — Proof. — A communication made in good faith 
on any subject-matter in which the party making the communica- 
tion has an interest, or in reference to which he has a duty either 
public or private, either legal, moral or social, if made to a per- 
Bon having a corresponding interest or duty, is within the rule of 
qaalifled prlvilej?e, and, under such circumstances, an action 



366 APPELLATE COURT OP INDIANA. 

Cadle V. McIntoslL — 61 Ind. App. 365. 

therefor will fall unless express malice is shown by a preponder- 
ance of the evidence, p. 370. 

4. Libel and Slander. — Privileged Communications, — Qttalified 
Privilege, — Communication to Members of Lodge. — ^A member of a 
lodge has such an interest in the character and qualifications of 
persons seeking admission thereto, as will warrant him in com- 
municating to other members of the order, having a like interest, 
anything that he might know regarding the character, qualifica- 
tions or fitness of such persons, and if he makes such a com- 
munication In good faith, without malice or ill-will, for the sole 
purpose of preventing the admission to the order of someone he 
deems unworthy, he is not answerable in damages therefor, 
p. 370. 

5. Libel and Slandeb. — Qualified Privilege, — Pleading, — Proof, — ; 
In an action for slander, facts showing that the communication' 
was made under circumstances of qualified privilege may be 
proved under the general denial, p. 371. ' 

6. Libel and Slandeb* — Pleading, — Proof, — Malice, — ^Malice is an 
essential ingredient of every acti(»i for slander, and where the 
malice arises by implication of law from the speaking of the 
slanderous words, it need not be alleged in the complaint, but is 
established by proof that the words were spoken to or in the 
presence of a third party, p. 372. | 

7. Libel and Slandeb. — Implied Malice, — Rebutting Implied 
Malice. — Proof, — Implied malice shown by the speaking of slan- 
derous words cannot be rebutted by evidence proving or tending 
to prove a want of actual or express malice, but can be rebutted 
only by proof of facts showing the utterance of such words on an| 
occasion of absolute or qualified privilege, p. 372. < 

8. Libel and Slandeb. — Privileged Communications. — Malice. — ^In 
an action for slander, where the facts show an absolute privilege, 
malice is conclusively rebutted; but if the occasion shown is 
merely one of qualified privilege, the absence of malice is estab- 
lished only prima fade, and such prima facie <lefense may be 
overcome by proof of actual or express malice, p. 372. 

9. Libel and Slandeb. — Qualified Privilege. — Malice. — ComplaintJ 
— ^Where a complaint for slander discloses facts constituting a| 
qualified privilege, express malice must be alleged, p. 372. 

10. Libel and Slandeb. — Evidence. — Express Malice, — In an action 
for slander, where there is no evidence tending to prove an occa- 
sion of qualified privilege, express malice on the part of defend- 
ant may be proved to enhance the damages; and an absence of 
express malice may be proved by the defendant in ndtigation of 
damages, but not as a defense, p. 372. 

11. LmEL AND Slandeb. — Express Malice. — Burden of Proof. — In 
an action for slander, where the slanderous words were spoken 
on an occasion of qualified privilege, plaintiff has the onus of 



MAY TERM, 1912. 



367 



Cadle V. ]McIntosh— 61 Ind. App. 365. 



proYlng express malice, and defendant need not prove that he 
did not act maliciously until plaintiff has Introduced some evi- 
dence of actual malice, p. 372. 

12. Libel and Slander. — Evidence. — Malice. — ^In an action for 
slander, the fact that the information was volunteered hy de^ 
fendant, is no evidence of malice, if it was his duty to volunteer 
it, since he may have been influenced in his conduct by the high- 
est motives, p. 373. 

13. Libel and Slandeb. — Express Malice, — Evidence. — Bufflciency. 
—In an action for slander, where the evidence showed that de- 
fendant, under circumstances of qualified privilege, told members 
of his lodge that plaintiff, who was an applicant for membership 
therein, was a thief, a drunkard and a gambler, and also stated 
that plaintiff, on one occasion in company with two others, had 
waylaid him and beaten him, such evidence was sufficient to re- 
quire the submission of the question of express malice to the jury, 
p. 373. 

Prom "Washington Circuit Court; ThovKis B. Biiskirk, 
Judge. 

Action by Emmet H. Cadle against John W. Mcintosh. 
Prom a judgment for defendant, the plaintiff appeals. Re- 
versed. 

WiU H. Tatbott, Milton B. Hottel and Wilbur W. Hottel, 
for appellant. 
Elliott & Houston, for appellee. 

Laiby, J. — This was an action for slander. Appellee filed 
an answer of general denial to the complaint of appellant, 
and the issue thus formed was submitted to a jury for trial. 
After plaintiff had introduced his evidence and rested, de- 
fendant made a motion for a peremptory instruction in his 
favor. This motion was sustained, and the court thereupon 
instructed the jury in writing to return a verdict for defend- 
ant. A verdict was returned in obedience to this instruction, 
and the court rendered judgment thereon. Appellant saved 
his exceptions to the giving of the peremptory instruction, 
and filed a motion for a new trial, in which this was assigned 
aa error. The court overruled the motion, and this ruling 
is assigned as error on appeal, and presents the only ground 
I died on for reversal. 



368 APPELLATE COURT OP INDIANA. 



Cadle V. Mcintosh — 51 Ind. App. 365. 



The slanderous words alleged to have been spoken by ap- 
pellee of and concerning appellant were that he was a thief, 
a drunkard and a gambler. The speaking of the same set of 
words is charged in different forms in five paragraphs of 
complaint. Whether the trial court was justified in giving 
the peremptory instruction complained of must depend on 
the evidence. 

The evidence consists entirely of the testimony of three 
witnesses, and tends to prove that defendant spoke the slan- 
derous words, charged in the complaint of and concerning 
plaintiff, in a bank at Orleans, Indiana, in the presence of 
Jonce Monyhan, Homer Fisher and Alfred Parish. The evi- 
dence further shows that defendant was at the time a mem- 
ber of the Lodge of Knights of Pythias, and that he lived in 
Hardinsburg, about twenty miles from Orleans ; that he was 
in Orleans on that occasion in an attempt to prevent plain- 
tiff from becoming a member of the Knights of Pythias Lodge 
at Orleans ; that all the persons to whom the communication 
in question was made belonged to the order of Knights of 
Pythias, and that plaintiff was taking the work at Orleans, 
and had taken some of the degrees at the time the conversa- 
tion in question took place. 

Mr. Monyhan testified, in substance, as follows: Some- 
time the first of the year I had a conversation with defend- 
ant, Mcintosh, there at our bank — ^the Citizens Bank of Or- 
leans. Indiana. He came into the bank to talk with me con- 
cerning plaintiff, Cadle, taking the work of the "Pythian 
Lodge. ' ' He discussed the matter, but I do not remember all 
that was said. I remember that he said that plaintiff was not 
a man capable nor fit to become a ** Knight". He told me 
that he (Cadle) had been blackballed over at his town of 
Hardinsburg. He said he was over to try to keep our lodge 
from taking him in ; that he was not a man that was fit to 
belong to the lodge ; that he was a gambler and a thief. He 
said that Cadle, and one or two other men waylaid him and 



MAY TERM, 1912. 369 

Cadle r. Mcintosh — 51 Ind. App. 365. 

beat him. He also said that he (Cadle) was a drunkard. 
Mr. Parish was in the bank, and I think Homer Fisher came 
in during the conversation. Mr. Parish was present during 
all the conversation. He was at work in the bank. All of 
us were Knights of Pythias, and he was talking to me about 
Cadle joining or going into the lodge. 

The evidence further shows that none of the persons to 
whom this conversation was made was a member of any com- 
mittee to investigate the fitness of appellant to become a 
member of the lodge, and that none of them asked Mr. Mc- 
intosh as to the character of Mr. Cadle or his fitness to be- 
come such a member, but that appellee introduced the sub- 
ject. Appellee was informed, as shown by the evidence, that 
Albert Martin was on the investigating committee, and that 
the matter had gone too far; that appellant had already 
taken part of the work, and that appellee would have to take 
other action. 

To establish his case, plaintiflP was required to prove only 
tbe publication by defendant of the libelous language con- 
cerning him, as alleged in the complaint. The evi 

1. dence is not wanting in this particular, but it is as- 
serted, on behalf of defendant, that the trial court 
was, nevertheless, warranted in directing a verdict in favor 
of defendant, for the reason that the evidence of plaintiff, 
without dispute, discloses a state of facts from which the 
court must say that the occasion on which the alleged 
libelous language was used was one of qualified privilege; 
and that plaintiff cannot recover under such circum- 
jstances without proof of express malice ; and that there is no 
evidence proving, tending to prove, or from which the jury 
might properly infer, actual malice on the part of defendant. 

Appellant contends (1) that the facts disclosed by the 

evidence do not show an occasion of qualified privilege ; (2) 

that a qualified privilege cannot be proven, or, if proven, 

cannot be considered as a defense unless specifically pleaded ; 

Vol. 51—24 



370 APPELLATE COURT OP INDIANA. 



Cadle r. Mcintosh — 51 Ind. App. 365. 

and (3) that there is evidence in the record from which the 
jury might properly have inferred express malice, and that 
the facts should, therefore, have been submitted to the jury. 
The law of libel and slander recognizes two classes of priv- 
ileged conununication, absolute and qualified. If the com- 
munication is made under such circumstances as to 

2. constitute an absolute privilege, no right of action 
accrues, even though the words, spoken or written, 

would otherwise be actionable. We need not consider the 
circumstances constituting an absolute privilege, for the rea- 
son that it is conceded by both parties to this controversy 
that if the circumstances under which the words were spoken 
constitute a privilege at all, it was only a qualified privilege. 
The rule in reference to a qualified privilege is that 

3. a communication made in good faith on any subject- 
matter in which the party making the communication 

has an interest, or in reference to which he has a duty either 
public or private, either legal, moral or social, if made to a 
person having a corresponding interest or duty, is privUeged. 
The fact that words otherwise actionable are spoken under 
such circumstances rebuts the inference of malice which 
would otherwise arise as a matter of law from the speaking 
of the words. PlaintiflP must then establish express malice 
by a preponderance of the evidence, or fail in his action. 
Henry v. Moberly (1893), 6 Ind. App. 490, 33 N. E. 981. 
The case cited contains such a full discussion of the subject 
of qualified privilege, w^ith such an elaborate citation of au- 
thorities that a further discussion is deemed unnecessary in 
this case. It is sufficient to say, that it appears from the 
evidence that appellee, as a member of the order of 

4. Knights of Pythias, had such an interest in the char- 
acter and qualifications of persons seeking admission 

to the order as would warrant him in communicating to other 
members of the order, having a like interest, anjrthing that 
he might know regarding the character, qualifications or fit- 
ness of such persons. If, under such circumstances, he made 



MAY TERM, 1912. 371 

Cadle r. Mcintosh— 51 Ind. App. 365. 

the statement, charged in the complaint, to other members 
of the order, in good faith, and for the sole purpose of pre- 
venting one whom he deemed unworthy from becoming a 
member, he is not answerable in damages. But, on the other 
hand, if he was prompted by actual malice and ill-will toward 
appellant, and sought the occasion as a means of venting the 
spite and iU-will which he entertained toward him, the cir- 
cumstances under which the communication was made, would 
afford him no protection. 

The next question to be considered is. Can evidence that 

the words were spoken on an occasion of qualified privilege 

be considered under an issue formed by the general 

5. denial to rebut the implied malice which arises from 
the speaking of slanderous words? At common law, 
it seems that evidence of this character was admissible under 
the general issue. 13 Ency. PL and Pr. 88; 2 Greenleaf, 
Evidence (15th ed) §421; Townshend, Slander and Libel 
§403; Newell, Slander and Libel 788; Hagan v. Hendry 
(1861), 18 Md. 177, 191 ; Hackett v. Brown (1871), 2 Heisk. 
(Tenn.) 264, 272; Atwater v. Morning News Co. (1896), 67 
Conn. 504, 34 Atl. 865 ; Fero v. Ruscoe (1850), 4 N. Y. 162 ; 
Torrey v. Field (1838), 10 Vt. 353; Johnson v. Brown 
(1878), 13 W. Va. 71. But under the code of some states, 
a special answer is required in order to admit such 
evidence. Gilman v. McClatchy (1896), 111 Cal. 606, 
44 Pac. 241; Hess v. Sparks (1890), 44 Kan. 470, 25 Pac. 
580; Goodwin v. Daniels (1863), 89 Mass. (7 AUen) 61; 
Hawkins v. Globe Printing Co. (1881), 10 Mo. App. 174; 
Barper v. Harper (1874), 10 Bush (Ky.) 447, 455. In 
Indiana, however, it has been held uniformly that facts 
showing an occasion of qualified privilege may be proved 
under the general denial. Abrams v. Smith (1846), 8 
Blaekf. 95; Skillen v. Phillips (1864), 23 Ind. 229; Cook v. 
Howe (1881), 77 Ind. 442. 

Malice, either express or implied, is an essential ingredi- 
ent of every action of slander. As implied malice arises as 



372 APPELLATE COURT OF INDIANA. 

(\i(lle r. Mclntosh-^l Ind App. 365. 

a necessary inference of law from the speaking of 

6. slanderous words, it need not be alleged in the com- 
plaint ; and it is established by proof of the speaking 

7. of the slanderous words to or in the presence of a 
third party. This implied malice cannot be rebutted 

by evidence proving or tending to prove a want of actual or 
express malice ; but can be rebutted only by proof of facts 
showing that the words were spoken on an occasion which 
afforded defendant an absolute or a qualified privilege for 
speaking them. If facts showing an absolute priv- 

8. ilege are established, malice is conclusively rebutted ; 
but, if the occasion shown is one of qualified privi- 
lege, merely, the absence of malice is established only prima 
facie, and the plaintiff may overcome this prima facie de- 
fense by proof of actual or express malice. 

If the averments of a complaint disclose facts con- 

9. stituting a qualified privilege, express malice must be 
averred. Henry v. Moberly, supra. Express malice 

on the part of defendant may be proved, in cases where 
there is no evidence tending to prove an occasion of quali- 
fied privilege, to enhance the damages; and an ab- 

10. sence of express malice may be proved by defend- 
ant in such cases, and may be considered in mitiga- 
tion of damages, but not as a defense. 

The court committed no error in directing a verdict in 
favor of defendant in this case, unless there is evidence in 
the record from which the jury might have properly in- 
ferred that defendant was actuated by express mal- 

11. ice. The onus of proving express malice in such a 
case as this, lies with plaintiff. Defendant cannot be 

called on to prove that he did not act maliciously, until 
some evidence of actual malice has been introduced by 
plaintiff. It appears from the evidence that appellee had 
come twenty miles to impart to the members of Orleans 
Lodge the information that appellant was a drimkard, a 



MAY TERM, 1912. 373 

Cadle r. Mcintosh — 51 Ind. Ak>. 365. 

gambler and a thief. The fact that the information 

12. was volunteered, is no evidence of malice, if it was 
his duty to volunteer it. He may have been influ- 
enced in his conduct by the highest motives, a love of the 
order and a laudable desire that none except men of good 
morals and of the highest character for honesty should 

become members ; but there was evidence from which 

13. the jury would have been justified in finding that he 
acted from a diflEerent motive. Appellee told the gen- 
tlemen with whom he conversed of his own private griev- 
ance against appellant. He said that appellant, on one oc- 
casion, in company with two others, had waylaid him and 
beaten him. It may be that this treatment by appellant 
engendered in the breast of appellee feelings of resentment 
and hatred against him, and that these feelings were still 
harbored, and furnished a motive for the charges made. If 
the case had been submitted to the jury under proper in- 
structions on the subject of express malice, it might have 
found that appellee made the charges complained of, not 
from a sense of duty, but from personal resentment, and 
that the object of the conversation was to prejudice appellee 
because of such personal resentment. There is some evi- 
dence in the record on which a verdict for plaintiff could 
rest. The court, therefore, erred in directing a verdict for 
defendant 

Judgment reversed, with instructions to grant a new trial. 
Hottel, C. J., not participating. 

XoTE.— Reported In 09 N. E. 770. See, also, under (2) 25 Cyc. 
^75; (3) 25 Cyc. 385, 523; (4) 25 Cyc. 398; (5) 25 Cyc. 480; (C) 25 
Cyc. 444; (7) 25 Cyc. 524; (8) 25 Cyc. 523; (9) 25 Cyc. 445; (10) 
25 Cyc. 420, 536; (11) 25 Cyc. 492; (12) 25 Cyc. 494; (13) 25 Cyc. 
M9. As to the law of slander when the words complained of are 
libelons per «e, see 116 Am. St 804-816. Qualified prlvlleRe of 
commnnication between members of an association or of a private 
corporation, see 26 L. R. A. (N. S.) 1080. 



;J74 APPELLATE COURT OP INDIANA. 

Cooper V. Cooper — 51 Ind. App. 374. 



Cooper v. Cooper. 

[No. 7,721. Filed November 8, 1912.] 

1. Divorce. — Cruel and Inhuman Treatment — Assailing Chastity 
of Wife, — Charges of illicit sexual intercourse with other men, 
made by a husband against his wife in the absence of facts jus- 
tifying same, constitute cruel and inhuman treatment within 
§1067 Burns 1908, §1032 It. S. 1881, making such treatment a 
cause for divorce, p. 375. 

