Volume 180 — Indiana Reports

<p>Prom Johnson Circuit Court; Wm. E. Deupree, Judge.</p> <p>Prosecution by the State of Indiana against George Lay. Prom a judgment of conviction, the defendant appeals.</p>

<p>From Superior Court of Madison County; J. A. Yarn Osdol, Special Judge.</p> <p>Action by Brady Murphy against John M. Marldey. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1391 Bums 1908, Acts 1901 p. 565.)</p>

<p>3. Insurance. — Life Insurance. — Nonpayment of Premiums. — Answer. — Sufficiency of Reply. — A paragraph of reply alleging that payment had been offered defendant by tendering and mailing a check which the defendant refused to accept, was sufficient in an action on a life policy, to avoid an answer alleging failure to pay a premium, where defendant’s refusal to accept the payment was based on its denial of liability on the sole ground that the policy had been cancelled by agreement between the insured and the defendant, p. 15.</p> <p>2. Insurance. — Life Insurance. — Limitations in Policies. — A provision in a contract of insurance limiting the time in which the insurer may take advantage of certain facts that might otherwise constitute a good defense to its liability on such contract, is valid and precludes every defense to the policy other than the defenses excepted in the provision itself, p. 16.</p> <p>3. Insurance. — Life Insurance.- — Incontestable Clause. — Effect as Against Fraud of Applicant. — A provision in a life policy that, after one year from date of issue, it should be incontestable, if the premiums had been duly paid, precludes a defense based on fraudulent representations in the application, where the insurer fails to make the defense or to take affirmative action within the year. p. 16.</p> <p>4. Insurance. — Life Insurance. — Interest of Beneficiary. — Cancellation of Policy. — Effect.—Although a life insurance policy provides for the changing of the beneficiary by the insured at any time by written notice to the company at its head office, the beneficiary has an interest in the policy, which, while subject to be defeated by the insured’s act in changing the beneficiary, can be defeated only in tbe manner prescribed, so that an agreement, to which the beneficiary is not a party, for the cancellation of the policy, cannot affect the rights of the beneficiary therein. (Eagle v. New Yorlo Life Ins, Co. [1911], 48 Ind. App. 284, distinguished.) pp. 18, 21.</p> <p>5. Insurance.— Life Insurance.— Interest of Beneficiary.— The beneficiary in an ordinary life insurance policy, in which a change of beneficiary is not authorized, has an absolute, vested interest in the policy from the date of issuance, delivery and acceptance. p. 21.</p> <p>6. Insurance. — Life Insurance. — Change of Beneficiary. — Where the right to change the beneficiary in a policy of insurance is provided for, such right must he exercised specifically in the manner provided, p. 21.</p> <p>Note. — Reported in 101 N. E. 289. Reported and annotated in 45 R. R. A. (N. S.) 192. See, also, under (1) 25 Cyc. 922; (2, 3) 25 Cyc. 873; (4, 6) 25 Cye. 893; (5) 25 Cyc. 889. As to the power of insured to destroy rights of beneficiary, see 49 R. R. A. 737. On the question of changing designation- in benefit certificate otherwise than in the prescribed method, see 15 R. II. A. 350. Upon the applicability of incontestable clause to nonpayment of premiums, see 0 R. R. A. (N. S.) 1039. As to the vested interest of the .beneficiary in ani ordinary life insurance policy, see 1 Ann. Cas. 684; II Ann. Oas. 49; Ann. Cas. 1912 B 1144.</p>

From Lake Circuit Court; W. G. McMahan, Judge. Action by Richard Much against the City of Gary. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under subd. 2, §1394 Bums 1908, Acts 1901 p. 565.)

<p>From Porter Circuit Court; Willis G. McMahan, Judge.</p> <p>Remonstrance by Leander Jones against the report of drainage commissioners in proceedings for the construction of a drain, commenced on the petition of Joseph D. Luddington and others. From a judgment against him, the remonstrant appeals.</p>

<p>1. Evidence. — Judicial Notice. — Foreign Statutes. — Ordinances. — The courts of this State cannot take judicial notice of foreign statutes or of the ordinances of cities foreign to this State, p. 42.</p> <p>2. Municipal Coepoeations.— Ordinances.— Fffect.— The ordinances of a city, authorized and duly enacted within the municipal power, have the same local force and effect as a statute, p. 42.</p> <p>3. Municipal Coepoeations. — Ordinances.—Subjects and, Titles.— Constitutional Law. — Provisions of the Constitution respecting the subjects and titles of acts of the legislature do not apply to the enactment of city ordinances, p. 42.</p> <p>4. Statutes. — Pleading. — Foreign Statutes and Ordinances. — Construction. — The construction of a foreign statute or ordinance by the courts of a foreign state need not be pleaded, unless the right of action depends upon a construction different from that placed upon similar enactments within this State, since, in the absence of a showing to the contrary, it will' be presumed that the foreign construction is the same as that of this State, p. 43.</p> <p>5. Statutes. — Foreign Statutes. — Pleading.—Where a foreign statute is relied on, it must be so pleaded that the court may judge its effect, p. 44.</p> <p>6. Raileoads. — Crossing Accidents.— Action.— Complaint.— Proximate Cause. — In an action for injuries to plaintiff by defendant’s train at a crossing in a city foreign to this State, a complaint alleging that certain ordinances and statutes in force in such city required certain specified precautions by defendant for the protection of travelers in crossing its railroad, that the defendant failed to comply with such requirements, and that it carelessly, negligently and unlawfully ran a locomotive backward on the crossing and against plaintiff at a rapid rate of speed without displaying any light or giving any signal, whereby the plaintiff was injured, is sufficient to enable one to know what is intended and is not open to the objection that it does not show that defendant’s negligence was the proximate cause of the injury, pp. 44, 45.</p> <p>7. Raileoads. — Operation m Violation of Ordinance. — Negligence Per Se. — The running of a train in violation of the provisions of a city ordinance is negligence per se. p. 45.</p> <p>8. Raileoads. — Crossing Accidents. — Trial.—Verdict.—Answers to Interrogatories. — In an action for injuries to plaintiff in collision with a locomotive at defendant’s crossing, where the negligence charged was the defendant’s failure to take certain precautions prescribed by statute and ordinance, answers to interrogatories submitted to the jury showing that the headlight on the front of the backing engine was burning, that a caboose was being drawn by the engine, and that the train was drifting on the track without the application of steam, do not warrant the setting aside of the verdict for plaintiff as being in irreconcilable conflict therewith, since the effect of the headlight with reference to the caboose cannot be determined, and it cannot be assumed that the noise from the rails was such that plaintiff could have heard the engine approaching, p. 45.</p> <p>9. Evidence. — Foreign Statutes. — Admissibility.—A printed copy of the statutes of another state, purporting to be by authority, under the seal of the Secretary of State, is admissible in evidence under §473 Burns 1008, §457 R. S. 1881. p. 46.</p> <p>10. Evidence. — Ordinance of Foreign Oity. — Admissibility.—The ordinances of a city foreign to this State, properly certified under the acts of Congress applying to such documents, are admissible ill evidence under §471 Burns 1908, §455 R. S. 1881. p. 46.</p> <p>11. Evidence. — Mortality Tables. — Admissibility.—In an action for personal injuries the Carlisle Mortality Tables are admissible in evidence on the question of damages, p. 46.</p> <p>12. Railroads. — Grossing Accidents. — Evidence.—Place Where Injury Occurred. — In an action for injuries to plaintiff in a railroad crossing accident, testimony of one of defendant’s engineers that he had been running an engine over defendant’s tracks for many years from Stoney Island to Twelfth Street, Chicago, which took him over the crossing in question about twice a day, together with that of another witness that Stoney Island is in Chicago, as well as admissions by defendant in its requested instructions and in its briefs on appeal, conclusively show that the injury occurred in the city of Chicago, p. 46.</p> <p>13. Witnesses. — Oross-Ewamination.—Where a witness, in an action for injuries sustained in a railroad crossing accident, had been examined in chief as to the place where the accident occurred, a question propounded on cross-examination asking if he knew that the location was part of a certain city, was germane to the subject, and was not such a departure from the rules of cross-examination as to constitute reversible error, p. 47.</p> <p>14. Railroads. — Grossing Accidents — Accident in City. — Location of Grossing. — Mode of Proof. — In an action for injuries sustained in a railroad crossing accident, proof that the crossing was within the corporate limits of a city does not have to be made by a record of the corporate limits of such city, but can be shown by the oral testimony of persons familiar with the location, p. 47.</p> <p>15. Appeal.— Review.— Harmless Error.— Instructions.— In an action against a railroad company for injuries sustained in a crossing accident, where the negligence charged was defendant’s violation of certain city ordinances regulating the operation of trains, a clause in an instruction fixing a standard of speed different from that fixed by ordinance, was harmless, where the jury found that the rate of speed was within the ordinance limit, p. 48.</p> <p>16. Appeal. — Review.—Erroneous Instructions. — Reversal.—In an action against a railroad company for injuries sustained in a crossing accident, where the negligence charged consisted of defendant’s violation of city ordinances, instructions submitting violations of ordinances which were not in evidence constituted reversible error, p. 48.</p> <p>Note. — Reported in 102 N. E. 449. See, also, (1) 16 Oyc. 893; (2) 28 Cyc. 391; (3) 28 Oyc. 378; (4) 36 Oyc. 1242; (5) 36 Oyc. 1241; (6) 33 Oyc. 1058; (7) 33 Oyc. 954, 976; (8) 33 Oyc. 1142; (9) 36 Cyc. 1253; (10) 17 Oyc. 298; (11) 17 Oyc. 422; (12) 33 Cyc. 1090; (13) 40 Cyc. 2489, 2507; (14) 33 Oyc. 1074; (15) 38 Cyc. 1813; (16) 3S Cyc. 1617. As to the presumption that a law of a sister State is identical with that of the forum, see US Am. St. 880. On the question of judicial notice as to law of other State, see 67 L. R. A. 34.</p>

Prom Gibson Circuit Court, Her Ms F. Clements, Judge. Proceedings for the construction of a drain by Warrick Armstrong and others, in which William T. Watson and others remonstrated against the report of the drainage commissioners as to the assessments against the lands of remonstrants. Prom *a judgment confirming the assessments, tho remonstrants appeal.

