Volume 184 — Indiana Reports

From Allen Circuit Court; Sol. A. Wood, Special J udge. Action by Mary E. Astry, administratrix of the estate of Jonas Astry, deceased, against Robert Spice and others. From a judgment for plaintiff, the defendant named appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Orange, Circuit Court; William H. Paynter, Judge. Action by the State of Indiana, on the relation of Luther E. Flannigan and others, against Edward A. Palmer, auditor of Orange County. From a judgment for defendant, the relators appeal.

From White Circuit Court; James P. Wason, Judge. Action by the American Case and Register Compány against the Monon Lumber Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Rums 1914, Acts 1901 p. 590.)

<p>1. Criminal Law. — Accessories. — Conviction. — Statutes. — Under §2095 Bums 1914, Acts 1905 p. 584, §224, providing that an accessory may be prosecuted in the same manner as if he were a principal, an accused can not lawfully be convicted as an accessory before the fact without evidence sufficient to show guilt of the principal. p. 16.</p> <p>2. Criminal Law. — Accessories.—Evidence.—Verdict.—Where the evidence, though circumstantial, is such as to justify the inference that a crime such as is charged, was committed by the principal, a verdict of guilty in the prosecution of one charged as an accessory is not contrary to law as not being sustained by the evidence. p. 16.</p> <p>3. Criminal Law. — Appeal. — Review. — Evidence.—Verdict.—The Supreme Court will not disturb the verdict or reverse on the evidence, unless there is an absolute failure on some material point, p. 17.</p> <p>4. Criminal Law. — A ccessories. — Evidence.—Sufficiency.—In a prosecution against one as accessory before the fact of the crime of abortion, the question of whether the proof pointed conclusively to the guilt of the accused was for the jury, and in .view of evidence from which the jury had a right to conclude that the crime charged had been committed by the principal, and to connect accused therewith, the verdict finding him guilty will not be disturbed on appeal, p. 17.</p>

<p>1. Courts. — Jurisdiction.—Exclusiveness.—When a court acquires jurisdiction of the subject-matter of a cause its power continues to final disposition, to the exclusion of authority to interfere by a court of coordinate jurisdiction, p. 19.</p> <p>2. Wills. — Probate.—Nature of Proceeding. — The probate of a will is a proceeding in rent, defining and fixing the status of the estate, p. 19.</p> <p>3. Wills. — Probate.—Suit to Contest. — Jurisdiction.—Where a will was presented and admitted to probate in the circuit court it acquired jurisdiction over the estate which could in no way be affected by any subsequent change in representative from executor to administrator or by the substitution of heirs for legatees, and since the court first acquiring jurisdiction over specific property continues its authority to final determination free from any right of interference except by an appellate tribunal, it had exclusive jurisdiction of a suit to contest such will, notwithstanding the superior court of the county was vested by statute with general concurrent jurisdiction p. 19</p>

<p>1. Carriers. — Carriagz of Passengers. — Ejection of Passenger.— Liability. — -Where a passenger on an interurban ear leaving a city, having lost her ticket and being without money, readily acquiesced in the conductor’s request, made in good faith and without malice, to get off the ear before she got too far out of the city, and immediately after leaving the car her ticket was found by the conductor who returned it to her through the conductor of an inbound car, and the passenger thereupon proceeded to her destination by the next car, having suffered no physical discomfort or pecuniary loss, and having been delayed but one hour on her journey, there was no liability against the company on the ground of wrongful ejectment of such passenger, p. 22.</p> <p>-2. Carriers. — Carriage of Passengers. — Regulations.—Reasonable- ■ ness. — The rule is reasonable that a ticket entitling the passenger to transportation shall be exhibited and presented to the conductor on proper request, and that on the passenger’s failure -to do so, or to pay the legal cash fare, the conductor may expel him without waiting to investigate his excusé for not producing the ticket, or to determine if such excuse is in good faith, p. 24.</p>

From Hamilton Circuit Court; Meade Vestal, Judge. Action by Walter J. Hubbard against G. Reuben Wolfenberger and others. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Clay Circuit Court; James L. Clark, Special Judge. Action by George A. Knight against Mary G. Kerfoot and another. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

Prom Clinton Circuit Court; Joseph Combs, Judge. Action by Joseph W. Jones and. another against Grover C. Dunham and another. Prom á judgment for plaintiffs, the defendants appeal. Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Washington Circuit Court; William H. Paynter, Judge. Action by Cassie Smith and another against Samuel Ponsford. From a judgment for defendant, the plaintiffs appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Action by Clara A. Gremminger against the Fraternal Aid Association. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

<p>From Jasper Circuit Court; Charles W. Hanley, Judge..</p> <p>Action by Michael Kanne against Henry H. Eigelsbaeh. From a judgment for plaintiff the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

<p>From Marion Circuit Court (25,266); Louis B. Ewbank, Judge.</p> <p>Action by Charles W. Jewett against the Board of Commissioners of the County of Marion. From a • judgment for plaintiff, the defendant appeals.</p>

<p>From Lake Superior Court; Virgil S. Reiter, Judge. ■</p> <p>Prosecution by tbe State of Indiana against Joe Mislik. From a judgment of conviction, the defendant appeals.</p>

<p>Dismissal. — Reinstatement.—Evidence. — Review. — Where plaintiff, after a voluntary dismissal of his action, procured a reinstatement thereof, the action of the court in reinstating the cause can not be disturbed on appeal on a record which does not disclose that the affidavits and counter affidavit filed with reference to the motion to reinstate were all the evidence upon which the ruling was based, and in such ease the presumption in favor of the correctness of the ruling of the trial court will be indulged.</p>

From Porter Circuit Court; A. D. Bartholomew, Judge. Proceedings on the petition of Eliza J. Aylesworth, administratrix of the estate of John Aylesworth, deceased, for the sale of real estate to pay debts. ‘ From the judgment rendered, the petitioner and certain defendants appeal. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

From Miami Circuit Court; Joseph N. Tillett, Judge. Action by the State of Indiana, on the relation of Walter S. Bent, commissioner, and others, against Burvis A. Houser and others. From a judgment for relators, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Vanderburgh. Circuit Court; Duncan C. Givens, Judge. Action by Pearl. P. Porch against the Sovereign. Camp Woodmen of the World. From a judgment for .plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Wells Circuit Court; William H. Eichhorn, Judge. Action by Aaron Simon and others against William A. Rathfen and others. From a judgment for defendants, the plaintiffs appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Martin Circuit Court; James W. Ogdon, Judge. Action in quo warranto by the State of Indiana, on the relation of John A. Marley, against Arthur Lewis. From a judgment for relator, the defendant appeals.

<p>Municipal Corporations. — Ordinances.—Validity.—Moot Questions. —Dismissal of Appeal. — Where a city ordinance was adopted providing for the codification of the city’s ordinances by a committee of lawyers to be appointed by the city clerk, which was declared void by the trial court as an invasion of the rights of the executive ' department of the city, and pending an appeal from the judgment a new ordinance was passed similar in all respects, except that it provided for the appointment of the codification committee by the mayor, and which, repealed the former ordinance, the question presented by the appeal was thereby rendered moot, and there being nothing involved in the question that was of public interest or importance, a dismissal of the appeal was necessary.</p>

From Hamilton Circuit Court; Meade Testal, Judge. Action by. the Farmers National Bank against the United States Chemical Company and David ,C-Leonard. From the judgment as rendered on the issues tendered between the defendants, this appeal is prosecuted. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Randolph Circuit Court; James S. Engle, Judge. Action by Iva May Rau, administratrix of the estate of Ora Rau, deceased, against the Richmond Light, Heat and Power Company and others. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Superior Court of Madison County; H. Clarence Austill, Judge. Action by Louis Reason against the American Sheet and Tin Plate Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>From Probate Court of Marion County (643); Frank B. Boss, Judge.</p> <p>Action by Charles F. Cleveland against Mary A. Breadheft and others. From the judgment rendered, the defendant named appeals.</p>

<p>From Steuben Circuit Court; Frank M. Powers, Judge.</p> <p>Action by Myrtilla Kemery against Eunice Zeigler. From a judgment for defendant, the plaintiff appeals. (Transferred from the. Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

From Spencer Circuit Court; Emory L. Boyd, Special Judge. • Action by Jennie McCoy and others against Belle Purcell and another. From a judgment for defendants, the plaintiffs appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Grant 'Circuit Court; Joseph M. Rabb, Special Judge. Proceeding by David M. Bell against Wilber E. Williams to contest an election for the office of prosecuting attorney. From a judgment for eontestor, the eontestee appeals.

From Wabash Circuit Court; W. H. Anderson, Special Judge. Acti.on between Marietta Huddleston and James Huddleston. From a judgment for the latter, the former appeals. (Transferred from the Appellate ' Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Clay Circuit Court; John M. Rawley, Judge. Action by the Seully Steel and Iron Company against Norbert C. Kintz and another. From a judgment for plaintiff, the defendant named appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Floyd Circuit Court; John M. Paris, Judge. From Marion Circuit Court (25,858); Louis B. Ewbank, Judge. Action by Charles D. Kelso against Homer L. Cook, Secretary of State, and others, and from a judgment for defendants, the plaintiff appeals. Also an action by Carl H. Mote against Horace G. Cassady, in which defendant appeals from a judgment for plaintiff. The actions were consolidated on appeal for the purposes of argument and decision.

<p>From Marion Circuit Court (24,412); Louis B. EwbanJe, Judge.</p> <p>Action by Richard M. Coleman, receiver of the Independent Envelope Company against Harry A. Callón and others. From the judgment rendered, the receiver appeals.</p>

<p>From. Criminal Court of Marion County (43,-788); James A. Collins, Judge.</p> <p>Prosecution by tbe State of Indiana against Kelley Robinson. From a judgment of conviction, the defendant appeals.</p>

<p>From Superior Court .of Marion County (21,-249); Joseph Collier, Judge.</p> <p>Action by Minter Clements against Kingan & Company, Limited. From a judgment for plaintiff, the defendant appeals.</p>

From Jasper Circuit Court; Charles W. Hanley, Judge. Action by the State of Indiana, on the relation of Percy Hauter and others, against Stephen T. Comer and others. From a judgment for relators, the defendants appeal.

