Volume 185 — Indiana Reports

From Adams Circuit Court; James P. Merry-man, Judge. Action by Lucinda Branyan and others against Aseal Brookover and others. From a judgment for plaintiffs, the defendants appeal. (Transferred from Appellate Court under §1405 Bums 1914, Acts 1901 p. 590.)

<p>1. Eminent Domain. — Assessment of Damages. — Trial on Exceptions -to Report. — Right to Open and Close. — Where, in an action to assess damages for the appropriation of land, exceptions to the report of appraisers have been filed and an appeal taken to the circuit court by both parties, the landowner has the right to open and close, p. 10.</p> <p>2. Eminent Domain. — Condemnation Proceedings. — Damages.— Elements Included in Assessment. — In condemnation proceedings it is the general rule that all damages, present or prospective, that are the natural or reasonable incident of the improvement to be made or work to be constructed, not including such as may arise from negligence or unskillfulness or from the wrongful act of those engaged in the work, must be assessed, p. 10.</p> <p>3. Eminent Domain. — Damage from Flowage. — Evidence.—In an' action to assess the damages to lands appropriated by a power company for flowage from a dam, evidence as to the method of tiling wet lands and as to the difficulty of tiling the land affected by backwater from the dam was competent on the question of damages for the purpose of showing that the moist condition of the subsoil of the lands affected by the backwater could not be readily overcome by drainage, p. 11.</p>

From the Marion Superior Court (90,019); Charles J. Orbison, Judge. Action by' The Cleveland, Cincinnati, Chicago and St. Louis Bailway Company against the Talge Mahogany Company. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Criminal Law. — Appeal-.—Rulings on Evidence. — Bill of Ex- , ceptions. — Exceptions taken to the admission or exclusion of evidence and presented to the trial court as cause for a new trial must, when presented on appeal for review, be shown by a bill of exceptions, p. 16.</p> <p>2. Criminal Law. — Appeal.—Instructions.—Bill of Exceptions.— Instructions in a criminal ease will not be considered on appeal unless they are brought into the record by a bill of exceptions. p. 16.</p> <p>3. Criminal Law. — Appeal.—Record.—Where, following the record entries in a transcript on appeal, there appears the certificate of the clerk with his signature and the seal of the court attached thereto authenticating the transcript and, following the certificate and attached to the transcript of the record, there appears what purports to be the original bill of exceptions containing the evidence and a bill of exceptions containing the instructions, but it does not appear, other than by the file mark of the clerk on each of the bills, that they were ever filed with the clerk after having been signed by the judge as required by §2163 Burüs 1914, Acts 1905 p. 647, such bills are not in the record, p. 17.</p> <p>4. Criminal Law.- — Appeal.—Record.—Bill of Exceptions. — Certificate ■ of Clerk. — In a transcript on appeal the clerk’s certificate should not precede a bill of exceptions, which it is sought to have made a part of the record, but it should be at the conclusion of the transcript, and it should authenticate the bill as well as the other matters in the record, p. 17. ■</p>

From Howard Circuit Court; William C. Purdum, Judge. Action by Frank Loy against tbe city of Kokomo. From a judgment for plaintiff, tbe defendant appeals. (Transferred from tbe Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

<p>Appeal. — Briefs.—Requisites and Sufficiency. — Under Rule 22 of the Supreme and Appellate Courts requiring that appellant’s brief shall contain, under a separate heading of each error relied on, separately numbered propositions and points, stated, concisely and -without argument or elaboration, together with the authorities relied on to support such propositions, a brief fails to comply with such rule and therefore presents no question for review where it states that it relies for reversal on four of the errors assigned, and in that portion of the brief designated as “Points and Authorities’* cites numerous propositions of law without any attempt to classify them under the various heads.</p>

<p>1. Master and Servant. — Injury to Employe. — Sufficiency of Complaint. — Negligence.—In an action for damages for personal injuries where the complaint alleged that defendant called plaintiff from his regular employment as a common laborer and required him to assist in lowering a large pipe from a boiler to the ground, the work being performed under the supervision of defendant’s superintendent, who at the time was acting within the scope of his authority and whose directions plaintiff was obliged to follow; that plaintiff was directed to work in a place defendant knew to be unsafe, which unsafe condition could not have been discovered by plaintiff by the use of ordinary care; that the defendant was guilty of negligence in the manner particularly alleged and that the plaintiff was free from fault contributing to his injury, such com- • ' plaint is sufficient to state a cause of action for negligence, p. 32.</p> <p>2. Appeal. — Harmless Error. — Complaint.—Overruling Motion to Separate into Paragraphs. — There was no reversible error in overruling a motion to separate the complaint into paragraphs, p. 32.</p> <p>3. Trial. — Verdict.—Answers to Interrogatories. — Control of Verdict. — The general verdict will be sustained unless the answers to interrogatories are in irreconcilable conflict therewith, p. 32.</p> <p>4. Trial. — Negligence.—Instructions.—Cure by Other Instructions.— An instruction that negligence consists in doing a thing that a reasonably prudent man would not do or in failing to do what a reasonably prudent man would do when required to act, while not a complete and comprehensive definition of negligence, is not objectionable as confining negligence to such acts only as are performed when the person charged with the same is required to act, and excusing him from negligence when his acts are voluntary, and such instruction could not have misled the jury to defendant’s harm, as the court fully instructed the jury as to what would constitute negligence and contributory negligence under the facts in the ease. p. 33.</p> <p>5. Damages. — Excessive Damages. — Damages are not deemed excessive unless at first blush they -appear to be so, or it is apparent that some improper element was taken into account by the jury in determining the amount, p. 33.</p>

<p>Appeal. — Reservation of Grounds of Review. — Exceptions.—Grounds.— An assignment of error that the trial court erred in certain conclusions of law because certain findings of fact were not sustained by sufficient evidence presents no question for appellate consideration since exceptions to conclusions of law assume that the facts were correctly found.</p>

<p>From Lawrence Circuit Court; Oren O. Swails Judge, .</p> <p>Action by the Southern Indiana Power Company-against Edmund J. Miller. From a judgment for defendant, the plaintiff appeals.</p>

From Steuben Circuit Court; Frank M. Powers, Judge. Action by Arthur G. Hight against Arthur E. Carr. From a ruling on demurrers to answers overruled in part and sustained in part, plaintiff appeals, and defendant takes a cross-appeal.

From Lake Superior Court; Johannes Kopelke, Judge. Action by Rose M. Boring, Administratrix of the estate of Ervie E. Boring, deceased, against the Chicago and Erie Railroad Company. From a judgment for defendant, the plaintiff appeals. (Transferred from Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>Criminal Law. — Statutes.—Repeal.—Liabilities.—Where the legislarture, while the defendant was awaiting trial on an indictment for burglary, enacted a new law reducing the penalty fixed for such offense by the statute then in force, such statute remained in effect for the purposes of the prosecution and the trial court properly imposed the penalty provided therein, since §248 Burns 1914, §248 R. S. 1881, provides that the repeal of a statute does not release or extinguish any liability incurred thereunder, unless the repealing statute clearly so provides.</p>

<p>1. Criminal Law. — Appeal.—Harmless Error. — Overruling Challenge of Juror. — Error, if any, predicated on the action of the trial court in overruling a challenge of a juror for cause, was harmless where the defendant had not exhausted his peremptory challenges, p. 53.</p> <p>2. Criminal Law.- — Appeal.—Record.—Matters Presented for Review. — An assignment of error that the trial court erred in permitting witnesses to be interrogated concerning certain facts presents no question for review by the appellate tribunal, where the record fails to show what answers were given or that the questions were even answered. p.-53.</p> <p>3. Criminal Law. — Witnesses.—Evidence.—Cross-examination of Defendant. — Impeachment.—Where, in a prosecution for keeping a blind tiger, the defendant on cross-examination denied that he had been convicted some three years before on a charge of maintaining a nuisance, it was error for the trial court to permit the state to offer in evidence the record of the indictment for such offense and the judgment of conviction in the trial thereon, since, while the trial court may in its discretion permit a defendant in a criminal ease to be interrogated on cross-examination, as to specific, extraneous offenses and conduct tending to degrade him for the purpose of impairing his credibility, the party propounding the interrogatory is bound by the answer the witness gives, and will not be permitted to introduce'contradictory substantive evidence which does not relate to the charges in the trial or which has no probative value in establishing the facts involved within the issues, pp. 54,55.</p> <p>4. Criminal Law. — Evidence.—Other Offenses. — Intent or Motive.- — ■ Evidence of other offenses is competent to prove intent where it is the gravamen of the offense charged, but in a prosecution for unlawfully keeping a place .where intoxicating liquors are sold or given away intent need not be shown, as it will be inferred from the act. p. 55.</p> <p>5. Criminal Law. — Appeal.—Improper Evidence. — Presumption.— Where improper evidence has been admitted, it will be presumed to be harmful, unless the contrary is made to appear, p. 55. '</p>

<p>From Miami Circuit Court; Joseph N. Tillett, Special Judge.</p> <p>Prosecution by the State of Indiana against Frank Hann. From a judgment of conviction, the defendant appeals.</p>

<p>Carriers. — Delay in Shipment of Goods. — Connecting Carriers. — - Notice. — Liability.—Where a railroad company contracts to transport freight to a point beyond its own line, it constitutes the connecting carrier its agent for the transportation of such freight, so that notice to the connecting carrier, upon which notice is predicated an action for damages, is notice to the contracting carrier, and it is liable, in so far as liability attaches to the receipt of such notice.</p>

From Starke Circuit Court; A. D. Bartholomew, Special Judge. Proceedings on the petition of Rudolph D. Kline and others for the establishment of a levee. From a judgment referring the preliminary report back to the county commissioners for a final report, John B. Newtson and others appeal.

From Carroll Circuit Court; James P. Wason, Judge. Proceedings by Carl W. Sims and. others against the acceptance of a road improvement. From a dismissal of an appeal to the circuit court from the order of the Board of Commissioners of Clinton county, the Frankfort Construction Company appeals.

<p>From Wells Circuit Court; William II. Eichhorn, Judge.</p> <p>Action by Adeline Smith against Joseph W. Smith. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1429 Burns 1914, Acts 1893 p. 29).</p>

From Wells Circuit Court; William H. Eichhorn, Judge. Action by Glen Keplinger against John A. Keplinger and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1394, cl. 2, Burns 1914, Acts 1901 p. 565.)