<p>1. Master and Servant. — Injuries to Servant. — OomplaAmt. — Relation of Master and Servant. — A complaint in an action for personal injuries based on the theory of a negligent failure to equip an electric passenger car with an approved air brake, in violation of §5283 Burns 1908, Acts 1907 p. 186, §6, alleging among other things that defendant is a common carrier, operating an interurban electric railway, and that it negligently ran over its road an electric passenger car which was not equipped with an approved air brake, etc., that plaintiff’s injury was caused by such negligence, and that on said occasion “the plaintiff was the motorman in charge of said car, and while so employed, and while operating the same” he was injured, is sufficient as against the objection that the relation of master and servant is not shown, p. 55.</p> <p>2. Triad. — Interrogatories.-—Mixed Questions of Law and Fact.— Oonstrueti/oe Notice. — Section 572 Burns 1908, Acts 1897 p. 128, relating to the submission of interrogatories, contemplates only special findings of fact in the answers thereto, and it is improper to submit questions which require findings compounded of law and fact, hence interrogatories calling for answers on the subject of constructive notice, which is a mixed question of law and fact, cannot be considered, p. 59.</p> <p>3. Notice. — Pleading.—An allegation in a pleading of lack of knowledge, includes constructive as well as actual knowledge, unless the context evinces the contrary, p. 59.</p> <p>4. Master and Servant. — Injuries to Servant. — Electric Railroads. —Air Brakes. — Statutes.—Answers to Interrogatories. — Under §5283 Burns 1908, Acts 1907 p. 186, §6, making it unlawful to operate any motor car in interurban passenger traffic, which is not equipped with an approved power air brake, in good condition, and subject to the control and operation of the motorman, and of sufficient capacity to control the speed of the car, the duty to supply such brakes is absolute, so that in an action by a motorman for injuries, based on defendant’s negligent failure to comply with such statute, answers to interrogatories showing that defendant had supplied a brake that was apparently in good condition and which was, under ordinary conditions, of sufficient capacity to control the speed of the car, are not in irreconcilable conflict with the general verdict for plaintiff, p. 60.</p> <p>5. Statutes. — Construction.—Duty of Courts. — It is tbe duty of tbe courts to uphold acts of the General Assembly, and not to impair or overthrow them, unless in conflict with organic law. p. 62.</p> <p>6. Master and Servant. — Injuries to Servant. — Burden of Proof. —Res Ipsa Loquitur. — Under §5291 Burns 1908, Acts 1907 p. 186, §14, exempting any employe of a common carrier, who may be injured by any car in use contrary to the provisions of the act, from the application of the, rules of contributory negligence and assumed risk, where the proximate cause of an employe’s injury was the carrier’s failure to comply with §5283 Burns 1908, Acts 1907 p. 186, §6, requiring all motor cars used in interurban passenger trafile to be equipped with approved air brakes of sufficient capacity to control the speed of the car, the doctrine of res ipsa loquitur applies, and the defendant has the burden of showing some excuse for the prims facie failure of duty on its part. p. 62.</p> <p>Note. — Reported in 101 N. E. 1. See, also, under (1) 26 Oyc. 1384; (2) 38 Oyc. 1912; (4) 26 Oyc. 1513; 38 Oyc. 1927; (5) 36 Oyc. 1103; (6) 26 Cyc. 1410, 1421. As to the care imposed upon a master in respect of having the latest appliances for the servant, see note to Brazil Block Coal Co. v. Gibson (Ind.), 98 Am. St 292. As to the doctrine of res ipsa loquitur, see 113 Am. St. 999; 6 L. R. A. (N. S.) 337; 16 L. R. A. (N. S.) 214.</p>

<p>1. Schools and School Districts.- — Repair of School Buildings.— Duty of Township Trustee. — -Under §6410 Burns 1908, Acts 1901 p. 514, and Acts 1911 p. 118, township trustees are charged with the duty of providing and keeping sehoolhouses in repair and in healthful and sanitary condition, p. 67.</p> <p>2. Schools and School Districts. — Repair of School Buildings.— Plans and Specifications. — Duty of Township Trustee. — Statutes. —The act of 1911 (Acts 1911 p. 118) providing for the construction and remodelling of sehoolhouses in accordance with sanitary principles therein specified, confers an implied power at least, if it does not impose a duty, on the school authorities to contract for and provide plans and specifications for the repair of a schoolhouse, the same as in case of construction, when the repair is of such character that scientific knowledge or mechanical skill is reasonably necessary to produce the required results, p. 67.</p> <p>3. Schools and School Districts. — Repair of School Buildings.— Statutes. — Construction.—While the act of 1911 (Acts 1911 p. 118), providing for the construction and remodelling of schoolhouses in accordance with sanitary principles therein specified, is to be strictly pursued in so far as its express requirements are concerned, yet, as a remedial statute, it should be liberally construed in order to effectuate its objects, p. 68.</p> <p>4. Townships. — Advisory Boards. — Record of Proceedings.- — Section 9590 Burns 1908, Acts 1899 p. 150, requiring the township advisory board to keep a record, and providing that the secretary of the board shall record the proceedings of the board at each meeting in full, and that such record shall be signed before the board adjourns, is mandatory in its terms, p. 68.</p> <p>5. Mandamus. — Acts and Proceedings of Inferior Tribunals. — Ordinarily an inferior tribunal may be required by mandamus to do that which it is required by law to do. p. 69.</p> <p>6. Townships.— Contracta.— Expenditures.— Appropriations.— A contract entered into by a township trustee without any appropriation to pay the debt thereby incurred is void and cannot be validated by a subsequent appropriation, so that an action to compel a township advisory board by mandate to appropriate money to pay for services rendered in preparing plans and specifications for the repair of a schoolhouse will not lie. pp. 69,70.</p> <p>7. Mandamus. — Nature and Scope in General. — In order that a mandate shall issue there must be both a duty and the power to act in the officer who is to be commanded, p. 70.</p> <p>Note.- — Reported in 99 N. E. 977. See, also, (1, 2, 3) 35 Oyc. 944; (41 38 Oye. G20; (5) 26 Cyc. 250; (6) 38 Cyc. 645; (7) 26 Cyc. 162, 166. As to records, etc., of towns, cities and school districts, see 13 Am. St. 550.</p>

<p>1. Drains. — --Petition.—Sufficiency.—Statutory Provisions. — By the enactment of §6141 Burns 1908, Acts 1907 p. 508, §2, which proscribes four classes of petitioners for the establishment of drains, it was intended that the power of petitioning should be enlarged, and, though as to each class the power is distinct, the conditions for petitioning are mutual, and either class may petition though the others are thereby affected, so that a petition by landowners is not insufficient for failure to show that the lands involved are wholly outside the limits of a city or town. pp. 74,76.</p> <p>2. Drains. — Establishment.—Power to Establish. — Delegation of Power. — Public drains are the subjects of the State’s control, and it may delegate to interested persons, or cities, or towns, the power of initiative and the exercise of its function over them, p. 75.</p> <p>3. Evidence. — Judicial Notice. — Location of Cities and fflowns.— Negative and Affirmative Propositions. — The courts take judicial notice of the location of cities and incorporated towns and of a negative as well as an affirmative proposition or fact. p. 76.</p> <p>4. Drains. — Appeal.—Assignment of Errors. — Insufficiency of Petition. — An assignment of error on appeal questioning the sufficiency of a drainage petition for the first time is unavailing, such attack being too late after judgment, p. 77.</p> <p>5. Drains. — Petitions.—Sufficiency.-—Jurisdictional Facts. — All jurisdictional facts need not appear in a drainage petition, but they may be shown by evidence, p. 77.</p> <p>6. Drains.— Petitions. —Jurisdictional Facts.— Signatures.— Remonstrance. — Where a petition for the establishment of a drain has not been signed by qualified petitioners, that question should be presented by remonstrance, p. 77.</p> <p>7. Drains. — Establishment.—Petition. — Sufficiency. — A petition under §6141 Burns 1908, Acts 1907 p. 508, §2, for the construction of a drain outside the corporate limits of a city or town, which does not disclose that the lands are not -utside the corporate limits of a city or town, is prima facie sufficient, even if it is necessary to confer jurisdiction that there be petitioners owning land outside a city or town. p. 77.</p> <p>8. Drains. — Establishment.—Procedure.—The provisions of the civil code may be resorted to in proceedings for the establishment of drains, to supply omissions in the procedure prescribed in the act under which the proceedings are had. p. 78.</p> <p>9. Drains. — • Establishment.— Jurisdiction.— Establishment Over Line of Another Drain. — In proceedings had under §6174 Burns 1908, Acts 1907 p. 508, §19, there is no jurisdiction in a circuit or superior court to establish a ditch over the line of another ditch established and constructed by the board of commissioners, but the jurisdiction remains in the latter tribunal, at least where the ditch is confined to one county, p. 78.</p> <p>10. Drains. — Establishment.—Establishment on Line of Another Drain. — Where a public drain has been established and ordered constructed, another drain cannot be established and ordered constructed over the same line and between the same termini by the same, or another, jurisdiction, but the first in'oceeding must be brought to a completion before a new proceeding can be applied to the situation, unless it appears that such first proceeding has been abandoned or terminated by some method known to the law, or becomes impracticable or impossible, as by repeal of the statute under which it was begun, with no saving clause, p. 79.</p> <p>11. Pleading. — Ansioer in Bar. — Plea in Abatement. — StriMng Out Plea. — A pleading cannot perform the double office of a x)loa in abatement and a plea in bar, so that where the same facts wore pleaded both in abatement and in bar of the action, the plea in abatement was properly stricken out. p. 80.</p> <p>12. Drains. — Establishment. ■ — • Jurisdiction. — Supplemental Remonstrance. — The question of jurisdiction of the subject-matter may be raised at any time, so that a supplemental remonstrance in a drainage proceeding questioning such jurisdiction is not open to the objection that it was filed too late. p. 80.</p> <p>13. Drains. — Establishment. — “Balees.” ■ — • Depressions. — Wet weather ponds and shallow basins forming part of an extended marshy area, with more or less drainage from the whole toward a certain river, and largely formed by the backwater from such river, and which at times go dry, and in which at other times the water becomes stagnant, are not lakes within the meaning of §6142 Burns 1908, Acts 1907 p. 508, §3, forbidding the location of drains so close to any lake covering ten acres or more of ground as to lower the water level of such lake. p. 80.</p> <p>14. Drains.— Evidence.— Report of Drainage Commissioners.- — ■ Admissibility. — The report of the drainage commissioners was properly admitted in evidence in a drainage proceeding, since by §6151 Burns 1908, Acts 1907 p. 508, §17, such report is made pr-ima fade evidence of the facts stated therein, p. 81.</p> <p>Note. — Reported in 99 N; E. 742. See, also, under (1, 6, 7) 14 Oyc. 1030; (2) 14 Cyc. 1025; (3) 16 Cyc. 859; (4) 14 Cyc. 1045; (6) 14 Cyc. 1032, 1036; (9) 14 Cyc. 1029, 1051; (10, 13) 14 Cyc. 1051; (11) 31 Cyc. 156, 157; (12) 14 Cyc. 1037; (14) 14 Cyc. 1042. As to drainage in the aspect of a public use within eminent domain laws, see 102 Am. St. 832.</p>

<p>1. Praud.' — Fraudulent Representations. — Complaint.—Sufficiency. —In an action by the purchaser for damages for fraud perpetrated in the sale of a meat market, the allegations of the complaint that the seller falsely represented that certain ice boxes were new and of the best quality and worth $500 each, that there were 50 cans containing 50 pounds of lard each, that the slaughterhouse was new and in good condition and suitable for the business and had cost $500 to build, that he had all the necessary tools and of the best make and kind, and that such representations were made with knowledge of the facts, or stated as true without knowing them to be true, and made for the purpose of inducing a sale to plaintiff, rendered the complaint sufficient to put defendant to answer, since they were not merely allegations showing the overreaching of another in matters of opinion, but of representations as to actual cost, condition and value, to one who did not know and as to matters in which he could not readily discover the facts, p. 84.</p> <p>2. Appeax. — Motion for New Trial. — Record.-—Briefs.—Where, on the assignment of error in overruling the motion for a new trial, neither party has complied with Rule 22 of the Supreme Court in setting out the evidence, but each merely sets out his conclusions from the evidence, the court will not search the record to find what the evidence is or consider the questions sought to be presented on the motion, especially where the judgment must be reversed on another ground, p. 85.</p> <p>Note. — Reported in 100 N. E. 1. See, also, under (1) 20 Cyc. 98; (2) 2 Cye. 987, 1013. As to action for false representations in respect of value, see 18 Am. St. 556.</p>

Prom Wells Circuit Court; Charles E. Sturgis, Judge. Action by James II. Watson against Ada E. Cnrless and another. From a judgment for plaintiff, the defendants appealed to the Appellate Court, and, upon the affirmance of the judgment and the overruling of a petition for rehearing by that court, appellants petitioned for a transfer of the cause to the Supreme Court under §1394 subd. 2, Burns 1908, Acts 1901 p. 565.