From Clark Circuit Court; Harry C. Montgomery, Judge. Action by Homer Bottorff, by his next friend Harvey Bottorff, against The South Construction Company. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Contracts. — Complaint.—Motion to Make Specific. — Defendant is not entitled to have a complaint made more specific by stating whether an alleged contract was oral or in writing, since in the absence of any allegation to the contrary it will be presumed to have been oral. p. 231.</p> <p>2. Pleading. — Motion to Make Specific. — The motion to make a pleading more specific, provided for by the civil code, takes the place of the common law special demurrer, p. 231.</p> <p>3. Appeal. — Review.—Complaint.—Overruling Motion to Make Specific. — In an action against various defendants for a personal judgment for labor performed and material furnished in the construction of a railroad, and to foreclose a mechanic’s lien, where the complaint alleged by way of recital that the work was done at request of defendants, while the written notice of lien made a part of the complaint recited that the labor was performed and material furnished pursuant to a contract between plaintiffs “and other subcontractors and contracts with the said owner of the right of way,” the court erred in overruling a motion to require plaintiffs to make the complaint more specific by setting out the substance of the contract and stating at whose particular instance and request plaintiffs performed the work and labor, pp. 231, 232.</p> <p>4. Mechanics’ Liens. — Nature.—Waiver of Lien. — Mechanics’ hens rest on contract, express or implied, and though the right to enforce such liens may be waived, the waiver must be by express contract. p. 232.</p> <p>5. Contracts. — Intention of Parties. — Express and Implied Contracts. — In express oral contracts -the intention of the parties is evidenced by words, while in implied contracts the intention is inferred from the acts of the parties, p. 232.</p> <p>■ 6. Appeal. — Questions Presented. — Complaint.—Motion to Make Specific. — Demurrer.—Scope of Review. — Where the complaint was so indefinite that the overruling of a motion to make the same more specific constituted error, the court on appeal will not determine the sufficiency of the same to withstand a demurrer, p. 232.</p> <p>7. Contracts. — Action.—Cross-Complaint■—Repudiation of Contract. — Performance by Cross-Complainant. — A cross-complaint seeking judgment against plaintiff for damages for failure to perform the obligations of a certain contract, alleging that plaintiff without cause abandoned the contract before completing the work, was not insufficient for failure to allege performance by cross-complainant of the stipulations required to be done on its part. p. 233.</p> <p>8. Contracts. — Action. — Supplemental Agreement. — Pleading.— Sufficiency. — An answer to a cross-complaint for breach of a certain contract, alleging that while time was of the essence of' the contract the contractor was delayed by unusual rains and hindered by cross-complainant’s failure to procure necessary right of way, that because of such conditions contractor and cross-complainant entered into a supplemental oral agreement abrogating the provision making time of completion of the work of the essence of the contract: and that cross-complainant failed to perform in certain respects, solely by reason of which contractor rescinded, etc., was not insufficient on the ground that rainy weather was a contingency not provided for in the contract and that the contract provided for extension of time for completion in case of delay in procuring right of way. p. 234.</p>

From Montgomery Circuit- Court; Jerre West, Judge. Condemnation proceedings by the Chicago, Indianapolis and Louisville Bailway Company against Adam Ader and others. From the judgment rendered, the railroad company appeals.

<p>From Putnam Circuit Court; James P. Hughes, Judge.</p> <p>Action by Philander S. Mace against George Weideroder. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §14,05 Burns 1914, Acts 1901 p. 590.)</p>

<p>1. Appeal. — Review.—Harmless Error. — Admission of Evidence.— In a physician’s action for services rendered to an injured employe of defendant corporation, the admission of evidence relating to certain customs of corporations, other than defendant, in employing physicians to treat injured employes, was erroneous, but was not ground for reversal in view of the affirmative showing from the record that the admission was harmless, p. 251.</p> <p>2. Corporations. — Physicians for Injured Employes. — Authority to Employ Physician. — Evidence.-—In a physician’s action against a corporation for services rendered to an injured employe, evidence showing that defendant’s board of directors seldom met, that it was the custom for defendant’s manager to consult the directors individually and follow their advice, and that in accordance with defendant’s custom with reference to employing medical aid for injured employes, the defendant’s manager in the particular instance consulted a majority of the directors individually and no objection was interposed to the employment of plaintiff, etc., warranted the finding that the employment of plaintiff was ratified by defendant, pp. 252,253.</p> <p>3. Corporations. — Directors.—Transacting Corporate Business.— Custom and Usage. — It is not absolutely necessary that the directors of a corporation act as a body or unit in order to bind the corporation, and it may be bound by them acting separately, if tbe action so taken is in accordance witb tbe customary or usual practice in tbe transaction of its business, p. 252.</p>

<p>Prom Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Prosecution by the State of Indiana against William Webster Brown. Prom a judgment of conviction, the defendant appeals.</p>

From Floyd Circuit Court; Harry C. Montgomery, Special Judge. Action by Herman MeDougal, by next friend, against Michael Switow. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>.1. Appeal. — Review.—Cross-Examination of Witness. — In an action for damages for breach of a contract employing plaintiff as purchasing agent and superintendent of the dry goods department of defendant’s store, where defendant had testified on direct examination that plaintiff had no knowledge of the business and was incompetent to manage a business such as defendant conducted, the question of the extent of defendant’s business was a proper subject for cross-examination, p. 264.</p> <p>2. Appeal. — Review.—Harmless Error. — Admission of Evidence.— In an action for damages for breach of a contract employing plaintiff as purchasing agent and superintendent of a department in defendant’s store, the action of the trial court in permitting plaintiff to testify as to his opinion of the amount of business transacted annually was erroneous, but harmless, in view of the fact that plaintiff testified to an amount approximating the amount fixed by defendant, p. 265.</p> <p>3. Contracts. — Employment.—Breach.—Evidence.—Wages Paid by Former Employer. — In an action for breach of a contract of employment, testimony as to the wages the plaintiff had received from former employers was properly excluded, in the absence of anything to show that the amount of wages formerly received entered into or had any bearing on the contract between plaintiff and defendant, p. 265.</p> <p>4. Appeal. — Review.—Refusal of Instructions. — In an action for breach of a contract of employment, the refusal of a requested instruction that the verdict should be for defendant if it was found that at the time plaintiff entered his employment he believed that plaintiff was there on trial was not error, in view of instructions given which in effect told the jury that unless a contract as alleged in the complaint had been entered into by the parties there could be no recovery, p. 265.</p>

<p>1. Public Service Commission. — Action to Vacate or Enjoin Order. — Judgment.—Appeal.—In an action under §78 of the act concerning public utilities and creating the Public Service Commission (Acts 1913 p. 167, §10052z2 Burns 1914), to vacate and enjoin the enforcement of an order of the commission, the judgment rendered against plaintiff on its refusal to plead further, after the demurrers of the commission and a eodefendant had been sustained to the complaint, was not appealable, in view of a showing by the record that plaintiff’s cause remained undisposed of as to another corporation defendant, and that the latter was at least a proper party to the action, since the appeal contemplated by §83 .of the act (§10052e3 Burns 1914) is from a final judgment and is not different from that authorized from final judgments in civil actions under §671 Burns 1914, §632 R. S. 1881. p. 269.</p> <p>2. Judgment. — Judgment on Demurrer. — “Final Judgment.” — A judgment on demurrer against some only of the parties is not ordinarily a final judgment from which an appeal will lie, since a judgment is not final unless it disposes of the subject-matter of the action as to all the parties so far as the court before which it is pending has power to dispose of it. p. 270.</p>

From Knox Circuit Court; Thomas B. Coulter, Special Judge. Drainage proceeding on the petition of Hiram Brown and others, and from the judgment rendered, Judith A- Orr and others appeal.

From Marion Circuit Court (24,433); Charles Bemster, Judge. Action by the State of Indiana, on the relation of the Merchants Heat and Light Company, against the Public Service Commission of Indiana. From a judgment for relator, the defendant appeals.

<p>1. Estoppel. — Pleading.—Although no intendment will be made in favor of a plea of estoppel, such a plea forms no exception to the rule that, in the absence of a motion to make more specific, conclusions and recitals contained in a pleading will be treated as allegations of fact. p. 288.</p> <p>2. Reformation of Instruments. — Evidence.—Parol Evidence.— While parol evidence can not be received to contradict, vary, add to or subtract from the terms of a deed or other valid written intrument, the rule does not preclude the reformation of an instrument which, by reason of a mutual mistake of fact, or by reason of the mistake of one of the parties accompanied by the fraud of the other, has been so framed as not to express the true agreement of the parties, but the exception does not apply where the mistake is one of law. p. 288.</p> <p>3. Reformation of Instruments. — Grounds.—Mistake of Fact or Law. — Although a misunderstanding of the law of the state by a resident thereof affords no ground for the reformation of an instrument, such misunderstanding of the effect of the tax law of this State by one who has at all times been a nonresident, without actual information on the subject, must be treated as a mistake of fact rather than of law, and will afford ground for the reformation of a deed affected by such mistake, p. 289.</p> <p>4. Contracts. — Action.—Estoppel.—Mistake of Law. — Since equity may reform and correct a written instrument embodying a mistake of fact, the existence of such mistake may be properly pleaded by way of estoppel to'a complaint which seeks to take advantage thereof. p. 290.</p> <p>5. Estoppel. — Contracts.—Principal and Agent. — Nondisclosure.— In an action for breach of covenant of warranty against taxes, an answer showing that defendant, a nonresident of the State, had listed the property for sale with plaintiff, a real estate agent; that plaintiff advised defendant that he could get $4,500 for the property if the price was reduced to that sum; that defendant through his son-in-law advised plaintiff that he would accept that price, but that it must be net and that all taxes must be assumed by the purchaser, whereupon plaintiff stated that he would give that price and assume the payment of all taxes, and a memorandum was thereupon drawn up which provided for the assumption by plaintiff of the taxes payable that fall, but did not provide for the payment of taxes payable the following year and which were then a lien on the property; that defendant’s son-in-law signed an acceptance of the proposition contained in the memorandum and acknowledged receipt of a payment on the purchase price, but that he was without authority to do so aud that plaintiff knew of his lack of authority; that the deed subsequently drafted by plaintiff also omitted to provide for the assumption of the taxes payable the following year, and that defendant signed it under a mistaken impression that it relieved him from the payment of all taxes then a lien upon the property, and that plaintiff, though at the time defendant’s agent and aware of the omission, remained silent in order to profit thereby; stated facts which, if true, were sufficient to estop plaintiff, p. 290.</p>

From Boone Circuit Court; Willett H. Parr, Judge. Action by Florence Robinson against the Marion Trust Company, executor of the last will and testament of William E. Mick, deceased, and others. From a judgment for plaintiff, the defendants appeal.