<p>1. Teial. — By Court. — Failure to Find. — Effect.—It is the province of the trial court to draw the proper inference from the facts proved and thus to find the ultimate or inferential fact, and the failure to find the ultimate fact must be deemed a finding against the party having the burden of proof, p. 93. ■</p> <p>2. Evidence. — Presumptions.—Confidential Relations. — Undue Influence. — In certain legal and domestic relations such as attorney and client, principal and agent, husband and wife, and parent and child, the law raises a presumption of trust and confidence on one side and a corresponding influence on the other, and where one occupying the superior position in such a relation deals with the other so as to obtain a substantial advantage, the law will-presume that improper influence was exerted and that the transaction is fraudulent, p. 93.</p> <p>3. Evidence. — Presumptions.—Undue Influence. — The presumption of undue influence indulged in where a substantial advantage is obtained by one holding the superior position, in a legal or domestic relation of trust or confidence, arises from the fact of such relation alone, proof of which establishes prima facie that the dominant party to such relation occupies a position of trust and confidence which he must not abuse, p. 94.</p> <p>4. Evidence. — Confidential Relations. — Undue Influence. — Presumptions. — To Whom Applied. — The rule that where one occupying the superior position in a legal or domestic relation of trust or confidence obtains a substantial advantage he is presumed to have exerted undue influence is invoked only as against the one who is assumed to be the dominant party in the relationship shown, p. 94.</p> <p>5. Evidence. — Presumptions.—Undue Influence. — Parent and Child. —In the relation of parent and child the presumption, as to the exercise of undue influence in obtaining a substantial advantage is applied only against the parent, since, in such relationship, he is assumed to be the dominant party, and where one seeks to show that the child is the dominant party, he must produce substantive evidence from which such fact may be inferred, p. 94.</p> <p>6. Deeds. — Validity.—Undue Influence. — Presumptions.—No presumption of invalidity because of the exercise of undue influence arises from the fact that a father conveyed all his real estate to his son without consideration, and in the absence of a finding that the son exerted undue influence over, or perpetrated fraud upon, the parent, the deed cannot be set aside as having been obtained by fraud or undue influence, pp. 95, 98.</p> <p>7. Tettsts. — Oral Trusts. — Statute.—Under §4012 Burns 1914, §2969 R. S. 1881, providing that no trust concerning lands, except those arising by implication of law, shall be created unless in writing, signed by the party creating the same, or' by his attorney thereto lawfully authorized in writing, an express parol trust cannot be ‘impressed upon lands conveyed by a deed absolute on its face. p. 96.</p> <p>8. —Teusts.—Constructive Trusts. — Statute.—Constructive trusts, since they arise by implication of law, do not come within the operation of §4012 Burns 1914, §2969 R. S. 1881, providing that no trust concerning lands shall be created unless in writing, except such as may arise by implication of law. p. 97.</p> <p>9. Tettsts. — Constructive Trusts. — Fraud.—A constructive trust arises where the transaction involved is tainted with fraud, actual or constructive, and in such eases equity will construct a trust to do justice to the parties affected by the fraudulent transaction, pp. 97, 98.</p> <p>10. Teusts. — Constructive Trusts. — Fraud.—A parol agreement to hold land in. trust will not be enforced primarily as such, but where the original transaction, in which the deed to the land was obtained, was tainted with fraud, or the conveyance obtained by undue influence, courts, in the exercise of their chancery powers, will construct a trust and hold the wrongdoer responsible as trustee, p. 97.</p> <p>11. Deeds. — Validity.—Fraud.—Effect.—Where fraud is inherent in a transaction which results in the execution of a deed, such fraud renders the whole contract, including the deed, voidable, p. 97.</p> <p>12. Teusts. — Constructive Trusts. — Fraud.—Where fraud is in-inherent in a transaction resulting in the execution of a deed given with a parol trust agreement, equity will either set aside the deed and contract, when such action will satisfy the equitable requirements of the situation, or it will construct such a trust, with the fraudulent grantee as trustee maleficio, as will subserve, ■ under the circumstances of the particular case involved, the ends of justice and fair dealing, p. 97.</p> <p>13. Teusts. — Constructive Trusts. — Fraud.—Evidence.—Parol Agreement. — In determining whether a transaction resulting in the conveyance of land is so tainted with fraud as to warrant the court in establishing a constructive trust to protect the interest of those concerned, a parol agreement between the grantor and the grantee concerning the disposition of the land may be considered as an element in determining the question of fraud, p. 98.</p> <p>14. Trusts. — Constructive Trusts. — Fraud.—Oral Agreement to Hold Land in Trust. — Breach.—A constructive trust cannot be declared unless the facts found are sufficient to show actual or constructive fraud, and the mere fact that a grantee in a deed absolute on its face orally agreed to hold the land in whole or in part for the benefit of another, and that he later refused to carry out such agreement, does not constitute such fraud as will justify a court in declaring and enforcing a constructive trust, p. 99.</p> <p>15. Trusts. — Constructive Trusts. — Evidence.—Sufficiency.—The fact that a father reposed confidence in a son to whom he conveyed land without consideration, under grantee’s oral promise to hold the land in trust for another, is insufficient to show such fraud as will warrant a court of equity in declaring a constructive trust,. where there was no finding either that the son abused such confidence so as to improperly influence, mislead or overreach the father, or that their relations were such that the exercise of improper influence could be presumed, or that the grantee, at the time of the conveyance, had formed the purpose to obtain the land for his own benefit and that he entered into the oral agreement to deceive the grantor as to his purpose and to secure the execution of the deed. p. 100.</p> <p>16. Trial. — Findings of Fact. — Facts not Found. — Effect.—Facts not found, in a special finding amount to a finding, as to such omitted facts, against the party having the burden of proof. p. 102.</p> <p>17. Trusts. — Constructive Trusts. — Burden of Proof. — Evidence.— Where land has been conveyed under an oral agreement to hold in trust and there has been a failure to comply with such agreement, the burden rests upon those seeking to establish a con- • structive trust to show fraud or undue influence as inherent in the contract resulting in the conveyance, p. 102.</p> <p>18. Deeds.— Validity. — Fraud.— Undue Influence. — Evidence.— Parol Agreement to Hold in Trust. — Statute.—In an action, to establish an interest in lands conveyed wdthout consideration by father to a son, under an oral promise to hold in trust for the plaintiffs, where the facts found do not show fraud or undue influence inherent in the transaction coexistent with, or antecedent to, the execution of the deed, nor is fraud or undue influence a necessary inference from such facts as found, the deed is not voidable, and the parol trust attempted to be engrafted thereon fails, since it falls clearly within the inhibition of the statute (§4012 Bums 1914, §2969 R. S. 1881). p. 102.</p>

<p>From Henry Circuit Court; Fred C. Gause, Judge.</p> <p>Action by the South Park Floral Company against the City of Newcastle, Indiana, and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Elections. — Ballots.—Manner of Marking. — Distinguishing Marks. — While the provision of the statute (§6934 Bums 1914, as amended Acts 1909 p. 162), declaring that any distinguishing mark appearing on a ballot shall render it void, is mandatory, yet the courts will not adopt a strict and technical view in determining what constitutes a distinguishing mark, and the intention of the voter will be given effect if it is apparent that he has made an honest effort to, and does substantially, comply with the law in the preparation of his ballot, p. 111.</p> <p>2. Elections.- — Ballots.—Manner of Marking. — Distinguishing Marks. — Validity.—On the authority of the rule announced in Borders v. Williams, 155 Ind. 36, and followed in Lewis v. State, ex rel., 184 Ind. 99, construing § §3 and 7 of the Act of 1897 (§§6927, 6934 Burns 1914, Acts 1897 p. 49), on the subject of marking ballots, ballots marked in a square at the left of a space where no candidate’s name appears are not invalid as bearing a distinguishing mark within the terms of the statute, and should be counted as legal ballots, p. 111.</p> <p>3. Elections. — Ballots.—Distinguishing Marks. — Form of Marks.— Under §§6927, 6934 Burns 1914, Acts 1897 p. 49, providing the manner of marlring ballots and declaring what shall be deemed distinguishing marks, a voter marking his ballot in the proper space by an imperfectly formed cross will not be deprived of his vote by reason thereof although such manner of marking does not strictly comply with the law, since a substantial compliance with the statute is all that is required, p. 112.</p> <p>4. Elections. — Ballots.—Distinguishing Marks. — Slight pencil lines or dots appearing on the face of a ballot are not distinguishing marks such as will render a ballot void under §6934 Bums 1914, Acts 1897 p. 49, where such marks are óf a character that it is apparent that they were made by accident, p. 113.</p>

From Yigo Superior Court; Fred W. Beal, Judge. Action by James G. Matheny against the General Motors Oil Company for the appointment of a receiver. From an order appointing a receiver, the defendant appeals.

<p>From Blackford Circuit Court; William H. Eichhorn, Judge.</p> <p>Prosecution by the State of Indiana against Bessie Robinson. From a judgment of conviction, the defendant appeals.</p>

From Kosciusko Circuit Court; Francis E. Bowser, Judge. Action by James H. Matebett against The Winona* Assembly and Summer School Association and John F. Beyer and others as sureties. From a judgment for plaintiff against the party first named and in favor of the sureties, the plaintiff appeals.

<p>1. Appeal. — Dismissal.—Waiver of Bight. — Briefs.—Where appellee has, prior to filing a motion to dismiss the appeal, applied for and obtained an extension of time in which to file his brief, he thereby waived his right to ask for a dismissal of the proceedings, since Rule 21! of the Supreme Court provides that extensions of time to file briefs will be granted only on petition showing that all motions to dismiss on behalf of the petitioner have been filed, p. 141.</p> <p>2. 'Mandamus. — Complaint.—Sufficiency.—In an action by a contractor to compel the sale of bonds of a school township to provide funds for the construction of a new school building to take the place of an old one, the complaint is not insufficient assailing to show that the building was being erected on land owned by the township where it is fairly inferable from the pleading that the new bmlding was being erected on the site of the old. p. 143.</p> <p>3. Mandamus. — Action at Law. — Adequacy.—An action may .be maintained to compel the sale of bonds of a school township to provide funds to pay the contractor erecting a school building, even though a judgment on the building contract might be obtained, since the judgment could not be enforced until provision be made for its payment, p. 143.</p> <p>4. Mandamus. — Complaint.—Sale of Bonds. — In an action by a contractor to compel the sale of bonds to provide funds for the construction of a school building, the complaint need not show that the amount due the relator under the contract has been ascertained by an officer properly authorized, since the purpose of the action is not to enforce payment to the contractor, but to compel the performance of the purely ministerial duty of selling authorized bonds, and the.judgment would not prejudice the township trustee in defending the school corporation against improper claims, p. 143.</p> <p>5. Pleading. — Complaint.—Exhibit.—Action for Writ of Mandamus. — In an action by a contractor to mandate the sale of bonds by a school township, a complaint alleging the execution and acceptance of the contractor’s bond is not defective because a copy of the bond filed with the complaint as an exhibit failed to show the signature of the surety, since the action was not founded on the bond and it in no way controlled or affected the pleading to which it was attached, p. 144.</p> <p>6. Schools and School Disteicts. — Buildings.—Location.— Statute. — Construction.—The act of 1911 (§6616a Bums 1914, Acts 1911 p. 118), as amended Acts 1913 p. 605, regulating the location of sites and buildings for school purposes, applies only to sites acquired after its enactment and does not prohibit the erection of school buildings on locations acquired prior thereto: p. 144.</p> <p>7. Statutes. — Re-enactment.—Construction.—■Adoption of Construction. — The re-enactment of a statute, after it has received judicial construction, is usually deemed to be a legislative adoption of such construction, unless the contrary is shown by the act itself, p. 144.</p> <p>8. Words and Phrases. — “Said”.—Ordinarily, where the word “said” is used as- one of reference, and there is a contention as to which of two or more antecedents it was intended to apply, it will be held to refer to the last. p. 146.</p> <p>9. Pleading. — Conclusions of Law. — An allegation in a pleading that certain proceedings were not recorded or signed “as provided by law” is merely the statement of a conclusion of law and is not the averment of an issuable fact. p. 146.</p> <p>10. Schools and School Districts. — Contracts.—Advisory Board. —Statute.—Under §9598 Burns 1914, Acts 1899 p. 156, concerning the letting of contracts for school buildings and supplies, the township advisory board is merely authorized, when contracts are to be let,'to advise with the township trustee and'to reject any and all bids; while the trustee is empowered to determine what bid he will accept from among those not rejected, and, when accepted, he must execute the contract and approve the contractor’s bond, p. 146.</p> <p>11. Schools and School Districts.- — School Buildings. — Acts of School Officers. — Judicial Review. — The power of selecting sites and determining the size and cost of school buildings is vested in the school officers, and their determination of such matters is not subject to judicial review, p. 147.</p>