From Howard Superior Court; Lex J. Kirkpatrick, Judge. Action by William M. Ward and another against The Crown Oil Company in which the latter filed a cross-complaint against the plaintiffs and John W. Kahle and others. From a judgment for defendant on its cross-complaint, the cross-defendants, John W. Kahle and others, appeal.

<p>Prom Superior Court of Marion County (75,707); Lawson M. Harvey, Special Judge.</p> <p>Action by Edgar O. Hunter against Prank M. Millikan. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

From Delaware Circuit Court; J. G. Leffler, Judge. Action by John W. Smith and others against Julia E. Campbell and others. From a judgment for the plaintiffs, the defendant, Julia E. Campbell, appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

From Spencer Circuit Court; W. D. Robinson, Special Judge. Petition by Florentine Fishbaek and others to establish a drain, against which Karl ~W. Kramer and others remonstrated. From a judgment for petitioners, the remonstrants appeal.

From Montgomery Circuit Court; Jere West, Judge. Action by John W. Martin and others against The Adams Brick Company. Prom a judgment denying part of the relief sought, the plaintiffs appeal.

<p>Prom the Newton Circuit Court; Charles W. Hanley, Judge.</p> <p>Prosecution by the State of Indiana against Parmer Zoborosky. Prom a judgment of conviction, the defendant appeals.</p>

Prom Lake Circuit Court; John C. Richter, Special Judge. Proceedings in quo warranto by the State of Indiana, on the relation of George IT. Manlove, against Harvey J. Curtis. Prom a judgment for defendant the relator appeals.

<p>From J ohnson Circuit Court; Wm. E. Deupree, Judge.</p> <p>Prosecution by the State of Indiana against Richard A. Morris. From a judgment of conviction, the defendant appeals.</p>

<p>From St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by The Trump Manufacturing Company against Edwin N. Sanderson and others. From a judgment for plaintiff, the defendants appeal.</p>

From Greene Circuit Court; Charles E. Henderson, Judge. Exceptions by Fred E. Dyer, as administrator de bonis non of the estate of Frank A. Fellows, deceased, to the final report of William B. Harrah, surviving partner of the partnership composed of himself and decedent. From a judgment in favor of the exceptor, such surviving partner appeals. (Transferred from the Appellate Court under subd. 2, §1394 Burns 1908, Acts 1901 p. 565.)

Prom Wayne Circuit Court; Henry C. Fox, Judge. Action by the Cincinnati, Richmond and Port Wayne Railway Company against the Railroad Commission of Indiana and others. Prom a judgment for defendants, the plaintiff appeals.

<p>1. Commerce. — Interstate Commerce. — Regulation.—When Congress has acted -with reference to a subject of interstate commerce, its action is exclusive, p. 249.</p> <p>2. Railroads;. — Regulation.—Caboose Cars. — Statutory Provisions. —Interstate Commerce. — The provisions of-the act of March 1, 1911 (Acts 1911 p. 92), prescribing the kind of caboose which shall be used after June 1, 1914, and that when any caboose car shall be brought into a shop for general repairs, it shall be unlawful again to put the same into service, unless it has been made to comply with the provisions of §2 of the act as to size and construction, are not to be regarded as interfering with, or as placing a burden upon, or as regulating interstate commerce, since they are merely directed at the form of an instrumentality of commerce, as to a matter with respect to which Congress has not seen fit to act. p. 249.</p> <p>3. Constitutional Law.— Police Power.— Scope.— Due Process of Laio. — Although property or property rights may not be destroyed under the guise of a police regulation which has no just relation to the protection of the public health, welfare, morals, or safety, the police power is of wide scope, and in its proper exercise may be extended even to the taking and destruction of property and the compelling of large expenditures, p. 250.</p> <p>4. Constitutional Law. — Police Power. — Reasonableness of Regulation. — Presumptions.—It will be presumed that an act passed in the exercise of the police power is reasonable, unless the contrary appears from facts of which the court will take notice, p. 251.</p> <p>5. Constitutional Law. — Police Poioer. — Operation.—Regulation is the normal form of operation of the police power, p. 251.</p> <p>O. Constitutional Law. — Police Power. — Reasonableness of Legislation. — The wisdom or expediency of a police regulation is for the legislature, but such legislation must not be unreasonable. p. 251.</p> <p>7. Constitutional Law. — Police Power. — Reasonableness of Legislation. — The reasonableness of a police regulation ordinarily depends on whether it is prohibitive, destructive or confiscatory, or is reasonably adapted to promote a public purpose, or conserve the lives, health or safety of citizens, p. 251.</p> <p>8. Constitutional Law. — Police Power. — Reasonableness of Legislation. — Courts will not attempt fine distinctions to determine that a police regulation is unreasonable, and before they are authorized to interfere with such legislation it must be unreasonable beyond justification under any circumstances, p. 252.</p> <p>9. Constitutional Law. — Determination of Validity of Statute. —Admissibility of Evidence. — The validity of an act of the legislature is necessarily a question of law, and expert or other testimony is not admissible to impeach the legislative determination and show that its act is arbitrary or unreasonable, so that a law will stand unless it can be shown to be in conflict with the Constitution by argument deduced from its language, or from matters of which the courts can take judicial notice, p. 252.</p> <p>10. Railboads. — Regulation.-—Safety a/nd Comfort m Cars. — Judicial Notice. — Constitutional Law. — The court cannot judicially know that it is not more comfortable or safe to ride in a car of a prescribed length and having two adjustable and oscillating four-wheeled trucks, than in a shorter car having four rigid wheels, so that the court cannot say that the provisions of the act of March 1, 1911 (Acts 1911 p. 92), prescribing the size and equipment for caboose ears are unconstitutional as being unreasonable, but the presumption must prevail that the legislature was possessed of facts showing the same not to be unreasonable, p. 254.</p> <p>11. Statutes. — Validity.—Partial Invalidity. — Regulation of Railroads.. — Equipment of Cars. — Sections 5 and 7 of the act of March 1, 1911 (Acts 1911 p. 92), giving to the Railroad Commission certain powers in the matter of regulating the size and equipment of caboose cars, are independent of and separable from §§2, 3 of the act, so that, if invalid, their invalidity could not affect the provision of §§2, 3. p. 254.</p> <p>12. Constitutional Law. — Determination of Invalidity of Statutes. — Parties Who May Attach. — Where sections of an act are independent and readily separable in their provisions, a defendant in a prosecution based on a valid section thereof will not be heard to complain of the invalidity of sections that are not involved in such prosecution, p. 255.</p> <p>Note. — Reported in 102 N. B. 25. See, also, under (1) 7 Cyc. 420, 422; (2) 7 Cyc. 422 ; 83 Cyc. 648; (8, 7) 8 Cyc. 864; (4, 8) 8 Cyc. 801; (5) 8 Cyc. 862; (6) 36 Cyc. 971; (9) 36 Cyc. 971, 974; (10) S Cyc. 801; 36 Cyc. 974; (11) 36 Cyc. 976; (12) 36 Cyc. 984. As to protection of corporations from special and hostile legislation, see 62 Am. St. 165. As to equal protection of laws, see 25 Am. St. 873. For a discussion of the state regulation of railroads as an interference with interstate commerce, see 7 Ann. Cas. 5; 13 Ann. Cas. 147. On the question of the right of a state to require railroad company to equip its road, see 13 L. R. A. (N. S.) 320.</p>

<p>From Pike Circuit Court; J. E. Miller, Special Judge.</p> <p>Action by Fred H. Poetker, receiver of the Peoples State Rank of Hunting-burg, Indiana, against The United States Fidelity and Guaranty Company of ¿Baltimore, Maryland, and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Delaware Circuit Court; Frank ElUs, Judge.</p> <p>Prosecution by the State of Indiana against George Ellis. From a judgment of conviction, the defendant appeals.</p>

<p>From Superior Court of Marion County (81,569) ; Charles J. Orbison, Judge.</p> <p>Action by J ames Shelton and another against The Horace F. Wood Transfer Company. From a judgment for plaintiffs, the defendant appeals.</p>

<p>Prom Grant Superior Court; Robert M. VanAtia, Judge.</p> <p>Action by Sarah Survilla Myers and others against Mary Elizabeth Pence and others. Prom a judgment for plaintiffs, the defendants appeal.</p>

From Floyd Circuit Court; William C. Utz, Judge. Proceeding by Henry Schellenberger and others to establish a highway in which a remonstrance was filed by Henry Klotz, and from a judgment of the circuit court dismissing his appeal from the judgment rendered therein by the board of comity commissioners, the remonstrant prosecutes this appeal.