<p>1. Negligence. — Proximate Cause of Injury. — Concurring Causes.— Where two causes combine and proximately concur in producing an injury, the party at fault for one of such causes will be held liable, provided the injury would not have occurred in the absence of such fault, p. 297.</p> <p>2. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Evidence.—In an action for injuries to plaintiff, a millwright, while adjusting certain machinery in defendant’s plant, caused by the sudden starting of the machine on which he was working, where the evidence showed that by closing a certain valve in the engine, which was about eight feet away, the particular machine could not have been put in motion, and that he could have closed such valve and worked in perfect safety, and there was other evidence showing that the lever of the machine was in a neutral position and that the machine could not be put in motion unless it was shifted from that position, as well as showing that millwrights generally did short jobs of the character plaintiff was performing without shutting off the engine valve, the question of whether plaintiff was guilty of contributory negligence was for the jury. ppv297, 298.</p> <p>3. Negligence. — Contributory Negligence. — Question of Law or Fact. — Contributory negligence usually presents a question of fact for the jury, and it is only in eases where the facts are undisputed and where only a single inference can be drawn therefrom that the court can .say as a matter of law that contributory negligence does or does not exist, p. 298.</p> <p>4. Master and Servant. — Injuries to Servant. — Assumption of Risk. — Statutory Duties of Master. — Under the doctrine of assumed risk the master is relieved from liability for injuries to a servant caused by dangers of which the servant had knowledge even though occasioned by the master’s negligence, and, if it appears that the servant voluntarily chose a more dangerous way of performing his work than another which was open to him, he will be held to have assumed the risk, unless a promise to repair or some other exceptional fact affecting the operation of the rule is shown, but the doctrine of assumed risk is not applicable in cases where the negligence which caused the injury consists in the master’s failure to perform a duty prescribed by statute, p. 299.</p> <p>5. Master and Servant. — Injuries to Servant. — Breach of Statutory Duty. — Contributory Negligence. — Where the negligence of the master consists in his failure to perform a statutory, duty, the injured servant is not precluded from recovery merely because he knew and appreciated the danger, and to show contributory negligence it must appear that he did not use such care as a person of ordinary prudence would have used in view of the known danger, p. 300.</p> <p>6. Appeal. — Review.—Instructions.—An instruction stating that it was the master’s duty to guard the cog gearing in question if it was practicable to do so without materially affecting its usefulness, was not objectionable as stating the duty to guard such cogs, if practicable to do so, without regard to the location of such cogs and gearing, in view of the location of same as shown by the undisputed evidence, p. 301.</p> <p>7. Negligence. — Instructions.—Concurring Causes. — An instruction that an act which directly and proximately concurs with another act in producing injury may be deemed a proximate cause thereof, was not objectionable on the ground that the statement is broad enough to include negligent conduct on the part of plaintiff as a concurring proximate cause, since recovery is precluded by contributory negligence because it contributed and not because it was the sole cause, p. 301.</p>

<p>From Putnam Circuit Court; John M. Rawley, Special Judge.</p> <p>Action by William J. Allee against Elmer Blue to contest an election. From a judgment for the former, the latter appeals.</p>

From Lake Superior Court; Johannes Kopelke, Judge. Action by Fanny Gunn against, the Gary and Interurban Railroad Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

Original action in the Supreme Court by the State of Indiana, on the relation of Gene Williams, against Frank Ellis, as judge of the forty-sixth judicial circuit of Indiana, for writ of mandate. Defendant files answer to the complaint, to which the relator demurs.

<p>Trespass. — Criminal Prosecution. — Effect of Claim and Color of Title. — Where land conveyed to the trustees of a church ceased to be used for church purposes, and a son of the grantors took possession thereof under a claim that by a condition of the deed the land reverted to the heirs of the original owners, a criminal prosecution against him for trespass would not lie, since such a prosecution is not a proper mode for trying title to real estate, and a person having a paper .Jitle apparently valid on its face, and claiming to be the owner in good faith, can not be prosecuted criminally for trespass upon land to the damage of a third person though the latter in the end may prove to have the better title.</p>

From Marion Circuit Court (20,673); Charles Remster, Judge. , Proceeding by tbe Indiana Board of Pharmacy to revoke the license of Julius A. Haag to practice pharmacy. From a judgment for the defendant, this appeal is prosecuted. (Transferred from the Appellate Court under §1397 Burns 1914, Acts 1901 p. 565, §13.)

<p>From Clinton Circuit Court; James V. Kent, Special Judge.</p> <p>Action by Robert C. Milburn and others against Elizabeth Cory and others. From a judgment for defendants, the plaintiffs appeal.</p>

From Jay Circuit Court; James J. Moran, Judge. Action by Jacob M. Gibson against the Portland Foundry and Machine Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>From Jackson Circuit Court; Oren O. Swails, Judge.</p> <p>Action by Claude M. Henderlider against Catherine C. Henderlider and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>Appeal. — Assignment of Errors. — Briefs.—Where the only error assigned was in the overruling of appellant’s motion for a new trial,’ and neither the motion nor its substance is set out in appellant’s brief, the brief does not comply with Rule 22, clause 5, and no question is presented.</p>

From Dearborn Circuit Court; Warren N. Hauck, Judge. Action between Margaret Yeit and another and Richard Windhorst. From a judgment for the latter, Veit and another, appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Street Railroads. — Consolidation.—Effect of Prior Operating Agreement. — The power of consolidating street railroad companies to form a consolidation under §5690 Burns 1914, Acts 1903 p. 181, is not affected by the existence of a prior operating agreement whereby all the properties of the several companies should be operated as a unit by a joint committee, on the theory that the statute limits the power to consolidate to companies which at the time of consolidation are engaged in operating property belonging to the company, p. 355.</p> <p>2. Street Railroads. — Consolidation.-—Statutes.—The title of the act of March 3, 1899 (Acts 1899 p. 378), relating to the consolidation of railroad companies, was sufficient to cover the subject-matter of §6 thereof, and under that section as amended (§5690 Burns 1914, Acts 1903 p. 181), electric street and interurban railway companies may consolidate, and consolidation may be effected thereunder by a vote of a majority of the stock and without the unanimous consent of the stockholders, p. 356.</p> <p>3. Street Railroads. — Consolidation.—Minority Stockholders.— While under §5690 Burns 1914, Acts 1903 p. 181, the consolidation of street railroad corporations can be effected only by a majority vote of the stock of the constituent companies, a minority stockholder can not question the proceedings on the ground of irregularity because the initial action was taken by the several boards of directors of the consolidating companies, where it appears that such action was ratified by a majority of the stock of each corporation, p. 357.</p> <p>4. Street Railroads. — Consolidation.—Voters’’ Pools. — Bight to Object. — A minority stockholder can not object to a consolidation of street railroads under §5690 Burns 1914, Acts 1903 p. 181, on the ground that trustees in charge of a voters’ pool, in which he was not a participant, were without authority to vote for the consolidation, and that without such vote a majority of the stock was not voted in favor of the consolidation, since the stockholders participating in the pool might have voted individually in favor of the consolidation, and they alone could object to the action of the trustees, p. 357.</p> <p>5. Street Railroads. — Consolidation.—Connecting and Continuous Lines. — The fact that one of four consolidating street and interurban railroad companies crossed the line of the others almost at right angles and formed a connecting line for the distance of only one-half mile, did not bring the consolidation within the proviso to §5685 Burns 1914, Acts 1899 p. 378, permitting only such companies to consolidate as have connecting and continuous lines constructed or in process of construction, p. 358.</p> <p>6. Street Railroads. — Consolidation.—Fraud.—Since it is the ^ policy of the law to leave corporate affairs to the control of corporate agencies, a minority stockholder of a street railroad company objecting to a consolidation on the ground of fraud, has the burden of establishing such fraud, p. 360.</p>

<p>1. Adoption. — Who May be Adopted. — Grandchildren.—A person may adopt Ms own grandcMldren, as well as strangers to Ms blood, p. 363.</p> <p>2. Adoption. — Descent and Distribution. — Rights of Adopted Grandchild. — Notwithstanding the provisions of §870 -Burns 1914, Acts 1883 p. 61, that an adopted child is entitled to all the rights and interest in the estate of the adopting parent, by descent or otherwise, the same as if a natural heir of such adopting parent, and the provisions of §2991 Bums 1914, §2468 R. S. 1881, that an intestate’s land shall descend one-third to the widow and the remainder to his children in equal proportions, and that if a child be dead leaving a child surviving, the latter shall take the share which its parent would have inherited if living, the grandchild of an intestate, adopted by the latter on the death of its father, who was intestate’s son, could take an interest in the estate either in the capacity of grandchild or adopted child, but not in both capacities. p. 363.</p>

<p>From Whitley Circuit Court; Luke H. Wrigley,Judge.</p> <p>Prosecution by the State of Indiana against William J. Fleming. From a judgment quashing the affidavit, the State appeals.</p>

<p>From Monroe Circuit Court; Robert W. Miers, Judge.</p> <p>Prosecution by the State of Indiana against John Stewart. From a judgment of conviction, the defendant appeals.</p>

From Lawrence Circuit Court; Oren O. Swails, Judge. Eminent domain proceeding by the Southern Indiana Power Company against Edmund J. Miller, and from an interlocutory order appointing appraisers, the defendant appeals.