<p>1. Criminal Law. — Conspiracy.—Declaration of Coconspirator.— Admission of Improper Evidence. — Presumption of Prejudice.— On a prosecution for conspiracy to commit a felony, statements made by one of the coconspirators after the consummation of the alleged conspiracy, and in the absence of the defendant, are inadmissible, except against the person making them, and the error in admitting such statements is presumed to be harmful until the contrary is shown, p. 149.</p> <p>2. Criminal Law. — Conspiracy.—Evidence.—Other Offenses. — In a prosecution for conspiracy to commit a felony, evidence that the defendant had entered into similar conspiracies with others than those named with him in the indictment is inadmissible, p. 150.</p>

From Montgomery Circuit Court; Je-re Wtst, Judge. Proceedings on petition of Marion Davis and otters to establish a highway and bridge. Objections by Roy Wells and others to the report of the viewers, were overruled, and they appeal.

From Madison Circuit Court; Charles K. Bagot, Judge. Action by Lucy M. Troyer and others against the Crown Oil Company and others, with a cross-complaint by defendant Crown Oil Company to quiet title, and against David Bryson and others for damages. Judgment for defendant Crown Oil Company against plaintiffs and against David A. Bryson and others for damages, and Bryson and others appeal.

<p>1. Appeal. — Review.—Evidence.—Sufficiency.—In determining the sufficiency of the evidence to support the verdict, the court on appeal will consider only the evidence most favorable to appellee, p. 165.</p> <p>2. Negligence. — Collision on Streets. — Evidence.—In an action for damages for personal injuries to the rider of a motorcycle in collision with an automobile at a street crossing, where there was evidence to show that the rider of the motorcycle was proceeding north along the right side of a public street at a speed of eight or ten miles per hour, and, as he was crossing an intersecting street, defendant, driving an automobile south, “cut” the northeast comer at a speed of twenty-five or thirty miles per hour and turned into the intersecting street on the left side thereof, striking plaintiff’s motorcycle at a point two or three feet from the north curb of the intersecting street, the jury was warranted in finding the defendant guilty of negligence, p. 167.</p> <p>3. Negligence. — Automobiles.'—Use of Streets. — Duty of Driver.— Ordinary Care. — One driving an automobile along a public street is bound to use ordinary care to avoid collision with, and injury to, others in approaching and turning into an intersecting street; and one who fails, in turning a street corner, to observe this duty is guilty of negligence, regardless of whether the manner in whifeh he drives the automobile into the intersecting street is prohibited by any law of the road or special traffic regulation, p. 167.</p> <p>4. Negligence. — Automobiles.—Use of Streets. — Degree of Care Required. — One injured by a collision with an automobile while riding along a public street, in the exercise of due care, is not bound, to absolve himself from contributory negligence, to anticipate that another, in an approaching automobile, will fail.to use reasonable care in turning into an intersecting street, p. 167.</p> <p>5. Negligence. — Automobiles.—Use of Street. — Law of the Road. — ■ In the absence of special statutory regulations, automobiles are governed by the same mies of the road as apply to other vehicles using a street or highway; and a driver of an automobile is required, in fulfilling the common-law duty of using due care, to keep to the right when passing other vehicles, and this rule applies at street intersections, p. 169.</p> <p>6. Damages. — Instructions.-—Measure of Damages.- — In an action for damages for personal injuries, where the complaint contained no allegation entitling plaintiff to recover for hospital and doctor’s fees, but there was some evidence as to such expenses, an instruction that, if the jury found for the plaintiff, it should assess damages to compensate the plaintiff for injuries sustained “as charged in ■the complaint” and further stated that the jury might assess damages “ from all the evidence in the case relating to his said injury and bearing upon Ms damages” and make an award that would “fairly compensate the plaintiff for the injuries so sustained,” is not objectionable as authorizing an allowance for hospital and doctor’s bills, since the instruction expressly limits the recovery in. damages to the injuries charged in the complaint, p. 170.</p> <p>7. Trial. — -Verdict.—Surplusage.—Venire de Novo. — Where, in an action for damages for personal injury under a complaint that did not place in issue the recovery of plaintiff’s hospital and doctor’s fees, the jury awarded damages in a stipulated amount and included in the verdict a finding that the defendant should assume all expenses of plaintiff incurred at the hospital, it was proper for the trial court to disregard such finding as surplusage and to overrule a motion for a venire de novo. p. 171. -</p>

<p>1. Appeal. — Vacation Appeal. — Parties.—Where a vacation appeal is taken from a judgment in rem rendered on issues involving the ' construction of trust deeds and does not question personal judgments which determined only certain matters of costs, those interested only in the judgments for costs are not necessary parties to the appeal, p. 183.</p> <p>2. Mortgages. — Parol Evidence. — Admissibility.—While the rule-that the terms of a written'instrument cannot be varied or contradicted by parol or extrinsic evidence is subject to the exception that a deed absolute on its face, may, in equity, be shown by parol evidence to have been intended to have the effect of a mortgage, yet this exception does not apply where the deed alleged to be a mortgage is but one element in a transaction which has been reduced to writing in its entirety and is evidenced by a memorandum embodying-all of its terms, p. 184.</p> <p>3. Mortgages. — Deed of Trust. — Foreclosure.-—Where lands were conveyed by warranty deeds under an agreement providing, for the advancement of money to pay for improvements on the land and to maintain the property until it could be disposed of, at which time the surplus, if any, should go to the grantor, the conveyance, under the terms of the agreement, constituted an absolute trust and not a mortgage, in the absence of a condition of defeasance providing for a reconveyance to the grantor,,and there could not, therefore, be a foreclosure, p. 184.</p>

<p>Criminal Law. — Improvident Plea of Guilty. — Relief.-—-Writ of Coram Nobis. — That an improvident plea of guilty has been unjustly procured from one accused of crime could not form the basis of a motion for a new trial, since it is not among the causes therefor . enumerated in the statute (§2158 Burns 1914, Acts 1905 p. 584), the proper remedy to secure relief, under such circumstances, being a proceeding in the nature of a writ of coram nobis.</p>

<p>Elections. — Ballots.—Marks.— Validity. — Under §§6927, 6934 Burns 1914, Acts 1897 p. 49, on the subject of marking ballots, ballots marked with a cross in a square opposite the title of an office for which the name of no candidate appears are not invalid as bearing distinguishing marks, and should be counted, where it is apparent that such marks were not made with fraudulent intent and where such ballots are otherwise regular.</p>

<p>1. Courts. — Original Jurisdiction of Supreme Court. — Mandamus.— Statute. — In construing the act of 1915 (Acts 1915 p. 207), providing that writs of mandate may issue out of the Supreme and Appellate Courts in aid of their appellate powers and functions, and providing further that “such writs of mandate” may issue out of such courts to circuit, superior or criminal courts to compel such inferior tribunals to perform any duty enjoined by law, the word “such”, as used in the second proviso, does not so modify the words “writ of mandate” immediately following as to limit the meaning of the words “writs of mandate” in the second proviso to the writs of mandate previously provided in aid of the appellate powers and functions of'the Supreme and Appellate Courts, p. 196.</p> <p>2. Statutes. — Construction.—A statute should be so construed as to give effect to all parts thereof if such a construction can be reasonably and properly given, p. 197.</p> <p>3. Statutes. — Construction.—Particular and General Words. — Ejusdem Generis.- — In construing the act of 1915 (Acts 1915 p. 207), providing that the Supreme and Appellate Courts may issue writs of mandate in aid of their appellate powers and functions and providing further that such writs of mandate may issue out of such courts to circuit, superior or criminal courts, compelling the performance of any duty enjoined by law upon such inferior tribunals, “including the'granting of changes of venue,” the words “including the granting of changes of venue” do not, under the doctrine of ejusdem generis, limit the power of the Supreme Court to issuing writs of mandate only to compel changes of venne, since such doctrine does not apply when a general class is followed by a clause including a particular class, and where the general words must bear a different meaning or be of no meaning whatever, p. 197.</p> <p>4. Statutes. — Construction.-—-Change in Wording. — A change of legislative purpose will be presumed from a material change in the wording of a statute, p. 197.</p> <p>5. Statutes. — -Title.—The title of the act of 1915 (Acts 1915 p. 207), concerning the issuance of writs of mandate and prohibition by the Supreme and Appellate Courts, is sufficient to authorize the provisions thereof, all of which prescribe modes of procedure, p. 198.</p> <p>6. Municipal Corporations. — Street Improvements. — Assessments. —Appeal.—Question for Determination. — On an appeal to the circuit or superior court, under §8716 Burns 1914, Acts 1909 p. 412, 423, from the assessments made in the final assessment roll for the improvement of a street or alley, the only question before the court for determination is whether the assessments of the various property owners should be reduced, p. 202.</p> <p>7. Mandamus. — Street Improvement. — Reduction of Assessment on Appeal. — Duty of Judge. — Statute.—The provision of §8716 Burns 1914, Acts 1909 p. 412, 423, that whenever an assessment for a street improvement is reduced on appeal to the circuit or superior courts from the board of public works’ assessment of benefits that a judgment shall be rendered in favor of the lien holder and against the city for the amount of the reduction and interest, enjoins upon the judge hearing the appeal a purely ministerial duty which is compellable by mandate. pp.’202, 203.</p> <p>8. Courts. — Judge.—Ministerial Duty. — A duty may be ministerial even though the person charged therewith must first find the existence of a state of facts warranting the performance of such duty. p. 203.</p> <p>9. Mandamus. — Adequate Remedy at Law. — Mandamus could issue at the instance of the relator, a street improvement contractor, to compel a judge of a superior court to render a judgment in his favor and against the city for the amount of the reduction of street improvement assessments allowed in a property owner’s appeal, as provided in. §8716 Bums 1914, Acts 1909 p. 412, 423, even though the relator had, as a preliminary to filing the petition for mandamus, attempted to intervene, thereby making the demand on the judge necessary to establish the right to bring action for mandamus, since an appeal from the ruling denying relator’s right to intervene would provide no adequateremedy at law. p. 204.</p> <p>10. Municipal Corporations. — Street Improvement. — Reduction of Assessments. — Entering Judgment for Contractors. — Effect.—Statute. —Compelling a judge of a superior court by mandmus to enter a judgment in favor of a street improvement contractor, as the lienholder, and against the city for the amount of the reduction of street improvement assessments allowed in a property owner’s appeal to the superior court, as provided in §8716 Bums 1914, Acts 1909 p. 412, 423, is not such an adjudication of rights between the city and the contractor as would preclude the city from any defense it might have against the contractor, nor could the judgment rendered in the appeal affect the lien of the contractor or the rights of the property owners against him, since, under the statute (§8716 Burns 1914) the contractor could not be a party to such appeal, p. 204.</p>