<p>From Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Action by Oren J. Simmons against the Marion, Bluffton and Eastern Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Witnesses. — Corroboration.—Witness Impeached by Inconsistent Statements. — Where defendant, in a prosecution for assault and battery with intent to murder, sought to impeach a State witness by showing statements made by him at about 9 o’clock in the morning following the assault which were inconsistent with his testimony, it was competent for the State in rebuttal to prove that the witness had made statements consistent with his testimony at about 7 o’clock on the morning following the assault. p. 294.</p> <p>2. Criminal Law. — New ¡Trial. — Newly-Discovered Bvidence. — Insanity. — Newly-discovered evidence as to the insanity of a defendant in a prosecution for assault and battery with intent to murder, is not such newly-discovered evidence as will entitle him to a new trial, where no plea of insanity had been interposed and the cause had been defended solely on the ground of self-defense, p. 294.</p> <p>Note. — Reported in 102 N. E. 851. See, also, under (1) 40 Cyc. 2787; (2) 12 Cyc. 735. As to impeachment of witnesses, see 14 1m. St. 157; 82 Am. St. 25. As to the admissibility of previous statements by a witness out of court consistent with his testimony, see 41 L. R. A. (N. S.) 857.' As to the admissibility of prior consistent statements of a witness after proof of prior inconsistent statements, see 8 Ann. Cas. 477.</p>

<p>1. Master and Servant. — Injuries to Servant. — Burden of Proof. —Incompetency of Felloio Servant. — In an action for injuries based on the master’s negligence in the employment of an incompetent fellow servant, but in which negligence in the retention of such fellow servant was not charged, the burden was on the plaintiff to prove that his injury was the proximate result of the incompetency of such fellow servant to discharge the duties assigned to him and that in employing such fellow servant the defendant knew, or in the exercise of ordinary care and prudence should have known of such incompetency, p. 298.</p> <p>2. Master and Servant. — Injuries to Servant. — LiaMUty of Master. — Incompetenoy of Fellow Servant. — The law requires the master shall exercise ordinary care, that is such as men of reasonable and ordinary prudence observe, to engage the services of those who are reasonably fit and competent for the performance of the duties assigned them, and the question of the competency of a servant includes a consideration of his physical, moral and mental qualifications for the task assigned, and, if the employment is for the operation of a machine, also of his skill and experience with reference to such or similar machinery, p. 298.</p> <p>3. Master and Servant. — Injuries to Servant. — LiaMUty of Master. — Incompetenoy of Fellow Servant. — Where a servant who was engaged in operating a simple spring-testing machine by pulling and returning a lever, understood its operation when employed and had not been guilty of any careless act before the accident, and, though deficient in education, was not physically or mentally unfit to operate the machine, an injury to plaintiff, caused by such servant pulling the lever before plaintiff could remove his hand from a spring which he had placed for testing, is to be attributed to the inattention of such servant, and the master is not liable therefor on the theory of negligence in the employment of an incompetent servant, p. 298.</p> <p>4. Master and Servant. — Injuries to Servant. — LiaMUty of Master. — Incompetenoy of Fellow Servant. — The fact that the experience of a servant was of short duration is immaterial as affecting the liability of the master for injuries to plaintiff, where the injuries were not caused by any incompetency or lack of experience on the part of such servant, but solely through his inattention to the work he was performing, p. 300.</p> <p>Note. — Reported in 102 N. E. 129. See, also, under (1) 26 Oyc. 1418; (2) 26 Oyc. 1295; (3) 26 Cye. 1296; (4) 26 Oyc. 1297. As to who are fellow servants and vice-principals, see 67 Am. Dec. 588; 75 Am. Sfc 584. As to who is an “incompetent” servant, within the law of master and servant, see Ann. Oas. 1912 O 96. As to the general duty of the master with respect to the employment of servants, see 48 L. R. A. 369. On the duty of a master to servant to keep informed as to fitness of coservants in his employ, see 1 D. R. A. (N. S.) 288. As to whether breach of duty to employ or retain none but competent servants may be inferred in fact from their incompetency, see 20 L. R. A. (N. S.) 322; 27 L. Ed. IT. S. 605. On the question of evidence of reputation to show incompetency of servant or master’s knowledge thereof, see 33 L. R. A. (N. S.) 751.</p>

<p>1. Master and Servant. — Dangerous Machinery. — Guards.—Statutory Provisions. — Validity.—“Proper.’’—Section 8029 Burns 1908, Acts 1899 p.- 231, §9, providing that all vats, pans, saws, etc., and machinery of every description shall be properly guarded, is not invalid for uncertainty, since the language “shall be properly guarded,” when considered in connection with the other language of that section, and the other sections of the act, clearly means that such safeguard is required as will protect the life and limbs of employes engaged about dangerous machinery or appliances where the same can be done without impairing their usefulness; the term “proper” as thus used, meaning fit, suitable, appropriate, p. 304.</p> <p>2. Master and Servant. — Injuries to Servant. — Assumption of Risk. — The doctrine of assumption of risk is not applicable in a case where the injury results from the breach of a statutory duty. p. 305.</p> <p>3. Negligence. — Breach of Duty Imposed by Statute or Ordinance. — Negligence Per Se. — The failure to perform a duty imposed either by a statute or an ordinance is negligence per se. p. 305.</p> <p>4. Master and Servant. — Injuries to Servant. — Dangerous Machinery. — Proximate Cause. — Complaint.—In a servant’s action for personal injuries, a complaint alleging the dangerous character of the machine operated by plaintiff, that a proper guard could have been placed on said machine without interfering with its proper operation, that defendant negligently failed to guard same, that in operating said machine plaintiff’s hand was suddenly thrown in contact with the knives and was injured, that if the machine had been guarded the injury would not have occurred, and that the injury was caused by defendant’s negligence in failing to provide a guard, sufficiently shows that the failure to properly guard the machine was the proximate cause of the injury, p. 306.</p> <p>5. Master and Servant. — Injuries to Servant. — Complaint.—Sufficiency. — Ambiguity.—Repugnancy.•—A complaint in a servant’s action for personal injuries, which, in addition to averments showing the dangerous character of the machine, that it could have been properly guarded, but was not, and that plaintiff’s injury was the proximate result of defendant’s failure to guard same, also contained averments showing that a guard had been provided, but that the same was defective and insufficient, is not open to the objection that it is ambiguous or repugnant, p. 307.</p> <p>O. Tbiai,. — Verdict.—Anstoers to Interrogatories. — A general verdict will not be defeated by isolated facts disclosed by answers to interrogatories, unless such facts are so contradictory to the general verdict that both cannot be true under any conceivable state of facts provable under the issues, p. 307.</p> <p>7. Appeal. — Review.—Verdict.—Anstoers to Interrogatories. — In determining whether the trial court erred in overruling a motion for judgment on the jury’s answers to interrogatories notwithstanding the general verdict, the court on appeal cannot look to the evidence, but only to the complaint and answer, and to the general verdict and the answers to the interrogatories, p. 307.</p> <p>8. Appeal. — Review.—Gonflieting Bvidence. — Conclusiveness of Verdict. — The court will not weigh the evidence on appeal, and where there is evidence, although conflicting, tending to support the verdict, the finding of the jury is conclusive, p. 308.</p> <p>9. Master and Sebvant. — Injuries to Servant. — Duty to Guard Dangerous Machinery. — Instructions.—An instruction that the factory act makes it the imperative duty of a master to properly guard dangerous machinery when it can be done without interfering with its proper operation, that violation of such act is negligence and that it is no defense that a factory inspector had directed a certain device to be used as a guard, that the only way that a master can escape liability is to secure a proper and sufficient guard and furnish the machine with it, that the fact that other manufacturers are using an imperfect and insufficient guard is no justification or excuse for such master violating the statute, and that he is bound to know and comply with its requirements, cannot be said to be erroneous where it does not purport to cover all the facts essential to recovery, and the subject of contributory negligence is fully covered in other instructions. p. 308.</p> <p>10. Mastee and Sebvant. — Injuries to Servant. — Unguarded Machinery. — Contributory Negligence. — Instructions.—In an action for injuries to a servant by an unguarded machine, an instruction that if the machine was not guarded, the act of plaintiff in continuing to operate same with knowledge of that fact would not necessarily constitute contributory negligence, and that if plaintiff, while exercising ordinary care and prudence, was injured because the machine was not guarded in the particular alleged in the complaint, and, if the jury found that the machine was one which defendant was required to guard, and that it could have been guarded without interfering with its proper operation, the verdict should be for plaintiff, although the plaintiff may have known that the machine was not properly guarded, was not erroneous, p. 800.</p> <p>11. Master and Servant. — Injuries to Servant. — Unguarded Machinery. — Instructions.—In an action for injuries to an employe alleged to have been caused by an unguarded machine, instructions given at plaintiff’s request which called the jury’s attention to the defendant’s claim that there was a guide or fence on the machine which could have been used as a guard and that another device was furnished as a guard, and informing the jury as to the manner of the use of either as a guard, and as to whether either was a proper guard, the conduct of plaintiff in the use of the machine with either as a guard, and as to the duty of defendant to furnish a proper guard, was proper, p. 300.</p> <p>12. Master and Servant. — Injuries to Servant. — Unguarded Machinery. — Instructions.—In an employe’s action for injuries caused by an unguarded machine, an instruction applicable to the facts as disclosed by the record and-stating that if the jury found that guards similar to the one used on the machine were used in other manufacturing establishments, such fact would not relieve the defendant from liability, if it was found that the guard was not a proper one and that a proper one could have been used without interfering with the proper use of such machine, was not erroneous, p. 310.</p> <p>13. Master and Servant. — Injuries to Servant. — Unguarded Machinery. — Instructions.—Refusal.—In an employe’s action for injuries alleged to have resulted from the master’s failure to properly guard a machine, requested instructions which undertook to tell the jury that what is a proper guard may be determined by finding if the guard on the machine was similar to those in use by others, and if so, then the use of such guard would be ordinary care, were properly refused, p. 310.</p> <p>14. Master and Servant. — Injuries to Servant. — Unguarded Machinery. — Instructions.—Refusal.—In an employe’s action for injuries in operating a machine alleged not to have been properly guarded, a requested instruction stating that a guard, to be proper, would require the approval and indorsement of “a considerable proportion of careful, prudent, skilful, considerate and experienced persons in the line of business” of defendant, and that before the failure to adopt such suggested guard would be negligence, it should command the commendation of the consensus of the careful, prudent, skilful, intelligent persons in the same line of business as defendant, was properly refused, p. 310.</p> <p>15. Appeae. — Review.—Refusal of Instructions. — The refusal of an instruction fully covered by the instructions given is not error.</p> <p>10. Appeal. — Review.—Refusal of Instructions. — Confusing and Misleading Instructions. — An instruction which was so prolix, verbose and tedious as to make it wearisome and confusing, was properly refused, p. 310.</p> <p>17. Appeal. — Review.—Exclusion of Evidence. — The exclusion of evidence on questions and answers stricken from depositions is not cause for reversal, where the same subject-matter was covered by the same witnesses and the questioned evidence went to the jury in a proper manner, p. 311.</p> <p>18. Damages. — Amownt of Recovery. — Review on Appeal. — Excessive Damages. — Where liability exists, the question as to the amount of damages to be awarded is for the jury under the supervision of the court, and its award will not be disturbed on appeal, unless it appears from the record that the amount is so grossly excessive as to induce the belief that the jury was actuated by prejudice, partiality or corruption, p. 311.</p> <p>Note. — Reported in 102 N. E. 21. See, also, under (1) 26 Oye. 1134; (2) 26 Oye. 1180; (3) 29 Oye. 436; (4) 26 Oye. 1389; (5) 26 Oye. 1384; (6) 38 Oye. 1929; (7) 38 Oye. 1930; (S) 3 Oye. 348; (9, 11) 26 Oye. 1491; (10) 26 Oye. 1507; (12) 26 Oye. 1134, 1491; (13) 26 Oye. 1497; (14) 26 Oye. 1133, 1497; (15) 38 Oye. 1711; (16) 38 Oye. 1602; (17) 38 Oye. 1430; (18) 3 Oye. 381. As to liability of employer to employe for dangerous machinery, see 77 Am. Dee. 218; 98 Am. St. 289. As to the assumption of risk on failure of the employer to perform a .statutory duty, see 4 Ann. Oas. 599; 13 Ann. Oas. 36; Ann. Oas. 1913 O 210. For common practice as the measure of master’s duty to guard machinery, see 16 L. R. A. (N. S.) 140. As to what is comprehended in expression “machinery o£ every description,” in statutes imposing duty on master as to placing guards, see 30 L. R. A. (N. S.) 36. On employe’s right of action for employer’s violation of statutory duty as to guards about machinery, see 9 L. R. A. (N. S.) 381. On the question of assumption of risk of master’s breach of statutory duty generally, see 6 L. R. A. (N. S.) 981; 19 L. R. A. (N. S.) 646 ; 22 L. R. A. (N. S.) 634; 33 L. R. A. (N. S.) 646 ; 42 L. R. A. (N. S.) 1229.</p>

From Benton Circuit Court; James T. Saunderson, Judge. Proceedings on the petition of William G. Thompson and others for the improvement of a highway, in which Bryce Ferguson and others remonstrated. From a judgment of the circuit court in favor of remonstrators on their motion to remand the proceedings back to the board of county commissioners, the petitioners appeal.