From Grant Circuit Court; H. J. Paulus, Judge. Action by the State of Indiana, on the relation of The Board of Commissioners of the County of Huntington, against Arthur C. Fast and others. From a judgment for defendants, the relator appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Insurance. — Action on Policy. — Pleading.-—Averment of Performance. — Waiver.-—In an action on a policy- of insurance, under an averment of full performance of all the conditions required to be performed by plaintiff, proof of waiver by the defendant is eompetentandwillbedeemedas the equivalent of proof of performance, p. 381.</p> <p>2. Insurance. — Life Insurance. — Action.—Fraud.—Waiver of Proof of Death. — Where aninsurer denies liability on a life policy on the ground of fraud in procuring the policy, a defense on the ground of failure to supply by affidavit proof of death of the insured is waived, p. 382.</p> <p>3. Appeal. — Review.—Complaint.—Amendment Deemed Made.— Where the complaint on a life policy might have been amended to conform to the evidence of waiver, the admission of such evidence without such amendment, even were it under such circumstances inadmissible, would not authorize a reversal in view of §700 Burns 1914, §658 R. S. 1881, and the court would deem the amendment to have been made. p. 382.</p> <p>4. Appeal. — Review.—Instructions.•—The refusal of an instruction that plaintiff in an action on a life insurance policy must prove full compliance of a certain condition by a preponderance of the evidence, and the giving of the same modified so as to advise the jury that plaintiff could not recover unless a compliance or waiver was shown, was not error, p. 382.</p> <p>5.. Appeal. — Review.—Instructions.—An instruction in an action on a policy of life insurance was not objectionable as assuming that a waiver of the conditions as to proof of death was shown, in view of undisputed evidence showing such waiver by the denial of liability oh the ground of fraud in procuring the policy, p. 383.</p>

From Superior Court of Allen County; Carl Yaple, Judge. Action by Robert G. Mitchell, administrator of the estate of James C. Hill, deceased, again-st the Chicago and Erie Railroad Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Elkhart Superior Court; William E. Wider, Judge Pro Tern. Action between Sarah Bertch and Theodore Mund. From an order dismissing the appeal of Sarah Bertch from a justice of the peace, this appeal is prosecuted. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Criminal Law. — Appeal.—Motion to Quash Affidavit. — Where the sufficiency of an affidavit in a criminal prosecution is challenged in the trial court by an oral motion to quash, without asssigning reasons therefor, no question is presented for review on appeal, p. 397.</p> <p>2. Criminal Law. — Plea of Not Guilty. — Withdrawal.—Motion to Quash. — Where defendant in a criminal prosecution entered a plea of not guilty in the city court, and on conviction appealed to the circuit court, where he orally moved to quash the affidavit without withdrawing his plea, there was no error in proceeding with the trial without a renewal of the plea. p. 397.</p> <p>3. Intoxicating Liquors. — Unlawful Sales. — Evidence.—Record of Internal Revenue Collector. — In a prosecution for operating a “blind tiger”, a copy of the record of the internal revenue collector, properly certified, is admissible in evidence, p. 398.</p> <p>4. Intoxicating Liquors. — Unlawful Sales. — Evidence. — Sufficiency. — Evidence showing issuance of license by the United States to a certain lodge authorizing the retail of intoxicating liquors, that the accused had control and management of the' lodge rooms during the time in question, that beer was “on tap” in rooms, and that a large number of empty beer kegs were found on the premises, warranted the jury in inferring that accused was guilty of operating a “blind tiger.” p. 398.</p>

<p>From Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Prosecution by the State of Indiana against Fred Rowan. From a judgment of conviction, the defendant appeals.</p>

From Pike Circuit Court; John L. Bretz, Judge. Action by The Merle & Heaney Manufacturing Company against Lillian M. Young and others. From a judgment for plaintiff, the defendant named appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Statutes.- — Employer's Liability Act. — Constitutionality.-—-The Employer’s Liability Act of 1911 (Acts 1911 p. 145, §8020a et seq. Burns 1914) is constitutional, p. 412.</p> <p>2. Master and Servant. — Injuries to Servant.- — -Complaint.—A complaint for personal injuries, alleging that defendant was a corporation employing more than five men, that plaintiff was in its employ, that his injury was occasioned by the negligent act of a fellow servant in lowering dogs and chains attached to a traveler, without notice or orders to do so and contrary to the rules of defendant, etc., stated a cause of action within the provisions of the Employer’s Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914). p. 412.</p> <p>3. Master and Servant. — -Injuries to Servant. — Verdict.—Answers to Interrogatories. — In an action for injuries to a servant through the negligence of a fellow servant in lowering dogs and chains attached to a traveler, without notice or orders to do so and contrary to the rules of defendant, answers to interrogatories showing the duties of the traveler runner, that he was not to lower the dogs without a signal from the head hooker, and that he did do so without a signal, resulting in the injury complained of, and that plaintiff had no notifee or warning that the dogs were to be lowered at the place where he was injured, etc., were insufficient to overcome a verdict for plaintiff, but on the other hand supported the verdict, p. 413.</p> <p>4. Trial. — Verdict.—Answers to Interrogatories. — A general verdict for plaintiff finds every material averment of the complaint to be true, and can be overcome by the jury’s answers to interrogatories only when they are in irreconcilable conflict with it. p. 414.</p> <p>5. Appeal. — Questions Presented. — -Motion for New Trial. — Briefs.— No question is presented on the overruling of a motion for new trial where appellant fails to discuss it in his brief, p. 414.</p>

From Probate Court of Marion County (719); Frank B. Ross, Judge. Action by Mary Phillips and others against Andrew J. Barnes, executor of the last will and testament of Thomas Nock, deceased, and others. From a judgment for plaintiffs, the defendants appeal.

From Hamilton Circuit Court; Willett H. Parr, Special Judge. Action by tbe State of Indiana, on tbe relation of Edgar A. Baker, against the Board of Commissioners of the County of Hamilton and another. From a judgment for relator, the defendants appeal.

<p>From Kosciusko Circuit Court; Francis E. Bowser, Judge.</p> <p>Action by Charles C. Campbell against the City of Rochester. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

<p>1. Constitutional Law. — Vacation• of Streets. — Due Process of Law. — ■Statutes—Validity.—Neither the 14th amendment to the Federal Constitution forbidding any law depriving any person of property without due process of law, nor §21 of the Bill of Rights of the State Constitution, prohibiting the taking of property without just compensation, is infringed by §§8910-8916 Burns 1914, Acts 1907 p. 617, providing for the vacation of streets, on the theory that such statute takes from abutting owners those private rights of ingress and egress appurtenant to their lots, that no adequate notice is provided for hearing on the question of compensation, and that no provision is made for any hearing on the question of compensation as to persons having property abutting entirely on that part of a street not vacated but which is by the vaeartion rendered a cul-de-sac, since the statute makes provision for remonstrance and compensation for injury flowing to those whose property abuts on that portion of a street sought to be vacated; and was not intended to provide for the litigation in a proceeding under it of any question affecting the private rights of owners whose property does not abut on such portion of the street, and contains no provision which seeks to take from the latter class any private property right in the street, while the remedies of the latter class for preventing a threatened invasion of the right, or compensation for a deprivation of it, exist as fully after the conclusion of the vacation proceeding as before it was begun, p. 435.</p> <p>2. Eminent Domain. — Vacation of Streets. — Abutting Owners.— Ingress and Egress. — Invasion of Right. — Remedy.—The owner of property abutting on a street in a city or town has a private right of access in both directions which extends as far at least as the next connecting highway, which the legislature itself cannot take away and with it take away the right to compensation for the deprivation, and where such right has been taken away or infringed upon by the vacation of part of the street, an action for damages will lie. p. 438.</p> <p>3. Eminent Domain. — Vacation of Streets. — Injunction.—Remedy at Law. — -Though in some eases of invasion of the right of access injunction may be invoked as a remedy, such relief was properly denied to the owner of property abutting on the portion of a street not vacated, in a suit against a railroad company that had procured .the vacation of a portion of the street for the purpose of carrying out its plan abolishing grade crossings and double tracking its road, since plaintiff had an adequate remedy at law in an action for damages and especially where it appeared that the work, which was of recognized public benefit, was well under way at the time the relief was asked, p. 440.</p>

From Orange Circuit Court; William H. Paynter, Judge; Proceedings before the Board of Commissioners of Orange County, to determine whether the contract of Jacob R. Chastain for the construction of a gravel road had been completed. From a judgment dismissing the cause on appeal to the circuit court, the Board of Commissioners appeals.

From Johnson Circuit Court; Charles F. Bemy, Special Judge. Action between Samuel Dorrell and another, and Elizabeth Herr and another; From the judgment rendered, the former appeal.

<p>Appeal. — Review.—Evidence.—Findings.—In determining if there is evidence to support a finding of the trial court, the court on appeal jvill consider only the evidence, direct and circumstantial, most favorable to appellee, and a finding warranted by the evidence thus considered is conclusive.</p>

<p>From Superior Court of Marion County (87,685); Clarence E. Weir, Judge.</p> <p>Action by Lee Dove against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant-appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

From Hancock Circuit Court;' Earl Sample, Judge. Action by Carrie Kellum, administratrix of the estate of Claude S. Kellum, deceased, against the National Motor Vehicle Company and another. From a judgment for plaintiff, the defendants appeal.