<p>1. Trial. — Instruction.—Refusal.—It is not error .to refuse a requested instruction, even though correct, where the subject-matter thereof is fully covered in other instructions given, p. 208.</p> <p>2. Wills. — Resistance of Probate. — Testamentary Capacity.- — Instruction. — In an action to resist the probate of a will, an instruction that sickness and weakness of body do not in themselves disqualify one from making and executing a valid will, nor does mere weakness of mind, whether from sickness or otherwise, disqualify one from making and executing a will, the test being whether a testator possesses sufficient strength of mind and memory to know the extent and value of his property, the names and number of those who are the natural objects of his bounty, their deserts with reference to their conduct and treatment of him, their capacity and necessity, together with a memory strong and active enough to retain such facts in mind long enough to have a will prepared and executed, was not improper when considered in connection with other instructions given which correctly defined testamentary capacity, p. 208.</p> <p>3. Wills. — Testamentary Capacity. — Erroneous Instruction. — Curing by Answers to Interrogatories. — Where, in an action to resist the probate of a will, an instruction, in defining what is meant by such unsoundness of mind as will preclude the making of a valid will, erroneously stated that there must be a lack of each element necessary to constitute testamentary capacity, such error does not, on appeal, warrant a reversal where the jury found, in answer to special interrogatories, that the testator possessed each element necessary to constitute testamentary capacity, thus making it evident that the verdict would have been the same had the instruction been in correct terms, p. 209.</p>

<p>From Marion Criminal Court (44,466); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Laudie Hahn. From a judgment of conviction, the defendant appeals.</p>

From Daviess Circuit Court; James W. Ogdon, Judge. Action by Annie E. Harned, adminstratrix of the estate of Matilda M. Wilson, deceased, and others against Irma Hertford and others. From a judgment for plaintiffs, the defendants appeal.

<p>From Marion Criminal Court (44,567); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Albert F. Buchanan.' From a judgment of conviction, the defendant appeals.</p>

<p>1. Ckiminal Law. — Appeal.—Evidence.—Sufficiency.—In a prosecution for the crime of assault and battery, the finding of the jury, ppon evidence tending to prove each element of the offense charged, that the defendant was guilty is final as to the issues of fact, since the Supreme Court has no power to weigh conflicting evidence, p. 224.</p> <p>2. Criminal Law. — Indictment.—Failure of Prosecuting Attorney to Indorse Approval. — Time for Objections. — While it would have been error for the trial court to have overruled a motion to quash an indictment not properly signed by the prosecuting attorney, yet it is sufficient as to such objection raised for the first time by a motion in arrest of judgment, since an indictment can be attacked after verdict only on the ground that it fails to state facts sufficient to constitute a public offense, p. 225.</p>

<p>Disorderly House. — Frequenting.—Statute.—Separate Offenses.— Evidence. — In a prosecution under an indictment based on a statute making it an offense for a male to frequent a house of ill-fame or to associate with prostitutes or to be engaged in or about a house of prostitution, proof that the defendant was employed as a servant in such a house is insufficient to sustain a conviction on a charge of frequenting a house of ill-fame and associating with prostitutes, since, under the statute, such offense is separate and distinct from that of being engaged in ór about a house of prostitution.</p>

<p>1. Criminal Law. — Death of Appellant Pending Appeal. — Effect.— . The death of a defendant pending his appeal from a judgment of conviction in a criminal ease is cause for abatement and dismissal of the appeal, p. 228.</p> <p>2. Fines.' — Death of Defendant. — Abatement.—Where a fine has, been imposed as a punishment for an offense it cannot be enforced after the death of the defendant as a claim against his estate, since a judgment for a fine is punitive and is based on no principle of compensation, and its enforcement would punish only those interested in the estate of the offender, p. 229.</p> <p>3. Appeal. — Moot Questions. — The Supreme Court will not consider moot questions on appeal, p. 229.</p> <p>4. Criminal Law. — Appeal.—Question of Costs. — An appeal will not be entertained to determine a question of costs when all other questions involved are moot. p. 229.</p>

<p>From Monroe Circuit Court; James B. Wilson, Judge.</p> <p>Action by Len S. Fields and another against the Springfield Fire and Marine Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>Perjury. — Affidavit for a Continuance. — Evidence.—Where a defendant in a criminal case makes an affidavit for a continuance on account of absent witnesses, and states therein, as required by the statute (§2089 Bums 1914, Acts 1905 p. 631) concerning the subject of continuances, the facts to which the absent witnesses would testify if present and that he believes such facts to be true, the affiant may be convicted of perjury, if it be proven that such facts were untrue to his knowledge at the time the affidavit was made, even though the witnesses named would testify to the facts stated in the affidavit in the belief that they were testifying truthfully, and any evidence, otherwise competent, tending to prove the falsity of the statements sworn to in the affidavit is admissible.</p>

<p>Appeal. — Dismissal.—Moot Question. — Where the question involved in an appeal is the right of the appellant to have his name placed on a primary election ballot and such primary election is held before the appeal is submitted to the Supreme Court, the question presented thereby becomes moot and the appeal will be dismissed.</p>

<p>1. Criminal Law. — Appeal.—Argument of Counsel. — Discretion of Court. — Constitutional Right. — Where, in a criminal prosecution, the prosecuting attorney in his closing argument addressed the jury for a greater period of time than that allotted to counsel . by the trial court, but it was not shown by the bill of exceptions that any new fact not disclosed in the opening argument was referred to in closing, the trial court’s refusal to grant defendant’s counsel additional time to reply was not reversible error, since the control of argument of counsel is largely within the discretion of the court, and the appellate tribunal will interfere only where the record discloses an abuse of that discretion; nor was the action of the trial court a denial of the defendant’s right to be heard by counsel as guaranteed by §13, Art. 1, of the Constitution of Indiana; nor was it a violation of §2136, cl. 4, Burns 1914, Acts 1905 p. 641, providing that, if the prosecuting attorney, in his closing argument, refers to any new point or fact not disclosed in the opening argument, the defendant’s counsel shall have the right to reply thereto, p. 242.</p> <p>2. Ceiminax, Law. — Appeal.—Misconduct of Counsel in Argument.— Technical Errors Disregarded. — Statute.—While counsel should adhere to the limitation of time for argument suggested by the court and accepted by them, yet the failure of the prosecuting attorney, in the trial of a criminal ease, to do so will not warrant the court on appeal in reversing the judgment where such misconduct was in no way injurious to the defendant, since §2221 Bums 1914, Acts 1905 p. 657, provides that the court in the consideration of questions presented on an appeal of a criminal case shall disregard errors which did not prejudice any substantial right of the defendant. p. 243.</p>

<p>From Madison Circuit Court; Luther F. Pence, Judge.</p> <p>Prosecution by the State of Indiana against Ernest Bogue. From a judgment of conviction, the defendant appeals.</p>

<p>From. Marion Criminal Court (45,351); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Jesse L. McDaniels. From a judgment of conviction, the defendant appeals.</p>

From Steuben Circuit Court; Frank M. Powers, Judge. Action by John Croxton and others against the city of Angola and others. From a judgment for plaintiffs, the defendants appeal.