<p>Prom Lake Circuit Court; Willis C. McMahan, Judge.</p> <p>Action by Simeon L. Sanger and others against Martha Bacon and others. . From a judgment for defendants, the plaintiffs appeal.</p>

Prom Kosciusko Circuit Court; Francis F. Bowser, Judge. Action by The Kosciusko Building, Loan and Savings Association against William H. Simons and others. Prom a judgment for plaintiff, the defendant, William H. Simons, appeals. (Transferred from the Appellate Court under §1394 Burns 1908, Acts 1901 p. 565.)

<p>Prom Clay Circuit Court; George M. Crane, Special Judge.</p> <p>Action by Morgan H. Ringo against Michael M. Doyle. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

<p>1. Mandamus. — Scope of Remedy. — Claim io Office. — Quo Wwrrrnvto. — A writ of mandamus cannot rightfully be invoked to settle a doubtful claim to an office, or to have the title to an office adjudicated as between adverse claimants, but the proper remedy is by proceeding in quo warranto, so that a demurrer was properly sustained to the complaint in an action to mandate a city clerk to appoint relator as a primary election commissioner, where relator’s right to be appointed was denied, p. 357.</p> <p>Note.- — Reported in 102 N. E. 961. See, also, 26 Oyc. 255. For a discussion of mandamus as a remedy to restore a party to office]’ see 12 Ann. Oas. 14; Ann. Cas. 1912 A 930.</p>

<p>1. Caebieks. — Passenger Elevators. — Landlord and Tenant.— Where the entire building is not let to a single tenant, or where a part of the same is in control of the landlord, such landlord is, in the operation of a passenger elevator therein, a common carrier as to all persons having a right to use it, and the law imposes upon him a duty, which he cannot delegate so as to avoid liability, to exercise the highest degree of care with respect to such elevator, p. 364.</p> <p>2. Pbincipai, and Agent. — Test of Agency — Master and Servant. —Ordinarily the test of agency, or master and servant, is that of authority to control, and liability for wages, p. 365.</p> <p>3. Pbincipai. and Agent. — Negligence of Agent. — Liability of Agent to Third Persons. — There is a privity in law by virtue of which every one in charge of property is under obligation to so uso it as not to injure another, so that, index>endent of and apart from liability arising from the contract of agency, one in control of property for tho owner, is liable for a breach of such duty resulting in injury to any person to whom the duty was owing, p. 366.</p> <p>4. Principal and Agent. — Negligence of Agent. — Liability of Agent to Third Persons. — An agent cannot be held liable to third persons for failure to perform his contractual obligations to his principal, hut he is liable to third persons for injuries caused by his negligence, either of omission or commission, after he has undertaken performance, and the fact that his negligent conduct was in compliance with a direct order from his principal, will not protect him. xi. 370.</p> <p>5. Carriers. — Elevator Accident. — Contributory Negligence.— Complaint. — A complaint, in an action for injuries in falling into the elevator shaft of an apartment house in which xilaintiff resided, alleging that because of darkness plaintiff could not .see beyond the door, that it was a custom known to her for the door to be open only when the car was in position, and that, being acquainted with the surroundings, and finding the door open, she entered and fell to the bottom of the shaft, ivas sufficient against the objection that its averments show that plaintiff was guilty of contributory negligence, since the fact that the elevator door was open, if not an invitation to enter, was not a warning of danger that would render xfiaintiff’s entering an act of negligence. (Cincinnati, etc., R. Co. v. Peters (1S81), 80 Ind. 168, distinguished.) p. 371.</p> <p>6. Principal and Agent. — Relation.—Subagents.—Where the owner of a building knows from its character and location that the business of managing it cannot be transacted by the primary agent, and knows that a subagent has been employed, such subagent is deemed the agent of the principal, and the rule is also apxfficable as to persons employed by him within the scox>e of his power, p. 374.</p> <p>7. Trial. — Interrogatories to Jury. — An interrogatory to the jury calling for more than one distinct fact or which calls for a pure finding of law, is objectionable. x>. 375.</p> <p>8. Carriers. — Passenger Elevators. — Owe Required. — While one, as a common carrier in the oxieration of a xiassenger elevator is required to exercise the highest care consistent with the operation of the elevator, he is not an insurer, p. 375.</p> <p>9. Carriers. — Passenger Elevators. — Care Required. — Instructions. —An instruction that one operating a passenger elevator in an apartment house is charged with the duty of keeping it in safe condition, is erroneous in that it makes such person an insurer. p. 376.</p> <p>10. Carriers. — Passenger Elevators. — Contributory Negligence.— Jxiry Question. — An instruction that a tenant of an apartment house, “in going to her room from the street is not required to look at every place where she steps,” is in effect a statement that she would not be required to look under any circumstances, and invades the province of the jury, since it is for the jury to determine whether plaintiff, who was acquainted with the surroundings and knew the custom of the place to leave the elevator door open only when the car was in position, in going to her room, exercised ordinary care in walking through the open doorway of an elevator shaft at a time when it was dark and she could not see beyond such doorway, p. 377.</p> <p>11. Trial.- — Instructions.—Credibility of Witnesses.- — An instruction on the credibility of witnesses, stating that the jury “must take into consideration the interest, the appearance upon the witness stand, the bias or prejudice of the witness if any be shown, is calculated to unduly impress upon the minds of the jurors that the judge has in mind some suspicion regarding the evidence of some witnesses, p. 378.</p> <p>Note. — Reported in 101 N. E 915. See, also, under (1) 6 Cyc. 535, 596; (2) 31 Cyc. 1193; (3) 29 Cye. 476; (4) 31 Cyc. 1560; (5) 29 Cyc. 578, 579; (6) 31 Cyc. 1427; (7) 38 Cye. 1916; (8, 9) 6 Cyc. 590, 596; (10) 29 Cye. 653; (11) 38 Cye. 1727. As to the liability of the proprietor of an elevator for injury to a person other than a passenger, see Ann. Cas. 1912 D 531. On the general question of liability for injury to elevator passenger, see 25 E. R. A. 33; 2 E. R. A. (N. S.) 744 ; 56 Am. St. 806. As to the liability for condition of elevator to tenant of part of premises, see 23 E. R. A. 155. As to contributory negligence in stepping into elevator shaft through open door, see 2 L. R. A. (N. S.) 757; 24 L. R. A. (N. S.) 246.</p>

<p>1. Appeal. — Briefs.—Failure io File. — Reversal.—Where appellee fails to file a brief controverting the errors complained of by appellant, such failure may be taken or deemed as a confession of such errors, for which the court may reverse the judgment and remand the cause without prejudice to either party, p. 381.</p> <p>Note. — Reported in 103 N. E. 1. See, also, 2 Cyc. 1024.</p>

From Superior Court of Marion County (86,681) ; Pliny W. Bartholomew, Judge. Proceedings by the City of Indianapolis for the construction of a sewer, in which Edward Hawkins and others filed a petition in the superior court for the appointment of appraisers to review the .assessments against their lands. From the action of the court in receiving the report of the appraisers, this appeal is prosecuted.

<p>I. Husband and Wife.— Injuries to Wife. — Action by Husband.— limitation of Actions. — An action by a husband for damages for loss of his wife’s services, resulting from personal injuries sustained by her, is controlled by §295 Bums 1908, §293 ft. S. 1881, providing that actions “for injuries to person * * * ” shall be commenced within two years after the cause of action has accrued, and not afterward, p-. 386.</p> <p>Note. — Reported in 103 N. E. 1. See, also, 21 Cyc. 1549.</p>

<p>Prom Marion Circuit Court (19,923); Charles Bemster, Judge.</p> <p>Action by Thomas W. King against Louis J. Davis. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

<p>1. Intoxicating Liquohs. — Licenses.—Rights Pending Issuance.— Under §§8321, 8323 Burns 1908, Acts 1897 p. 253, fixing the fee for a county license at $100, and providing that upon the execution of the prescribed bond, the presentation of the order of the board of commissioners granting the license, and the treasurer’s receipt for $100, the county auditor should issue a license to the applicant, the applicant, on procuring an order granting him a license, had only an inchoate right thereto until he had complied with all the provisions of the law, so that a repeal of the act before he had complied with all its provisions, would leave such applicant with empty hands, in the absence of a saving clause in such repealing act. p. 392.</p> <p>2. Intoxicating Liquors.— Licenses.— License Rees.— Statutes.— “Now m Force.” — Under the act of March 4, 1911 (Acts 1911 p. 244), repealing the former law which fixed the fee for a liquor license at $100, and providing that pending proceedings under the old law, if sufficient under such law, should to that extent be valid, and that upon execution of the bond, presentation of the order granting the license, and the treasurer’s receipt for $200, the license should issue, and providing that the increase in the license fee should not apply to licenses “now in force,” an applicant who had procured an order granting a license, but whose proceedings had not been fully completed by the payment of the fee and the issuance of such license when the new law went into effect, was not entitled to receive a license except on payment of $200 .and presentation of the receipt to the auditor, since it is manifest that the term “now in force” refers to the time of taking effect of the act, and a license, though granted under the old law, was not in force until the fee had been paid and the license issued, pp. 393,394, 395.</p> <p>3. Statutes. — Construction. — Ose of Words. — The words and phrases used in a statute are to be construed in their plain, or ordinary and usual sense, unless it is clearly apparent that to so constrae them would defeat the manifest intent and purpose of the legislature, p. 394.</p> <p>4. Statutes. — Construction.—Provisos.—One of the purposes of a proviso in a statute is to guard against public misinterpretation and for this purpose they are often introduced from excess of caution, p. 395.</p> <p>5. Statutes. — Construction.—Provisos.—Since the enacting clause of a statute is its principal part and is presumed to have embodied the main object of the act, the proviso should be strictly construed and limited to objects fully within its terms, p. 395.</p> <p>Note. — Reported in 103 N. E. 321. See, also, rnder (1, 2) 23 Oyc. 108; (3) 36 Cyc. 1114</p>

Prom Allen Circuit Court; James T. Merryman, Special Judge. Proceeding by the State of Indiana, on affidavit and search warrant, against Oliver Steward, charged with keeping intoxicating liquors for purposes of unlawful sales. From a judgment ordering the destruction of property seized, the defendant appeals.