<p>1. Appeal. — Confession of Error. — Supporting Affidavits. — Supreme ' Court. — Jurisdiction.—Where appellee, through appellant’s attorney filed a motion to reverse on confession of error, supported by an affidavit that his testimony upon a vital question under the issues was false, and afterwards filed another affidavit asserting that such testimony was true, and that, because of his illiteracy, he did not understand the purport of his first affidavit when signing it, and numerous affidavits supporting both sides of the issue raised on such motion were thereafter filed, the judgment could not be reversed on the ground that the matters set out in appellee’s first affidavit were established by a fair preponderance of the evidence, since the Supreme Court was without jurisdiction to consider or determine the matter sought to be presented, p. 480.</p> <p>2. Judgment. — Relief from, Judgment. — Vacation for Fraud. — In addition to the relief afforded by §589 Burns 1914, §563 R. S. 1881, authorizing a new trial on the ground of newly discovered evidence, and by §§645, 646 Burns 1914, §§615, 616 R. S. 1881, providing for review of judgment by nisi prius courts for material new matter discovered after rendition, a nisi prius court of equity may at any time vacate a judgment against a defendant where it is shown that the apparent jurisdiction over the defendant’s person was procured by the fraud of plaintiff, p. 481.</p> <p>3. Attobney and Client. — Liens.—Cancellation.—An equity court of original jurisdiction may on proper showing cancel an attorney’s lien. p. 481.</p> <p>4. Appeal. — .Supreme Court. — Original Jurisdiction. — On appeal in an action at law in which the issues were triable by jury, the Supreme Court has no original jurisdiction, since the appeal serves the purposes of a common-law writ of error, p. 481.</p> <p>5. Appeal. — Evidence.—Review.—The court on appeal cannot weigh the evidence, and what power it has to consider evidence is limited to that given in the court below, p. 481.</p> <p>6. Appeal. — Scope of Review. — Miscomluct of Attorneys. — Power of Court. — Where an appeal had been perfected, briefed on its merits, and the record distributed to the members of the court for consideration, after which the appellee, through appellant’s attorney filed a motion to reverse on confession of error supported by his affidavit alleging that he had committed perjury in his testimony as to a vital issue at the suggestion and on the advice of his attorneys, the charge of misconduct thus involved against them, though foreign to any question presented by the appeal, was a matter which the court could consider and pass upon without an independent proceeding, in view of the impropriety of their further appearance in the appeal while charges of such nature remained undetermined, p. 482.</p> <p>7. Appeal. — Bill of Exceptions. — Absolute Verity. — A bill of exceptions .certified by the trial court, imports absolute verity, p. 483.</p> <p>8. Attobney and Client. — Misconduct.—Evidence.—The charges of professional misconduct by an attorney incidentally contained in an affidavit supporting a motion filed in the court on appeal, were completely refuted by facts appearing from the bill of exceptions which were inconsistent with the statement made in such affidavit, p. 483.</p> <p>9. Attobney and Client. — Misconduct. — Evidence. — No just ground is shown to warrant an order for investigating the conduct of an attorney with reference to charges contained in an affidavit of the client asking the court on appeal to reverse the judgment on confession of error on the ground that at the solicitation of the attorney he had committed perjury as to'a vital issue, where from the showing made by the attorney it clearly appeared that the client had written a letter stating the facts conformably to his subsequent testimony and had made similar statements to a number of persons long before the time of Ms alleged interview with the attorney. p. 484.</p> <p>10. Master and Servant. — Injuries to Servant. — Complaint.— Sufficiency. — A complaint in a servant’s action for personal injuries is not insufficient on demurrer merely upon the ground that certain material facts are not directly averred and that their existence is left to inference, p. 485.</p> <p>11. Master and Servant. — Employer’s Liability Act. — Constitutionality. — The Employer’s Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914) is not violative of §1 of the 14th amendment to the Federal Constitution nor of §§1, 12 and 13, Art. 1, or §19 Art. 4 of the State Constitution, p. 486.</p> <p>12. Appeal. — Review.—Instructions.—Stating Allegations of Complaint. — An instruction purporting to state the material allegations of the complaint was not erroneous as stating facts not pleaded, where the facts so stated were fairly and reasonably inferred from those directly pleaded, p. 486.</p> <p>13. Negligence.' — Instructions.—Ordinary Care. — An instruction that “the law interprets ordinary care to be that degree of care wMch a person of ordinary prudence under the particular circumstances is presumed to exercise to avoid injury” and that “such care is required to be in proportion to the danger to be avoided, and the fatal consequences that may result from the neglect, ’ ’ expresses the idea that the care required is such as a person of ordinary prudence would exercise, under the particular circumstances, and is not objectionable as declaring that there are degrees of care, but it fixes the standard as ordinary care, and then deals with the quantity thereof necessary, wMch must vary with the particular facts under consideration, pp. 487, 488.</p> <p>14. Courts. — Stare Decisis. — Instructions.—The doctrine of stare decisis will not prevent the reversal of a judgment for the giving of an instruction formerly approved by the Supreme Court, if under the circumstances it was erroneous, p. 488.</p> <p>15. Master and Servant. — Employer’s Liability Act. — Contributory Negligence. — Section 2 of the Employer’s Liability Act of 1911 (Acts 1911 p. 145, §8020b Burns 1914), eliminating contributory negligence where the employe’s injury results from obedience to an order, makes no distinction between active contributory negligence and that which is passive, and excludes contributory negligence as a defense in case of obedience to any order whether general or special, p. 489.</p> <p>16. Appeal. — Review.—Harmless Error. — Instructions.—Error, if any, in an instruction which failed to limit the operation of §2 of the Employer’s Liability Act (Acts 1911 p. 165, §8020b Burns 1914), eliminating contributory negligence as defense in case the injury was received by a servant while obeying an order, so as to exclude the defense in case of a special order only, was harmless where the evidence related only to a special order, p. 491.</p> <p>17. Appeal. — Review.—Instructions.—Preponderance of Evidence.— Burden of Proof. — An instruction that preponderance of the evidence means that evidence which is most satisfying to the jury of its truthfulness, however slight it may be, was not defective as inviting the jury to find for the plaintiff on the slightest evidence, since no evidence above a preponderance, even of the slightest weight, is required of the party having the burden of proof, p. 491.</p> <p>18. Appeal. — Review.—Instructions.—Preponderance of Evidence.— Number of Witnesses. — An instruction that “when you are told that plaintiff must prove by a preponderance of all the evidence the material allegations of his complaint, by ‘preponderance’ is not meant the side upon which the greater number of witnesses appear and testify, ’ ’ though awkwardly stated, expresses the correct rule since the “number of witnesses” test of preponderance does not obtain in this State, p. 492.</p>

From Kosciusko Circuit Court; Francis E. Bowser, Judge. Proceedings, on petition of Cyrus Long and others for the establishment of a drain. From a judgment of the circuit court dismissing the appeal of Augustus A. Neibert and others from the board of county commissioners, this appeal is prosecuted.

<p>1. Injunction. — Parties.—Appeal.—In a suit against named leaders of a labor union and the members who were ‘ ‘ too numerous to join as parties” to enjoin interference by them with the plaintiffs’ business and employees, where the decree was entered enjoining the named defendants, and providihg, as to the members who were neither served with process nor appeared, that it should be operative from and after actual notice, only those named and served with process were proper parties to an appeal from such decree, though those who neither were served with process nor appeared in the trial court could be punished for contempt for a violation of the court’s order, pp. 501, 503.</p> <p>2. Injunction. — Parties.—Scope of Decree. — Where an injunction is decreed against a principal, his agent or a third party may be punished for contempt in violating the decree, after actual knowledge of its existence, regardless of any provision for notice in the decree to those not served with process, p. 502.</p> <p>3. Injunction. — Class Suits. — Labor Unions. — Class suits involving numerous parties are of two kinds, being designated as “true” where the suit relates to a fund or property over which the court may and does acquire jurisdiction and in which numerous'persons are interested, and as ‘‘spurious” where no fund or particular property is in question and only a personal liability is involved; and suits for injunctions against involuntary associations, such as labor unions, are of the latter class, p. 502.</p> <p>4. Injunction. — Labor Unions. — Scope of Decree. — In a suit against the leaders and members of a labor union for injunction, the decree against those served with process can not be effective against those not served nor appearing, unless and until formally brought into court by some supplemental process, p. 502.</p> <p>5. Injunction. — Strikes.—Decree.—Failure to Request Modification. —In a suit to enjoin members of a labor union from interfering with plaintiff’s business or employes, where there was evidence to warrant the trial court in finding that there had been resort to violence and threats of violence, the decree against defendants could not be disturbed on the ground that among other things it enjoined defendants from using peaceful methods in continuing the strike and carrying out their purposes, even though such provisions were erroneous, in the absence of a motion by defendants to modify the decree, p. 508.</p> <p>6. Constitutional Law. — Strikes.—Equal Protection of Laws.— The rights of employers under the 14th amendment of the Federal Constitution, prohibiting the states from depriving any person of liberty or property without due process of law or denying him the equal protection of the laws, are not infringed upon by the rule that employes may combine and by prearrangement quit their employment and by peaceful picketing and persuasion carry out their purpose to substitute a union for an open shop. p. 509.</p> <p>7. Monopolies. — Combinations by Labor Unions. — Strikes.—Statutes. — The act of 1907 (Acts 1907 p. 490, §3866 et seq. Burns 1914) declaring that every combination' in the form of a trust shall be unlawful, but that none of the provisions of the act shall limit the powers, rights or privileges now existing or conferred by law upon any person association or corporation, was not intended to limit or control any right of a member or memberg of a labor union to peacefully strike or combine for the betterment of their conditions, p. 510.</p> <p>8. Injunction. — Strikes;—Action.—Evidence.—In a suit to enjoin members of a labor union from continuing a strike, where it was contended that violence was resorted to, evidence of a resolution offered by one of the defendants at a convention of the organization declaring that, as the employers controlled the courts, political action was necessary, and denouncing the machinery of the govvernment, was incompetent, and, in view of other evidence in the case, its admission was prejudicially erroneous, pp. 511,514.</p> <p>9. Appeal. — Review. — Erroneous Admission of Evidence. — Presumptions. — Where evidence of an influential character is erroneously admitted the presumption is that it is harmful, but a consideration of the record may sometimes overcome such presumption, p. 514.</p> <p>10. Injunction. — Strikes.—Action.—Evidence.—In a suit to enjoin the members of a labor union from continuing a strike, where charges of violence were made, evidence that a strike breaker telephoned the employer that he had met the pickets and that he would not return to work because, he did not want to get in trouble or get hurt, was erroneously admitted in the absence of competent evidence of the basic fact on which the declaration must rest, and in the absence of evidence to show when the declaration was made, p. 514.</p> <p>11. Evidence. — Opinion Evidence. — Conclusion of Witness. — In a suit to enjoin the continuance of a strike, where violence was charged, testimony by the employer that the strike had injured his business was erroneously admitted, being the conclusion of the witness as to an ultimate fact in issue, p. 516.</p>