2. Divorce. — Separation. — Evidence. — ^Where plaintiff, in an acticm 
for divorce, at the time of filing her complaint, procured an order 
restraining her husband from entering on her premises, and It 
was shown that although defendant was at her home on several 
occasions thereafter, he was there against the desire and wishes 
of plaintiff, and that she did all she could to make him go away, 
and she testified that they had not lived or cohabited together 
since the separation, the separation of the parties was sufficiently 
shown, p. 375. 

3. Divorce. — Trial, — Evidence. — In an action for divorce on the 
ground of cruel and inhuman treatment a letter written by plain- 
tiff to defendant before the filing of the action, which contained 
nothing that in any way tended to contradict or conflict with 
I)lalntiff's evidence, or that would offer any excuse or Justification 
for, or defense to, any of the acts of cruelty to which plaintiff 
or any other witness testified, was properly excluded, p. 376. 

From Hendricks Circuit Court ; James L. Clark, Judge. 

Action by Annetta Cooper against William Cooper. Prom 
a judgment for plaintiff, the defendant appeals. Affirmed. 

E. M. Hornaday, and Salem D. Clark, for appellant. 
Charles E. Averill, for appellee. 

HoTTEL, C. J. — This was an action for divorce. The com- 
plaint charged appellant with cruel and inhuman treatment^ 
and specified the acts and conduct of appellant relied on as 
constituting such treatment. The cause was put at issue by 
a general denial. A trial by the court resulted in a find- 
ing for appellee, and a judgment and decree granting her 
a divorce, the custody of three minor children, named in 
the decree, and a monthly allowance for their maintenance 
and support. 



MAY TERM, 1912. 375 



Cooper V. Cooper — 51 Ind. App. 374. 



Appellant filed a motion for a new trial, which was over- 
ruled, and this ruling presents the only error relied on in 
the appeal. Of the grounds of the motion for a new trial, 
none is presented or urged, except the insufficiency of the 
evidence, and error in excluding a letter admitted by appel- 
lee to have been written by her and sent to appellant some 
eight or nine years before the filing of her complaint. 

As one of the acts constituting cruel and inhuman treat- 
ment, it is averred in the complaint that appellant ** habitu- 
ally charged plaintiff with having sexual illicit inter- 

1. course with other men". It has been expressly held 
by the Supreme Court that such an imputation by 

the husband against the character and chastity of the wife, 
whose reputation it is his duty to support and defend, when 
made in the absence of facts justifying the same, will cause 
soch mental pain, shame and humiliation on the part of an 
innocent and sensitive wife as will constitute '* cruel and 
inhuman treatment" within the meaning of the statute mak- 
ing such treatment a cause for divorce. Shores v. Shores 
(1864), 23 Ind. 546; Graft v. Graft (1881), 76 Ind. 136; 
Eastes v. Eastes (1881), 79 Ind. 363, 371; Massey v. Mas- 
sey (1907), 40 Ind. App. 407, 410, 80 N. E. 977, 81 N. E. 
732. 

We have examined the evidence in the case with care, and 
find that this specification of cruel treatment, as well as 
others, were abundantly supported by the evidence. In 
fact, we do not understand that appellant is seriously con- 
tending that the charge of cruel treatment did not have suf- 
ficient evidence for its support, but it is insisted that the 
proof fails to show a separation at the time of the filing of 
the suit. 

The complaint avers in substance that the house in which 
appeUant and appellee were living at the time of the sepa- 
ration was owned by appellee and was in her name ; 

2. that appellant after the separation refused to leave 
said house, and threatened to remain therein, and to 



376 APPELLATE COURT OF INDDlNA. 

Cooper V. Cooper — 51 IncL App. 374. 

take appellee's life. On such averments the appellee, when 
she filed her complaint, procured a temporary restraining 
order, restraining appellant from entering on said premises. 
While it is true that the evidence shows that appellant, on 
several occasions was at appellee's house after said separa^ 
tion and suit, he was there against the desire and wishes of 
appellee, and she on each occasion did all she could to get 
him to go away and leave her alone, and refused to allow 
him to stay in the house overnight, threatening to leave if 
he remained. She testified positively that since their sepa- 
ration she had not lived or cohabited with appellant. There 
was sufficient evidence to sustain the decision of the trial 
court. • 

We have read the letter which the trial court refused to 

admit in evidence, the exclusion of which constitutes the 

other grounds of the motion for a new trial relied on, 

3. and even if it had been so recently written that it 
could have any connection with any of the matters 
inquired about in appellee's examination in chief, we find 
nothing therein that in anyway tends to contradict or con- 
flict with her evidence. Nor, can it be said that there is 
anything in it that would offer any excuse or justification 
for, or defense to, any of the acts of cruelty to which appel- 
lee or any other witness testified. The letter was therefore 
properly excluded. 

We find no error in the record. 

Judgment affirmed. 

Note.— Reported In 00 N. E. 782. See, also, under (1) 14 Cyc. 
GOO; (3) 14 Cjx. (585. As to the false charge of adultery or un- 
chttstity as cruelty for which divorce will be granted, see 65 Am. St. 
SO. Making charges of adultery as ground for divorce, see 18 L. R. 
A. (N. S.) 300. For a discussion of the necessity of personal vio- 
lence to constitute cruelty warranting a dlvorcey see 9 Ann. Oogl 
1090. 



MAY TEEM, 1912. 377 

Ohio Farmers Ins. Oo. v. Bell — 51 Ind. App. 377. 



Ohio Farmers Insurance Company v. Bell. 

[No. 7,710. Filed November 19, 1912.] 

1. Insurance. — Fire Insurance, — Parol Contract. — Sufficiency, — ^A 
imrol contract of insurance in which it was agreed that the sub- 
ject of insurance was a barn owned by the assured and located at 
a certain place, that the limit of the risk was three years from 
and after a certain date, that the peril insured against was loss by 
fire, that a specified amount was to be paid in case of loss, and 
that a certain amount was to be paid as premium for the insur- 
ance, was sufficient to constitute a valid contract, p. 378. 

2. Appeal. — Review. — Complaint. — Suifficiency. — Where, on appeal, 
the complaint is found sufficient as against the objection urged, it 
will be deemed sufficient in other respects, p. 378. 

3. Appeal. — Briefs. — Motion for New Trial, — Appellant's failure to 
set out in his brief a copy of the motion for a new trial, or to 
give its substance, Is a waiver of all questions arising thereon, 
p. 37a 

i. Appeal. — Review. — Judgment. — Presumptions. — Where no error 
is shown, the judgment of the trial court is presumed to be cor- 
rect p. 378. 

Prom Gibson Circuit Court; Herdis P, Clements, Judge. 

Action by Harker Bell against the Ohio Farmers Insur- 
ance Company. From a judgment for plaintiff, the de- 
fendant appeals. Affirmed, 

B, T, Walters, for appellant. 

Thtymas M. McDonald and Abram Cole, for appellee. 

liAmy, J. — This is an appeal from a judgment for $428.24 
in favor of appellee. The action was based on a parol con- 
tract of insurance. 

This court is asked to reverse the case on two grounds: 
(1) That the lower court erred in overruling appellant's 
Jemurrer to the complaint, and (2) that the court erred in 
refusing to grant appellant's motion for a new trial. 

Appellant in its brief fails to point out any specific objec- 
tion to the complaint. It is suggested, rather than argued, 
that the averments of the complaint are not sufficiently 



378 APPELLATE COURT OP INDLAJ^A. 



Ohio Farmers Ins. Oo. v. Bell — 51 Ind. App. 377. 



specific to show a valid parol contract of insurance. 

1. The complaint alleges that the subject of the in- 
surance was a bam owned by plaintiff, and located in 

Columbia township, Gibson county, Indiana; that the limit 
of the risk agreed on was three years from and after August 
7, 1908; that the peril insured against was loss or destruc- 
tion by fire; that the amount to be paid in case of loss was 
*400 ; that the premium to be paid for the insurance was $9. 
The contract of insurance, as disclosed by the complaint, 
was suflBciently specific. Posey County Fire Assn. v. Hugan 
(1906), 37 Ind. App. 573, 77 N. B. 670. 

As no other objection to the complaint is made 

2. by appellant, it will be deemed, in other respects, 
sufScient. 

The motion for a new trial is not set out in appellant's 

brief. This court cannot, therefore, without consulting the 

record, know what causes were assigned. It has been 

3. held repeatedly by this court and by the Supreme 
Court that a failure to set out in the brief of appel- 
lant a copy of the motion for a new trial, or to give its sub- 
stance, is a waiver of all questions arising thereon. Reeves 
& Co. V. Gillette (1911), 47 Ind. App. 221, 94 N. E. 242; 
Talboit V. Town of New Castle (1907), 169 Ind. 172, 81 N. 
E. 724. 

The judgment of the lower court is presumed to 

4. be correct, and as no error is shown, the judgment is 
affirmed. 

Note.— Reported in 99 N. E. 812. See, also, under (1) 19 Cyc. 
000; (2) 3 Cyc. 223; (3) 3 Cyc. 388; (4) 3 Cyc. 418. As to. the 
validity of a parol agreement of insurance, see 09 Am. St. 143; 6 
Ann. Cas. 624. 



MAY TERM, 1912. 379 

Weaver v. Brown — 51 Ind. App. 379. 



Weaver v. Brown et al. % 

[No. 7,722. Filed November 20, 1912.] 

1. Appeal. — Assignment of Errors, — Waiver. — Briefs. — Errors as- 
signed, but not presented by appellant in the points and authori- 
ties, or in the argument, In his brief, are waived, p. 382. 

2. Appeal. — Presentation of Grounds of Review, — Objections to 
Evidence, — Objections to the introduction of evidence must be 
made at the time it is offered, and the grounds of objection stated 
with such reasonable certainty as to call the mind of the court to 
the rule or rules of law making it incompetent, or they will not 
be considered on appeal, p. 383. 

3. CoNTBAGTS. — Action for Breach. — Pleading. — Evidence. — In an 
action by a sub-contractor who did part of the work on a brick 
building, where the complaint alleged the making of the contract, 
and that, by subsequent agreement, part of the work required to 
be done by him was omitted, and that a specified amount was a 
reasonable credit for the same, it was proper for defendants to 
prove, under the general denial, the entire agreement by which 
Buch work was omitted, or their version thereof, and that a great- 
er deduction should be made from the contract price, p. 384. 

4. PifiADiivG. — General Denial. — Facts Provable. — Under the gen- 
eral denial, in addition to negative proof in denial of the facts 
Rtated in the complaint as a cause of action, defendant may intro- 
duce proojT of facts Independent of those alleged in the comi)laiut, 
but which are inconsistent therewith, and tend to meet and break 
down or defeat the plaintiff's cause of action, p. 384. 

a. WirifEfiSES. — Contradiction. — Evidence, — In an action by a sub- 
contractor to recover for work done, where he testified that a 
credit allowed by him for omitted work was a reasonable credit, 
evidence of an agreement by plaintiff to allow a much larger 
credit was competent for the purpose of contradicting and rebut- 
ting bis evidence as to the value of the work, and as an admission 
of such value made by him l)efore testifying, p. 385. 

0. Appeal. — Review. — Objection to Evidence. — Theory of Action, — 
Where it appears that the case was tried below on the theory 
that certain evidence was within the issues tendered, the parties 
will be held to that theory on appeal, p. 385. 

7. Appeal. — Review, — Harmless Error, — Admission of Evidence. — 
In an action by a building contractor, the admission of a state- 
ment made by the architect in plaintiff's absence was harmless, 
where there was other evidence given In the case before such 
{statement was admitted, to the effect that the architect had made 
the same statement in plaintiff's presence, p. 886. 



380 APPELLATE COURT OF INDIANA. 

Weaver r. Brown — 51 Ind. App. 379. 

Prom Superior Court of Marion County (78,082) ; Clar- 
ence E, Weir, Judge. 

Action by George A. Weaver against George W. Brown 
and others. From a judgment for defendants, the plain- 
tiff appeals. Affirmed. 

D. A. Myers, J. T, Lecklider and H. A, Fenton, for ap- 
pellant. 
Ayers <& Jones, and W. W. Hammond, for appellees. 

HoTTEL, C. J. — ^Appellant brought this action to recover 
a balance alleged to be due him on account of work done 
and material furnished by him in the construction of a 
brick building under a contract between him and appellees, 
Henry and Louis Brandt, doing business under the firm 
name of ** Brandt Brothers '\ The complaint also included 
an item designated an " extra *', for which recovery was 
asked. The case was tried by the court. There was a find- 
ing for appellant as to the one item of "extra", $5.75, but 
against him as to his principal claim and for costs. 

The facts in the case necessary to show the nature of the 
question presented are as follows: The firm of Brandt 
Brothers was employed by appellee Brown under a general 
contract for the construction of a certain brick building on 
real estate situated in the city of Indianapolis and owned 
by said Brown. Brandt Brothers sublet the brick work to 
appellant, under the written contract, which is the basis 
of this action. While the work was being done, the build- 
ing inspector of Indianapolis discovered that certain tile 
partition walls, included in appellant's contract, were not 
sufficient under the building regulations of said city, and 
ordered the metal or fire-proof walls to be substituted there- 
for. This latter class of work, not being in appellant's 
line, was, by mutual consent, climated from the contract, 
and the point in dispute in this action is the amount which 
should be deducted from the original contract price for this 
omitted work. 



MAY TERM, 1912. 381 



Weaver v. Brown — 51 Ind. App. 379. 



In his first paragraph of complaint, appellant set forth 
the facts in substance as above, made his contract an ex- 
hibit with his complaint and alleged that he had ** performed 
each and all the conditions imposed upon him under the 
terms of said contract, and that he had completed his work 
as required and to the satisfaction of the owners of the 
property; * • • that he performed • • • extra 
labor and furnished extra material for a coal vault aggregat- 
ing $5.75 ; • • • that he has given the defendants credit 
for omitted tile walls, which was oinitted at the direction 
of the owners of said real estate, which credit amounts to 
$352.87, and that this constitutes and is a reasonable credit 
for such omitted work; that there is due and unpaid to 
him • • • the sum of $397.13 together with, interest; 

• • • that to secure the payment of his said claim he 

• • • filed a notice of his intention to hold a Mechanic's 
Lien against said premises, which was duly recorded, *' etc. 

On these facts, appellant asked judgment against Brandt 
Brothers for $500, a foreclosure of his lien against the real 
estate, and that the same be declared superior to that of 
other named appellees. 

A second paragraph of complaint differed from the first 
in that it averred that appellee Brown in his settlement 
*ith Brandt Brothers retained the full amount due appel- 
lant, and agreed to settle with, and to pay him the amount 
due under his contract with Brandt Brothers, and asked 
personal judgment against Brown and Brandt Brothers, etc. 

To these paragraphs a general denial was the only answer 
filed. *A cross-complaint filed by Brandt Brothers averred 
the execution of their contract for the erection of the build- 
ing for Brown, and the completion of the same according 
to the terms of the contract ; that after they had completed 
the work on said building they made a settlement with 
Brown of all claims and demands growing out of said build- 
ing; "that at and prior to such settlement, the said George 
W. Brown represented to cross-complainants that he had 



382 APPELLATE COURT OP INDIANA. 



Weaver v. Brown — 51 Ind. App. 379. 



secured a settlement with the plaintiif for certain omitted 
work that was specified in plaintiff's contract, and that 
such omitted work amounted to the sum of $750.00, which 
sum was deducted by said Brown in said settlement with 
cross-complainants. That relying upon such representa- 
tions made by said George W. Brown, cross-complainants 
consented to receive from the said Brown at the date of 
their settlement the amount due them less said $750. That 
by reason of the facts herein stated • • • whatever 
judgment the plaintiff may recover upon the contract sued 
upon, the decree should provide that said judgment be ren- 
dered against George W. Brown, as principal, and these 
defendants as surety." 

A general denial to the cross-complaint closed the issues. 

In this connection we should state that demurrers to each 

paragraph of the complaint by certain appellees hold- 

1. ing liens on the lot on which said building was erected 

were sustained, and each of such rulings assigned as 

error, but no presentation of the same is made by appellant 

in his points and authorities or in the argument in his 

brief. They are therefore waived. 

Appellant filed a motion for a new trial, which was over- 
ruled and exceptions properly saved. The ruling on this 
motion is assigned as error, and is the only ruling of the 
court below presented for review by appellant's* brief. 

The substance and effect of appellant's position is that 
the trial court erred in admitting evidence under the gen- 
eral issue as to an alleged verbal agreement on the part of 
appellant made subsequent to the date of the original con- 
tract to allow a credit of $750 for the omitted work, result- 
ing from the change in plans and specification required by 
the city building inspector. Appellant contends that such 
testimony should have been excluded in the absence of a 
plea of payment, counterclaim or set-off. 

Appellant has failed clearly to point out the several items 
of evidence which he considers to have been erroneously 



MAY TERM, 1912. 383 

Weaver f. Brown — 51 Ind. App. 371). 

admitted, but an examination of the record discloses 
2. that much of the evidence relative to the alleged ver- 
bal agreement was received without objection on the 
part of appellant, and that of the three objections he did 
make, two had no reference to the competency of the testi- 
mony under the issues as framed, and the ruling on the third 
was in appellant's favor. It is well settled that ** objections to 
the introduction of evidence must be made at the time it is 
offered, and the grounds of the objection stated with such 
reasonable certainty as to call the mind of the court to the 
rule or rules of law making it incompetent. Objections not 
stated to the court below will not be considered by this court 
on appeal." Chandler v. Seal (1892), 132 Ind. 596, 597, 
32 N. E. 597. See, also, Elliott, App. Proc. §779. It is clear 
that appellant, under this above rule of law, has not saved 
and presented the alleged error in the admission of the evi- 
dence of such agreement. 