<p>1. Homicide. — Evidence.—Self-defense.—Intent to Kill. — Evidence tending to show that decedent was of quarrelsome disposition, that defendant, though a peace officer, was always armed and had many brawls, that they had had several difficulties in a business way, that decedent and another called at defendant’s office to have a contract prepared, that being dissatisfied decedent arose to leave the room, whereupon defendant grabbed him roughly and demanded pay for the work done, that decedent broke away twice and started to descend the stairway, when defendant shoved or kicked him and he struck defendant two or three times on the arm with a small stick which he had picked up in the hallway, that decedent proceeded down stairs and called to the other man, asking him to go elsewhere to have the work prepared, that defendant, cursing and threatening to kill decedent, followed and struck decedent, who threw up his hand to ward off the blow, dropped the stick, and started to run, that while decedent was receding, defendant, continued to follow him, fired at him twice and then, taking deliberate aim, fired a third shot which killed decedent, that all the shots entered decedent’s back, that decedent was not armed in any way, together with the uncorroborated statement of defendant that decedent had called him a vile name, and that he was in a state of anger and fear, presents no question of self-defense, but discloses an intention to kill. p. 416.</p> <p>2. Criminal Law. — Presumptions.—Operation and Effect. — A presumption, like a fact proved, remains available to a party in whose favor it arises, until overcome by opposing evidence, p. 422.</p> <p>3. Criminal Law. — Presumptions.—MaUce.—Malice may be inferred or presumed from the character of the act, the manner and circumstances of its execution, and from the character of the weapon used. p. 422.</p> <p>4. Criminal Law. — Evidence.—Presumptions.—Burden of Proof. —‘The burden of proof is not affected by the creation or presence of a presumption of law from an undisputed or proved fact. p. 423.</p> <p>5. Criminal Law, — Evidence.—Presumiptions.—Presumptions of law are usually grounded upon public policy, social convenience or safety, and are either such as are expressly declared by statute, or such as the courts generally have recognized and sanctioned in the administration of justice, p. 423.</p> <p>6. Homicide. — Evidence.—Presumptions.—MaUce.—While the law presumes malice from a killing which is unexplained, as well as from an intentional lulling, such presumption gives way to the presumption of innocence, where the facts are disclosed, and leaves the question of malice for the jury’s determination, p. 423.</p> <p>7. Criminal Law. — Trial.—Burden of Proof. — The burden of proof never shifts either in a civil or criminal case. p. 425.</p> <p>8. Criminal Law. — Presumptions.—Operation and Effect. — A presumption of law is in effect an administrative assumption or determination for procedural purposes, which makes only a prima facie case, and gives way before evidence which raises a doubt, or explains the act. p. 426.</p> <p>9. Criminal Law. — Instructions.—Oonst/ructAon as a Whole. — An instruction cannot be dissected and its parts disassociated from each other, or from other instructions, but should be considered as a whole, p. 427.</p> <p>10. Homicide. — Evidence.—Presumptions.—Malice.—The law implies malice from an unexplained homicide with a deadly weapon upon provocation by words only; but when this implication is rendered valueless by the evidence, the burden still remains upon the State to prove malice if it insists upon a conviction for murder, p. 428.</p> <p>11. Homicide. — Instructions.—Malice.—An instruction, informing the jury that the use of a deadly weapon under a provocation by words only is evidence of malice, is not open to the objection that it changes the burden of proof, or that it points out a particular fact and advises the jury that it may disregard all other evidence tending to negative malice, and it does not invade the province of the jury, or lessen the State’s obligation to prove malice, p. 428.</p> <p>12. Homicide. — Intructions. — Malice. — An instruction defining malice and charging that it may be implied from any deliberative or cruel act, is not erroneous on the theory that it points out one particular and advises the jury that other facts may be disregarded, since malice is an essential element of murder, and it is entirely proper to define it and state the legal implications which may arise from an unexplained and unjustifiable homicide. p. 429.</p> <p>18. Homicide. — Appeal.—Harmless Error. — Instructions.—Am instruction directed only to the question of murder in the first degree, even if erroneous, was not harmful to defendant who was convicted of murder in the second degree, p. 429.</p> <p>14. Homicide. — Manslaughter.—Provocation.—Adequacy.—Question for Jury. — The provocation required to reduce an unlawful killing to manslaughter is that which under all the circumstances is deemed by the law adequate to excite sudden and angry passions from which the homicide occurs, and the question of whether there was adequate provocation is for the jury. p. 480.</p> <p>18. Homicide. — Instructions.—Malice.—Where the jury was charged fully on the question of malice, an instruction to the point that one who, unprovoked, attacks another for the purpose of wounding or killing him, who does nothing but attempt to ward off the attack, and flees, and is pursued and slain, the slayer is guilty of murder in the first degree, if the killing was done with premeditation, and murder in the second degree, if done with malice, but without premeditation, was not erroneous because it omitted the question of malice, p. 480.</p> <p>16. Homicide. — Grade of Offense. — Instructions,—An instruction in a homicide case stating that “to mitigate the offense to manslaughter, the facts must show that an act was done, * * * it must appear that the killing resulted from passion, * * * ” and stating the character of provocation required, etc., did not impose on the defendant the burden of mitigating the offense from murder to manslaughter-, but merely charged what facts must be present to constitute the offense of manslaughter, p. 431.</p> <p>17. Criminal Law. — Trial.—Instructions.—Province of Court and Jury. — The necessary elements to constitute an offense must be disclosed by the instructions, as matters of law, and the weight and sufficiency of the evidence to prove such elements are for the jury. p. 432.</p> <p>18. Homicide. — Manslaughter.—Provocation.—Questions for Jury. —Physical organization and state of defendant’s mind, and the question of cooling time, may be considered by a jury in a homicide ease in determining whether the offense is mitigated to manslaughter, p. 432.</p> <p>19. Criminal Law. — Appeal.—Review.—Instructions.—Reversible error cannot be predicated on the refusal of instructions as to murder in the first degree, as to which defendant was acquitted, or of instructions as to a defense not presented by the evidence, or as to matters that were fully covered by the instructions given, p. 432.</p> <p>20. Criminal Law. — Appeal.—Review.—Misconduct of Counsel.— Instruction to Disregard. — Where, on a trial for homicide, the prosecuting attorney stated to the jury .that the venue was changed on defendant’s application, and the court instructed the jury to disregard and not consider such statement, it was not error to overrule defendant’s motion to set aside the submission and discharge the jury because of such statement, p. 432.</p> <p>Note. — Reported in 100 N. E. 73. See, also, under (1) 21 Cyc. 800, 1012; (2) 16 Cyc. 1087; (3, 6, 10) 21 Cyc. 877; (4) 16 Cyc. 934; (5) 16 Cyc. 1073; (7) 16 Cyc. 926; (8) 16 Cyc. 1087; (9) 12 Cyc. 654; (11) 21 Cyc. 1037, 1039; (12) 21 Cyc. 1038, 1039; (13) 21 Cyc. 1094, 1096; (14, IS) 21 Cyc. 1028; (15) 21 Cyc. 1039; (16) 21 Cyc. 1063, 1069; (17) 12 Cyc. 587, 592, 614; (19) 12 Cyc. 662, 932; (20) 12 Oye. 585. As to law of self-defense, see 74 Am. St. 717; 109 Am. St. 804. As to condition of mind which will reduce murder to manslaughter, see 134 Am. St. 726; 9 Ann. Cas. 929. As to presumption of malice from killing, see 4 L. R. A. (N. S.) 934. As to the presumption of implied malice arising from act of killing, see 38 L. R. A. (N. S.) 1077. As to what the term “malice aforethought” in defense of murder now means and how the courts should deal with it in charging the jury, see 38 R. R. A. (N. S.) 1054. On the necessity of defining malice aforethought in prosecution for murder, see 3S R. R. A. (N. S.) 1104. For the submission of question of lower degree to jury in prosecution for homicide, see 21 R. R. A. (N. S.) 18.</p>

<p>1. Statutes— Certainty. — Factory Act. — Sections 8021-8047 Burns 1908, Acts 1899 p. 231, known as the factory act, are not unconstitutional and void for indefiniteness and uncertainty, p. 436.</p> <p>2. Master and Servant. — Injuries to Servant. — Proximate Cause. —Complaint.—A complaint in a servant’s action for personal injuries, alleging the facts surrounding the injury, and “that in consequence of defendant’s negligence as aforesaid, and by reason of the unprotected and unsafe condition of defendant’s said saw which was negligently maintained and provided by defendant as aforesaid, plaintiff’s left arm came in contact with said saw,” etc., sufficiently shows that defendant’s negligence was the proximate cause, in the absence of an affirmative showing that it did not produce the injury, p. 436.</p> <p>3. Triad. — V or Mot. — Answers to Interrogatories. — A general verdict will not he defeated by isolated facts disclosed by answers to interrogatories unless they are so repugnant and contradictory to the general verdict that both cannot be true under any conceivable state of facts provable under the issues, p. 437.</p> <p>4. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Answers to Interrogatories. — In an action by a servant for injuries received while adjusting a gauge on a ripsaw, answers of the jury to interrogatories showing that plaintiff had authority to stop the saw at any time, that he knew how to stop and start it, that there was no reason why he should not have stopped it before adjusting the gauge, and that if he had done so the accident would not have occurred, and also showing that it was the usual custom in defendant’s factory, and known to defendant, to adjust the gauge while the saw was running, that it was sometimes necessary to adjust it two or three times while ripping a single board, and that the lever for stopping the saw was about fourteen feet from the machine itself, do not show as a matter of law that plaintiff was guilty of contributory negligence, p. 437.</p> <p>5. Master and Servant. — Injuries to Servant. — Proximate Cause. — Unguarded Machinery. — Concurring Act of Fellow Servant. — Where the master’s failure to guard a saw concurred directly with the act of a coemploye in producing the injury, it will be deemed that the master’s negligence was a proximate cause, p. 438.</p> <p>6. Master and Servant.- — Injuries to Servant. — Trial.—Answers to . Interrogatories. — Construction.—In an action by a servant for injuries sustained while adjusting a gauge on a ripsaw, a special finding- that “if a guard bad been over the saw plaintiff’s wrist could have slipped under the end of the guard and against the saw in such a maimer as to have caused the injury to plaintiff’s wrist,” is not a finding that the accident would have happened in spite of a guard, p. 488.</p> <p>7. Master and Servant. — Injuries to Servant. — Answers to Interrogatories. — Conclusion.—Where the jury, in an action for injuries to a servant while adjusting the gauge on a ripsaw, found that it would have been practicable to guard the saw, and that the master’s failure to guard the saw was the proximate cause of the injury, the finding of the jury, in answer to an interrogatory, that it was “purely accidental” will be disregarded as being merely a conclusion, p. 439.</p> <p>S. Appeal. — Review,.—Evidence.—Verdict.—Where the evidence is conflicting, the verdict of the jury based thereon is conclusive as to its sufficiency, p. 439.</p> <p>9. Master and Servant. — Injuries to Servant. — Instructions.—In a servant’s action against the master for personal injuries, an instruction that the law devolves upon the plaintiff the duty and burden of making out his case as alleged by a fair preponderance of the evidence, and that the burden is then on defendant to show by a fair preponderance of tlie evidence, unless the same should appear from all the evidence in the case, that plaintiff was guilty of contributory negligence, is not open to the objection that it denied to defendant the right to. a consideration of plaintiff's evidence in determining the question o f contributory negligence, p. 439.</p> <p>10. Appeal. — Review.—Instructions.-—Incomplete Instructions.— The fact that some of the instructions given were incomplete is not cause for a reversal where the omissions were supplied in other instructions, p. 440.</p> <p>11. Appeal. — Review.-—Refusal of Instructions. — The refusal of instructions that are confusing and misleading, and that invade the province of the jury, is not error, p. 440.</p> <p>12. Appeal. — Revieio.—Questions Revieioa-ble. — Objections to Evidence. — An objection to questions put to a witness, that “it is wholly immaterial,” is insufficient to present any question on appeal, p. 441.</p> <p>Note. — Reported in 102 N. E. 369. See, also, under (1) 36 Oyc. 969; (2) 26 Oyc. 1389; (3) 38 Oyc. 1929; (4) 26 Oyc. 1513, 1515; (5) 26 Oyc. 1302; (7) 26 Oyc. 1513; 38 Oyc. 1922; (8) 3 Cyc. 348; (9) 26 Oyc. 1495; (10) 38 Oyc. 1784; (11) 38 Oyc. 1602; (12) 38 Cyc. 1378,1387. As to liability of employer to employe for defective maebinery and appliances, see 77 Am. Dee. 218; 98 Am. St. 289. As to employe’s right of action for employer’s violation of statutory duty as to guards about machinery, see 9 L. R. A. (N. S.) 381. On the question of negligence of a fellow servant concurring with failure of the master to establish or enforce proper rules or regulations for conduct of business, see 4 L. R. A. (N. S.) 516. As to the liability of a master to his servant for injuries by a saw, operated by machinery, see Ann. Oas. 1913 O 125.</p>