<p>1. Street Railroads. — Collision at Street Crossing with Fire Apparatus. — Action for Damages. — Complaint.—Sufficiency.—In an action for damages for personal, injuries sustained in a collision between a street car and a fire department wagon upon which the plaintiff, a city fireman, was riding to a fire, a complaint containing allegations that the plaintiff at the time of the accident was in the discharge of his duty as a fireman; that the defendant, a street car company, was running its car at a greater rate of speed than permitted by the city ordinance; that it violated a duty in not stopping its car when it had notice of a fire; that it disregarded a city ordinance compelling it to give the right of way to the fire apparatus; and that while so operating the ear it came into collision with the wagon upon which the plaintiff was riding, thus causing his injury, together with specific allegations of negligence, is sufficient as against demurrer, p. 261.</p> <p>2. Negligence. — Violation of Statute or Ordinance.- — Negligence Per Se. — The violation of a statute or city ordinance is negligence perse, p. 261.</p> <p>3. Evidence. — Expert Witness. — Qualifications.—No standard exists by which to determine the qualifications of an expert witness. p. 262.</p> <p>4. Evidence. — Expert Witness. — Weight of Testimony. — Jury Question. — The weight of the testimony of an expert witness is a matter for the consideration of the jury, and this may be determined with reference to the extent of his knowledge and experience, p. 262.</p> <p>5. Appeal. — Evidence.—Expert Witness. — Qualifications.—Discretion of Court. — The question as to when a witness is qualified to give an opinion as an expert is in the discretion of the trial court, and its decision will not be disturbed unless it is shown that the court abused that discretion, p. 262.</p> <p>6. Evidence.- — Expert Witness. — Hypothetical Question. — The opinion of an expert, when sought on a hypothetical question, should be based on facts which the evidence in the case tends to provde p. 263.</p> <p>7. Evidence. — Expert Witness. — Hypothetical Question. — When there is evidence tending to prove facts either directly or by logical inference; the court may permit thé expert witness to give an opinion on the state of facts as shown by the evidence introduced, p. 263.</p> <p>8. Evidence. — Hypothetical Facts. — Questions for Jury. — Whether the facts as stated in a hypothetical question have been established by a fair preponderance of the evidence is for the jury to decide in determining what weight will be given to the testimoney of an expert witness, p. 263.</p> <p>9. Teial. — Peremptory Instructions. — What Constitutes. — Instructions which do not assume to direct the verdict or set out all the facts necessary to a recovery are not peremptory, p. 263.</p> <p>10. Teial. — Instructions.—Omissions.—It is only where an instruction assumes to set out all the elements necessary to a recovery that the omission of any essential element will condemn the instruction. p. 263.</p> <p>11. Teial. — Instructions.—Construed as a Whole. — Instructions complained of as erroneous must be construed in connection with all the instructions given, and, if taken as a whole, they correctly state the law, they are not objectionable, p. 264.</p> <p>12. Stbeet Raileoads. — Collision with Fire Apparatus at Street Crossing. — Last Clear Chance. — Evidence to Present Issue. — In an action for damages by a city fireman against a street railway company for personal injuries sustained in a collision between a street car and a fire apparatus, evidence tending to prove that the motorman knew that the hook and ladder truck was coming upon the street-car track and was about to cross the street when the car was at such a distance from the street crossing that it could have stopped in time, in the exercise of ordinary care, to have avoided the collision was sufficient to present the issue of last clear chance, p. 264.</p> <p>13. Steeet Raileoads. — Collisions.—Defective Car. — Evidence.— In an action against a street railway company for damages under a complaint alleging that the defendant was operating a defective car at the time óf the accident, evidence that the car was defective in that it failed to come to a stop when the power was reversed or the brakes set was sufficient to present to the jury an issue of fact as to the condition of the car, and it was not improper for the trial court to instruct as to the law governing such facts, p. 265.</p> <p>14. Trial. — Instructions.-—•Invading Province of Jury. — In an action for personal injuries, an instruction setting forth the allegations of the complaint, which specifically charged the defendant with negligence, but which instruction did not indicate the caused of plaintiff’s injury, is not objectionable as informing the jury that the negligence charged was the proximate cause of the injury. p. 266.</p> <p>15. Trial. — Instructions.—Invading Province of Jury. — In an action for personal injuries, an instruction to find for the plaintiff if every material allegation of the complaint is sustained by a preponderance of the evidence, including some one or more of the acts' of negligence charged, unless the plaintiff was found to be guilty of contributory negligence, is not erroneous as directing the jury to find for the plaintiff, p. 266.</p> <p>16. Trial. — Instructions.—Repetition.—In an action for injuries sustained by the plaintiff in a collision between a street car and a hook and ladder truck, several instructions as to the duty of a street-car motorman in approaching a street crossing and the degree of care to be exercised in operating the ear, while in part repetition, are held not to so unduly emphasize the matter as to constitute reversible error, p. 266.</p> <p>17. Trial. — Instructions as to Damages. — Repetition.—In an action for personal injuries, the giving of a number of instructions on the subject of damages is held not to be such repetition as to unduly emphasize the matter where each of such instructions treats of some different phase of the elements of damages, p. 267.</p> <p>18. Appeal. — Instruction.—Harmless Error. — In an action for personal injuries sustained in a collision between a street car and a fire wagon, an instruction that under the city ordinance the fire apparatus had no superior right to the street was not prejudicial-to the defendant for failure to explain such ordinances where the instruction was unduly favorable to defendant in that a city ordinance actually provided that fire apparatus should have the right of way over all other vehicles, p. 267.-</p> <p>19. Appeal. — Evidence.—Weight and Sufficiency. — Where there is some evidence to support every material allegation of the complaint, the court on appeal cannot weigh it to determine its preponderance. p. 268.</p> <p>20. Damages. — Excessive Damages. — Personal Injuries. — A verdict for $10,000 in a personal injury case is not excessive where there was evidence to show that the plaintiff had sustained a fractured jaw on the right side of the face, a dislocation of the lower jaw which became paralyzed, numerous injuries about the body, loss of speech, etc.,andthathewasconfinedto the hospital for a number of weeks andstill requiredmedicalattentionatthetimeof the trial.p.268.</p> <p>21. Damages. — Amount of Recovery. — Review on Appeal. — In a personal injury case it is for the jury to determine the extent of tbe plaintiff’s injuries, and unless it is apparent that it acted from an improper motive or was improperly influenced, or that it based its verdict on improper elements, the court on appeal cannot disturb the judgment, p. 268.</p>

From Warrick Circuit Court; Ralph E. Roberts, Judge. Aetipn by Rosalie Knight, administratrix of the estate of Pinckney Knight, deceased, against the Evansville and Southern Indiana Traction Company and another. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From DeKalb Circuit Court; Emmet A. Bratton. Judge. Proceedings on tbe petition of Warren Boyer and others to ascertain, describe and enter of record a highway established by public user and on the cross-petition of Jasper Everetts and others for the ascertainment and recording of the same highway. From a judgment, Warren Boyer and others appeal.

<p>1. Bridges. — Construction.—Repair.—Common Law. — Under the common law any person who, although acting under lawful authority, cuts through an existing public highway and thus'renders a bridge necessary must build a bridge to'enable the public to exercise their right of passage, and must maintain and repair such bridge and its approaches, until he abandons his operations and restores the highway to its original condition, and this obligation attaches even though the statute authorizing the construction of the new work is silent on the subject, and it is a continuing duty in the nature of a covenant running with the land, which will ordinarily pass to successive owners of the property, p. 285.</p> <p>2. Evidence. — Judicial Notice. — History of Canal and Canal Legislation. — The Supreme Court may take judicial notice of the history of the Centra] canal and of the legislation relative thereto, p. 288.</p> <p>3. Canals. — Bridges.—City Charter. — Common-Law Duty of Owner of Canal. — Section 27 of the Indianapolis charter, Local Laws 1847, p. 57, giving the city exclusive jurisdiction over all streets and watercourses .in the city for the purpose of opening and keeping the same in repair, and requiring the city to build and keep in repair all bridges1 over watercourses crossing such public streets within the city limits as the city council should declare it necessary to have bridges erected over, and providing that all bridges then built be continued and making the city liable to persons injured by neglect or refusal to repair such bridges, did not operate to relieve the owner of a private enterprise from any of the duties imposed on him by common law or to prevent the city from recovering for sums expended by it in discharging such an obligation in his behalf, pp. 288,289.</p> <p>4. Statutes. — Construction.—Repeal of Common Law. — A statute will be held to abrogate the common law only when that intention is declared expressly or by necessary implication, p. 289.</p> <p>5. States. — Liabilities.—Private Property. — Contracts.—The state, as much as one of its citizens, is subject to the fundamental law, and, as an abstract proposition, a liability does exist on its part to its citizens to a legal claim for damages to his property, though he may be without a tribunal to which he .may cite it for redress, and the contracts of a state are interpreted as are the contracts of individuals, the law measuring individual rights and responsibilities being the same as that measuring, with few exceptions, those of a state whenever it enters ñnto an ordinary business contract, p. 290.</p> <p>6. States. — Liabilities.—Torts.—In the absence of a statutory provision, a state cannot be made to respond in damages for the torts of its officers or agents, whose conduct or fidelity it does not undertake to guarantee, which rule is based on theidoctrinathat the sovereign is immune from suit .as well as, on the absence of an obligation, the absence of an obligation' in such eases resting on the common-law principle making the doctrine of respondeat superior there inapplicable, p. 291.</p> <p>7. States. — Public Enterprises and Contracts. — Liability.—The state, although not a corporation in the strict and subordinate use of the term, may and does act as a corporate entity in a broad sense when it engages in the promotion of public enterprises and in binding itself generally by contract, and when acting in that capacity its acts are subject to the same principles of law as are the acts of an individual, although, as a matter of public policy, it is immune from suit to enforce obedience to such principles, p. 291.</p> <p>8. Municipal Corporations. — Streets.—Title.—Right of User.— When a street or highway has been dedicated to and accepted for public use, the title to the easement may rest in the state or in its municipality but, until modified or extinguished pursuant to legislative enactment, a right of user accrues to the traveling public which is protected by the fundamental law and its free maintenance is required as against subsequent ways or users, whether private or public, which would otherwise limit its enjoyment, p. 292.</p> <p>9. Highways. — Maintenance.—Obstruction.—Private Liability. — The obligation to maintain a highway dedicated to the use of the public is not a personal one, but a continuing condition imposed by operation of law, and where the state transfers its canal, which obstructs a public highway in existence prior to the building of such canal, to a water company, the duty to maintain the highway over the canal is enforceable against the transferee, even though not against the state because of its immunity from suit. p. 292.</p> <p>10. Canals. — Bridges.—Construction.—Repair.—Duty of Water Company. — -Dedication of Streets. — Sufficiency of Complaint. — In an action by a municipality to compel a water company to construct and maintain bridges over its canal at certain streets within the city limits, a complaint containing allegations showing that the plaintiff had been a municipal corporation since a time prior to the construction of the canal; that the State of Indiana on acquiring lands from the United States for a site for plaintiff city, subdivided such lands into blocks and located certain streets on the plat, including a street which was used as a highway in the town of Indianapolis prior to the building of the canal; that subsequent to the construction of the canal bridges were built over it to enable the public to continue the use of certain streets which had been previously laid out and established, sufficiently shows a dedication to public use of the streets mentioned in the complaint, p. 294.</p> <p>11. Dedication. — Highways.—Change of Form of Government or Territorial Boundaries. — A change in the form of government of a city or of its territorial boundaries will not defeat a dedication of its highway to public use. p. 294.</p> <p>12. Canals. — Bridges.—Repairs.—Action by City to Recover for. — . Estoppel. — Since the duty of a canal builder to construct and maintain a bridge at its intersection with an existing public highway is a continuing obligation which will last as long as the necessity for the bridge exists, a city is not estopped from enforcing that obligation merely because it has, for a period of years, maintained the bridge without asserting its claims against the builder or his grantees, p. 295.</p> <p>13. Railroads.' — Crossings and Approaches. — Construction and Maintenance.■ — Police Power of State. — While it is generally held that, in the absence of statute, a railroad company cannot be required to construct and maintain crossings where a street or highway is made across its right of way after the construction of the railroad, there being no common-law duty on the part of the railroad company in such cases to construct crossings or bridges or approaches thereto, yet the state, in the exercise of its police power, may by legislative enactment exact that duty of railroad corporations, as every such corporation acquires its right of way subject to the contingency that public highways may later be built or extended across the same, and subject to the right of the state, under its police power, to thereafter compel the railroad company to provide suitable bridges and crossings for new highways as well as for those in existence at the time its road is constructed, so that the traveling public may be protected against the hazards and risks incident to the operation of railroad trains across highways, p. 296.</p> <p>14. Canals. — Maintenance of Bridges. — Common Law. — At common law a canal proprietor is under no obligation to construct or maintain bridges at highways which were not in existence at the time of the establishment of the canal, even though such highways are laid out by duly authorized public officials, p. 298.</p> <p>15. Eminent Domain. — Taking of Property. — Police Powers.— Uncompensated obedience to a regulation enacted for the public safety under proper exercise of the police power does not constitute a taking of property without due compensation, and the constitutional prohibition against the taking of private property without compensation is not intended as a limitation of the exercise of those police powers which are necessary to the tranquility of every well-ordered community, nor of that general power over private property which is necessary for the orderly existence of all governnients. p. 299.</p> <p>16. Beidges. — Construction.—Regulation by State. — Police Power.— The State may, in the exercise of its police power, so regulate the methods and plans of construction used in the building of public bridges that their safety may be assured, p. 301.</p> <p>17. Canals. — Bridges.—Construction and Maintenance. — Statute.— Power of Board of Public Works. — Section 8696, cl. 15, Burns 1914, Acts 1905 pp. 219, 280, providing that a city board of public works shall be empowered to straighten, deepen, or otherwise change or improve any watercourse, natural ,or artificial, within such city, and to require the owners of canals and watercourses to construct and maintain bridges across the same at street and alley intersections, authorizes such board, which is an administrative and not a legislative body, to compel the owner of a canal to build and maintain bridges at streets extended across it only when that duty is imposed on such owner by some other rule or provision of law. p. 301.</p>