It is earnestly insisted, however, that the evidence should 
not have been considered by the court in any event, because 
it was outside the issues tendered by the pleadings, and that 
with this evidence excluded the decision of the court is not 
sustained by sufficient evidence and is contrary to law. 

We agree with appellant in his contention that the deci- 
sion of the court below must rest on this evidence, other- 
wise appellant should have recovered in some amount on 
big contract. We are therefore required to determine (1) 
whether such evidence was admissible under the issues ten- 
dered, and (2) if not admissible under the issues, when 
properly objected to, did the failure to make such objection, 
at the time the evidence was offered and admitted, deprive 
appellant of the benefit, on appeal, of questioning the suffi- 
ciency of the evidence to sustain a decision of the court be- 
low which necessarily rested in part on such evidence. 

In order that appellant might recover on his contract sued 
on, as originally executed, it was necessary for him to allege 
and prove performance of all its conditions on his part 



1 



384 APPELLATE COURT OF INDIANA. 

Weaver v. Brown — 51 Ind. App. 379. 

to be performed. Appellant makes this general aver- 

3. ment in his complaint, but follows it with a specific 
averment which controls the general averment, and 

which shows that the terms of the contract as originally 
executed had not in fact been compUed with by appellant, 
but that, on the contrary, there had been a modification of 
the contract, and that certain tile walls required by it had 
been omitted, and that a credit for such omission was allowed 
in the sum of $352.87, which it is averred is a reasonable cred- 
it for such omitted work. Giving appellant the benefit of this 
averment, it is shown that the contract as originally made 
was by some arrangement or agreement of the parties so 
modified that a considerable item of work and material was 
omitted, and not performed by appellant. Under such an 
averment it was certainly proper for appellees to show un- 
der the general denial the entire agreement, or their version 
of the agreement, by which the contract was modified and 
the work and material omitted, including the amount to be 
deducted from the contract price on account of such omis- 
sion, if such amount was in fact fixed and agreed on as a 
part of the agreement for such modification and omission. 
**A defendant, under the general denial, is not confined 
to negative proof in denial of the facts stated in the com- 
plaint, as a cause of action, but may, upon the trial, 

4. introduce proof of facts independent of those alleged 
in the complaint, but which are inconsistent there- 
with, and tend to meet and break down or defeat the plain- 
tiflp's cause of action." JeffersonviUe Water Supply Co. 
V. Biter (1897), 146 Ind. 521, 526, 45 N. E. 697, and au- 
thorities cited. See, also, Omnnup v. Shies (1903), 161 
Ind. 500, 502, 69 N. E. 158 ; Indda/na Trust Co, v. t'initzer 
(1903), 160 Ind. 647, 650, 651, 67 N. E. 520; Indiana, etc.. 
Oil Co. V. O'Brien (1903), 160 Ind. 266, 279, 65 N. E. 918, 
66 N. E. 742; Cheney v. Unroe (1906), 166 Ind. 550, 556, 
77 N. E. 1041, 117 Am. St. 391. 

This evidence was properly admitted for another reason. 



MAY TERM, 1912. 385 

Weaver v. Brown — 51 Ind. App. 379. 

The averments above set out put in issue the value of the 
omitted work and material, and appellant, to prove 

5. this averment, testified, in effect, that the amount 
averred in the complaint was the reasonable value 

of such work and material. Granting, without deciding, 
that appellees, under their general denial, were limited in 
their proof to the qtumtum-meruit rule, and could not prove, 
as part of the arrangement for the omitted work, an agree- 
ment by appellant to do the work for a fixed amount, yet 
the evidence that appellant had agreed to allow a credit for 
a sum much larger than the sum which, on the witness-stand, 
he said was a reasonable credit was competent for the pur- 
pose of contradicting and rebutting his evidence as to the 
value of the work, and as an admission of such value made 
by him before testifying. 

Our conclusion, that this evidence was admissible under 
the issues as tendered, makes unnecessary the decision of 
the second question above. We may remark, however, in 
this connection, that there is some conflict in the decided 
cases on the question of whether the failure to object to 
evidence outside of the issues authorizes its consideration 
by the trial court. On this question see the following cases : 
Denbo v. Wright (1876), 53 Ind. 226, 229; Doherty v. Hoi- 
liday (1894), 137 Ind. 282, 287, 32 N. E. 315, 36 N. E. 
907; Chandler v. Beat, supra; Graves v. State (1889), 121 
Ind. 357, 23 N. E. 155 ; Biehl v. Evansville Foundry Assn. 
(1885), 104 Ind 70, 74, 3 N. E. 633; Webb v. Sweeney 
(1903), 32 Ind. App. 54, 69 N. E. 200; Stephens v. Law- 
son (1844), 7 Blackf. 275; Stewart v. Goodrich (1880), 9 
Mo. App. 125, 127; 2 Elliott, Evidence §881. 

Our examination of all the pleadings in the case, in con- 
nection with the evidence introduced thereunder, and the 
objection thereto, convinces us that the case was tried 

6. below on the theory that this evidence was within 
the issues tendered, and the decisions all agree that 

Vou 51—25 



386 APPELLATE COURT OP INDIANA. 

Weaver v. Brown — 51 Ind. App. 370. 

on appeal the parties will be held to the theory on which 
the ease was tried. Oolitic Stone Co. v. Ridge (1908), 169 
Ind. 639, 644, 83 N. E. 246, and authorities cited; Diggs 
V. Way (1899), 22 Ind App. 617, 621, 51 N. E. 429, 54 
N. E. 412; Elliott, App. Proc. §§489, 490; Adams v. Davis 
(1887), 109 Ind. 10, 21, 9 N. E. 162; Southern R, Co. v. 
Crone (1912), ante, 300, 99 N. E. 762. So from either 
point of view we are convinced that appellant is not en- 
titled to a reversal of the cause on said grounds. 

It is next insisted that the trial court erred in admitting 

in evidence a conversation had, in the absence of appellant, 

between appellee Louis Brandt and the architect 

7. who superintended the building in question. That 
part of the answer responsive to the question ob- 
jected to is as follows: **Then Mr. Wallingford gave me 
the price for Mr. Weaver as a reduction of $750.00 for the 
tile partitions and after knocking that off, putting in the 
fire proofing system would make it at $1,000 extra." 

Whether this conversation, in appellant's absence, and 
standing alone, with the subject-matter of the same in no 
way brought to the knowledge of appellant, would have 
been admissible as a part of the res gestae of the agree- 
ment or arrangement made between the parties as to the 
work and material omitted from the contract sued on, we 
need not decide, because there was other evidence given in 
the case before this was offered and admitted, to the effect 
that the architect discussed the same subject with appellant 
and told him substantially what he told appellee Brandt, 
and that in response thereto appellant told him, in effect, 
to go ahead, that he would stand for the credit of $750. 
This other evidence given in the cause, to say the least, 
rendered the evidence objected to harmless. 

We find no available error in the record. 

Judgment affirmed. 

Note. — Reported In 99 N. E. 825. See, also, under (1) 3 Cye. 
388; (2) 38 Cyc. 1378, 1390; (4) 31 Cyc. G93; (5) 40 Cyc. 2687; 



MAY TERM, 1912. 387 



Hall V. Allfree— 51 Ind. App. 387. 



(6) 2 Cyc. 672 ; (7) 38 Cyc. 1422. As to evidence admissible as bear- 
ing on the credibility or bias of a witness, see 82 Am. St 25. As 
to the estoppel of a party to an appeal to assume an attitude incon- 
sistent with that taken by him in the lower court, see 8 Ann. Gas. 
487. 



WiLHELM V. LaWSON. 

[No. 7,962. Filed November 20, 1012.] 

1. Appeal. — Record, — Review. — Afflrtnance, — Where the record and 
briefs on appeal disclose no error, the Judgment will be affirmed. 

Prom Porter Circuit Court; Wm. H. Dowdell, Special 
Judge. 

Action by John Lawson against Adolph Wilhelm. From 
a judgment for plaintiff, the defendant appeals. Affirmed, 

Nelson J, Bozarth and Wm, W. Bozarth, for appellant. 
Edward 0. Mains and Curtiss E, Mains, for appellee. 

Laiby, J. — The record and briefs in this case dis- 
1. close no error, and the judgment is therefore af- 
firmed. 
Judgment affirmed. 

Note.— Reported in 99 N. E. 790. See, also, 3 Cyc. 4ia 



Hall v. Allfree et al. 

[No. 8,014. Filed November 20, 1912.] 

1. Appeal. — Review. — Findings, — Evidence, — Bufflciency, — On ap- 
peal, the court cannot consider the weight of the evidence or deter- 
mine the credibility of the witnesses, in determining whether the 
finding of the trial court is sustained by sufficient evidence, but 
can only consider such evidence as tends to supiTort the finding, 
p. 390. 

2. Contracts. — Consideration, — Inadequacy, — The rule that inade- 
quacy of consideration will not vitiate an agreement applies only 
to cases where the exchange is for something of indeterminate 
Talue, and does not apply to the mere exchange of sums of money, 
the value of which Is exactly fixed, p. 391. 



388 APPELLATE COURT OF INDIANA. 

Hall V, Allfree— 51 Ind. App. 387. 

3. Contracts. — Consideration. — Mutual Promises, — An agreement 
that the owner of patents shall share the proceeds arising from 
the sale, license or use of such patents with certain persons there- 
in named, without any obligation resting on the latter, is a mere 
gratuity on the part of the owner of such patents, since it contains 
no element of mutuality essential to a contract p. 391. 

From Superior Court of Marion County (68,911) ; James 
M. Leathers, Judge. 

Action by James B. AUfree against the AUfree Engine 
Company, in which William C. Hall, on his own application, 
was made a party defendant and, for himself and others, 
filed a cross-complaint. From a judgment for plaintiff, 
and against the cross-complainant, the cross-complainant ap- 
peals. Affirmed. 

Ovid B. Jameson and L. D. Hay, for appellant 
CJtarles 0. Roemler and Harry 0, Chamberlin, for appel- 
lees. 

Adams, P. J. — This action was originally instituted by 
appellee James B. AUfree against the AUfree Engine Com- 
pany, a corporation, to recover the sum of $23,320.49, 
loaned to the AUfree Engine Company at different times, 
and which, it was aUeged, said AUfree Engine Company 
had promised to pay on demand. 

A second paragraph of complaint was filed, in which a 
receiver for the AUfree Engine Company was asked, not 
on the ground of insolvency of the corporation, but on ac- 
count of a dispute among its stockholders as to the pay- 
ment of certain claims, and on the allegation of imminent 
danger of insolvency, growing out of such internal dis- 
sensions. A receiver was appointed. 

Appellant, on his own application, was made a party de- 
fendant to the action, and leave was granted to file a cross- 
complaint against appellee AUfree. Thereupon, for him- 
self and others who might choose to come in thereunder, 
appellant filed his cross-complaint, asking that said Allfree 
be adjudged a trustee under a certain agreement, dated 



MAY TERM, 1912. 389 

Hall V. Allfree— 51 Ind, App. 387. 

May 25, 1901, and that all moneys collected and coming in- 
to his hands as proceeds and profits from patents mentioned 
in said contract be adjudged to be held by him as trustee 
for the use and benefit of the parties to said contract ; that 
an accounting be had of the moneys thus received, and that 
cross-complainant recover judgment against said Allfree 
for t\venty per cent of $45,000, alleged to have been received 
by Allfree on account of said patents. 

The contract sued on and made a part of the cross-com- 
plaint is as follows : 

"This agreement entered into the 25th day of May, 
1901, by and between James B. Allfree of Indianapolis, 
Indiana ; Wm. C. Hall, of Indianapolis, Indiana, Bobert 
Shriver, of Cumberland, Maryland; James H. Woods, 
of Los Angeles, California; Edgar B. Hetzel, of In- 
dianapolis, Indiana, and James Clark, of Cumberland, 
Maryland, witnesseth: That, whereas, James B. All- 
free has obtained certaiii letters patent of the United 
States, bearing number and date, as foUows, to wit: 
No. 613,184 for Engine Valve Gear, dated Oct. 25, 
1898. [Here follow various patents with number and 
date.] All of which said letters patent are now owned 
by said James B. Allfree. And whereas, it is intended 
hereby, and agreed that all parties hereto shall partici- 
pate in any and all profits and proceeds arising from 
the sale, license or use of said letters patent, or machines 
containing said patented improvements, in the propor- 
tions named below ; Now, in consideration of the prem- 
ises and of one dollar by each to the other paid, the said 
parties hereto mutually agree that the said patent shall 
be managed, licensed, sold and operated by the said 
James B. Allfree, for the benefit and behoof of all the 
parties hereto and the proceeds and profits accruing 
therefrom received, or to be received by said Allfree 
shall be and become the property of all the parties here- 
to, in the proportion as follows, to wit : James B All- 
free, thirty-three and one half (33^) per cent. Bobert 
Shriver, thirty-three and one half (33i) per cent. Will- 
. iam C. Hall, twenty (20) per cent. James H. Woods, 
ten (10) per cent. Edgar B. Hetzel, two (2) per cent. 
James Clark, one (1) per cent. To be distributed from 
time to time to said parties by said Allfree in said pro- 
portions. And the said James H. Woods especially 



390 APPELLATE COURT OP INDIANA. 

Ilall 1-. Allfree— 51 lad. App. 387. 

agrees that this agreement is to operate in his favor only 
on condition that he shall take $10,000 of the common 
stock of the Allfree Engine Company as provided by a 
certain agreement between said Woods and said Com- 
pany, of even date herewith ; and in case he shall decline 
to take the common stock of said company as herein pro- 
vided, then he shall not participate in this agreement, 
and the share of ten (10) per cent provided for in his 
name shall not accrue to him, but shall be and become 
the property of said James B. Allfree and said Robert 
Shriver in equal shares of five (5) per cent each. And 
the said James B. Allfree agrees that he will well and 
truly collect, receive and account for all such proceeds 
and profits, and the same coming into his hands divide 
and pay over to the several parties hereto in the pro- 
protions set forth. And to this binds himself, his heirs, 
and assigns. In witness whereof, ' ' etc. 

The cross-complaint was answered by plaintiff Allfree in 
three paragraphs. In the second paragraph it is averred 
that the contract sued on was given without consideration. 
This was the question submitted and determined in the 
court below. The court found for plaintiff for the full 
amount of his claim, and against the cross-complainant on 
his cross-complaint, and rendered judgment accordingly. 

The error assigned and relied on for reversal arises on 
the overruling of appellant's motion for a new trial. The 
court found for appellee Allfree, on the ground that the 
contract set out in the cross-complaint was executed without 
consideration. This is the only question presented by the 
briefs of counsel, and is one that must be determined 

1. from the evidence. But, in determining whether the 
finding of the court was sustained by sufficient evi- 
dence, the rule is well established, that we can only con- 
sider such evidence as tends to support the finding. Where 
the evidence is conflicting, we cannot consider the weight of 
the evidence or determine the credibility of the witnesses. 
These are matters for the trial court. Robinson dk Co. v. 
Hathaway (1898), 150 Ind. 679, 681, 50 N. E. 883; Board, 
etc., v. Eaton (1906), 38 Ind. App. 30, 32, 77 N. B. 958; 



MAY TERM, 1912. 391 

Hall V, Allfree— 51 Ind. App. 387. 

Vos8 V. Capitdl City Brewing Co. (1911), 48 Ind. App. 476, 
96 N. E. 11; Holthouse v. State, ex rel. (1912), 49 Ind. 
App. 178, 97 N. E. 130. 

AppeUant, while conceding the rale to be as herein stated, 
insists that the contract itself shows a suf&cient legal con- 
sideration; that a consideration of $1, in the ab- 

2. sence of fraud, is always adequate to sustain a con- 
tract. Assuming that the stipulated consideration 

of "one dollar by each to the other paid" is something more 
than a mere trading of dollars by the parties, it is not 
true that a consideration of $1 will in all cases support a 
contract, in the absence of fraud. It is generally true that 
inadequacy of consideration will not vitiate an agreement, 
bnt this rule must be limited to cases where the exchange 
is for something of indeterminate value, and does not ap- 
ply to a mere exchange of sums of money, the value of 
which is exactly fixed. Schnell v. Nell (1861), 17 Ind. 29, 
79 Am. Dec. 453. Morever, the evidence other than the 
contract itself, does not show that $1 was either paid or 
tendered by any of the parties. 

Appellant also urges that the mutual promises of the par- 
ties as set out constitute a sufficient consideration for tlic 
agreement, which shows that it was entered into in 

3. consideration of the "premises". "What are the 
premises? Obviously that James B. Allfree is the 

owner of certain valuable patents, and it is intended that 
all the parties to the agreement shall share in the profits 
and proceeds arising from the sale, license or use of said 
patents. There is no obligation shown to rest on appelhmt 
or the other parties to the agreement. As far as appears 
from the premises, the whole transaction was a pure gra- 
tuity on the part of Allfree, and no element of mutuality 
is disclosed. 

Other propositions urged by appellant pertaining to the 
question of consideration, as shown by the evidence, cannot 
be considered without presuming to weigh the evidence 



392 APPELLATE COURT OP INDIANA. 

Cleveland, etc., R. Co. v. Clark— 51 Ind. App. 392. 

given at the triaL This we cannot do. A reading of the 
record discloses ample evidence to support the finding of the 
trial court. 
The judgment is aflSrmed. 