<p>From Boone Circuit Court; Willett H. Parr, Judge.</p> <p>Action by Thomas "W. Love, administrator of the estate of Maria Love, deceased, against the Indiana Union Traction Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

<p>Prom Madison Cirenit Court; Charles K. Bagot, Judge.</p> <p>Action by The Anderson Tool Company against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

<p>Prom Lake Circuit Court; Willis G. McMahan, Judge.</p> <p>Action by the State of Indiana, on the relation of Louis A. Bryan, against Charles A. Johnson, Auditor of Lake County, and another. Prom a judgment for relator, the defendants appeal.</p>

From Lawrence Circuit Court; James B. Wilson, Judge. Action by 'William F. Lagle against Tbe Moneyweight Scale Company and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

From Warrick Circuit Court; Boscoe Hiper, Special Judge. Action by the Board of Commissioners of the County of Spencer against Melvin H. Lockyear. From a judgment against defendant on his cross-complaint, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

Prom Delaware Circuit Court; Joseph G. Leffler, Judge. Action by The Union National Bank of Muncie against Mary E. Finley and others. From a judgment for plaintiff granting partial relief, the plaintiff appeals.

From Dubois Circuit Court; John L. Bretz, Judge. Proceeding by the Farmers State Bank to be designated as a depository of public funds of Harbison Township, Dubois County. From a judgment approving its bond and designating it as such depository, this appeal is prosecuted. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

From Hancock Circuit Court; Robert L. Mason, Judge. Proceeding on the petition of William G. Lantz for the construction of a drain. Mary J. Caraway and others filed remonstrance. From a judgment for remonstrators, the petitioner appeals.

From Montgomery Circuit Court; Jere West, Judge. Action by Calvin Breaks against William G. Hudson and others, in which the defendant, John L. Yanausdall filed a cross-complaint against the defendant, Andrew S. Clements. From a judgment against him on such cross-complaint, the defendant Clements appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Corporations. — Railroads.—Officers and Directors. — Election of President. — Under §5187 Burns 1908, §3895 B. S. 1881, providing that directors of railroad conrpanies shall be elected annually, and that there shall be a president elected from the directors, the president of a railroad company must be elected annually also, p. 502.</p> <p>2. Corporations. — Railroads.—Officers and Directors. — Contracts. —As between the corporation and third' persons, the directors as a board are the general agents of the corporation, but one board cannot bind another in the future, except where the rights of third persons have intervened, p. 502.</p> <p>3. Contracts. — Validity.—Public Policy. — Contract for Employment. — Railroads.—A contract by a railroad company with an injured employe, to give him employment so long as he should “live and prove a competent and worthy man,” and, in ease of discharge, to pay him a salary thereafter during life, unless discharged for neglect of duty or dissipation, is not void as against public policy, since it vested in the future management Xiower to discontinue the service whenever, in its judgment, such employe should become inconrpetent and unworthy, thus sufficiently protecting the public interest, pp. 502, 503.</p> <p>4. Contracts. — Contract for Employment. — Consideration. — Forbearance to sue, and accexitance of money paid and of employment on the conditions named, constituted a sufficient consideration to support a contract between a railroad company and an injured employe, to pay his doctor bill and give him employment so long as he proved a competent and' worthy man. p. 503.</p> <p>5. Corporations. — Railroads.—Ultra Vires Acts. — A contract by a railroad company to give an injured employe employment so long as he proved a competent and worthy man, in consideration of his forbearing to sue the company, was not ultra vires, p. 505.</p> <p>6. Frauds, Statute of. — Contracts Within Statute. — Contract of Employment. — Parol Contract in Settlement of Action Against Railroad Company. — A contract in xiarol by a railroad company to give an injured employe employment so long as he proved a competent and worthy man in consideration of his forbearing to sue the company, was not within the statute of frauds, p. 505.</p> <p>7. Corporations. — Railroads.—Officers and Directors. — Ratification of Contracts. — A contract, entered into by the president of a railroad company in its behalf with an injured employe, in settlement of Ms claim against the company, even if unauthorized, was ratified by the act of the directors in making a payment to such emploj^e under its terms, p. 505.</p> <p>8. Railroads. — Consolidation.—Effect.—The act of consolidating railroad corporations involves an implied assumption by the new company of the obligations and liabilities of the old companies. p. 50G.</p> <p>9. Pleading. — Complaint.—Presumptions.—Priority of Rights.— Where the complaint, in an action against a railroad company for breach of a contract for employment made by defendant’s predecessor, alleged that the property of such predecessor was sold at a judicial sale, it must be presumed, in the absence of a contrary allegation, that the obligations on which the sale was made were superior to plaintiff’s rights under the contract, p. 500.</p> <p>10. Judicial Sales. — Title of Purchaser. — Dischwi'ge of Claims.— In the absence of a contrary showing, it must be presumed that a judicial sale of property divests all claims, save such as are .preserved by the decree, p. 507.</p> <p>11. Judicial Sales. — Rights of Creditors. — Creditors of a corporation whose property is sold at judicial sale ordinarily must look to the funds arising from the sale, or to the liability of the stockholders, for the payment of their claims, but a purchaser may be liable in equity on the contracts of its predecessor in so far as it adopts them and claims the profits arising therefrom, p. 508.</p> <p>12. Judicial Sales. — Rights of Purchaser. — Rights of Contract Creditors. — Notice.—The purchaser of property at a judicial sale was not bound to take notice of a simple contract in parol made by the former owner, and it was immaterial that the other party to the contract had no notice of the proceedings and sale, p. 508.</p> <p>13. Master and Servant. — Employment.—Adoption of Contract.— The mere employment by a railroad company, purchasing property of another railroad company at a judicial sale, of a common laborer who was employed by the former company under a contract for life employment, would not be for the benefit of the purchasing company so as to operate as the adoption by it of the laborer’s contract with the original company, p. 508.</p> <p>14. Pleading. — Complaint.—Allegations.—Writings Relied Om— Where plaintiff, in an action for breach of a contract of employent entered into by defendant’s predecessor, relies upon a deed executed by such xiredecessor to the defendant to show the assumption of the contract by defendant, such deed must be made a part of the complaint, or attached as an exhibit, p. 508.</p> <p>15. Frauds, Statute of. — Pan-ol Contract. — Assumption of Contract. — The parol agreement of a corporation, on purchasing the property of another company, tp assume a contract executed by the latter to employ an injured servant, which it was not otherwise bound to assume, is within the statute of frauds, subd. 2, §7462 Burns 1908, §4904 R. S. 1881, and is invalid, p. 509.</p> <p>16. Novation. — Elements.—To constitute novation, there must be a valid obligation to be displaced, the consent of all the parties to the substitution, a new and sufficient consideration moving to the promisor, the extinction of the old debt or contract, and the creation of a new one. p. 509.</p> <p>17. Pleading. — Complaint.—Admissions.—The allegations of a complaint in an action on a contract entered into by defendant’s predecessor, that on and after a certain date such predecessor was an insolvent corporation, is an admission that prior to that date it was in existence for some purposes, and is not an allegation of prior insolvency, p. 509.</p> <p>18. Master and Servant. — Employment.—Rescission.—Executory Contract. — An employer may at any time recede from an executory, severable contract for the services of a common laborer, p. 510.</p> <p>Note. — Reported in 103 N. 3D. 337. See, also, under (1) 10 Cyc. 321; (2) 10 Cyc. 758; (3) 9 Cyc. 498; (4) 9 Oyc. 338; (5) 10 Cyc. 1146; (6) 20 Cye. 203; (7) 10 Oyc.' 913; (8) 33 Cyc. 434, 439; (9) 31 Cyc. 79, 86; (10) 24 Cyc. 62; (14) 31 Cyc. 556; (15) 20 Cyc. 160; (16) 29 Cyc. 1130; (17) 31 Cyc. 87; (18) 26 Cyc. 980. As to contracts for permanent employment, see 51 Am. St. 301. As to application of statute of frauds to agreements not to be performed witbin a year, see 138 Am. St. 590; 15 L. R. A, (N. S.) 321. As to tbe time for which contracts of employment may be made on behalf of corporation by its officers, directors and agents, see 49 L. R. A. 471; 17 L. R. A. (N. S.) 177. For presumption that a contract with a corporation is within the authority of its president, see 7 L. R. A. (N. S.) 376. As to the liability of a consolidated company for debts of its predecessor, see 23 L. R. A. 231. As to the validity of a release given in consideration of the reemployment of the releasor by the releasee, see 4 Ann. Cas. 647. Reported and annotated in 50 L. R. A. (N. S.) 453.</p>

<p>Prom Probate, Court of Marion County; Charles B. Clarke, Special Judge.</p> <p>Action by Elnora Reed against Clarence Reed. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

Prom Sullivan Circuit Court; Charles E. Sanderson, Judge. Action by Ida M. Hubble against Matt IT. Berry and another. Prom a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