<p>From Superior Court of Marion County (83,236); John J. Bochford, Judge.</p> <p>Action by Thomas J. Christian against Charles S. Bacon. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

<p>From Jasper Circuit Court; Moses Leopold, Special Judge.</p> <p>Action by the State of Indiana, on the relation of Jay W. Stockton, against Edward P. Lane and others. From a judgment for defendants, the relator appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

<p>1. Appeal. — Review.—Weight of Evidence. — Where the evidence on the issue whether the use of a railroad right of way for a telegraph line would materially and substantially interfere with the use for railway purposes, to which it was already devoted, was conflicting and' susceptible of different inferences as to the ultimate facts to be determined therefrom, it was exclusively the province of the court or jury trying the cause to weigh the evidence and draw the inferences therefrom, and the decision thus made can not be disturbed on appeal, p. 533.</p> <p>2. Eminent Domain. — Complaint.—Sufficiency.—Allegations of a complaint to appropriate a right of way for a telegraph line over and along the right of way of a railroad company, stating that the appropriation was sought by plaintiff subject to unaccepted promissory conditions by plaintiff to move and change its poles and parts of its line and relocate same on such right of way whenever the operation and maintenance of such line should be an interference to any change in the location of the'railroad track or the construction of new tracks, etc., served to show that plaintiff did not seek to condemn the land described at all events and to pay the compensation awarded, but that its purpose was to make the appropriation only upon the conditions stated, and in case it was permitted to impose the stipulations as to the future, and to have such stipulations considered in making the award, rendered the complaint bad, since such terms and conditions as therein set forth can not be imposed by the party seeking to condemn real estate, p. 535.</p> <p>3. Eminent Domain. — Conditional Appropriation. — Complaint.—A complaint for appropriation of land may be so drawn as to limit the rights to be acquired thereunder and so as to leave in the landowner certain easements and rights not taken by appropriation, in which event the damages are assessed on the basis of the land appropriated as considered in connection with the rights and easements not taken and compensation is awarded accordingly; but in the absence of an agreement, the party condemning must take the rights which he seeks to appropriate absolutely and unconditionally and he must make full compensation for what he takes, p. 536.</p>

From Boone Circuit Court; Willett H. Parr, Judge. Drainage proceeding on tiie petition of Charles O. McMains and others. From a judgment for the petitioners, James W. Clifton and others appeal.

<p>From Hamilton Circuit Court; Meade Vestal, Judge. c</p> <p>Action by Minda Aldred against Elizabeth Sylvester and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

<p>From Sullivan Circuit Court; Charles E. Henderson, Judge.</p> <p>Action by William R. Walters against Hosea W. Alsman. From a judgment for plaintiff, the defendant appeals. (Transferred from tbe Appellate Court under subd. 2, §1394 Burns 1914, Acts 1901 p. 565.)</p>

<p>1. Master and Servant. — Assumption of Risk. — Fellow Servants.— Employer’s Liability Act. — The common-law rule that a servant assumed the ordinary risks incident to his employment, including the risk of injury, from the negligence of a competent fellow servant, has been abrogated so far as it applies to the risk of injury by a fellow servant, by the provisions of §8020a Burns 1914, Acts 1911 p. 145, §1, expressly imposing on one employing more than five persons liability for injuries to a servant through the negligence of a fellow servant, p. 591.</p> <p>2. Master and Servant. — Injuries to Servant. — Negligence of Feb-low Servant., — Assumption of Risk. — Where the complaint avers, and the evidence shows, that the employer had in his service more than five persons, and that the injuries to the servant were sustained through the negligence of his fellow servants, the defense of assumption of risk of injury by a fellow servant is eliminated, under Acts 1911 p. 145, §1, §8020a Burns 1914. p. 591.</p> <p>3. Appeal.- — •Waiver of Error. — Briefs.—Error assigned on the overruling of a demurrer to the complaint is waived by appellant’s failure to point out any defect therein in its brief, p. 593.</p> <p>4. Appeal. — Review.— Verdict. — Answers to Interrogatories. — Alleged error in the overruling of a motion for judgment on the jury’s answers to interrogatories is unavailable where the answers present no irreconcilable conflict with the .general verdict on any material issue, p. 593.</p> <p>5. Appeal. — Review.—Answers to Interrogatories. — Failure of Evidence to Support. — Appellant’s assignment in its motion for a new trial that the jury’s answers tq certain interrogatories were contrary to the undisputed evidence is of no avail in view of the fact that the judgment was on the general verdict, though a reversal may be had in eases where the answers as to a material issue which the appellee, was bound to prove are unsupported by the evidence, upon the ground that the general verdict is not supported on such material issue, p. 593.</p> <p>6. Appeal. — Waiver of Error. — Briefs.—Alleged insufficiency of the evidence to support the general verdict is waived by failure to present the question in the points and authorities set out in appellant’s brief, p. 594.</p> <p>7. Appeal. — Questions Renewable. — Evidence to Support Answers to Interrogatories. — The court on appeal may consider the lack of evidence to support the jury’s answers to interrogatories in a proper ease. p. 594.</p> <p>8. Master and Servant. — Railroads.—Injury to Car Repairer.— Care in Crossing Tracks. — In an action for the death of a car repairer who, while attempting to cross a switch track located between the track on which he was engaged in repairing ears and defendant’s repair house to procure materials for his work, was' struck by a cut of cars being moved on such switch track, an instruction advising the jury that the rule requiring a traveler or other person about to cross a railroad to look in both directions and look and listen is not applied in all its strictness to workmen engaged in the line of their duty at work upon and about a railroad track was not erroneous, p. 596.</p> <p>9. Master and Servant. — Railroads.—Injury to Car Repairer.— Instructions. — Evidence.—In an action for the death of a car repairer who was struck by the movement of cars while he was attempting to cross the track to procure materials for his work, an instruction stating the duty owing to a workman required to cross a track in the course of his employment, and that if decedent was in the habit of crossing defendant’s track in the course of his employment at or near the place where he was killed, and if defendant knew of such habit, it became the duty of defendant to exercise ordinary care to avoid injuring him, was not objectionable although there was no direct evidence of decedent’s habits, in view of evidence in relation to the general habit of defendant’s employes warranting a finding that decedent was in the habit of crossing the tracks as he did at the time of the accident, and that defendant had knowledge thereof, p. 596.</p> <p>10. Master and Servant. — Railroads.—Injury to Car Repairer.— Instructions.- — -Evidence.—Whereacarrepairerwaskilledwhile crossing defendant’s track to procure materials for use in his work, an instruction stating that if there was a custom that the cars on such track were from time to time left open, so that men working in the repair yards of defendant could and did pass between said cars, and that the men, including decedent, were in the habit of using that ' means of passing to and from their work in the yards, to defendant’s bolt house, and the defendant knew that it was so used; and it was so used without objection from defendant, a finding would be authorized that such way was provided by defendant as alleged in the complaint, was not erroneously given, in view of some evidence on which to base the hypothesis found therein, although there was ’ no evidence that defendant had ever established any express rule in relation to the use of a path constructed for the use of the employes, or in relation to their crossing the tracks elsewhere, p. 597.</p> <p>■ 11. Master and Servant.' — Injuries to Servant. — Choice of Ways.— Instructions.- — -An instruction seeking a direction of nonliability for the death of an employe, on the theory that he had not chosen a safe way provided by defendant, and which disregarded the element of knowledge on the part of the servant of the danger in the way chosen, was properly refused, regardless of the effect of §2 of the Employer’s Liability Act (Acts 1911 p. 145, §8020b Burns • 1914) eliminating the defense that the dangers or hazards inherent or • apparent in the employment contributed to the injury, since the • instruction was erroneous under the common-law rule, which precludes recovery only where the servant had actual or constructive knowledge of the danger, p. 598.</p> <p>12. Appeal. — -Review.—Refusal of Instructions.- — There was no error in the refusal of a requested instruction containing an hypothesis not supported by the evidence, p. 599.</p> <p>13. Master and Servant. — Railroads.—Injury to Car Repairer.— Evidence of Custom. — Review.—Where the complaint for the death of a car repairer, who was killed while attempting to cross a track to procure materials for his work, alleged a custom of defendant in placing ears, to leave an opening between the cars for the passage of employes' and its use by the employes, the court did not err in .permitting a witness to testify as to what way the men went in going from the cars on which they were working on the repair tracks to defendant’s bolt house and lumber shed to procure materials, p. 599.</p>

<p>From Superior Court of Marion County (90,073); Pliny W. Batholomew, Judge.</p> <p>Action by Kenneth LaForge, by his next friend, against the American Hominy Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate . Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

<p>From Fountain Circuit Court; I. E. Schoonover, Judge.</p> <p>Action by Martba J. Conover against Clifford A. Cade and others.. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405- Burns 1914, Acts 190Í p. 590.)</p>

From Johnson Circuit Court; John W. Morgan, Special Judge. Action by William Russell, against Eliza J. Drake and another. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590).