Note.— Reported In 99 K E. 8ia See, also, under (1) 3 Cyc. 
348; (2) 9 (^c 30(5; (3) 9 Cyc. 327. As to the Inadequacy of the 
consideration for a contract, see 56 Am. Rep. 332 ; 81 Am. St. G65. 
As to the sufficiency of consideration to support promise, see 30 
Am. St 743. 



The Cleveland, Cincinnati, Chicago and St, 
Louis Railway Company et al. v. Clark, 

Administrator. 

[No. 7,255. Filed March 8, 1912. Rehearing denied May 31, 1912. 

Transfer denied November 21, 1912.] 

1. Rahaoads. — Crossinga. — Restoration and Maintenance of High- 
way Crossings. — Negligence. — Section 5195 Burns 1908, S3903 R. 
S. 1881, imposes on railway companies the duty of restoring and 
maintaining the highway crossings in such a way as to be reason- 
ably safe for travel, and a failure to discharge this duty is negli- 
gence. IX. 401. 

2. Railboads. — Crossings. — Restoration and Maintenance of High' 
way Crossings. — Delegation of Duty. — Negligence. — LidbUUv. — 
The duty of a railroad company to restore and maintain highway- 
crossings in such way as to be reasonably safe for travel, which 
is imposed by §5195 Bums 1908, §3903 R. S. 1881, cannot be dele- 
gated to others so as to relieve the company from liability in case 
of its breach, so that where independent contractors in charge of 
the construction of railroad tracks permit a crossing to l)ecome 
unsafe for travel, the railroad company is liable for an injury of 
which such negligence is the direct and proximate cause, 
pp. 401, 416. 

3. Railboads. — Crossing Accident. — Defective Crossing. — Concur- 
ring Cause, — Liability. — ^Where the negligence of a railroad com- 
pany In allpwing a crossing to become defective was one of the 
causes vrhich concurred in producing the injury, It will not be 
relieved from liability l)ecause its negligence was not the sole 
cause, nor because the negligence of another may have likewise 
concurred in producing such injury, p. 401. 

4. Railboads. — Crossing Accidents. — Complaint — Defective Cross- 
ing. — Concurring Cause. — Proximate Cause. — In an action against 
a railroad company for the death of plalntifiTs decedent in a col- 
lision, at defendant's crossing, with a train in charge of an inde- 



MAY TERM, 1912. 393 

Cleveland, etc., R. Co. t'. Clark — 51 Ind. App. 392. 

pendent construction company, the allegations of the complaint 
that the defective condition of the crossing prevented the buggy in 
which decedent was riding from safely passing beyond the cross- 
ing before the arrival of the train and thus caused the buggy to 
be on the crossing at the time the train passed over it, show that 
the negligence of the railroad company was one of the concurring 
causes which produced the injury, and it will be treated as one 
of the proximate causes, unless an independent agency Intervened 
so as to break the chain of causation and become the sole proxi- 
mate cause, p. 402. 

0. Negligence. — Proximate Cause. — Intervening Agency, — Although 
there Is an intervening agency which directly produces an injury, 
the original negligence will be treated as the proximate cause of 
snch injury, if the intervening agency was of such character, and 
the circumstances under which it occurred were such, that it 
might have been reasonably expected in the usual course of 
events and according to common experience, that such agency or 
a similar one would intervene in such way as likely to produce 
an injury similar to the one actually caused, p. 403. 

6t Negligence. — Proximate Cause. — Intervening Agency. — An inde- 
pendent intervening agency over which the original tort feasor 
had no control, and which was not put in motion by the original 
wrongful act, will be treated as the sole proximate cause of the 
injury produced, where the character of such intervening agency, 
and the manner of the intervention, were such as, under tlie cir- 
cumstances, were not reasonably to have been expected to occur 
in the ordinary course of nature and according to common expe- 
rience, p. 404. 

7. Nequgence. — Complaiwt, — Necessary Averments, — SutJ^cicncy. — 
To be sufficient, a complaint for damages, based on negligence, 
must aver that the negligence charged caused the Injury of which 
plaintiff complains, either by a direct averment of such fact, or 
by the averment of specific facts of such a character that the 
ultimate fact that the injury resulted directly and proximately 
from the negligence charged must necessarily be inferred, and 
from which no other reasonable inference can be drawn, p. 404. 

il. Negligence. — Complaint. — Sufficiency. — Inferences from Specific 
Fads. — Where the specific facts alleged in a complaint for negli- 
gence are of such a character that two minds of equal intelligence 
and fairness might draw opposite inferences as to the existence 
of the ultimate fact that negligence charged caused the injury 
complained of, then no inference in favor of the existence of such 
fact can be drawn to aid the pleading, p. 405. 

9. Pleading. — General Averments. — Specific Averments, — Control. — 
In order that specific averments In a pleading may control the 
general allegations, they must be clearly repugnant thereto and 
show that the general allegation is untrue, p. 405. 



394 APPELLATE COURT OF INDIANA. 



Cleveland, etc., R. Co. t\ Clark--51 Ind. App. 392. 

10. Negliqence. — Complaint. — General Averments. — Sufflcicncy, — 
Specific Averments. — The general averment in a complaint that 
the negligence of the defendant caiified the Injurj- complained of, 
is sufltcient, unless the specific averments are such as to show 
afiirniatively that such negligence was not the proximate cause; 
hut where, In addition to such general averment, specific facts are 
stated showing that an independent agency intervened and pro- 
duced the injury charged, the court, In ruling on the demurrer, 
must determine whether the specific averments as to such inter- 
vening agency overcome the general averment that the injury 
was caused by the negligence of defendant p. 405. 

11. Negligence. — Proxiniate Cause, — Intervening Agency, — Com- 
plaint. — Sufjiciency. — General and Specific Averments. — Where a 
complaint for injuries alleges generally that the injurj- was 
caused by the negligence of defendant, and also alleges six?cific 
facts showing that an independent agency intervened and directly 
produced tlie injury charged, if the court can say that the char- 
acter of the agency and the circumstances under which it inter- 
vened, as shown by such specific averments, are such that the 
only legitimate inference to be drawn therefrom by any fair and 
reasonable mind is that the causation was broken by the inter- 
vention of such agency, and that it was the sole proximate cause 
of the injury charged, the general averment is overcome by the 
specific averments and the complaint is insufficient, but, if reason- 
able minds might reach opposite conclusions in determining 
whether the intervention of such agency should reasonably have 
been expected to occur in such way as to produce injury, the 
court cannot say as a matter of law that such specific averments 
overcome the general averment, and the complaint must be held 
sufficient p. 40a 

12. Bailroads. — Crossing Accidents. — Intervening Cause. — Com- 
plaint. — A railway company that permits its highway crossings to 
get out of repair may reasonably expect that trains of cars will 
pass over such crossings on the tracks constructed for that pur- 
pose, so that, where a complaint for the death of a person in a 
crossing accident alleged that the crossing was defective and un- 
safe, by reason of which the conveyance in which decedent was 
riding was unable to escape such crossing in time to avoid a col- 
lision with an approaching train in charge of an independient 
construction company, when, but for such unsafe condition, the 
collision could have been avoided, it cannot be said as a matter 
of law that the train which struck and killed the decedent was 
such an intervening agency as to break the chain of causation and 
prevent the negligence of the railway company from operating 
as a proximate cause of the injury, p. 407. 

13. Railroads. — Crossing Accidents. — Railroad Tracks. — Warninff 
of Danger. — Railroad tracks are in themselves a warning of dan- 



MAY TERM, 1912. 395 

Cleveland, etc., R. Co. v. Clark — 51 Ind. App. 392. 

ger, and all persons must act on the assumption that trains are 
being operated thereon, p. 407. 

14. Railroads. — Crossing Accidents. — Proximate Cause, — Interven- 
ing Cause. — Anticipation of Details Leading to Injury. — ^In an 
action for the death of plalntifTa decedent, who was killed by a 
train In charge of an Independent construction company, because 
of defects In a highway railroad crossing which prevented dece- 
dent from passing over the crossing in time to avoid the collision, 
where the defect was due to the negligence of the railroad com- 
pany, and was such as to render it probable that the progress of 
a person crossing the track would be unnecessarily or unreason- 
ably retarded, and it might reasonably have been Expected that 
trains would pass along the tracks across such highway, then it 
is not necessary. In order to render such railroad company liable 
for the Injury which actually followed, that all the details lead- 
ing up to the accident should be such as might reasonably have 
been foreseen, or that all the combination of circumstances which 
actually occurred might reasonably have been expected, p. 407. 

15. Negligence. — Proximate Cause. — Intervening Cause. — Anticipa- 
tion of Particular Injury. — ^Whether the intervention of an inde- 
pendent agency might reasonably have been expected to occur in 
such a manner as to be likely to produce Injury in connection 
with the original wrongful act Is important for the purpose of 
determining whether the intervention of such agency breaks the 
chain of causation and becomes the sole proximate cause; and if 
It is determined that the chain of causation is not broken by the 
intervention of such agency, then it is wholly immaterial whether 
the particular injury which occurred could reasonably have 
been expected to occur to the particular person and in the particu- 
lar manner in which it did occur, if it was the direct and natural 
resolt of the original negligence, p. 408. 

16L Neguoence. — Manner of Determining Whether Act or Omission 
is Negligent. — The determination of whether an act or omission is 
negligent depends on whether an injury of some kind could rea- 
sonably have been expected to result from such act or omission. 
p. 409. 

17. Negligence. — Reasonable Care. — ^Reasonable care requires a 
person to anticipate and guard against what usually happeus, 
and a failure to do so is negligence ; but reasonable care does not 
require one to foresee and guard against that which is unusual 
and not likely to occur, and a failure to do so Is not negligence. 
p. 409. 

18. Negligence. — Liability. — Anticipation of Results. — Where neg- 
ligence is such as to render it probable that some injury will re- 
sult to some person, the law imposes liability for all the injurious 
consequences which directly flow therefrom, regardless of whether 



396 APPELLATE COURT OF INDIANA. 

Cleveland, etc., R. Co. v. Clark— 51 Ind. App. 392. 

they might reasonably have been foreseen, unless the causation 
is broken by the Intervention of some independent agency, p. 409. 

19. Negligence. — Proximate Cau%e. — IntervenAng Agency. — ^The In- 
tervention of an independent agency does not break the causation 
where the intervention of such agency ought to have been ex- 
pected to occur according to ordinary experience, and, in such 
case, the original wrongdoer Is liable for all injuries which fol- 
low as a direct result of the original negligence acting in com- 
bination witli such intervening agency, even though the resulting 
injury could not have been produced by the original negligence 
alone, p. 410. 

20. Railroads. — Crossing Accidents. — Contributory Negligence, — 
Complaint. — Stifficieticy. — ^A complaint In an action for the death 
of plaintifTs decedent In a railroad crossing accident, alleging 
certain facts tending to show that decedent was in the exercise of 
due care when within a certain distance from the crossing, is 
not Insufficient for failure to show that decedent used due care In 
approaching the tracks, since under §362 Burns 1908, Acts 1899 
p. 58, plaintiff need not allege or prove freedom from contributory 
negligence, p. 412. 

21. Pleading. — Cotnpladnt. — Sufficiency, — Disclosure of Defense. — 
To render a complaint Insufficient on the ground that It discloses 
a defense, such defense must appear from the direct affirmative 
allegations, p. 412. 

22. Railboads. — Crossing Accidents. — Defective Crossing. — Com- 
plaint. — Sufficiency, — A complaint to recover for the death of a 
person, resulting from defects in a railroad highway crossing, 
alleging that the defect existed on a certain day and that dece- 
dent received her injuries by reason of such defect about 6:30 
o'clock on tlie evening of that day, sufficiently shows that the 
defect existed at the time the Injury occurred, since the law does 
not regard fractions of days in such cases, p. 413. 

23. Railroads. — Crossing Accidents. — Defective Crossing. — Evi- 
dence. — In an action for the death of a person at a railroad 
crossing, evidence that the planks on the crossing were so placeii 
as to leave a space of four or five Inches between the plank and 
the rail, tliat a side track was from a foot to eighteen Inches low- 
er than the main track and that there was a hole between the two 
tracks, and that at the south end of the ties of the main track 
there w^as an abrupt ascent from the south of from twelve to 
eighteen inches, and that decedent's horse stopped because of the 
defective condition of the crossing while the buggy was on the 
track where It was struck by a passing train, sufficiently shows 
that the railroad company was negligent in permitting the cross- 
ing to become defective and remain out of repair and that such 
defective condition was a proximate cause of the injury, p. 414. 



MAY TERM, 1912. 397 

Cleveland, etc., R. Co. i?. Clark— 51 Ind. App. 392. 

24. Nbqlioence. — CorUributory Negligence. — Jury Question. — Con- 
tributory negligence is always a question for the jury, unless the 
facts are undisputed and are of such a character that only one 
inference can be fairly and reasonably drawn, p. 415. 

25. Appeal. — Review. — Evidence, — Contributory Negligence. — Ver- 
dict. — ^Where the evidence was sufficient to warrant the trial court 
in submitting the question of contributory negligence to the jury, 
its verdict that plaintiff was free from contributory negligence 
cannot be disturt)ed on the evidence on appeal, p. 415. 

2ft. Railroads. — Crossing Accidents, — Defective Crossing, — Concur- 
ring Cause. — Instructions. — In an action for the death of a per- 
son at a railroad crossing, resulting from defects in the crossing 
which prevented decedent from avoiding collision with a passing 
train in control of an independent construction company, instruc- 
tions that if the injury to decedent was caused proximately by the 
collision there could be no recovery against the railroad company, 
were prc^xjrly refused, since, if the defective crossing was a prox- 
imate cause of the injury, the railroad company is not excused be- 
cause anotlier agency concurred in producing the Injury, p. 415. 

27. Appeal. — Review. — Instructions. — Consideration a^ a Whole. — 
Although instructions complained of do not fully and accurately 
state the law when considered alone, the cause will not be re- 
versed therefor, if, when considered in connection with all the 
other instructions given in the case, they are so supplemented and 
explained that the jury could not have been misled thereby. 
Pl416. 

28. Appeal. — Review. — Presumptions. — Instructions. — Damages. — 
Where an instruction expressly limits the jury in assessing dam- 
ages to the consideration of evidence relating to the subject of 
damages, it will be presumed that the jury obeyed same and that 
in fixing the amount of damages, it considered only the evidence 
having a legal relation to that subject, p. 416. 

29. TRLA.L. — Limiting Consideration of Facts, — Instructions. — Dutg 
to Request. — ^Where facts have been developed during a trial 
which, in the opinion of a party to the cause, may be improperly 
considered by the jury. It is the duty of such party to request 
an instruction warning the jury against the improper considera- 
tion of such facts, and, failing to do so, such party cannot com- 
plain on appeal that the instructions given did not properly limit 
the consideration of such facts, p. 417. 

30. Appeal. — Review. — Harmless Error. — Instructions. — Assump- 
tion of Fact. — Wrongful Death. — ^Where an Instruction on dam- 
ages in an action for death proceeded on the hypothesis that the 
jury find for the plaintiff, and started by informing the jury that, 
if it finds for the plaintiff, it will be its duty to assess damages, 
and all that follows proceeds on the supposition that the jury 
must have found the material facts in favor of plaintiff, before 



398 APPELLATE COURT OP INDIANA. 

Cleveland, etc., R. Co. v. Clark— 51 lud. App. 392. 

it is called on to consider the question of damages, a finding for 
plaintiff would be a finding that the death was wrongful, so that a 
defect In the instruction in referring to the death as wrongful 
does not warrant a reversal, p. 417. 

From Clay Circuit Court ; John M. Rawley, Judge. 

Action by William P. Clark, administrator of the estate 
. of Maggie Clark, deceased, against The Cleveland, Cincin- 
nati, Chicago and St. Louis Railway Company, and others. 
From a judgment for plaintiff, the defendants appeal. Af- 
firmed. 

Oeorge A. Knight, Sullivan cfe Knight, F. L. Littleton 
and A. W. Knight, for appellants. 
S. M. McGregor and S. A. Hays, for appellee. 

LAmY, J. — This action was brought by appellee to re- 
cover damages from appellants and the Guilfoil Con- 
tracting Company on account of the alleged negligent kill- 
ing of appellee's decedent, Maggie Clark, on November 1, 
1906. The complaint is in two paragraphs, to each of which 
a demurrer was overruled. Defendants filed separate an- 
swers in general denial, and the issues thus formed were 
tried by a jury, which returned a verdict in favor of ap- 
pellee and against appellants, and in favor of defendant 
Guilfoil Contracting Company. This appeal is taken from 
a judgment rendered on this verdict. 

The complaint sets forth that the main line of the Big 
Four Railway Company runs«east and west through Clay 
county, Indiana, and crosses a highway, near the town of 
Perth, in Clay county, known as the Caseyirille and Pertli 
gravel road; that said railway company had employed ap- 
pellant Wabash Construction Company and the Guilfoil 
Contracting Company to construct two additional sets of 
tracks paralleling the main line, and located immediately 
to the south of the main line, between certain points along 
the road ; .that these new sets of tracks had been practically 
completed, at the time of the accident complained of, at 
and across the highway above referred to; that appellee's 



MAY TERM, 1912. 399 

Cleveland, etc., R. Oo. v. Clark — 51 lud. App. 392. 

decedent, Maggie Clark, and her sister-in-law were driving 
a horse, hitched to a buggy, towards the north, and along 
said highway, and were in the act of crossing the tracks 
when the conveyance in which they were riding was struck 
by a train of flat-cars, which was being backed by an en- 
gine towards the east, over the middle or second set of 
tracks, by the Guilfoil Contracting Company and the Wa- 
bash Construction Company, and that in consequence there- 
of decedent was thrown out of the buggy onto the track, 
and run over by the train and killed. The theory of the 
complaint is that the accident was caused by the combined 
negligence of the railway company and the two construction 
companies. 