From Superior Court of Marion County (83,052) ; Clarence E. Weir, Judge. Action by Frederick A. Beck, by his nest friend, Katherine F. Beck, against The Waverly Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Pleading. — Demurrer to Complaint. — Memorandum.—Necessity of Separate Paper. — A memorandum filed with a demurrer, under Acts 1911 p. 415, need not be on a separate paper from that containing the demurrer, p. 530.</p> <p>2. Negligence. — Use of Real Property. — Where defendant, the owner of a building fronting on a street with a row of brick houses which was unbroken, save by a sixteen-foot alley intersecting the street near the center of the row about forty feet from defendant’s property, had torn out his building, leaving an open space between the walls of the other buildings which was not protected by barriers or otherwise, and plaintiff who was an adult and familiar with the street and with a warehouse located upon the alley, while proceeding along the street in the nighttime, intending to go down the alley to the warehouse, and . believing that he was walking in the alley walked into such opening and back therein about twenty feet from the sidewalk to a cellar into which he fell, no liability attached to defendant, since under the circumstances his failure to erect barriers or otherwise guard his lot was not negligence, pp. 531, 535.</p> <p>3. Negligence. — Injury to Trespassers. — Licensees.—The owner of private property is not obliged to make it safe for trespassers, or even licensees, p. 534.</p> <p>4. Negligence. — Condition of Property. — Use of Private Property for Public Way. — Liability for Injuries. — Where private property has been devoted even temporarily to the public use, or where even a few individuals have been in the habit of resorting or passing thereon, care must be taken not to render it unsafe without giving notice of the change, p. 534.</p> <p>y. Negligence. — Condition of Real' Property. — Injury to Children. —Tke owner oí real property which children are licensed to use or known to frequent or to which they are likely to be enticed by reason of the conditions, must not leave it in a dangerous condition. p. 534.</p> <p>Note. — Reported in 103 N. E. 385. See, also, under (2) 29 Oyc. 407, 471; (3) 29 Cyc. 442, 453; (4) 29 Cyc. 466; (5) 29 Oyc. 447, 463, 472. As to liability of owner of dangerous premises for injury of persons thereon, see 31 Am. St. 524. As to duty of property owner in dealing with children, see 49 Am. St. 406. Oh the duty of the owner of land which licensees are accustomed to cross, to guard against injuries in consequence of changes in the condition, see 13 L. R. A. (N. S.) 1126; 39 L. R. A. (N. S.) 217. As to duty of a property owner to trespassing child, see 32 L. R. A. (N. S.) 559.</p>

From Morgan Circuit Court; Will H. Pigg, Special Judge. Action by the Indianapolis Fancy Grocery Company against Effie J. Beard and another. From a judgment against her only, the defendant, Effie J. Beard, appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Master and Servant. — Injuries to Servant — Safe Placo of Worlc. — Assumption of Rislc. — Where an employe was engaged in a stone quarry in which a pile of stone on which he was at work was constantly diminishing, and the position of the stones constantly changing, so as to alter and change the likelihood of stones to fall as the work went forward, all of which such employe knew and appreciated, and the duty of his employment was a part of the very act of changing the pile, and the constantly changing conditions were the usual and ordinary conditions of the operation of the business, he must be held to have assumed the risk incident to his specific employment, p. 548.</p> <p>2. Master and Servant. — Injuries to Servant. — Place of Worlc.— Duty to Inspect. — Where an employe was engaged in a rock quarry in which a pile of loose rock on which he was at work was constantly diminishing and changing, so as to alter and change the likelihood of stones to fall as the work progressed, and he was familiar with the work and conditions, the master was not guilty of negligence in failing to inspect the place of work; his duty in that regard being no greater than, or different from the duty which the employe owed to himself, p. 548.</p> <p>3. Master and Servant. — Injuries to Servant. — Safe Place of Worlc. — Du,ty of Master. — The duty of a master to furnish a reasonably safe place of work, and to use ordinary care to keep it safe, is a qualified one, and does not extend to all the passing risks that may arise from short lived causes, or in the ever changing conditions of the work, of which the servant is as well informed as the master, p. 549.</p> <p>4. Master and Servant. — Injuries to Servant. — Place of Worlc.— Transitory Dangers. — Duty of Master. — The master owes no duty to his servants employed in their usual calling, respecting transitory dangers created by the manner in which the work is being done, unless he knows of the danger in time to warn, and the servant is ignorant of such danger, p. 550.</p> <p>5. Master and Servant. — Injuries to Servant. — Assumption of Rislc. — While it is the duty of the master, and not the servant. to search for latent defects, the servant assumes the risk as to all patent defects or dangers and as to those of Which he has knowledge and appreciates, and which are open to ordinary observation, p. 551.</p> <p>O. Master and Servant. — Injuries to Servant. — Safe Place of Work. — The master is not an insurer of the safety of the servant’s working place, and is not liable for the happening of an accident arising from no known cause, p. 551.</p> <p>7. Master and Servant. — Injuries to Servant. — Verdict.—Answers to Interrogatories. — In an action for injuries to a servant employed in a rock quarry, where the jury’s answers to interrogatories show the injury to have arisen either from the constantly changing conditions of the work, of which plaintiff was fully informed, and which changing conditions he was engaged in producing, or from no known cause, a verdict for plaintiff cannot stand, p. 552.</p> <p>Note. — Reported in 103 N. B. 483. See, also, under (1) 26 Cyc. 1185; (2) 26 Cyc. 1136; (3) 26 Cyc. 1101; (4) 26 Cyc. 1142; (5) 26 Cyc. 1213, 1217; (6) 26 Cyc. 1102; (7) 26 Cyc. 1513. As to the master’s duty with respect to changing conditions of the working place during progress of work, see 19 L. R. A. (N. S.) 340; 28 L. R. A. (N. S.) 1207. As to servant’s assumption of obvious risks of hazardous employment, see 1 L. R. A. (N. S.) 272. On the assumption of risk of dangers created by the master’s negligence, which might have been discovered by the exercise of ordinary care on the part of the servant, see 28 L. R. A. (N. S.) 1250. On the question of the servant’s assumption of risk from latent danger or defect, see 17 L. R. A. (N. S.) 76. As to the liability of a master for injuries to a servant caused by the sliding of rock, earth, etc., in a trench, quarry, or other excavation, see 7 Ann. Gas. 301; 21 Ann. Oas. 70S.</p>

From Howard Circuit Court; William C. Purdum, Judge. Proceedings by William Kirby and others for the construction of a drain, in which William. H. Rayl and others hie remonstrance. From a judgment for petitioners, the remonstrators appeal.

From Tipton Circuit Court; Leroy B. Nash, Judge. Action by Francis T. Mozingo, administrator of the estate of Francis M. Mozingo, deceased, against Kempton Lodge, No. 482, Independent Order of Odd Fellows. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>Prom St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by Anna Ordway against Eobert P. Ordway. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Bums 1908, Acts 1901 p. 590.) .</p>

<p>1. Receivers. — Appointment.—Interlocutory Order. — Appeal.—Motion to Dismiss. — A motion to dismiss an appeal taken from an interlocutory order appointing a receiver without notice, may not involve a question concerning the merits of the controversy, p. 575.</p> <p>2. Receivers. — Appointment.—Interlocutory Order. — Appeal.—Motion to Dismiss. — An appeal from an interlocutory order appointing a receiver without notice, will not be dismissed where the briefs and motion for dismissal present no question as to jurisdiction, or with reference to the perfection of the appeal, or in regard to any matter that might furnish ground for a motion to dismiss, p. 575.</p> <p>Note. — Reported in 103 N. E. 411. See, also, under (1) 3 Cyc. 1&7; (2) 3 Oye. 196.</p>

From Jay Circuit Court; Levi Mock, Special Judge. Proceeding supplementary to execution by The Federal Glass Company against The D. L. Adams Company and others. From a judgment for plaintiff, The D. L. Adams company and D. L. Adams appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

Prom Lake Circuit Court; L. V. Cravens, Special Judge. Action by Frederick E. Kitchell against William L. Schneider and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>From Wabash Circuit Court; Charles A. Cole, Judge.</p> <p>Action by Clark W. Dinius against the Chicago and Erie Railroad Company and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Drains. — Proceedings to Establish. — Objections to Commissioner. — Requisites.—Under §6142 Burns 190S, Acts 1907 p. 008, providing for objections as to why a drainage commissioner, on account of his interest in the work, or kinship to any person, should not act in the matter, an objection to any such commissioner should aver some traversable fact showing interest or kinship, and an objection reciting merely that it is made “on . account of interest, bias, and prejudice” is not sufficient, p. 630.</p> <p>2. Drains. — Proceedings to Establish. — Motion for Change of Venue. — Strilcmg from Files. — Appointment of Commissioners.— The action of the trial court in a drainage proceeding in striking from the files an affidavit and motion for change of venue from the judge, and also its action in thereafter appointing drainage commissioners in the proceeding, although not rendering the subsequent imoceedings void, was erroneous, and will be deemed prejudicial in the absence of a contrary showing, p. 630.</p> <p>3. Drains. — Proceedings to Establish. — Review.—Harmless Error. —Under §6148 Burns 1908, Acts 1907 p. 508, §8, providing that no person shall be permitted to take advantage, of any error, defect or informality unless directly affected thereby, persons who failed to remonstrate against the construction of a drain and against the report of the drainage commissioners, will be deemed not harmed by error of the trial court in striking from the files their motion for a change of venue from the judge, p. 631l</p> <p>Note. — Reported in 102 N. E. 37S, 103 N. B. 482. See, also, under (1) 14 Cyc. 1036; (3) 14 Cyc. 1045.</p>

Prom Probate Court of Marion County; Frank B. Boss, Judge. Action by James A. Houck, executor of the last will and testament of Elmer G. Devin, deceased, against John R. McCoy, trustee under the last will of Nancy Devin, deceased, and others. Prom an interlocutory order appointing a receiver, the defendants appeal.

<p>From Tipton Circuit Court; Leroy B. Nash, Judge.</p> <p>Action by Sarah C. Peck against the First National Bank of Tipton. From a judgment for plaintiff, the defendant appeals.</p>

Prom Morgan Circuit Court; Joseph W. Williams, Judge. Action by Mary J. Crayton against the Terre Haute, Indianapolis and Eastern Traction Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>From Clark Circuit Court; Harry C. Montgomery, Judge.</p> <p>Action by George Hartlage against tbe Louisville and Northern Railway and Lighting Company. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

<p>From Superior Court of Allen County Carl Yaple, Judge.</p> <p>Action by Oscar E. Kaufman against Charles W. Alexander and others. From a judgment for defendant Charles W: Alexander, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

From Superior Court of Marion County (82,285); Joseph Collier, Judge. Action by Henry F. Armuth against the Cincinnati, Hamilton and Dayton Railway Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>Prom Shelby Circuit Court; Alonzo Blair, Judge.</p> <p>Action by Elihu 'Onstott and others against Samuel S. Bradley and others. Prom a judgment for plaintiffs, the defendants appeal.</p>

From Huntington. Circuit Court; Robert M. VanAtta, Special Judge. Proceeding by William Thom and others for the establishment of a drain in which Tully Anson and another filed remonstrance. From a judgment against the remonstrators, this appeal is prosecuted.

<p>From Clark Circuit Court; Harry C. Montgomery, Judge.</p> <p>Action, by Thomas F. Crawford against Emma Bastian. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Bums 1908, Acts 1901 p. 590.)</p>

<p>From Superior Court of Marion County (78,146$) ; Vinson Carter, Judge.</p> <p>Action by Emily S. McGinnis against the Indiana National Life Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>