From Marion Superior Court (102,191); Clarence E. Weir, Special Judge. Action by tbe State of Indiana, on tbe relation of Calley B. Hulskamp, against Charles K. McCormack and others. From a judgment for defendants, the relator appeals.

From Huntington Circuit Court; W. D. Hamer, Special Judge. Action by the State of Indiana, on the relation of Heber B. Harter, against. Ovid E. Eviston, auditor of Huntington county. From a judgment for relator, the defendant appeals.

<p>From Marion Criminal Court (45,134); James A. Collins, Judge.</p> <p>Prosecution by tbe State of Indiana against Lorenzo D. King. From a judgment of conviction, the defendant appeals.</p>

<p>1. Municipal Corporations. — Street Improvements. — Limit of Cost. — Towns.—Statute.—The provision contained in §8710 Burns 1914, Acts 1909 p. 412, prohibiting the letting of a contract for any street improvement in any city of the first, second or third class, the total cost of which shall exceed fifty per cent, of the aggregate value of the property as it is assessed for taxation, exclusive of improvements, is not made applicable to incorporated towns by §8959 Burns 1914, Acts 1913 p. 12, providing that the provisions of the Cities and Towns Act concerning the improvement of streets in cities of the first, second, third and fourth classes shall apply to cities of the fifth class and incorporated towns, such provision referring only to the procedure to be followed in the making of improvements, pp. 316, 319.</p> <p>2. Statutes. — Re-enactment.—Construction.—Adoption of Construction. — Where a statute has been judicially construed, and is thereafter re-enacted, such re-enactment will be held to embody the court’s construction, in the absence of language to show a contrary purpose, p. 319.</p>

From Hancock Circuit Court; Earl Sample, Judge. Action by Benjamin L. Mason and others against Harry J. Milligan and others.- From an interlocutory order dissolving a temporary restraining order, plaintiffs appeal.

<p>1. Rape. — Corpus Delicti. — Evidence to Establish. — In a prosecution for rape, evidence that the victim was never married, was so feeble-minded as to .be incapable of consent, and that she gave birth to a bastard child, is sufficient to establish the corpus delicti. p. 323.</p> <p>2. Rape. — Defenses.—Acts of Others. — It is no justification or defense for one charged with rape upon a feeble-minded woman that persons other than the defendant had carnal knowledge of her. p. 324.</p> <p>3. Criminal Law.- — ■New Trial. — Newly Discovered Evidence. — ■ Where, in a prosecution for rape upon a feeble-minded woman, the prosecutrix testified that the defendant alone had sexual relations with her and proof was offered that she had been delivered of a bastard child, newly discovered evidence that persons other than the defendant had carnal knowledge of her at a time approximating the commencement of the period of gestation is sufficient upon which to grant a new trial, such evidence being competent to explain the incriminating circumstance of pregnancy and to destroy the corroborative effect thereof, p. 324.</p>

<p>From Shelby Circuit Court; Alonzo Blair, Judge.</p> <p>Action by the City of Shelbyville against William Adams. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Assignment of Errors. — Matters Assignable. — That the evidence is insufficient to sustain the verdict is not the subject of independent assignments of error on appeal, such objections being properly raised through a motion for a new trial, p. 328.</p> <p>2. Appeal. — Record.—Consideration of Sufficiency of Evidence.— The Supreme Court will not consider an assignment of error which requires a decision as to the sufficiency of the evidence to sustain the verdict, unless all the evidence is contained in the record. p.328.</p> <p>3. Appeal. — Record.—Bill of Exceptions.- — -Certificate of Court Reporter. — The certificate of the court reporter, appended to the transcript of the evidence incorporated into a bill of exceptions, that the transcript contained a full and correct report of all the evidence is mere surplusage and constitutes no part of the bill, p. 330.</p> <p>4. Appeal. — Record.—Bill of Exceptions Containing Evidence.— Certificate of Judge. — It is essential to a proper presentation of the evidence to obtain a review on appeal as to its sufficiency to sustain the verdict that the bill of exceptions embracing the evidence must contain a statement or certificate of the judge that it contains all the evidence given in the cause, p. 330.</p> <p>5. Exceptions, Bill op. — Amendment after Term. — A court has no power to amend a bill of exceptions by incorporating therein the clause “and this was all the evidence given in the cause,” after the close of the term at which such bill was signed and filed, p. 331.</p> <p>6. Appeal. — Record.—Insufficient Bill of Exceptions. — Review.— A bill of exceptions presents no question for review where it is shown by the bill itself that it was not presented for settlement within the time given, p. 332.</p> <p>7. Appeal. — Review.—Sufficiency of Evidence. — Transcript.— Bill of Exceptions. — Under §657 Burns 1914, Acts 1897 p. 244, the court reporter’s transcript of the evidence must be incorporated in a bill of exceptions to present on appeal the question of the sufficiency of the evidence, or questions arising on the admission or exclusion of evidence, p. 333.</p> <p>8. Appeal. — Record.—Bill of Exceptions. — Incorporating Transcript of Evidence. — To incorporate the court reporter’s transcript of the evidence into a bill of exceptions it is necessary that there be a recital therein that the transcript contains the rulings of the court in admitting and rejecting evidence and the objections and exceptions made and taken thereto, and it should conclude with the statement at the end of the evidence, “this was all the evidence given in the cause.” p. 334.</p> <p>9. Appeal. — Review.—Admission of Evidence. — Waiver of Error by Insufficient Brief. — Questions arising on alleged erroneous rulings in the admission and rejection of evidence are deemed waived where appellant’s brief fails to point out where such rulings may be found in the recbrd. p. 334.</p> <p>10. Appeal. — Briefs.—Statement of Points. — No question is presented for review where, in that part of appellant’s brief devoted to propositions or points, certain instructions are set forth, accompanied by a bare assertion, unsupported by any reason or citation of authorities, that the giving or refusal of such instructions was erroneous, p. 334.</p>

From Hendricks Circuit Court; James L. Clark, Judge. Suit by Medford B. Wilson and others, as trustees, against the Winona Agricultural and Technical Institute and others. From an adverse judgment, William J. Richards and others appeal.

<p>From Jasper Circuit Court; C. W. Hanley, Judge.</p> <p>Action by the Manhattan Lumber Company and others against Peter Crumpaeker and others. From the judgment rendered, the defendant named and certain other defendants appeal.</p>

<p>From Howard Circuit Court; William C. Purdum, Judge.</p> <p>Action by David S. Pence 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 Knox Circuit Court; B. M. Willoughby, Judge. Extradition proceeding by John Wolf and others against Morgan W. Cozart in which one Wade sought to intervene. From the judgment rendered, Cozart appeals.

From Allen Circuit Court; John W. Eggeman, Judge. Action by Samuel A. Raub and others against Adam Rodabaugh and others. From a judgment for defendants, • the plaintiffs appeal. (Transferred from Appellate Court under §1394, el. 2, Burns 1914, Acts 1901 p. 565.)

<p>From Bartholomew Circuit Court; Hugh Wickens, Judge.</p> <p>Action by the Town of Newpoint against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

From Lake Circuit Court; Virgil S. Reiter, Judge. Proceedings on a petition for the construction of a levee by John Brown and others, in which the Northern Indiana Land Company intervened. From a judgment dismissing the petition, the petitioners appeal.

<p>From Johnson Circuit Court; W. E. Deupree, Judge.</p> <p>Action by Philip O. Waters, administrator of the estate of Mary Eliza Waters, deceased, against the Indianapolis Traction and Terminal Company. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court •under §1399 Burns 1914, Acts 1901 p. 569.)</p>

<p>From Wells Circuit Court; William H. Eichhorn, Judge.</p> <p>Action by Joseph E. Bell against James I. Hogston. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Pulaski Circuit Court; Isaiah Comer, Special Judge.</p> <p>Action by John A. Davenport and others against Mary E. Terry. From a judgment for plaintiffs, the defendant appeals. (Transferred from Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

<p>From Clark Circuit Court; James W. Fortune, Judge.</p> <p>Proceedings on the petition of Franklin M. Rose for the vacation of a street in the city of Jefferson-ville, and such city filed a remonstrance. From a judgment denying vacation, the petitioner appeals.</p>

<p>1. Ceiminal Law. — Appeal.—Reserved Questions of Law. — Presentation of Error. — In an- appeal by the State on reserved questions of law under §2162 Burns 1914, Acts 1905 p. 647, the Supreme Court will not render an opinion where there is such uncertainty as to the questions presented that it is impossible to declare a general rule for the guidance of the inferior courts of the state, p. 581.</p> <p>2. Teial. — Instructions.—Repetition.—The practice of. repeating in instructions vital questions favorable to one side or the other is not commendable and is to be discouraged, p. 581.</p>