For the purpose of charging negligence against the rail- 
way company it is alleged, in substance, in the first para- 
graph of complaint that at the place where the railway 
tracks crossed said highway the two tracks in process of 
construction were south of the main track of the railway, 
parallel therewith and about eight feet apart, the nearest 
being about eight feet from the main track; that the two 
tracks in process of construction were on the same level, 
and on a grade about five feet high, while the grade of the 
main track at that point was about two feet above the grade 
of the two tracks imriiediately south of it; that the high- 
way described had been in existence for many years, and 
it was the duty of defendant railway company in construct- 
ing its railway tracks across such highway to do so in such 
a manner as to afford security for life and property, and 
to restore and maintain said highway at the place where it 
intersects and crosses its right of way and tracks in such a 
way as to make it suitable and safe for the traveling public, 
and so as not unnecessarily to impair its usefulness; that 
defendant failed to perform its duty in this respect, by 
negligently suffering the highway crossing at the place de- 
scribed to get out of repair, and to become Unsafe and dan- 
gerous for travel ; that said highway crossing was permitted 



400 APPELLATE COURT OP INDLA.NA. 

Cleveland, etc., R. Co. i\ Clark — 51 Ind. App. 392. 

to be torn and broken up, so as to leave the same with un- 
even surface, full of holes, and having steep grades and 
embankments thrown up and across the same ; that the cross- 
ing of the main line was uneven, rough and unsecure, the 
planks thereon being placed and maintained so far apart 
as to render it unsafe for horses and vehicles to cross on ac- 
count of the danger of horses becoming fastened and held 
in the space between said planks and the rails of said track ; 
that the condition of the crossing as described existed an 
the day on which the injury occurred, and for six months 
prior thereto, and that defendant railway company knew of 
such condition, or might have known of it by the exercise of 
reasonable care. This paragraph further avers facts show- 
ing that plaintiff's decedent was riding in a buggy, north 
on said highway, at about 6 o'clock on the evening of Noveiu- 
ber 1, 1906, and that the person with whom she was riding 
started to cross the tracks in process of construction and the 
main track of defendant railway company, and that when 
she was crossing the second or middle track a train of flat- 
cars, operated by the construction company, was negligently 
run toward and against the buggy, causing the death of 
plaintiff's decedent; that the driver of the buggy and dece- 
dent observed the approach of the train, and endeavored to 
escape from the dangerous situation, but by reason of the 
defective and dangerous condition of the crossing, described 
in the complaint, they were unable to urge the horse up the 
steep and rough incline over the main track, and were also 
unable to back the horse off the track, or turn it aside in 
such a way as to avoid the collision, and that if said crossing 
had been maintained in a proper and suitable condition for 
travel the driver of the buggy would have been able to urge 
the horse forward across the track and avoid the injury. 

The second paragraph contains substantially all the alle- 
gations of the first, and, in addition thereto, it avers that at 
the time the conveyance was crossing the middle track one 
of the horse 's feet became fastened in the defective crossing. 



MAY TERM, 1912. 401 

Cleveland, etc., R. CJo. v. Clark— 51 Ind. App. 392. 

and that this caused the horse to check its speed and stop, 
for which reason they were unable to cross the track in time 
to avoid the injury. 

A demurrer filed by the railway company was overruled, 
and an exception taken by said defendant, and this presents 
the first error relied on for reversal. 

The statute imposes on railway companies the duty of 

restoring and maintaining the highway crossings in such a 

way as to be reasonably safe for travel, and a fail- 

1. ure to discharge this duty is negligence. §5195 Burns 
1908, §3903 R. S. 1881; Louisville, etc., R. Co. v. 

Smith (1883), 91 Ind. 119; Wabash B. Co. v. DeHart 

(1903), 32 Ind. App. 62, 65 N. E. 192. This duty cannot 

be delegated to others so as to relieve the company 

2. from liability in case of its breach, and therefore if 
the independent contractors, to whom the defendant 

railway company let the work of constructing its tracks, 
negligently caused or permitted the crossing to become un- 
safe for travel, and an injury resulted, of which such negli- 
gence was the direct and proximate cause, defendant rail- 
way company is liable. Southern Ind. B. Co. v. McCarrell 
(1904), 163 Ind. 469, 71 N. E. 156. 

It is iQsistently urged in behalf of appellant railway com- 
pany that the complaint is insufficient as against it, for the 
reason that the facts averred fail to show that the defective 
condition of the highway crossing was the proximate cause 
of the train colliding with the buggy, and causing the in- 
jury described in the complaint. If the negligence 

3. of defendant railway company in respect to allowing 
the crossing to become defective was one of the causes 

which concurred in producing the injury, it will not be re- 
lieved from liability because its negligence was not the sole 
cause nor because the negligence of another may have like- 
wise concurred in producing such injury. Board, etc., v. 
Mutchler (1894), 137 Ind. 140, 36 N. E. 534; Cleveland, etc.. 

Vol. 51—26 



402 APPELLATE COURT OF 'INDIANA. 

Cleveland, etc., R. Co. r. Clark— 51 lud. App. 3i)2. 

R. Co. V. Wynant (1893), 134 Ind. 681, 34 N. E. 569 ; Board, 
cic, V. Sisson (1891), 2 Ind. App. 311, 28 N. E. 374. The 
collision was caused by the train passing over the crossing 

while the buggy was on the track. The passing of the 
4. train may have been due to the negligence of the 

employes of the construction company, and the defect 
in the road could have nothing to do with that ; but the ques- 
tion remains, Did the defect in the road cause the buggy 
to be on the track at the time the train passed ? The buggy 
was on the track because it had proceeded thus far and 
failed to get beyond the track when the train passed. The 
defect in the track had nothing to do with causing the driver 
of the buggy to approach and enter on the track. That ac- 
tion was caused, according to the averments of the com- 
plaint, by the failure of the servants of the construction 
company to give a signal indicating the approach of the 
train or to display a warning light. But what prevented 
the buggy from safely passing over the track before the 
train reached the crossing? According to the averments of 
the complaint, the defect in the highway prevented the 
l>^ggy 8^<i its occupants from safely passing beyond the 
crossing before the arrival of the train, and thus caused the 
buggy to be on the crossing at the time the train passed over 
it. Had it not been for the defects in the crossing, the acci- 
dent would not have happened. The negligence of defend- 
ant railway company was, therefore, one of the concurring 
causes whicli produced the injury, and without which the 
accident would not have occurred ; and it will be treated as 
one of the proximate causes, unless an independent agency 
has intervened in such a way as to break the chain of causa- 
tion, and to become the sole proximate cause. 

In this case, according to the averments of the complaint, 
an independent agency, operated by responsible agents, in- 
tervened between the negligence of the railway company 
and the injury to plaintiff's decedent, which intervening 
agency directly produced the injury of which plaintiff com- 



MAY TERM, 1912. 403 

Cleveliuul, etc., K. Co. v. Clark--I>l Ind. App. 392. 

plains. Where there is an intervening, responsible 
5. agency, which directly produces the injury, as in this 
case, the question as to whether the original negli- 
gence is to be regarded as the proximate cause of the injury, 
or only as a condition, or remote cause, is to be determined 
by ascertaining whether the agency which intervened was of 
such a character, and the circumstances under which it oc- 
curred were such, that it might have been reasonably ex- 
pected that such agency or a similar one would intervene 
in such a way as to be likely to produce an injury similar to 
the one actually caused. If, under the circumstances, the 
intervention of such an agency in the manner stated might 
reasonably have been expected in the usual course of events 
and according to common experience, then the chain of 
causation, extending from the original, wrongful act to the 
injury, is not broken by the independent, intervening agency, 
and the original wrongful act will be treated as a proximate 
cause. Nickey v. 8 tender (1905), 164 Ind. 189, 73 N. E. 
117; Claypool v. Wigmore (1904), 34 Ind. App. 35, 71 N. B. 
509; Cleveland, etc., R. Co. v. Patterson (1906), 37 Ind. 
App. 617, 77 N. E. 745 ; Enochs v. Pittsburgh, etc., R. Co. 
(1896), 145 Ind. 635, 44 N. E. 658; Evansville, etc., R. Co. 
V. Alien (1905), 34 Ind. App. 636, 73 N. E. 630; Knouff v. 
City of Logansport (1901), 26 Ind. App. 202, 59 N. E. 347, 
84 Am. St. 292; Miller v. St. Louis, etc., R. Co. (1886), 90 
Mo. 389, 2 S. W. 4:39 ;Pastene v. Adams (1874), 49 Cal. 87; 
Bailey v. New Haven, etc., Co. (1871), 107 Mass. 496; 
Yocum V. Town of Trenton (1886), 20 Mo. App. 489; Brink 
V. Kansas City, etc., R. Co. (1885), 17 Mo. App. 177 ; Mahog- 
any V. Ward (1889), 16 R. I. 479, 17 Atl. 860, 27 Am. St. 
753; Scott V. Hunter (1863), 46 Pa. St. 192, 84 Am. Dec. 
542 ; 1 Sutherland, Damages §57 ; Wharton, Negligence (2d 
ed.) §999; Pittsburgh City v. Grier (1853), 22 Pa. St. 54, 
60 Am. Dec. 65; Terre Haute, etc., R. Co. v. Buck (1884), 
96 Ind. 346, 49 Am. Rep. 168. 
On the other hand, if the agency intervening was one over 



404 APPELLATE COURT OF INDIANA. 

Cleveland, etc., R. Co. t\ Clark — 51 Ind. App. 392. 

which the original tort feasor had no control, and which was 
not put in motion by the original wrongful act ; and 

6. if the character of the intervening agent, and the 
manner of the intervention, were such as, under the 

circumstances, could not reasonably have been expected to 
occur in the ordinary course of nature and according to com- 
mon experience, then such independent agency so interven- 
ing will be treated as the sole proximate cause, and the orig- 
inal wrongful act will be treated as only a condition. 8eai^ 
V. Gulf, etc., R. Co. (1886), 65 Tex. 274, 57 Am. Rep. 602 
Mutual Ins. Co. v. Tweed (1868), 7 Wall. 44, 52, 19 L. Ed 
65; Brandon v. Gulf City, etc., Mfg. Co. (1879), 51 Tex 
121; Lane v. Atlantic Works (1872), 111 Mass. 136, 139 
Daniels v. Balla7itine (1872), 23 Ohio St. 532, 13 Am. Eep 
264; McClary v. Sioux City, etc., R. Co. (1873), 3 Neb. 44, 

19 Am. Rep. 631 ; Berry v. Borough of Sugar Notch (1899), 
191 Pa. St. 345, 43 Atl. 240; Proctor v. Jennings (1870), 6 
Nev. 83, 3 Am. Rep. 240; Morrison v. Davis <fe Co. (1852), 

20 Pa. St. 171, 57 Am. Dec. 695. 

A complaint for damages, based on negligence, must aver 

that the negligence charged caused the injury of which 

plaintiff complains. This is an ultimate fact, and 

7. must be shown either by a direct averment of such 
fact, or by the averment of specific facts showing that 

the injury and damage of which plaintiff complains resulted 
directly and proximately from the negligence charged. If 
the ultimate fact is not pleaded, the complaint is insuflScient, 
unless the specific facts pleaded are of such a character that 
the ultimate fact must necessarily be inferred therefrom, 
and no other reasonable inference can be drawn. Erwin v. 
Central Union Tel Co. (1897), 148 Ind. 365, 46 N. E. 667, 
47 N. E. 663; Brown v. Brown (1893), 133 Ind. 476, 32 N. 
E. 1128, 33 N. E. 615; Morgantown Mfg. Co. v. Hicks 
(1910), 46 Ind. App. 623, 92 N. E. 199; Indianapolis St. R. 
Co. V. Ray (1906), 167 Ind. 236, 78 N. E. 978. 
Where the specific facts alleged are of such a character 



MAT TEBM, 1912. 405 

Cleveland, etc., R. Co. v, Clark — 51 Ind. App. 392. 

that two minds of equal intelligence and fairness might draw 
opposite inferences as to the existence of such ulti- 

8. mate fact, then no inference in favor of the existence 
of such fact can be drawn to aid the pleading. 

This rule has been many times applied as the test for 
determining whether an ultimate fact can be inferred from 
specific facts in favor of a pleading. When a complaint con- 
tains a general averment of the ultimate fact, and where 
specific averments are relied on to overcome the general 
averment, by showing that it is not true, and thus to render 
the complaint defective, the same rule as to the force and 
effect to be given to specific averments holds good, but it is 
inversely applied. In such a case the general averment of 
the ultimate fact will control, unless it is shown to be untrue 
hy the averment of specific facts. In order to overcome the 
general averment, the specific facts alleged must be of such 
a character that only one legitimate inference can be drawn 
therefrom, and that inference must be opposed to the ulti- 
mate fact stated in the general averment. If, from the spe- 
cific facts averred, two minds, equally reasonable and hon- 
est, might draw opposite inferences as to the existence of the 
ultimate fact stated in the general averment, then the gen- 
eral averment will control. In order that specific 

9. averments in a pleading may control the general alle- 
gations, they must be clearly repugnant thereto, and 

show that the general allegation is untrue. Warbritton v. 
Detnorett (1891), 129 Ind. 346, 27 N. E. 730, 28 N. E. 613. 
Where a complaint contains the general averment that the 
negligence of the defendant caused the injury complained 
of, this is sufficient, unless the specific averments are 

10. such as to show affirmatively that such negligence was 
not the proximate cause; but where, in addition to 

this general averment, specific facts are stated, as in this 
ease, showing that an independent agency intervened and di- 
rectly produced the injury charged, the court, in ruling on 
a demurrer to such complaint, is required to decide whether 



406 APPELLATE COURT OP INDIANA. 

Cleveland, etc., R. Oo. v. Clark— 61 Ind. App. 392. 

such specific averments as to such intervemng agency over- 
come the general averment that the injury was caused by the 
negligence of defendant. In deciding this question, the 
court must consider the facts specifically averred as true, 
and determine therefrom whether the chain of causation is 
broken by such intervening agency, so as to make it the sole 
proximate cause of the injury charged. This question must 
depend on whether, under the facts so specifically 

11. averred, the intervention of some such agency in such 
a way as to be likely to produce injury in conjunc- 
tion with the original negligence ought to have been reason- 
ably expected according to ordinary experience. If the 
court can say that the character of the agency and the cir- 
cumstances under which it intervened, as shown by such 
specific averments, are such that only one legitimate infer- 
ence could be drawn therefrom by any fair and reasonable 
mind, and that such inference is that the causation was 
broken by the intervention of such agency, and that it was 
the sole proximate cause of the injury charged, then such 
court may properly hold that such specific averments over- 
come the general averment, and should sustain the de- 
murrer. On the other hand, if from the character of the 
intervening agency, and the circumstances under which the 
intervention occurred, as disclosed by such specific aver- 
ments, reasonable minds might reach opposite conclusions 
in determining whether the intervention of an intervening 
agency of the character described should reasonably have 
been expected to occur in such a way as to produce injury, 
then the court may not say, as a matter of law, that such 
specific averments overcome the general averment. In such 
a ease the demurrer must be overruled and the complaint be 
held sufiScient on the strength of the general averment, re- 
gardless of the specific averments. 

Applying the rule just stated to the facts alleged in the 
complaint, it seems reasonable to hold that a railway com- 
pany which permits its highway crossing to get out of re- 



MAY TERM, 1912. 



407 



Cleveland, etc., R. Go. v. Clark— 51 Ind. App. 392. 



pair ought reasonably to expect that trains of cars 

12. will pass over such crossings on the tracks constructed 
for that purpose. If a man is beaten and left in 

a helpless or unconscious condition on the tracks of a rail- 
road, where he is run over and killed by a train, the wrong- 
doer most certainly could not escape liability for such death, 
either civilly or criminally, on the ground that such death 
was caused by the act of an independent, intervening agency. 
Railroad tracks are in themselves a warning of dan- 

13. ger, and all persons must act on the assumption that 
trains are being operated thereon. Malott v. Haw- 
kins (1902), 159 Ind. 127, 63 N. E. 308 ; IndianapoUs Union 
B. Co. V. Waddington (1907), 169 Ind. 448, 82 N. B. 1030; 
3 Elliott, Railroads §1171; Smith v. Wabash B. Co. (1895), 
141 Ind. 92, 40 N. E. 270 ; Oleson v. Lake Shore, etc, R. Co, 
(1896), 143 Ind. 405, 42 N. E. 736, 32 L. R. A. 149. 

It is averred that the dangerous and unsafe condition of 

the highway crossing described in the complaint was caused 

or permitted by defendant railway company, and that 

12. by reason of such condition the driver of the con- 
veyance in which plaintiff's decedent was riding was 
unable to escape from the crossing in time to avoid the 
threatened collision with the approaching train, when, but 
for said unsafe crossing, she could have done so. Under 
such circumstances, we cannot say as a matter of law that 
the train which struck and killed plaintiff's decedent was 
not such an agency as might not have been expected to inter- 
vene and produce injury to some person at the crossing in 
conjunction with the negligence of the railway company. 
The trial court properly held that this was a question for 
the jury. 