' From Delaware Circuit Court; Robert M. Van Atta, Judge. Action by The Bright National- Bank of Flora, Indiana, against Andrew J. Boxell and others. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)’

<p>1. Dbains. — Statutes.—Constitutionality.—Sections 23 and 24 of the drainage act of 1913 (Acts 1913 p. 433, §§8233x, 8233y Burns 1914), providing for the issue and sale of bonds to pay the cost of drainage improvement, and for the collection of assessments made against the land affected, do not, when considered with the-other sections of the act, authorize the county commissioners to pledge the credit of the county to the payment of the bonds issued for the drain out of the general taxes, but contemplates their payment from the proceeds of the assessments on the lands benefited, and hence the act is not violative of §6, Art. 10, of the Constitution prohibiting the county from loaning its credit, pp. 639, 643.</p> <p>2. Constitutional Law. — Statutes.—Presumption in Favor of Validity. — Courts are reluctant to strike down an act of the legislature and will not do so unless it is clearly in violation of some provision of the State or Federal Constitution, p. 642.</p> <p>3. Constitutional Law. — Statutes.—Construction in Favor of Corvstitutionality. — If a statute is capable of two meanings, one of which is in conflict with the Constitution and the other is not, it is the duty of the court to adopt the latter meaning, and so uphold the statute, p. 643.</p>

<p>1. Appeal. — Questions Reviewable. — Demurrer to Complaint. — Waiver of Defects. — Under §2 of the aet of 1911 (Acts 1911 p. 415, §344 Bums 1914), the defects in a complaint not specifically stated in the memorandum required to be filed with the demurrer are waived; hence, where appellant by its brief expressly waived the defects pointed out in the memorandum, no question was presented as to the sufficiency of the complaint for other causes, p. 645.</p> <p>2. Appeal. — Questions Reviewable. — Motion in Arrest of Judgment.— Waiver of Error. — Where appellant sought by its motion in arrest of judgment to question the sufficiency of facts alleged in the complaint to state a cause of action, a consideration of the question was waived by reason of failure to raise the objection by demurrer as required by §§344, 348 Bums 1914, Acts 1911 p. 415. p. 646.</p> <p>3. Courts. — Jurisdiction of Subject-Matter. — Statutes.—The act of 1911 relating to pleading in civil causes and requiring a memorandum of defects to be filed with a demurrer for want of facts does not affect the question of the jurisdiction of the court over the subject-matter of the action, p. 647.</p> <p>4. New Total. — Motions.—Failure to File in Time. — Under §587 Burns 1914, Acts 1913 p. 848, a motion for new trial must be filed within thirty days after the return of the verdict, and questions sought to be raised thereby can not be considered if it is filed after that time. p. 647.</p>

From Marion Circuit Court (21,205); Charles Remster, Judge. Proceedings on the affidavit of Frank L. Over-man and others charging constructive contempt against William E. Davis and others. From a judgment that they were guilty of contempt, the latter appeal.

<p>1. Appeal. — Questions Reviewable. — Instructions.—The context of §561 Burns 1914, Acts 1907 p. 652, providing that the court shall indicate “before instructing the jury, by a memorandum in -writing at the close of the instructions so requested, the number of those given and of those refused”, requires that the words “given” and “refused” should be construed in the future tense, and so "construed the meaning and direction of the statute is plain beyond doubt,- and unless it appears that its provisions have been sub- - stantially complied with, no question is properly presented as to the giving or refusal of instructions, p. 655.</p> <p>2. Appeal. — Review.—Memorandum to Instructions. — Presumptions. —Where the memorandum dated and signed by the trial judge at the close of instructions requested by appellant substantially complied with the provisions of §561 Burns 1914, Acts 1907 p. 652, except that it did not show affirmatively the fact of its preparation before the jury was instructed, and there was no affirmative showing to the contrary, the presumption prevails that the trial court did its duty and that such memorandum was prepared at the proper time. p. 655.</p> <p>3. Appeal. — Record.—Instructions.—Questions Reviewable. — Where the original record did not disclose a memorandum of instructions given and refused at the close of instructions tendered by appellee, as required by §561 Burns 1914, Acts 1907 p. 652, the presumption arose that none was prepared, and the affirmative showing by writ of certiorari that such memorandum was prepared and signed by the trial judge after the jury had been instructed did not show a compliance with the provisions of the statute, so that such instructions were not properly in the record and a consideration of any of the instructions was thereby precluded, p. 656.</p> <p>4. Appeal. — Review.—Record.—Evidence.-^-IUustrated Testimony.— A record is not insufficient on the ground that the evidence is not properly before the court, from the fact that a number of the witnesses “indicated” or “illustrated”, certain phases of their testimony and that such illustrations are not in the record, where the meaning of the testimony in each instance is apparent, p. 657.</p> <p>5. Appeal. — Review.—Evidence.—Inference Upon Inference. — Where plaintiff was injured by the fall of a heavy weight which was suspended from an I-beam by a clamp over the beam, evidence showing that the bolt which held the sides of the clamp together was bent and that there was a defect in the threads, in the absence of evidence to show that such bend or defect in the threads prevented the nut from being screwed on far enough to hold the sides of the clamp close, was insufficient to sustain a-verdiet for plaintiff, since to sustain such verdict, it must be inferred that the defects prevented the clamp being drawn tight and that the clamp came off the beam because the condition of the bolt prevented its proper adjustment to the beam, which is basing one inference upon another, p. 657.</p>

<p>1. Master and Servant. — Coal Mine Employes. — Injuries.—Failure to Provide Places of Refuge. — Averments as to Practicability.- — • Statutes. — A complaint for personal injuries to a coal mine employe by reason of the master’s failure to provide places of refuge along the single track hauling roads as provided by §8531 Burns 1914, Acts 1905 p. 65, need not aver that it was practical in the operation of the mine to construct such places of refuge, since the statute imposes an absolute duty in that respect, p. 665.</p> <p>2. Pleading. — Complaint.—Averments by Way of Recital. — Sufficiency. — A complaint is not insufficient on demurrer though it contains immaterial matter and some of its material averments are by way of recital rather than by direct allegation, p. 665.</p> <p>3. Pleading. — Indirect Averments. — Immaterial and Redundant Matter. — -Remedy.—Where a complaint contains immaterial and redundant matter, and some of its material averments are by way of recital, the appropriate remedies are in motions to strike out and to make more specific, p. 665.</p> <p>4. Pleading. — Complaint.—Sufficiency.—Initial Attack on Appeal. —A complaint sufficient to withstand a demurrer is necessarily sufficient when first assailed on appeal.' p. 665.</p> <p>5. Appeal. — Review.—Harmless Error. — Instructions.-—In a coal mine employe’s action for injuries caused by the master’s failure to provide places of refuge along the hauling track, an instruction informing the jury that plaintiff was entitled to recover on a finding of certain enumerated facts, if erroneous in failing to state the material fact of a finding that plaintiff was compelled to use the hauling track as a footway, was harmless in view of undisputed evidence that he was so compelled to use such track, p. 666.</p> <p>6. Master and Servant. — Coal Mine Employes. — Injuries.— Failure, to Provide Places of Refuge. — Instructions.—In a coal mine employe’s action for injuries caused by the master’s failure to provide places of refuge along the hauling track,, an instruction stating that plaintiff was entitled to a verdict on a finding of certain enumerated facts, was not erroneous for failure to enumerate a finding that it was practical to provide the places of refuge, p. 666.</p> <p>7. Appeal. — Review.—Incomplete Instructions.- — An instruction stating that plaintiff could not recover unless all the material allegations of the complaint had been proven, was not fatal for failure to point out the complaint’s material allegations, since incomplete- ■ ness in an instruction presents no question of reversible error. p. 666.</p> <p>8. Appeal. — Review. — Instructions. ■— Misleading Instructions. — There was no error in an instruction upon plaintiff’s duty to prove the material allegations of the complaint, on the ground that it was misleading in failing to point out what allegations were material, in view of another instruction enumerating all material facts in actual controversy, and if appellant deemed it misleading for such omission it can not complain in the absence of a special request by it to such effect, p. 666.</p> <p>9. Appeal. — Review.—Refusal of Instructions. — There was no error in the refusal of requested instructions where, in so far as they were proper, the ground was covered by instructions given, p. 667.</p> <p>10. Appeal.' — Sufficiency of Evidence. — Scope of Review. — In determining the sufficiency of the evidence to support the verdict, the court on appeal may only consider such direct evidence as is most favorable to appellee, together with such reasonable inferences therefrom as the jury may have rightfully drawn, p. 667.</p> <p>11. Master and Servant. — Coal Mine Employes. — Injuries.— Failure to Provide Places of - Refuge. — Evidence.—Sufficiency.— Notwithstanding the space between the ribs of coal on either side of a hauling track was at least twelve feet and the car was only five feet wide, the jury was warranted in finding that defendant had violated its statutory duty in failing to provide any place of refuge, to hold plaintiff’s body safe from contact with the car, in view of evidence showing that props supporting the roof were set from eighteen inches to three feet apart in two irregular lines which averaged a distance of twelve to eighteen inches outside the rails of the track, that the car extended nine inches outside the'rails, that the space between the ribs of coal and the props was filled with coal and waste material to a height varying from one to five feet, and that there was no clear space of three feet' between the props and a passing ear, nor any place of refuge within twenty yards of the place of accident, pp. 667, 669.</p> <p>12. Master and Servant. — Coal Mine Employes. — Statutory Provisions. — Places of Refuge. — Section 8531 Burns 1914, Acts 1905 p. 65, requiring places of refuge to be provided along single track hauling roads unless there is a clear space of at least three feet between the side of the car and the side of the wall, is to be reasonably interpreted from the standpoint of its purpose to protect miners, and hence where the space between -the ribs of coal and the props on either side of the track is obstructed with debris, the artificial wall rather than the natural one must be deemed the one contemplated by the statute, and if no clear space of at least three feet remains it is the master’s duty to provide the places of refuge, p. 669.</p>