<p>1. Intoxicating Liquors. — Illegal Sale. — Separate Offenses.— Statute. — Under §8351 Burns 1914, Acts. 1907 p. 689, making it an offense for an unlicensed person to sell or barter intoxicating liquors except as elsewhere provided, or to sell or barter such liquors and permit them to be drunk on the premises where sold, the offense thus defined is not a continuing one, but each unlawful sale constitutes a separate offense, p. 584.</p> <p>2. Criminal Law. — Illegal Sale of Liquor. — Identity of Lffenses.— Statute. — Where a person in violation of §8351 Burns 1914, Acts 1907 p. 689, making it an offense for an unlicensed person to sell or barter intoxicating liquors, or to sell or barter such liquors and permit them to be drunk on the premises, makes an unlawful sale of intoxicating liquors and permits them to be drunk on the premises he commits but a single offense, and, if convicted of making an unlawful sale, he could not be again convicted of making the same sale and permitting the liquor to be drunk on the premises, p. 585.</p> <p>3. Criminal Law. — Operating Place for Illegal Sale of Liquor. — • Continuing Character of Offense. — Statute.—Under the provision of §8351 Burns 1914, Acts 1907 p. 689, making it a misdemeanor for any person to keep, run, or operate a place where intoxicating liquors are sold in violation of law, or to have such liquor in his possession for such purpose, the offense thus defined is a continuing one, and a person convicted of such offense cannot be prosecuted for running and operating a place where intoxicating liquors were sold at any time within two years previous to the return of the indictment under which he was convicted, but such conviction does not prevent the state from prosecuting him for every sale made during such two years and within'the statute of limitations, p. 585.</p> <p>4. Criminal Law. — Identity of Offenses. — Single Act. — A single act may constitute two or more distinct and separate offenses, and in such a case the state need not elect upon which offense it will proceed and a conviction of a single offense will not bar a prosecution for the other, p. 586.</p> <p>5. Criminal Law. — Running Place for Illegal Sales. — Evidence of Illegal Sales. — Statute.—In a prosecution under an indictment charging that the defendant unlawfully kept, run and operated a place where intoxicating liquors were sold, bartered and given away, in violation of §8351 Burns 1914, Acts 1907 p. 689, the trial court properly admitted evidence as to a single sale made on the premises described in the indictment in violation of a provision of the same statute making it an offense for an unlicensed person to sell intoxicants, even though the defendant had been convicted of the latter offense, since the statute defines two separate and distinct misdemeanors, p. 587.</p>

<p>1. Criminal Law. — Affidavit.—Sufficiency.—Initial Attack on Appeal. — Statute.—Since the enactment of the Act of 1911, Acts 1911 p. 415, §348 Burns 1914, providing that objections to a complaint that are not taken by demurrer or answer are waived, the sufficiency of an affidavit in a criminal ease cannot be questioned for the-first time by an independent assignment of error on appeal, p. 589.</p> <p>2. Appeal. — Assignment of Error. — Waiver.—Briefs.—An assignment of error challenging the sufficiency of an affidavit in a criminal case is waived on appeal where appellant’s brief fails to state any proposition or point relating to it, as required by the rules of the Supreme Court, p. 589.</p> <p>3. Appeal. — Briefs.—Rules of Court. — Good Faith Compliance.— While the rules of the Supreme Court require that appellant’s brief set out the motion for a new trial to present any question as to the correctness of the trial court’s ruling thereon, yet where appellant has made a good faith effort to comply with such rule by setting out the substance of the motion for a new trial, the questions so presented will be considered and determined, p. 590.</p> <p>4. Weapons. — Drawing or Threatening to Draw Dangerous Weapon. —Elements of Offense. — It is the drawing, or threatening to draw, a pistol or other deadly weapon that constitutes the offense defined by §2344 Burns 1914, Acts 1905 p. 687, and in a prosecution based thereon it was unnecessary to prove that the pistol drawn was loaded, or that there was a present ability to commit an assault, p. 590.</p> <p>5. Criminal Law. — Drawing Deadly Weapon.- — -Motive.—Evidence.— In a prosecution based on §2344 Burns 1914, Acts 1905 p. 687, making it an offense to draw or threaten to draw a pistol, the admission of evidence of previous quarrels between the defendant and the prosecuting witness for the purpose of showing the motive of the act charged was erroneous, since the question of motive is not in issue in such a prosecution, p. 591.</p> <p>6. Criminal Law. — Evidence.—Other Offenses. — Proof of other crimes or occurrences of similar nature is only permissable in the trial of a criminal charge in those cases where the act constituting the crime under investigation has been clearly established and the motive, intent, or guilty knowledge of the defendant is in issue, p. 592.</p> <p>7. Criminal Law. — Evidence.-—Other Offenses. — In a criminal prosecution the State will not be permitted to depart from the issue and introduce evidence of extraneous misconduct that has no natural connection with the pending charge, and which is calculated to prejudice the accused in his defense, p. 592.</p> <p>8. Criminal Law. — Appeal.—Improper Evidence. — Presumption.— The admission of improper evidence will be presumed on appeal to be harmful unless the contrary is made to appear, p. 592.</p> <p>9. Criminal Law. — Evidence.—Failure of Defendant to Testify at Former Hearing. — In a prosecution for drawing a deadly weapon it was reversible error for the trial court to compel the defendant to testify that he did not testify at a former hearing of the case, since he was not bound to appear as a witness at such hearing and his failure to do so should not, therefore, have been received as evidence of his guilt, p. 592.</p> <p>10. Witnesses.' — Privileged Communications. — Attorney and Client. • — -The defendant in a criminal prosecution cannot be compelled to testify as to a communication made by him to his attorney for the purpose of receiving professional advice, p. 593.</p>

<p>From Washington Circuit Court; William H. Paynter, Judge.</p> <p>Action by Elizabeth Barth against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)</p>

<p>From Marion Criminal Court (45,089); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Earl Ross. From a judgment, of conviction, the defendant appeals.</p>

<p>From Jackson Circuit .Court; John H. Edwards, Special Judge.</p> <p>Proceedings for the improvement of a highway-on the petition of Fred E. Miller and others in which John H. Bettenbrock and others appeared and answered. From the judgment rendered, the defendants appeal.</p>

<p>From Wabash Circuit Court; Alfred H. Plummer, Judge.</p> <p>Action by Daniel W. Zintsmaster and others against George W. Gill, treasurer, and others. From the judgment rendered, the plaintiffs appeal. (Transferred from the Appellate Court under §1429 Burns 1914, Acts 1893 p. 29.)</p>

<p>From. Marion Circuit Court (18,828); Charles Remster, Judge.</p> <p>Action by Rodney B. Swift against tbe Indiana Manufacturing Company. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>From Newton Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by Harold B. Hibben and others against Alfred D. Peck and others. From a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Municipal Coepoeations. — Street Improvements. — Breach of Contract by City. — Liability.—Under the statutes exclusive power over streets and the improvement thereof is given to the municipality from which the authority to improve them eminates, and not from abutting property owners, who, although liable for the entire cost of the improvement, have remonstrance rights only, and the city is the principal in a contract for a street improvement in so far as concerns liability to the contractor for a breach of such contract by the city officials, p. 632.</p> <p>2. Municipal Coepoeations. — Street Improvements. — Breach of Contract by City. — Even though abutting property owners are hable for the entire cost of a street improvement made under a contract let by the city, the city is hable in an action by the street contractor for damages for a violation of the terms of the contract making necessary extra work, as such action is for a breach of the contract and not for extra work done thereunder, p. 634.</p> <p>3. Municipal Coepoeations.- — Street Improvement. — Breach of Corn-tract by City. — Remedies.—Where one having the contract for the improvement of a city street is improperly ordered by the city officials to remove portions of the work and reconstruct the same, he need not resort to mandamus to compel the proper officials to accept the improvement as first completed, but he may either stop work and bring action for labor, materials and prospective profits, or he may do the work over again as required and sue to recover damages incurred by reason of being wrongfully compehed to do . such'work a second time. p. 635.</p> <p>4. Municipal Coepoeations. — Street Improvement. — Delay in Executing Bond and Contract.- — -While §8959 Burns 1908, Acts 1905 p. 406, provides that upon the acceptance of a bid for a street improvement the successful bidder shall enter into a written contract for the faithful execution of the work and shall give bond to secure the performance of such contract and to hold the city harmless from the payment of any debt or damage done by reason of the act of such contractor, yet where upon the acceptance of Ms bid the contractor proceeded at once with the work under the direction of the city officials, but because of the failure of the city to prepare and present the written contract and bond for execution they were not signed until the partial completion of the improvement, although dated as of the letting of the contract, such bond was sufficient to protect the city, and, in an action by the contractor to recover for a breach of the contract occurring prior to the execution of' such bond, it could not, after having accepted the work and the consequent benefits of the contract and bond, interpose any irregularity in their execution to wMch it was a party, p. 636.</p>

<p>From Marion Criminal Court (44,877); Harry C. Hendrickson, Judge pro tem.</p> <p>Prosecution by tbe State of Indiana against Eobert Spurlock. From a judgment of conviction tbe defendant appeals.</p>

From Marion Superior Court (98,653); Theophilus J. Moll, Judge Habeas corpus proceeding by Thomas Connor against George F. Edenharter, superintendent of the Central Indiana Hospital for Insane. From a judgment for plaintiff, the defendant appeals.

From Jay Circuit Court; Jacob F. Denney, Judge. Action by the State of Indiana, on the relation of John J. Fitzmaurice and another, against Charles A. Paddock, mayor of the City of Portland. From a judgment, for relators, the defendant appeals.

From Marion Circuit Court (20,901); CharlesRemster, Judge. Action by tbe Vandalia Railroad Company and others against the Public Service Commission. From a. judgment for defendants, the plaintiffs ■ app eal.

From Delaware Circuit Court; James J. Moran, Special Judge. Action by The Merchants National Bank of Muncie, against Delaware School Township, of Delaware county. From a judgment in part for plaintiff and in part for defendant, the plaintiff appeals.