Appellant railway company contends that it could not 

reasonably have been expected that this particular injury 

would occur in the peculiar manner in which it hap- 

14. pened. It is argued that while the defects in the 
highway crossing might have been such as were liable 



408 APPELLATE COURT OP INDLAJMA. 



Cleveland, etc., R. Co. r. Clark — 51 Ind. App. 392. 



to impede the progress of a p^erson in crossing the track, it 
could not reasonably have been expected that those in charge 
of a train on said tracks would be negligent in operating it, 
or that a person in the exercise of due care would be on the 
crossing at the time a train was approaching and would be 
prevented by the imperfections in the crossing from escap- 
ing the danger of a collision. Our opinion is that if the 
defect in the highway crossing was due to the negligence of 
the railway company, and was such as to render it probable 
that the progress of a person crossing the track would be 
unnecessarily or uiireasonably retarded, and, if it might rea- 
sonably have been expected that trains would pass along 
said track across said highway, then it is not necessary, in 
order to render such defendant liable for the injury which 
actually followed, that all the details leading up to the 
accident should be such as might reasonably have been fore- 
seen, or that all the combination of circumstances which 
actually occurred might reasonably have feeen expected. It 
is sufficient that the original negligent act was of such a 
character as to be likely to produce injury of some sort to 
some person, and that, unde^ the circumstances, the inter- 
vention of the independent agency might reasonably have 
been expected, and that the injury actually followed as a 
natural and direct consequence of the original negligence, 
combined with the action of the intervening agency. 

The question as to whether the intervention of an inde- 
pendent agency might reasonably have been expected to 
occur in such a manner as to be likely to produce 

15. injur}'- in connection with the original wrongful act 
is important for the purpose of determining whether 
the intervention of such agency breaks the chain of causa- 
tion and becomes the sole proximate cause; but once this 
question is determined and it is held that the chain of causa- 
tion is not broken by the intervention of such agency, then 
it becomes wholly immaterial whether the particular injury 
which occurred could reasonably have been expected to occur 



MAY TERM, 1912. 409 

Cleveland, etc., R. Co. i?. Clark— 51 Ind. App. 392. 

to the particular person and' in the particular manner in 

which it did occur, provided of course, that it was the direct 

and natural result. So likewise, in determining whether an 

act or omission is or is not negligent, the question 

16. must depend on whether an injury of some kind to 
some person could reasonably have been expected to 

17. result from such act or omission. It has been well 
settled that reasonable care requires a person to an- 
ticipate and guard against what usually happens or is likely 
to happen, and that a failure to do this is negligence ; but 
that reasonable care does not require him to foresee and 
guard against that which is unusual and not likely to occur, 
and a failure to do this is not negligence. Young v. Harvey 
(1861), 16 Ind. 314; Wabash, etc., R. Co. v. Locke (1887), 
112 Ind. 404, 14 N. E. 391, 2 Am. St. 193 ; Woodruff v. Bow- 
ui (1894), 136 Ind. 431, 34 N. E. 1113, 22 L. R. A. 198; 
Standard Oil Co. v. Helmick (1897), 148 Ind. 457, 47 N. E. 
14; Baltimore, etc., B. Co. v. Slaughter (1906), 167 Ind. 330, 
79 N. E. 186, 7 L. B. A. (N. S.) 597, 119 Am. St. 503 ; Brum- 
mit V. Purness (1891), 1 Ind. App. 401, 27 N. E. 656, 50 
Am. St. 215; Consolidated Sto\ie Co. v. Bedmon (1899), 23 
Ind. App. 319, 55 N. E. 454. 

Once it has been determined, however, from' an application 

of the principle heretofore stated, that there has been a 

failure to use due care, by the party charged with 

18. negligence, it then becomes unimportant whether the 
particular injury which actually occurred could rea- 
sonably have been expected to happen in the manner in 
which it occurred. If the negligence is such as to render it 
probable that some injury will result to some person, the 
law imposes liability for all the injurious consequences which 
directly flow therefrom, whatever they are and regardless 
of whether they might reasonably have been foreseen or not, 
unless the causation is broken by the intervention of some 
independent agency. I sham v. Dow's Estate (1898), 70 Vt. 

I, 41 Atl. 585, 45 L. R. A. 87, 67 Am. St. 691 ; White Sew^ 



410 APPELLATE COURT OP INDIANA. 

Cloveland, etc., R. Co. r. Clark— 51 Ind. App. 392. 

ijig Mack. Co. v. Richier (1891), 2 Ind. App. 331, 28 N. B. 
446; Chicago, etc., R. Co. v. Pritchaa-d (1907), 168 Ind. 398, 
79 N. E. 508, 81 N. E. 78, 9 L. R. A. (N. S.) 857 ; LowisviUe, 
etc., R. Co. V. Wood (1888), 113 Ind. 544, 14-^ B. 572, 16 
N. E. 197; Davis v. Mercer Lumber Co. (1905), 164 Ind. 
413, 73 N. E. 899 ; Pittsburgh, etc., R. Co. v. Sudhoff (1910), 
173 Ind. 314, 90 N. E. 467 ; Cincinnati, etc., R. Co. v. Acrea 
(1908), 42 Ind. App. 127, 82 N. E. 109; Hohenstein-Hart- 
metz, etc., Co. v. Matthews (1910), 46 Ind. App. 616, 92 N. 
E. 196; Sweeney v. MerriU (1888), 38 Kan. 216, 16 Pac. 
454, 5 Am. St. 734; Lomsville, etc., R. Co. v. Falvey (1886), 
104 Ind. 409, 433, 3 N. E. 389, 4 N. B. 908 ; Wharton, Negli- 
gence (2d ed.) §§16, 17, 21, 76; Schumaker v. 8t Paul, etc., 
R. Co. (1891), 46 Minn. 39, 48 N. W. 559, 12 L. R. A. 257 ; 
29 Cyc. 492, and authorities cited. 

As shown by the cases heretofore cited on this proposition, 

the rule seems to be well established that the intervention 

of an independent agency does not break the causa- 

19. tion in cases where the intervention of such agency 
ought to have been expected to occur according to 
ordinary experience; and that, in such cases the original 
wrongdoer is liable for all injuries which follow as a direct 
result of the original negligence acting in combination with 
such intervening agency, even though the resulting injury 
could not have been produced by the original negligence 
alone. In the application of the rule to the particular facts 
of the different cases some confusion seems to have arisen, 
and it is diflScult, if not impossible, to harmonize all of the 
reported cases. The case of Chicago, etc., R. Co. v. Dinius 
(1908), 170 Ind. 222, 84 N. E. 9, is decided on the authority 
of the case of P. H. & F. M. Roots Co. v. Meeker (1905), 165 
Ind. 132, 73 N. E. 253. In the case of King v. Inland Steel 
Co. (1912), 177 Ind. 201, 96 N. E. 337, 97 N. E. 529, on pe- 
tition for rehearing the Supreme Court expressly overruled 
the cases of P. H. <fe F. M. Roots Co. v. Meeker, supra, and 



MAY TERM, 1912. 411 

Cleveland, etc., R. Oa v. Clark— 51 Ind. Ai)p. 392. 

Crawford (& McCrimmon Co. v. Gose (1909), 172 Ind. 81, 
87 N. E, 711, on the very question here involved. The case 
of Chic^igo, etc., B. Co. v. Dinius, supra, was not expressly 
overruled, but it was stated in the opinion that it could be 
distinguished from the cases overruled. We are unable to 
distinguish it from those cases on the question here involved. 
It is suggested that in the overruled cases it appears that 
the negligence complained of consisted of the violation of 
a duty imposed by a positive statute, while in the Dinius 
case the negligence consisted of the violation of a duty exist> 
ing at common law. The distinction suggested does not 
affect the application of the principle involved. In regard 
to the liability of a defendant for the injurious consequences 
which flow from his negligent act, it can make no possible 
difference whether the injury results from the violation of 
a statutory duty or a common-law duty, and the principle 
of law in reference to intervening agencies, as affecting the 
liability of the original wrongdoer, is alike applicable re- 
gardless of whether the duty violated is imposed by statute 
or exists at common law. 

The Supreme Court in later cases has refused to follow 
the ease of Chicago, etc., B. Co. v. Dimus, supra, on the point 
under consideration. Pittsburgh, etc., B. Co. v. Sudhoff 
(1910), 173 Ind. 314, 90 N. E. 467; Balzer y. Waring 
(1911), 176 Ind. 585, 95 N. E. 257. In view of this fact, 
and in view of the further fact that the cases cited as au- 
thority for the holding in the Dinius case have been ex- 
pressly overruled, the authoritative force of that decision 
has been so weakened that it can no longer be regarded as 
authority on the question here involved. 

Without attempting further to review the authorities, it 
is sufficient to say that we are satisfied that the averments 
of the complaint in this case are suflScient to justify the court 
in submitting to the jury the question as to whether the 
negligence of the railway company in permitting the high- 



412 APPELLATE COURT OF INDLA.NA. 

Cleveland, etc., R, Co. r. Clark— 51 lud. App. 392. 

way crossing to become defective, as charged, was one of the 
proximate causes which concurred to produce the death of 
plaintiflE's decedent, as alleged. 

Appellant Wabash Construction Company also assigns as 
error the ruling of the trial court in overruling its demur- 
rer to each paragraph of plaintiff's complaint. This appel- 
lant does not claim that the facts alleged are not sufficient 
to show that it was guilty of negligence, but it is contended 
on behalf of both appellants that the complaint, by affirma- 
tive averments, shows that appellee's decedent was guilty of 
negligence contributing to her injury. 

The burden of proving contributory negligence in a case 

of this kind is on defendant, and plaintiff is relieved, by 

statute, of alleging or proving freedom from contrib- 

20. utory negligence. In this case, plaintiff avers that 
his decedent was free from contributory negligence, 

but this averment is unnecessary, and it neither helps nor 
harms the complaint. The complaint alleges that the horse, 
drawing the buggy in which decedent was riding, approached 
the track in a walk, and that the occupants of the buggy 
were looking and listening for an approaching train, and 
that when they reached a point within thirty feet of the 
track they stopped and looked and listened for approach- 
ing trains. These specific averments do not tend to show- 
that plaintiff's decedent was guilty of a failure to use due 
care in approaching the track. So far as they go, they tend 
to show precaution on her part. Appellants object to the 
complaint because it does not contain other averments show- 
ing that decedent used due care in approaching the tracks. 
The complaint would have been good without any averment 
showing care on the part of decedent as she approached the 
tracks. This being true, it cannot be held defective because 
it avers some facts tending to show due care and fails 

21. to aver others. To render a complaint insufficient 
on the ground that it discloses a defense, such de- 



MAY TERM, 1912. 413 

Cleveland, etc., R. Oo. v. Clark— 51 Ind. App. 392. 

fense must appear from the direct, affirmative allegations 
of the complaint. The specific averments of the complaint 
do not show affirmatively that plaintiff's decedent was guilty 
of contributory negligence, and no presumption against 
plaintifE arises because of his failure to aver any fact tend- 
ing to show due care on the part of decedent. 

The complaint avers that the defect in the highway cross- 
ing existed on November 1, 1906, and had existed for a long 

time prior to that date, and that plaintiflE's decedent 
22. received her injuries, by reason of such defect, about 

6 :30 o 'clock on the evening of that day. Appellants 
make the point that these averments do not show that the 
defect existed at the time the injury occurred, and it is sug- 
gested that the defect might have been removed earlier in 
the day, and before the time of the injury. We are not im- 
pressed with this point. The law does not regard fractions 
of days in cases of this kind. If the averment had been that 
she was injured on that day, without specifying the hour, 
it would have been clearly sufficient ; and we think that the 
complaint in this particular was sufficiently certain, and the 
separate demurrer of each appellant was properly overruled. 
With the general verdict the jury returned answers to a 
series of interrogatories. Appellant railway company as- 
signs as error the ruling of the trial court in denying its 
motion for judgment on these interrogatories notwithstand- 
ing the general verdict. The questions presented on this 
assignment of error are the same as those already discussed 
in considering the sufficiency of the complaint. Each appel- 
lant filed a separate motion for a new trial, which motions 
were overruled and exceptions reserved. For the most part 
these separate motions present the same questions, and may 

m 

be considered together. 

The third reason assigned for a new trial is that the ver- 
dict of the jury is contrary to law. In support of this as- 
signment, counsel present the same reasons urged against 



414 APPELLATE COURT OF INDIANA. 

(^lovelaud, etc., R. Co. r. Clark— 51 Ind. App. 31)2. 

the suflSciency of the complaint. For the reasons we have 
stated in holding the complaint sufficient, we hold that the 
verdict is not contrary to law. 

The first cause assigned for a new trial questions the suffi- 
ciency of the evidence to sustain the verdict. On behalf of 
appellant railway company it is contended, (1) that there is 
no evidence showing that it was negligent in permitting the 
highway crossing to become defective and to remain out of 
repair; (2) that there is no evidence showing that the de- 
fective condition of the crossing was the proximate cause of 
the injury; (3) that the evidence shows without dispute that 
appellee's decedent was guilty of contributory negligence. 

There is abundant evidence in the record to show that the ' 
crossing in question was in a defective condition, and was 
unsafe for use at the time of the accident, and had 

23. been so for several weeks prior thereto. Numerous 
witnesses testified that the planks on the crossing were 
so placed as to leave a space of four or five inches between 
the planks and the rail; that the track to the south of the 
main track was from a foot to eighteen inches lower than the 
main track, and, as stated by some of the witnesses, there 
was a low place or hole between these two tracks; that at 
the south end of the ties of the main track there was an 
abrupt ascent from the south of from twelve to eighteen 
inches. The question as to whether the defective condition 
of the crossing was a proximate cause of the injury to plain- 
tiff's decedent was, under the evidence in this case, one of 
fact for the jury. The evidence showed that the horse 
stopped while the buggy was on the track where it was 
struck, and there was evidence sufficient to justify the jury 
in finding that the defective condition of the crossing caused 
the horse to stop, and prevented the conveyance from pass- 
ing over the crossing in safety. As to whether the evidence 
was sufficient to warrant the inference that the horse's foot 
was fast in the space between the plank and the rail of the 
main track, and to warrant the jury in so finding, we need 



MAY TERM, 1912. 415 

Cleveland, etc., R. Co. v. Clark — 51 Ind. App. 392. 

not decide. If the defects in the crossing, of whatever na- 
ture they were, caused the horse to stop, or so retarded his 
progress as to cause the buggy to be struck by the train, 
when otherwise it would have passed the crossing in safety, 
such defects could be properly held to be a proximate cause 
of the injury. 
On behalf of both appellants, it is urged that the un- 
disputed evidence shows contributory negligence on 

24. the part of plaintiff's decedent. Contributory negli- 
gence is always a question of fact for the jury, un- 
less the facts are undisputed, and are of such a character 
that only one inference can fairly and reasonably be drawn. 

In this case we have carefully examined the evidence 

25. relating to this question, and we are of the opinion 
that it was sufficient to warrant the court in submit- 
ting the question to the jury. The jury having passed on the 
question, and decided that, under the circumstances dis- 
closed by the evidence, appellee's decedent was without fault 
contributing to her injury, this court cannot disturb the 
verdict on the evidence. 

Each appellant has assigned as cause for a new trial the 

refusal of the court to give certain instructions requested 

< 

by it. To take up and discuss each of these instnie- 

26. tions separately would unduly extend this opinion, 
and would serve no useful purpose. Some of the in- 
structions refused were intended to ad\dse the jury that if it 
found that the injury to appellee 's decedent was caused prox- 
imately by a collision with a train, under the control and 
management of an independent contractor, there could be 
no recovery against the railway company. For the reasons 
stated in discussing the sufficiency of the complaint, these 
instructions were properly refused. If the defect in the 
crossing was a proximate cause of the injury, the railway 
company would not be excused, because another agency also 
concurred in producing it. 

Other instructions were properly refused, because they 



416 APPELLATE COURT OP INDIANA. 

Cleveland, etc., R. Co. t\ Clark— 51 Ind. App. 302. 



were intended to advise the jury that the railway company 
would not be liable for any injury caused by a defect 
2. in the crossing occasioned by the act or neglect of an 
independent contractor. The railway company owed 
the duty of keeping the crossing in a reasonably safe con- 
dition for use, and this duty could not be delegated to 
others in such a way as to absolve it from liability. If the 
work which it authorized under the contract was of such 
a nature that an unsafe condition of the crossing was likely 
to be produced thereby, unless precautions were used, the 
railway owed the primary duty to see to it that those pre- 
cautions were taken. The other instructions refused w^ere 
either open to objections which justified their refusal or 
were covered in substance by the instructions gfiven. 

Objections are urged to several instructions given to the 
jury by the court of its own motion, and to certain instruc- 
tions given at the request of appellee. We have care- 

27. fully examined these instructions, and have reached 
the conclusion that no prejudicial error was com- 
mitted by the court in the giving of any of them. It is true 
that some of the instructions of which appellants complain 
do not fully and accurately state the law when considered 
alone ; but when considered in connection with all the other 
instructions given in the case, they are so supplemented and 
explained that the jury could not have been misled thereby. 