<p>1. Appeal. — Briefs.—Sufficiency.—Where the question presented-arose out of the sustaining of a demurrer for want of facts to each paragraph of complaint, and appellant’s brief set out the substance of each paragraph of complaint, and of the demurrer and " memorandum, so as to indicate clearly the only question presented on the merits of the appeal, the brief was sufficient, even though it did not technically comply with the rules, pp. 672, 673.</p> <p>2. Appeal. — Briefs.—Rules of Court. — Good Faith Compliance.— Rules of court relating to the preparation of briefs are intended to so guide the preparation of briefs as to enable the several members of the court to understand readily the questions presented without resort to the record, and a good faith effort to comply with such rules, sufficient to serve their purpose, will entitle the party to a consideration of the questions presented, p. 672.</p> <p>3. Carriers. — Carriage of Passengers. — Contract.—Duty to Transport Personal Effects and Money of Passenger. — A carrier’s contract to transport a passenger carries with it the duty of transporting a reasonable amount of personal effects and hand luggage, such as is. usually taken by travelers for their personal use, including a reasonable amount of money for traveling and incidental expenses, and articles of personal convenience, pleasure and comfort as are reasonably suitable to the passenger’s station in life, the journey he is making and possible accidents, sickness and sojourning on the way, for which a reasonably prudent man under the circumstances would provide, p. 675.</p> <p>4. Carriers. — Carriage of Passengers. — Transportation of Passenger’s Personal Effects and Money. — Duty of Carrier. — Where the personal effects and money belonging to a passenger are delivered into the custody of the carrier for transportation it becomes liable therefor as an insurer, and its duty with reference to personal effects retained in the passenger’s possession and control is to exercise reasonable care to protect the same from loss or injury; but the rule of liability in the latter instance does not extend to large sums of money or property of exceptional value retained by the passenger without the knowledge of the carrier, nor to a loss resulting from the passenger’s own negligence, p. 676.</p> <p>5. Carriers. — Carriage of Passengers. — Robbery of Passenger.— Liability. — Jury Question. — Where the complaint against a carrier by a passenger who was robbed of a large sum of money, alleged that plaintiff was robbed in full view of defendant’s conductor and under circumstances which would have enabled him to have interfered and prevented the loss, his failure to do so was a failure to use ordinary care which would render the defendant liable for the loss of so much of plaintiff’s money as was included within the contract of carriage; the amount being for the determination of the jury under proper instruction, p. 677.</p>

<p>From Superior Court of Marion County (89,894); Charles J. Orbison, Judge.</p> <p>Action by Claud Doan against E. C. Atkins & Company. From a judgment .for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.),</p>

<p>1. Appeal. — Assignment of Errors. — Waiver.—Error assigned on the overruling of a motion to quash, a notice in a drainage proceeding was waived by appellant’s failure to present any question in relation thereto in its brief, p. 682.</p> <p>2. Deains. — Statutes.—Constitutionality.—Section 6143 Burns 1914, Acts 1907 p. 508, §4, relating to remonstrances in drainage proceedings, and providing that on the making of the drainage commissioner’s report “ten days * * * shall be allowed to the owner of any lands affected by the work proposed and reported benefited or damaged, to remonstrate against the report”, and specifying as one of the grounds for remonstrance that the report is not according to law, etc., does not preclude the owner of land affected, but not reported as benefited or damaged, from remonstrating or filing a claim for [damages; hence, the drainage act embracing such section is not unconstitutional on the ground that it denies the right of remonstrance to the owner of lands affected but not reported as benefited or damaged, pp. 683, 685.</p> <p>3. Statutes. — Amendments.—Adoption of Prior Construction.— Where a statute has undergone several amendments and reenactments, the latest is deemed to embody previous constructions by the court unless a contrary intent is manifest, p. 685.</p> <p>4. Drains. — Establishment.—Police Power. — Eminent Domain.— 'The drainage act constitutes a legislative exercise of the police power, and is not an exercise of the power -of eminent domain. p. 686.</p> <p>5. Drains. — Establishment. — Appeal. — Questions Beviewable.- — • Where appellant, whose lands were affected by a drainage proceeding, but were not reported as benefited or damaged, made no claim for damages in the trial court, it was in no position to complain of the trial court’s failure to award damages, p. 686.</p>

From Huntington Circuit Court; Samuel E. Cook, Judge. Action by George W. James, as trustee of Dallas Township, Huntington County, against William F. Wise and others. From a judgment for plaintiff, the defendants appeal, and subsequently Samuel McKeever, successor in office to James, was substituted as appellee.

<p>From Morgan Circuit Court; Nathan A. Whitaker, Judge.</p> <p>Action by Chester P. Barnett against the Dan-ville Trust Company and others. • From a judgment for plaintiff, the defendants appeal.</p>

From Superior Court of Marion County (88,419); Charles J. Orbison, Judge. Action by Anna Ketelsen against Fred D. Stilz and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Pleading. — Answer in Abatement. — Motion to Strike Out. — A motion to strike out will not perform the office of a demurrer for want of facts, and the sustaining of such a motion with respect to an answer in abatement containing allegations that are pertinent and relevant to the issues, even though it is insufficient as against a demurrer, is error; but such error is not ground for reversal where the pleading could not have been made sufficient to abate the action, p. 713.</p> <p>2. Drains. — Proceedings to Establish. — Amendment of Petition.— Answer in Abatement. — Under §6141 Burns 1914, Acts 1907 p. 508, authorizing the institution of a drainage proceeding by filing a petition which, among other things, shall describe the lands believed to be. affected and give the names of the owners thereof, if known, or, if unknown, state such fact, and §6142 Burns 1914, Acts 1907 p. 508, providing for the amendment of a petition which, as originally filed, is defective, an amended petition relates back to the commencement of' the proceeding; hence, where an original petition was defective in failing to state the names of the owners of lands which would be affected, and was later amended so as to state them, an answer in abatement for want of jurisdiction would not lie. (Troyer v. Dyar [1885], 102 Ind. 396, distinguished.) p. 714.</p> <p>3. Drains. — Proceedings to Establish. — Redocketing.—Remonstrances. —Upon the amendment of a drainage petition under §6142 Burns 1914, Acts 1907 p'. 508, so as to state the names of owners whose lands are affected, and who were not named in the original petition, a redocketing of the proceeding is not required on the theory that the parties are entitled to file a two-thirds remonstrance, since under the provisions of the section that within twenty days after the docketing of a drainage proceeding a remonstrance may be filed by “two-thirds in number of the landowners named as such in the petition, or who may be affected by any assessment or damages”, ' a fair chance to be heard is given to all persons whose lands were affected, whether named in the original petition or not. p. 716.</p> <p>4. Drains. — Proceedings to Establish. — Evidence.-—Although §6151 Burns 1914, Acts 1907 p. 508, makes the report of the drainage commissioners admissible in evidence in proceedings commenced before the board of county commissioners, without any express provision making such reports competent evidence in eases commenced in the circuit or superior court, they are admissible in the latter class of proceedings also. p. 718.</p>

<p>1. Railroads. — Relief Associations. — Recovery of Payments.- — Abatement of Action. — Where the effect of a railroad employe’s action to recover money withheld from his salary for the payment of dues to a relief association maintained by defendant is to challenge the validity of-the entire institution the action could not be abated on the theory that plaintiff should first have submitted his claim to defendant’s superintendent and then, in the event of an adverse decision should have appealed to the operating committee pursuant to certain rules of the relief department, before taking the matter in court, p. 721.</p> <p>2. Railroads. — Service of Summons. — Return.—A return of summons in an action against a railroad company showing service on a certain agent of defendant, who was the highest officer of defendant found in the county, was unobjectionable for failure to show that no higher officer could be found, p. 721.</p>

<p>From Owen Circuit Court; James B. Wilson, Judge.</p> <p>Action by Vito Solomito against the Metropolitan Life Insurance Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

From Kosciusko Circuit Court: Francis E. Bowser, Judge. Action by Eliza M. TJlslL on a claim against the estate of Isaac Caldwell, deceased. From a judgment for plaintiff, William Caldwell, executor of the last will of decedent, appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

<p>From Superior Court of Marion County (87,274); John J. Rockford, Judge.</p> <p>Action by Frank Wallace against Michael Costello and another. From a judgment for plaintiff, defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

From Elkhart Circuit Court; James S. Drake, Judge. Proceedings on the applications of Patrick Galvin and others for licenses to sell intoxicating liquors. From the judgment rendered, the applicants appeal.

<p>From Clay Circuit Court; John M. Rawley, Judge. Action by tbe School City of Terre Haute against Harrison School Township of Vigo County, From a judgment for defendant, the plaintiff appeals.</p>

<p>From Lake.Superior Court; Virgil S. Reiter, Judge.</p> <p>Prosecution by the State of Indiana against Andrew Olim. From a judgment of conviction, the defendant appeals.</p>

<p>From Marion Circuit Court (20,672); Charles Remster, Judge.</p> <p>Action by the Indiana Board of Pharmacy against Louis E. Haag. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellant Court under §1397 Burns 1914, Acts 1901 p. 565.)</p>

<p>From Clay Circuit Court; John M. Rawley, Judge.</p> <p>Action by the School- City of Terre Haute against Honey Creek School Township. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action between Ira Landis and others, and Henry Mitchell and others, and from a judgment for Mitchell and others, this appeal is prosecuted. (Transferred from the Appellate Court under §1405 Bums 1914, Acts 1901 p. 590.)</p>