<p>1. Counties. — Highway Bonds. — Limit of Indebtedness. — Constitutional Provisions. — Bonds issued to pay for gravel roads built under the gravel road laws do not constitute an indebtedness of either the township or county within the meaning of §1, Art. 13, of the Constitution, limiting the indebtedness of political or municipal corporations to two per cent, of the total taxable property in such corporation, p. 671.</p> <p>2. Appeal. — Harmless Error. — Ruling on Demurrer. — Sustaining a demurrer to a paragraph of complaint is not erroneous where trial is had on another paragraph which is the same in theory and substance. p. 672.</p> <p>3. Appeal. — Review.—Sufficiency of Evidence. — Waiver.—Any question as to the sufficiency of the evidence to sustain the/findings of the trial court is waived on appeal by failure to bring with the’ ■ record the evidence given in the cause, p. 672.</p> <p>4. Trial. — Exceptions to Conclusions of Law. — Admissions.—Exceptions to conclusions of law admit the correctness of the finding of facts, p. 673.</p> <p>5. Counties. — Highway Bonds. — fComputing Limitation-of Indebtedness. — Interest on Road Bonds. — Interest on gravel road bonds is not taken into consideration in computing indebtedness to ascertain whether such indebtedness exceeds the limitation fixed in either the Constitution or the gravel road law. p. 673.</p> <p>6. Counties. — Highway Bonds. — Computing Limitation of Indebtedness. — Contracts for Roads.- — Contracts entered into for the building of roads, for which no bonds had been issued, snould not be taken into consideration in determining whether there had been a violation of §7332 Burns 1914, Acts 1905 p. 560, limiting the issue of highway bonds to four per cent, of the value of the taxable property of a township, since such contracts were not, and could not, be a liability of the taxing district until bonds should be issued to pay the contract price for the construction of the roads, p. 674.</p> <p>7. Counties. — Bonds.—Injunction.-—Computing Assessed Valuer tion of Property. — Evidence.—In an action to enjoin the county auditor from entering on the tax duplicate a tax levy made by the board of commissioners for the purpose of paying certain gravel road bonds, and to enjoin the county treasurer from collecting such taxes, it was not error for the trial court to consider and base his findings in part, in ascertaining the total assessed valuation of the property of the township at the time the bonds were issued, on the certificate of the state auditor as to corporation taxes, even though such certificate, while on file at the time of the trial, was not filed until after the issuance of the bonds, p. 674.</p>

<p>From Pike Circuit Court; John L. Bretz, Judge.</p> <p>Action by Samuel. H. Fettinger against the Princeton Coal Company. From a judgment for plaintiff, the defendant appeals:</p>

<p>Railroads. — Regulations.—Powers of Public Service Commission.— Statute. — Under §5533k Burns 1914, Acts 1907 p. 454, providing that a carrier handling freight in carload lots may be required to construct upon its property, and connect with its line, a switch when necessary to accommodate the business of any elevator or mill abutting its line, where there is no space for the proprietor to construct such switch on his property, a railroad company cannot be required by the Public Service Commission to .construct a switch for the use of a mill which is separated' from the railroad’s , right of way by a public street, even though there is evidence that the mill owner owns the fee-simple title to the land occupied by the street, since there is nothing in the act to indicate that the legislature intended to use the term ‘1 abutting’ ’ in any but its ordinary-sense of touching, meeting or coming together.</p>

<p>From Vermillion Circuit Court; Barton S. Aikman, Judge.</p> <p>Action by James T. Kilgore and others against Clara Gannon and others. From a judgment for defendants, the plaintiffs appeal.</p>

From Posey Circuit Court; Herdis Clements, Judge. Condemnation proceedings by The Western Union Telegraph Company against the Louisville and Nashville Railroad Company and others. From the judgment rendered, the plaintiff appeals.

From Wabash Circuit Court; Alfred H. Plummer, Judge. Action by Hiram Harger and another against Florence B. Warner. From a judgment, sustaining demurrer to the complaint, the plaintiffs appeal. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

<p>1. Habeas Corpus. — Sufficiency of Petition. — Motion to Quash Writ. —A motion to quasb tbe writ is the proper method of testing the sufficiency of a petition for a writ of habeas corpus, p. 695.</p> <p>2. Habeas Corpus. — Erroneous Decision. — Collateral Attach.— Right to Writ. — Statute.—Where the circuit court, having jurisdiction of the subject-matter of the action and of the defendant, erroneously sentenced him to the county jail instead of the state penal farm, cpntrary to §9926h Burns 1914, Acts 1913 p. 660, providing that in certain criminal eases the accused shall be committed to the state penal farm, the judgment of the court, even though erroneous, was conclusive, where there was no appeal or other direct attack on such judgment; and it cannot be questioned in a habeas corpus proceeding to compel the release of the accused, since that would be a collateral attack, and §1176 Burns 1914, §1119 R. S. 1881, provides that no court or judge shall inquire into the legality of any judgment or process whereby a party is in custody and discharge Mm when the term of commitment has not expired upon any process issued on final judgment of a court of competent jim^liction. p. 695.</p>

From Howard Circuit Court; William C. Purdum, Judge. Action by Effie McVey, administratrix of the estate of Lewis McVey, deceased, against the Union Traction Company of Indiana. From a judgment for plaintiff, the defendant appeals.

<p>1. Appeal. — Review.—Verdict.—Conflicting Evidence. — Where the evidence in supporting the verdict is disputed, the Supreme Court cannot order a new trial on the ground that such verdict is not supported by the evidence or is contrary to law. p. 707.</p> <p>2. Damages. — -Personal Injuries. — Excessive Verdict. — A judgment for $10,000 in a personal injury case is not excessive where there is evidence to show that the plaintiff, a laborer forty-nine years of age and capable of earning $2.50 to $3.00 per day, received injuries resulting in the loss of all the toes on the left foot, the amputation of the left leg four inches below the knee and that he suffered great pain, etc., there being nothing in the evidence to lead to the conclusion that the jury acted from prejudice, partiality or corruption in fixing the amount of the judgment, p. 707.</p> <p>3. New Tbial. — Misconduct of Jury. — Answers to Interrogatories.— In an action for personal injuries, where the same evidence which supported the general verdict furnished a foundation for answers to special interrogatories showing that the accident happened at the place and in the manner claimed by plaintiff, such answers did not show an apparent purpose on behalf of the jury to distort the testimony and to make a case favorable to plaintiff in total disregard of the evidence, so that a new trial on account of such answers was properly refused, p. 708.</p> <p>4. New Tbial. — Review.—Conflicting Evidence. — Misconduct of Party. — The Supreme Court will not determine on appeal the weight of conflicting affidavits submitted for and against defendant’s motion for a new trial based upon the misconduct of plaintiff in procuring alleged perjured testimony, p. 708.</p> <p>5. New Tbial. — Grounds.—Surprise.—New Evidence. — Discretion, of Trial Court. — In an action for personal injuries, the trial court did not abuse its discretion in refusing to grant defendant a new trial on the ground of surprise on account of the introduction of alleged perjured testimony or because of newly discovered evidence tending to impeach the witness giving such testimony and on account of other new evidence, which was merely cumulative, concerning the habits of the plaintiff, where, considering the entire record, the evidence in question was not of such a character as to clearly change the result if a new trial were had. p. 709.</p> <p>6. Railboads. — Crossing Accidents. — Injuries to Persons. — Contributory Negligence. — The presence of a watchman at a railroad crossing and his failure to give any warning of danger does not relieve a person desiring to use the crossing from the exercise of reasonable care for his own safety, but such circumstances may be properly considered by a jury in determining what precaution a reasonably prudent person would have exercised, p. 710.</p> <p>7. Railroads. — Crossing Accidents. — Injuries to Persons.- — Instructions. — In an action against a railroad company for personal injuries sustained in a crossing accident, instructions that where a watchman is stationed at a street crossing one has a. right to presume safety when no warning of danger is given, unless by the exercise of ordinary carehe could have discovered the approach of the ears to such crossing, are not erroneous as leading the jury to understand that plaintiff had a right to rely solely upon the watchman to warn him of danger, p. 710.</p> <p>8. Railroads. — Crossing Accidents. — Injuries to Persons. — Obstructed View of Crossing. — Duty of 'Carrier. — Where a railroad crossing is made more dangerous by reason-of obstructions which intercept the view of persons approaching the crossing, it is the duty of the railroad company to use care commensurate with the increased danger thus occasioned, p. 710.</p> <p>9. Railroads. — Crossing Accidents. — Duty of Railroad at Street Crossings. — ■Instructions.-—Harmless Error. — In -an action against a railroad company for personal injuries sustained in a crossing accident, instructions assuming that it .was the duty of the company to give warning of the approach of its cars to a street crossing, instead of submitting to the jury the question whether ordinary care required such action, while erroneous as a general proposition of law, were rendered harmless under the facts disclosed by the undisputed evidence, p. 711.</p> <p>10. Railroads. — Crossing Accidents. — Duty to Signal. — Questions for Jury. — Instructions.—In an action against a railroad company for personal injuries sustained in a crossing accident, an instruction that it was not the duty of defendant company while engaged in switching upon its switch tracks to sound the whistle or ring the bell of its locomotive even though it cross a street, was erroneous, since, under the circumstances, it was a question of fact whether it was the duty of the defendant to give such warning as a signal of its approach to a street crossing, p. 711.</p> <p>11. Railroads.- — Crossing Accidents.- — Hogligence.—Care Required at Street Crossings. — The fact that a railroad company is^ngaged in switching does not relieve it from exercising care in crossing a public street, p. 711</p> <p>12. Trial. — Instructions.—Repetition.—It is proper for the court to refuse a requested instruction where the. propositions contained therein are covered by other instructions given., p. 711. :</p> <p>13. Witnesses. — Competency.—Physicians.—Privileged! Communica- ' Hons. — In an action for personal injuries, testimony of a physician as to whether plaintiff was in a state of intoxication at the hospital shortly after the time of the injury was properly excluded as being a privileged communication, where the witness was called as a physician to treat plaintiff and became possessed of the information by reason of his employment, p. 711.</p> <p>14. Trial. — Admission of Rebuttal Evidence. — Discretion of Trial Court. — Presumptions.—In an action for personal injuries, it will be presumed on appeal that the trial court admitted rebuttal evidence as to the whereabouts of the plaintiff on the night previous to the accident, which occurred about 6:30 o’clock in the morning, even though no evidence on this point had been introduced by plaintiff in making out its case in chief, as tending to rebut the attempt of the defendant to show, as part of its defense, that plaintiff was intoxicated at the time he was injured, since it was within the discretion of the trial court to admit such evidence for that purpose, p. 712.</p>

From Pike Circuit Court; John L. Bretz, Judge. Action by John R. McCoy, trustee of the estate of Elmer G. Devin and others against James A. Houck, executor of the estate of Nancy Devin, deceased, and others. From a judgment for plaintiffs, the defendants appeal.

<p>Appeal. — Perfecting.—Time for Filing Transcript. — Dismissal.— An appeal from an interlocutory injunction order .will be dismissed where the appellant fails to file the transcript in the Supreme Court during the term at which the order was made.</p>

<p>Appeal. — Temporary Injunction. — Perfecting Appeal. — An appeal from an order granting a temporary injunction must be perfected during the term at which the order is made.</p>

From Jackson Circuit Court; John H. Edwards, Special Judge. Proceedings for the improvement of a highway on the petition of John H. Kirsch and others in which John H. Bettenbrock and others appeared and answered. From the judgment rendered, the defendants appeal.

From Jackson Circuit Court; John H. Edwards, Special Judge. Proceedings for the improvement of a highway on'the petition of Henry Harper and others in which John H. Bettenbrock and others appeared and answered. From the judgment rendered, - the defendants appeal.

<p>From Henry Circuit Court; Willis S. Ellis, Special Judge.</p> <p>Action by John A. Baker and others against the town of Sulphur Springs. From a judgment for defendant, the plaintiffs appeal.</p>