The fifteenth instruction relates to the measures of dam- 
ages. On this subject the jury was instructed in part as 
follows : "In determining this question you may take 

28. into consideration the age of the decedent, at the 
time of her death, the number and ages of her chil- 
dren, her habits of industry and frugality, the condition of 
her health prior to the accident, her ability to perform labor, 
the care and attention given and bestowed by her upon her 
children and husband, and from a consideration of these 
matters and all other facts within the evidence relating to 
this subject you will award such sum as will, in your judg- 



MAY TERM, 1912. 417 

Cleveland, etc., R. Co. v. Clark— 51 Ind. App. 392. 

ment, under the evidence, fully compensate the beneficiaries 
for the pecuniary loss they have sustained by reason of the 
wrongful death of the said Maggie M. Clark, not to exceed 
the sum of Ten Thousand Dollars.'* This instruction is 
attacked by appellants on two grounds. (1) Because the 
instruction does not exclude from the consideration of the 
jury the pain and suffering which decedent may have en- 
dured prior to her death, and the grief of her surviving 
relatives on account of her death, and (2) because it as- 
sumes that the death of appellee's decedent was wrong- 
fully caused. Speaking as to the first objection, it will be 
observed that the instruction expressly limits the jury in 
assessing damages to the consideration of evidence relating 
to the subject of damages. It will be presumed that the 
jury obeyed this instruction, and that, in fixing the amount 
of damages, it considered only the evidence having a legal 
relation to that subject. If facts had been developed 

29. during the trial of the case which, in the opinion of 
appellants, were likely to be improperly considered 

by the jury in awarding damages; and if appellants desired 
to have the jury especially warned and instructed against 
considering such facts on this question, it was the duty of 
appellants to request an instruction of this character. Hav- 
ing failed to do so, they cannot now complain. As to 

30. the second objection, it may be said that the instruc- 
tion is subject to criticism, in that it refers to the 

death, for which the action is brought, as being wrongful. 
Such expressions should never be employed in such a way as 
to assume the existence of a disputed fact. The entire instruc- 
tion under consideration, however, proceeds on the hy- 
pothesis that the jury find for the plaintiff. The instruc- 
tion starts out by informing the jury that if it find for 
the plaintiff it will be its duty to assess damages, and all 
that follows proceeds on the supposition that the jury must 
have found the material facts in favor of plaintiff, before 
Vol. 51—27 



418 APPELLATE COURT OF INDIANA. 

Harrod v. Llttell— 61 iLd. App. 418. 

it is called on to consider the question of damages. A find- 
ing for plaintiff would be a finding that the death of ap- 
pellee's decedent was wrongful. We do not think the error 
was such as to warrant a reversal. 

Prom a consideration of the whole record, we thmk that 
a right conclusion has been reached, and that the judgment 
should be affirmed. 

Judgment affirmed. 

Note.— Reported In 97 N. E. 822. See, also, under (1) 33 Cyc. 
270. 273; (3, 14) 33 Cyc. 365; (5) 29 Cyc. 499; (7) 29 Cyc. 572; (9) 
31 Oyc. 85; (12, 22) 33 Cya 368; (13) 33 Cyc. 985; (16) 29 Cyc. 
431; (17) 29 Cyc. 427; (19) 29 Cyc. 501; (20) a3 Cyc. 371; (21) 
31 Cyc. 109; (23) 33 CJyc. 372; (24) 29 Cyc. 028. 631; (25) 3 Cyc. 
348; (26) 33 Cyc. 373; (27) 38 Cyc. 1778; (28) 3 Cyc. 313; (29) 38 
Cyc. 1693; (30) 38 Oyc. 1809. As to the doctrine of proximate and 
remote cause, see 36 Am. St. 807. As to the doctrine of concurring^ 
negligence, see 16 Am. St. 250. 



Harrod et al. v. Littell et al. 

[No. 7,718. Filed November 21, 1912.] 

1. Highways. — Order f<yr Improtiement, — Collateral Attack, — Suit 
to Enjoin Improvement, — A suit to enjoin the construction of a 
ditch i)rovided for in the plans for a highway improvement, or- 
dered by the board of county commissioners on petition for the 
construction of a gravel road, collaterally attacks such order of 
the board, and must fail unless such order is void. p. 422. 

2. Highways. — Improvement. — Orders of Board of Commisaif.ncrs. 
— Collatei'al Attack, — The proceedings of boards of county com- 
missioners in matters relating to improvement of highways, ex- 
cept as to jurisdiction, are conclusive as against collateral at- 
tack, and an order from which no appeal is taken as provided by 
87793 Bums 1908, Acts 1905 p. 521, §123, is as conclusive against 
collateral attack as the judgment of a circuit court, p. 422. 

3. Highways. — Improvement, — Injunction, — Burden of Proof. — 
One suing to enjoin the construction of highway Improvements 
has the burden of the issue, p. 423. 

4. Highways. — Improvement, — Injunction, — Drainage, — Evidence. 
— In a suit to enjoin the construction of a ditch, provided for in 
the plans of a highway improvement ordered by the board of 
county commissioners, on the ground that such ditch would de- 



MAY TERM, 1912. 419 

Harrod v, Littell— 51 Ind. App. 418. 

stroy the bank of a watercourse and divert its course, evidence 
showing ttiat tliere was a natural ravine which brought the water 
near to the highway, but that before reaching the highway the 
water spread out and over the lowlands, that the natural flow was 
not across the highway, but had been forced across the highway 
by means of an artificial embankment, was sufficient to justify a 
finding that the ditch complained of would not interfere with or 
change the course of a natural waterway, p. 424. 
5. Highways. — Improvement. — Waters and Watercourses. — Paw- 
ers of Board of Commdssioners. — ^The board of county commis- 
Bloners has a right to order the improvement of a highway and 
to protect the same by necessary drainage, and is not, under the 
law, necessarily required to abandon such improvement, or to 
omit the necessary drainage protection, simply because the means 
famished for such drainage might carry some water out of its 
course, p. 424. 

Prom Scott Circuit Court ; Joseph H. Shea, Judge. 

Action by Solon T. Harrod and others against William 
H. Littell and others. From a judgment granting part of 
the relief prayed for, the plaintifib appeal. Affirmed, 

James A. Cox and Seha A. Barnes, for appellants. 
Mark Storen, 8. B. Wells and Korbly <fe New, for appel- 
lees. 

HoTTEL, G. J. — ^Appellants brought this action to enjoin 
appellees from constructing a ditch provided for in the 
plans and specifications for certain public road improve- 
ments. A temporary restraining order was issued, and on 
final hearing said order was made perpetual in part and 
dissolved in part. The questions presented by the appeal 
do not require us to set out in detail the verified complaint 
on which the temporary restraining order was issued and 
the case tried. It averred facts showing that appellants 
were the owners of certain described real estate situate in 
Jennings township, Scott county, Indiana, along the north 
line of which was located a public highway known as the 
Glade road; that immediately north of said highway, and 
numing east and west along the same, was a public ditch, 
faiown as the Cozart ditch; that a natural watercourse 



420 APPELLATE COURT OF INDL/U^A. 

Harrod v, Llttell— 51 Ind. App. 4ia 

drained the lands to the east of the land described in the 
complaint, and emptied its waters into said Cozart ditch 
near the northeast corner of said described land, and east 
of the eastern terminus of said highway; that appellants 
were duly assessed for the construction and maintenance 
of said ditch, and the same is beneficial to their lands ; that 
it is of ample size and dimensions to carry off the waters 
flowing into it ; that about 100 rods west of the point where 
said natural watercourse empties into said Cozart ditch, and 
immediately south of said highway, is the starting point of 
another public drain, known as the Harrod ditch, whick 
runs one-half mile south and thence west into the Muscata- 
tuck river ; that all the lands of appellants have been duly 
assessed for the construction and maintenance of said Har- 
rod ditch, but the same is not of sufficient dimensions to 
drain properly the lands whose surface-waters now flow into 
the same; that appellees are proposing to construct a new 
highway, beginning at the eastern terminus of said Olade 
road, and running in an easterly direction across said nat- 
ural watercourse ; that in the construction of said proposed 
highway appellees propose to fill up and destroy said natural 
watercourse, and divert its course by digging a ditch along 
the south side of said proposed road, and thus carrying said 
waters into the Harrod ditch; that if appellees are per- 
mitted so to construct said new ditch, and thus divert the 
waters of said natural watercourse, appellants will be de- 
prived of the benefits of the Cozart ditch, and will be great- 
ly damaged by reason of the excessive amount of lands to 
be then drained by the Harrod ditch, which will be thus 
caused to overflow and flood appellants' lands. 

The petition asked that appellees be restrained from in 
any manner interfering with said natural watercourse and 
its free passage into the Cozart ditch, and from in any 
manner disturbing its banks or diverting its course by dig- 
ging any ditch on the south side of said new road, and that 
they be ordered to construct said new road in such a manner 



MAY TERM, 1912. 421 

Harrod v. Littell — 51 Ind. App. 418. 

as wiU permit all waters flowing into said natural water- 
course to cross said road and flow into said Cozart ditch. 
The court granted and issued the temporary restraining 
order as prayed for, but on the final hearing rendered a 
general finding and judgment, in substance, as follows: 
That appellants are entitled to an injunction perpetually 
enjoining appellees from closing or removing a certain 
bridge across the natural watercourse, or from diverting 
the natural flow of water under said bridge ; that appellants 
are not entitled to an injunction permanently enjoining ap- 
pellees from constructing said new ditch according to said 
plans and specifications ; that said ditch is necessary for the 
proper drainage of the proposed gravel road. The court 
rendered judgment in accordance with said finding. 

Appellants then moved the court **to so modify its finding 
and decree * * * as to provide that the defendants in 
ditching and draining said highway shall do it in such a 
manner as not to divert the fiow of the water in the natural 
watercourse described in the complaint from fiowing under 
said bridge and across said highway.*' This motion was 
overruled. Appellants then filed a motion for a new trial, 
which was also overruled. The ruling on each of these mo- 
tions is assigned as error, and presents the questions raised 
by the appeal. 

The facts of the case as disclosed by the evidence, in so 
far as they are here material, are as follows : On October 
6, 1905, a petition signed by two of the appellants and 
sixty-three other resident voters and freeholders of Jennings 
township, Scott county, Indiana, was filed with the board 
of commissioners of said county, praying for the improve- 
ment and building of a certain free gravel road in said town- 
ship. On November 6, 1905, said petition was duly passed 
on by the board of commissioners, and said board found 
that the necessary notice of the pendency of said petition 
had been given; that it was in due form signed by more 
than fifty legal voters and resident freeholders of said town- 



422 APPELLATE COURT OP INDL^NA. 



Ilarrod r. Littell— 51 Ind. App. 418. 



ship; that the proposed road was less than three miles in 
length, and did not pass through any incorporated town, 
and that it extended from a free gravel road of said town- 
ship to the township line, and that said petition was regular 
in all respects. Said prayer was granted, and the matter 
continued. At the April term, 1909, said board again con- 
sidered the petition, and appointed an engineer and viewers 
to locate said road, and to prepare plans and specifications 
for its construction. On June 7, 1909, said engineer and 
viewers filed their report in the office of the auditor of Scott 
county, Indiana, showing that the proposed improvement 
would be of public utility, and filed with said report a plat 
showing how the road was to be improved, and also show- 
ing the location and dimensions of a ditch to be constructed 
on the south side of said road. The board then waited ten 
days, as required by law, before taking further action, but 
during that time no claims for damages on account of said 
proposed improvements were filed and no objections made 
by any one to the construction of the same, whereupon the 
board made a final order for said improvements, and 
awarded the contract for the same to appellee Thomas Car- 
lisle. Said contractor began work on said road, and ap- 
pellants brought this action to enjoin the board of commis- 
sioners and said Carlisle from constructing the ditch along 
the south side of said road, as provided for in the plans and 
specifications. 

The only grounds of the motion for new trial are the in- 
sufficiency of the evidence to sustain the decision of the 
court, and that such decision is contrary to law. 

The effect of this action is indirectly to assail the 

1. order of the board of commissioners, made on the 
petition for the improvement and building of the 
gravel road in said township, and must therefore fail, 

2. unless such order is void. The proceedings of boards 
of county commissioners in such matters, except as 

to jurisdiction, are conclusive as against collateral attack. 



MAY TERM, 1912. 423 

Ilarrod r. Llttell-^Sl Ind. App. 4ia 

Southern Ind. R. Co. v. Railroad Com., etc. (1909), 172 Ind. 
113, 118, 87 N. E. 966; Gold v. Pittsburgh, etc., R. Co. 
(1899), 153 Ind. 232, 241, 54 N. E. 802; Brooks v. Morgan 
(1905), 36 Ind. App. 672, 677, 76 N. E. 331; Board, etc., 
V. HaU (1880), 70 Ind. 469, 474; Stoddard v. Johnson 
(1881), 75 Ind. 20, 30, and authorities cited. 

Appellants have not attacked the validity .of the order of 
the board of commissioners, but only seek to enjoin its exe- 
cution. Two of them signed the original petition for the 
highway in question, and all had ample opportunity to make 
objection to the proceedings before the board issued its final 
order. Furthermore, the statute makes provision for an 
appeal from decisions of county boards in cases of this char- 
acter, and where no such appeal is taken the action of the 
board is as conclusive against collateral attack as the judg- 
ment of the circuit court. §7793 Burns 1908, Acts 1905 p. 
521, §123; Rassier v. Grimmer (1892), 130 Ind. 219, 28 N. 
E. 866, 29 N. E. 918; Ryder v. Horsting (1891), 130 Ind. 
104, 29 N. E. 567, 16 L. E. A. 186 ; Maxwell v. Board, etc. 
(1889), 119 Ind. 20, 19 N. E. 617, 21 N. E. 453; Brooks 
V. Morgan, supra; Board, etc., v. Davis (1894), 136 Ind. 
503, 36 N. E. 141, 22 L. R. A. 515 ; Grusenmeyer v. City of 
Loganspori (1881), 76 Ind. 549, 557. 

But even if we were required to determine from the evi- 
dence in the ease, whether or not the ground of appellants' 
motion presents reversible error, an affirmance of the judg- 
ment would follow, because we could not say that the evi- 
dence required the modification of the judgment asked, nor 
could we say that the court's decision has no evidence for 
its support or is contrary to law. Appellants had 

3. the burden of the issue, and it was necessary, under 
the averments of their complaint, to prove that ap- 
pellees unless enjoined "would fill up and destroy the said 
natural watercourse where it crosses the said proposed new 
highway * • •^ and that they will destroy the west 
bank of said natural watercourse and divert its course by 



424 APPELLATE COURT OP INDIANA. 

Harrod v. Littell— 51 Ind. App. -418. 

digging a ditch along the south side of said new proposed 
road," etc. 

The evidence was by no means conclusive that there was 
any natural waterway, with well-defined banks, which car- 
ried the water over or under said highway. On the 

4. contrary the evidence showed, or tended to show, that 
there was a natural ravine which brought the water 

down near the said highway, but that before it reached the 
highway the water spread out over the low lands to the south- 
west ; that the natural flow of the water was not across the 
highway, but that the water had been forced across the high- 
way by anembankment on the west side of said ravine, thrown 
up by a trustee several years before, for the purpose of pre- 
venting the water from taking its natural course. This was 
the effect of the evidence of one of the appellants, and of 
other witnesses. Under this evidence, we could not say that 
the court had no evidence justifying a finding that the con- 
struction of the ditch complained of did not interfere with 
or change the course of a natural waterway. But 

5. even if it should be granted that the building of such 
a ditch along the highway would to some extent 

change the fiow of water from the ravine in question, it 
would not follow that the court should interfere by injunc- 
tion. The evidence showed, in effect, that in this improve- 
ment of the highway in question, the board of commission- 
ers had found that the ditch was necessary for the protec- 
tion of the highway. The board of commissioners had a 
right to order the improvement of the highway, and to pro- 
tect the same by necessary drainage. The necessary drain- 
age of the highway was as much within the power and juris- 
diction of such board as the improvement and building of 
the highway itself, and the board was not, under the law, 
necessarily required to abandon such improvement, or to 
fail to give the same necessary drainage protection, simply 
because the means furnished for such drainage might carry 



MAY TERM, 1912. 425 

Norman v. State, ex rel. — 51 Ind. App. 425. 

some water out of its natural course. Karr v. Board, etc. 
(1908), 170 Ind. 571, 85 N. E. 1. 

The judgment of the court below gives appellants all to 
which they were entitled either under the law or the facts, 
and it is therefore affirmed. 

Note.— Reported in 99 N. B. 817. See, also, under (1) 37 Cyc. 
128b As to collateral attacks upon orders and judgments, see 94 
Am. Dec. 766 ; 29 Am. St 78. 



Norman v. State op Indiana, ex rel. Hotz. 

[No. 7,749. Filed November 21, 1912.] 

1. Highways. — Road Supervisors, — Validity of Election. — Section 
1 of the act of 1907 (§7761 Bums 1908, Acts 1907 p. 371), which 
Is an amendment of §92 of the act of 1905 (Acts 1905 p. 567) re- 
lating to highways and providing for the election of road super- 
visors, contains no provision as to the manner of holding such 
election or certifying the result thereof, and such elections not 
being controlled by the general election law, the courts have no 
authority to declare against the result of an election of a road 
supervisor held pursuant to the act of 1907, at which there was 
a full and fair expression of the voters, and the result was con- 
ceded to be in accordance with the will of the majority, simply be- 
cause the election was not held in accordance with the Australian 
ballot system, pp. 427, 428. 

2. Elections. — Validity, — Effect of Irregularities. — ^Where an elec- 
tion has been fairly and honestly conducted, it will not thereafter 
be invalidated by mere irregularities which are not shown to have 
affected the result, p. 427. 

3. Elections. — Laws as Mandatory or Directory. — ^All provisions of 
the election law are mandatory if enforcement is sought before 
election in a direct proceeding for that purpose, but after elec- 
tion they should be held directory only. In support of the result, 
unless of a character to obstruct the free and intelligent casting 
of the vote, or the ascertainment of the result, or unless the provi- 
sions aflPect an essential element of the election, or unless it is 
expressly declared by the statute that the particular act la essen- 
tial to the validity of an election, or that its omission shall ren- 
der it void. p. 428. 

From Martin Circuit Court ; Hileary Q. Houghton, Judge. 



426 APPELLATE COURT OF INDIANA. 

Norman r. State, ex rel. — ^51 Ind. App. 425. 

Action by the State of Indiana on the relation of Killion 
Hotz against John H. Norman. From a judgment far plain- 
tiff, the defendant appeals. Affirmed: 

Carlos T. McCarty, for appellant 
J. T. Rogers, for appellee. 

Felt, J. — ^Action by the State of Indiana on the relation 
of Killion Hotz, hereinafter referred to as appellee, againcft 
appellant, John II. Norman, seeking to oust the latter from 
the office of road supervisor and to obtain the possession 
thereof. 

The cause was tried by the court on an agreed statement 
of facts, and from a finding and judgment in favor of ap- 
pellee this appeal was taken. The only error assigned Ss 
that the court erred in overruling appellant's motion for a 
new trial. 

The facts are substantially as follows: On December 
18, 1909, an election was held in road district, No. 1, Cen- 
ter township, Martin county, Indiana, to choose a road 
supervisor for said district. The election board was regu- 
larly organized and constituted, but the election Was not 
held under the Australian ballot system. Appellee was a 
candidate at said election, and was eligible to hold the office 
of road supervisor. He received the greatest number of 
votes cast for any candidate, and was declared elected. At 
an election held in 1905, in compliance with the election 
law of 1905, relating to the election of road supervisors, 
appellant was regularly elected to the office in question, 
and entered on the discharge of his^ duties. He has pos- 
session of the property of the township for said road dis- 
trict, claims to be the legal incumbent of said office, and 
refuses to surrender said office and the property thereof, 
although demand therefor has been made on him by ap- 
pellee. All the voters of said road district voted at the 
election of December 18, 1909, and the votes were countecl 
as cast. 



MAT TERM, 1912. 427 

Norman v. State, ex rel. — 51 lud. App. 425. 

The only question at issue in this case is whether to en- 
title appellee to the office of road supervisor, said 

1. election should have been held under the Australian 
ballot system. 

Section 92 of the act of 1905 (Acts 1905 p. 567), relat- 
ing to highways, made definite and special provision for the 
organization of election boards for the election of road su- 
pervisors and also stated that *'the trustee shall provide 
paper for ballots and for the clerks in their count of such 
ballots", and designated the manner in which the votes 
should be counted and the result certified. 

By §1 of an act of 1907 (Acts 1907 p. 371, §7761 Burns 
1908) said §92 was amended, and all provisions relating to 
the manner of holding the election and certifying the re- 
sult were omitted. 

Section 6946 Bums 1908, Acts 1889 p. 157, provides, in 
substance, that when any township or county holds an elec- 
tion at a time other than the time of a general election, 
the same shall be held in conformity with the provisions 
of the general election law. This section, it will be ob- 
served, does not include elections held by a part of a town- 
ship for the purpose of choosing a road supervisor. The 
amended statute relating to road supervisors provides that 
the qualified voters in each road district in the several 
townships shall biennially elect a supervisor on the second 
Saturday after the first Monday in December, but does 
not designate the manner in which such election shall be 
held. 

It has been decided that the provisions of a statute ex- 
pressly declaring particular acts to be essential to the 
validity of an election are mandatory and must be followed, 
but the case at bar by no means comes under that rule. 

As a general proposition, it may be stated that where 
an election has been fairly and honestly conducted, it 

2. will not thereafter be invalidated by mere irregulari- 
ties which are not shown to have affected the result. 



428 APPELLATE COURT OP INDIANA. 

Norman t\ State, ex rel. — ^51 Ind. App. 425. 



for in the absence of fraud or failure to follow positive 
statutory requirements relating to the merits of the elec- 
tion, courts generally give effect to election returns as cer- 
tified by the election boards. Parvin v. Wimberg (1892), 
130 Ind. 561, 30 N. E. 790, 15 L. R. A. 775, 30 Am. St. 254; 
Ihvin V. Lowe (1883), 89 Ind. 540, 547; Oass v. State, ex 
rel (1870), 34 Ind. 425, 429; 15 Cyc. 372. 

It is also held that *'all provisions of the election law 

are mandatory if enforcement is sought before election in 

a direct proceeding for that purpose ; but after elec- 

3. tion, all should be held directory only, in support 
of the result, unless of a character to effect an ob- 
struction to the free and intelligent casting of the vote, or 
to the ascertainment of the result, or unless the provisions 
affect an essential element of the election, or unless it is 
expressly declared by the statute that the particular act 
is essential to the validity of an election, or that its omis- 
sion shall render it void.'* Jo7ies v. State, ex rel. (1899), 
153 Ind. 440, 451, 55 N. E. 229. 

In the case at bar, there was a full and fair expression 

of the will of the voters, and the result is conceded to be 

in accordance with the will of the majority so ex- 

1. pressed. On this state of facts, and especially in the 
absence of any specific statutory regulations as to 
the manner of holding the election, the courts have no au- 
thority or right to declare against the result so ascertained. 

When a full, fair and honest expression of the voters was 
ascertained and certified in a manner agreeable to them 
at the time, under the existing law, appellee was clearly- 
entitled to the office to which he was so elected. 

Judgment affirmed. 

NoTR— Reported in 99 N. E. 812. See, also, under (1) 37 Cyc. 
(212); (3) 15 Cyc. 362. As to what irregularities will avoid elections, 
see 90 Am. St. 46. 



MAY TERM, 1912. 429 

Masters v. Abbitt — 51 Ind. App. 429. 

Masters, Receiver, v. Abbitt et al. 

[No. 8,405. Filed November 21, 1912.] 

1. Afpbau — Vacation Appeal, — Motion to Dismiss, — Affidavit in 
Support of Motion, — Counter- Affidavits, — 'Presumptions, — ^Where, 
on motion to dismiss a vacation appeal, an affidavit in support of 
the motion showed that appellant had notice of the death of five 
of the defendants, named as appellees, before the filing of the 
transcript, and that there had been no substitution of parties, nor 
steps taken to perfect the appeal as to them, and that ten other 
defendants were not represented by attorneys and had not been 
served with notice of the appeal, and counter-affidavits by appel- 
lant and his attorneys showed that neither appellant nor his at- 
torneys had notice, at the time of filing the transcript^ that any 
of the defendants were dead or that the appearance entered for 
any of the defendants was not a full or bona fide appearance, and 
the proof of service showed service on the attorneys of record for 
all of such defendants nine days before the filing of the transcript, 
the court will conclude, In the absence of a showing that the per- 
son who served the notice on behalf of appellant was not fully 
advised of the facts set out in the affidavit in support of the mo- 
tlpn, that before filing the transcript appellant knew that five of 
the defendants were dead, and that ten other defendants were not 
represented by attorneys, p. 430. 

2. Appeal. — Notice, — Service on Attorney, — Sufficiency, — For the 
purpose of serving notice of appeal pursuant to §681 Burns 1908, 
SdO R, S. 1881, an attorney of record Is presumed to continue as 
such until appellant has notice of the termination of the relation 
of attorney and client, and, in the absence of a showing that ap- 
pellant knew of the termination of such relation, or that no such 
relation ever existed, service of notice on such attorney is as 
good as service on the party himself, p. 432. 

3. Appeal. — Time for Perfecting. — Service of Notice, — Section 672 
Burns 1908, §633 R. S. 1881, limits the time within which appeals 
may be taken to one year from the date of the judgment, and the 
appeal must be fully perfected within such time, so that where 
notice, as required by §681 Burns 1908, §640 R. S. 1881, was not 
served on all the parties within that time, there can be no deter- 
mination of the cause on its merits, pp. 432, 433. 

4. Appeal. — Power to Excuse Failure to Perfect Appeal in Time. — 
The court possesses the inherent power to grant relief against 
accidents and mistakes in a proper case, but It will not grant 
leave to appeal or perfect an appeal after the time fixed by §672 
Bums 1908, §633 R. S. 1881, except on a clear and strong showing, 
p. 433. 



430 APPELLATE COURT OP INDIANA. 

Masters v. Abbitt — 51 Ind. App. 429. 

Prom Hendricks Circuit Court ; James L. Clark, Judge. 

Action by J. Pred Masters, as receiver of the Indiana- 
Ohio-Illinois Railway Company, against George Abbitt and 
others. Prom a judgment for defendants, the plaintiff 
appeals. Appeal dismissed. 

Collie E. Kinnie, Otis E. Oulley and J. Fred Masters, 
for appellant. 

James D. Ermston, Edward S. Raub, Frank J. Lakr, 
L, A, Bamett, Wiley i& Jones and Boyd & Julien, for ap* 
pellees. 

Adams, P. J. — Action by appellant, as receiver of the 
Indiana-Ohio-IUinois Railway Company, against appellees, 
about two hundred in number, to recover on stock subscrip- 
tions made by each of said appellees to said railway. The 
court sustained a demurrer to the second amended com- 
plaint, and, appellant refusing to plead further and elect- 
ing to abide by his complaint and exception to the ruling 
of the court in sustaining the demurrer thereto, final judg- 
ment was rendered against appellant that he take nothing 
by his complaint, and that appellees recover their costs. 

This appeal is prosecuted as a vacation appeal, the trans- 
cript and assignment of errors being filed with the clerk 
of this court on June 29, 1912, the last day of the year 
allowed for taking a vacation appeal. Service of notice 
of the appeal on the attorneys of record is relied on to bring 
all appellees into this court. 

A motion to dismiss the appeal has been filed by a part 

of the appellees, on the ground that no effort has been 

made by appellant, within the year given for per- 

1. fecting the appeal, to bring appellees into court by 

notice. In support of the motion to dismiss, the aflS- 

davit of Walter R. Pertig, one of the attorneys for certain 

appellees, is filed, showing that five of the defendants to 

the action in the lower court have died since the rendition 



MAY TERM, 1912. 431 

Masters v. Abbitt— 61 Ind. App. 429. 

of the judgment below, and that neither the heirs nor the 
representatives of such deceased parties have been substi- 
tuted as parties to this appeal, nor any steps taken by ap- 
pellant to perfect the appeal as to them, although appellant 
was notified of the death of said parties before filing the 
transcript in this court. 

The affidavit further shows that ten defendants in the 
action below have not been served with notice of the ap- 
peal; that while it is shown by the record that said parties 
appeared in the trial court and joined with others in the 
demurrer to the complaint, such appearance was pro forma 
only, and was entered by counsel representing other ap- 
pellees at the request of counsel for appellant, for the pur- 
pose of disposing of said cause as to all parties in the 
court below; that appellant and his counsel knew and were 
advised at the time that the attorneys so appearing were 
not in fact employed by said parties, and when appellant 
sought to serve notice of the appeal on counsel for appel- 
lees, the latter declined to accept service, and again in- 
formed appellant's counsel that they were not authorized 
to appear for said parties or to accept service of notice 
for them. 

Counter-affidavits have been filed by appellant and by 
Collie E. Kinnie and Otis E. Qulley, his only attorneys of 
record, wherein it is averred that neither appellant nor his 
attorneys had any notice or knowledge at the time the 
transcript was filed and the appeal taken that said appel- 
lees were dead ; that none of them had any notice or knowl- 
edge that the appearance entered for said appellees was 
not a full, bo7ia fide appearance. 

Proof of service on the parties in question is made by 
the affidavit of James E. Babcock, wherein it i» shown that 
on June 20, 1912, affiant ''for and on behalf of appellant" 
served notice of the appeal on W. R. Fertig, of the firm of 
Shirts & Fertig, attorneys of record for the ten defend- 

1^ *% 



432 APPELLATE COURT OF INDIANA. 

Masters r. Abbitt— 51 Ind. App. 429. 



ants and the deceased defendants in the court below, by 
reading said notice in his presence and leaving a true copy 
thereof with him. 

Assuming that the affidavits of appellant and his counsel 
state the facts correctly, still it is not shown that Babcock, 
who served the notice, was not fully advised of the facts 
set out in the affidavit of Fertig. We must, therefore, con- 
clude that nine days before the filing of the transcript ap- 
pellant knew that five of the defendants were dead, and 
that the firm of Shirts & Fertig was not employed by ten 
other defendants, and could not accept service for them. 

It is well settled in this State that the attorney of record 
in the trial court, for the purpose of serving notice of ap- 
peal pursuant to §681 Bums 1908, §640 R. S. 1881, is 

2. presumed to continue as such attorney until the party 
appealing has notice of the termination of the rela- 
tion of attorney and client. Rose v. Owen (1906), 37 Ind. 
App. 125, 76 N. E. 412. Service of notice on the attorney 
who appeared of record is as good as service on the party 
himself, in the absence of a showing that the party prose- 
cuting the appeal had notice that the relation of attorney 
and client never existed or had been terminated. Richard- 
son V. Pate (1884), 93 Ind. 423, 430, 47 Am. Rep. 374. 

In Rose v. Owen, smora, the court said: "The notice of 
the appeal was servea by the sheriff by reading the same 
to the attorney of record without any denial upon the at- 
torney's part that he was authorized to receive the notice, 
nor is any showing whatever made that at the time the 
notice of the appeal was served upon the attorney of record 
in the trial court the relation of attorney and client be- 
tween him and appellee had ceased to exist." 

The statute limits the time within which appeals must 
be taken to this court to one year from the date of the 

3. judgment, and the appeal must be fully perfected 
within such time. It will not be sufficient to take some 



MAY TERM, 1912. 433 

Masters v, Abbitt— 51 Ind. App. 429. 

steps in that direction. Bank of Westfield v. Inman 
(1892), 133 Ind. 287, 288, 32 N. B. 885. 

While this court possesses the inherent power to grant 

relief against accidents and excusable mistakes in a proper 

case, leave to appeal or perfect an appeal after the 

4. time fixed by statute will only be allowed on a clear 

and strong showing. Hutts v. Martin (1892), 131 

Ind. 1, 30 N. E. 698, 31 Am. St. 412; Smythe v. Boswell 

(1889), 117 Ind. 365, 20 N. E. 263; EUiott, App. Proc. 

§§113, 116. 

In the case at bar, there is no showing of accident or ex- 
cusable mistake, but it is shown, without contradiction, that 
Babcock, while acting for and on behalf of appellant, had 
notice that five of the defendants in the action below were 
dead, and that the attorney on whom service is shown to 
have been made did not represent the heirs of such deceased 
defendants, and did not represent ten other defendants. 

All appeals taken after term must be taken pursuant to 
§672 Burns 1908, §633 B. S. 1881, and must be fully per- 
fected within the year allowed for taking such ap- 
3. peal. The right of appeal is purely a statutory 
right, and must be invoked and exercised in the man- 
ner provided by statute. As it appears that no effort has 
been made within a year from the time the judgment was 
rendered to bring all appellees before this court by service 
of notice, as provided in §681 Burns 1908, §640 R. S. 1881, 
there can be no determination of the cause on its merits. 
Appeal dismissed. 

Note.— Reiwrted in 90 N. E. 815. See, also, under (2) 2 Cyc. 
868; (3) 2 Cyc. 789, 860; (4) 2 Cyc. 709. 



Vol. 51—28 



434 APPELLATE COURT OF INDLINA. 

Lawrence u. Oliver Typewriter Co. — 51 Ind. App. 434. 



Lawrence v. Oliver Typewriter Company, 

LXo. 7,740. Filed November 22, 1912.] 

1. Appeal. — Record. — Omission of Complaint, — In the absence of 
the complaint from the record, no question is presented on appeal, 
p. 434. 

2. Appeal. — Record, — Requisites.— Although under §§667, 690 
Burns 1908, Acts 1903 p. 338, §049 R. S. 1881, an appeUant is not 
required to bring up the entire record on appeal, its contents 
must be sufficient to present to the court, in intelligent form, the 
question sought to be reviewed, so that no question is presented 
by an assignment that the court erred in the conclusions of law, 
where only the findings, the conclusions of law and the Judgment 
of the court are set out in the record, p. 435. 

From Superior Court of Marion County (78,412) ; Clar- 
eiice E. Weir, Judge. 

Action by the Oliver Typewriter Company against Henry 
W. Lawrence. From a judgment for plaintiff, the defend- 
ant appeals. Affirmed. 

William W. Lowry, for appellant. 

Charles 0. Roemler and Harry 0, Ckamberlin, for appel- 
lee. 

Lmry, J. — The record on file in this case recites that this 
cause was submitted to the court below for trial, and, pur- 
suant to a request by defendant, the court made and filed 
its special findings of facts and stated its conclusions of law 
thereon. The findings, the conclusions of law and the judg- 
ment of the court are set out in the record, but the plead- 
ings are entirely omitted. Appellant assigns as error that 
the court erred in its conclusions of law. 

At the threshold of our investigation we are met by the 

contention of appellee that no question is presented by the 

record on account of the absence of the pleadings. There 

is a long and uninterrupted line of decisions in this 

1. State holding that in the absence of the complaint 
from the record no question is presented on appeal. 



MAY TERM, 1912. 435 



Lawrence r. Oliver Typewriter Co. — 51 Ind. App. 434. 

CoUins V. United States Express Co. (1866), 27 Ind. 11; 
McCardle v. McGinley (1882), 86 Ind. 538, 44 Am. Rep. 
343; Marsh v. Bower (1898), 151 Ind. 356, 51 N. E. 480; 
Fellenzer v. YanValzah (1884), 95 Ind. 128; EvansuiUe, 
etc, R. Co. V. Lavender (18