Volume 191 — Indiana Reports

<p>1. Food.— Sale of Diseased Meat.— Affidavit.— Sufficiency.— Statutes. — An affidavit charging that defendant had in his possession, with intent to sell for food, meat taken from certain diseased animals, knowing it to be so diseased and intending it to be used for food, is sufficient under §2455 Burns 1914, Acts 1905 p. 584, §546. p. 26.</p> <p>2. Criminal Law. — Appeal.— Review.— Evidence.— Sufficiency. —Weight of Evidence. — In determining the. sufficiency of the evidence to sustain the verdict, the court on appeal will not weigh the evidence, and if there is some evidence tending to support each essential element of the offense charged, it is sufficient to sustain a verdict of guilty, p. 26.</p> <p>3. Food. — Sale of Diseased Meat.— Conviction.— Appeal.— Review.— Evidence.— Sufficiency.— In a prosecution for unlawfully having in possession meat taken from- diseased animals with intent to sell it for food, evidence which failed to show that defendant intended to sell such animals for food, or even had possession of meat taken from such animals for any purpose or knew of sales being made by another, is insufficient to sustain a conviction, p. 26.</p>

From Gibson Circuit Court; F. M. Hostetler, Special Judge. Action by Roberta G. Watts against the Evansville, Mt. Carmel and Northern Railway Company and another. From the judgment rendered, both parties appeal. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

<p>1. Criminal Law.— Evidence.— Judicial Knowledge.— The Supreme Court will take judicial notice of the county in which a large city is located, and that Ft. Wayne is located in Allen county, p. 57.</p> <p>2. Criminal Law.— Evidence.— Judicial Knowledge.— The circuit court of Allen county will take judicial notice that New Haven is located in Allen county, p. 57.</p> <p>3. Criminal Law.— Evidence.— Sufficiency.— Venue.— While it may not be necessary to prove venue by direct questions and answers showing in what county and state the felony charged was committed, there must be some evidence tending to support such fact, and from which the fact may be found, p. 58.</p> <p>4. .Criminal Law.— Evidence.— Sufficiency.— Receiving Stolen Goods. — In a prosecution for receiving stolen goods, where' the evidence showed that the property was taken at New Haven, and that it was found at the place of business of the accused on a named street, but there was no evidence in what state, county or city the street was located, conviction must be reversed for want of proof of venue of the offense, which would be the place where the stolen property was received, p. 58.</p>

From Marion Circuit Court (24,288); Louis B. Ewbank, Judge. Action by Harry Daniel and others against John F. Schneider. From a judgment for plaintiff against the defendant named, he appeals. (Transferred from the Appellate Court under §1394, cl. 2, Burns 1914, Acts 1901 p. 565.)

From Clark Circuit Court; James W. Fortune, Judge. Action, by John Nagle and others against the city of Jeffersonville and others. From a judgment for plaintiffs, the defendants appeal.

<p>From Marion Superior Court (105,298); Theophilus J. Moll, Judge.</p> <p>Action by the St. Paul Crushed Stone Company against. Frank H. Wheeler. From a judgment for plaintiff, the defendant appeals.</p>

From Allen Circuit Court; J. W. Eggemctn, Judge. Action by Joseph S. Rothschild and others, as executors of the will of Aaron Rothschild, against Pauline B. Weinthel. From a judgment for defendant, the plaintiffs appeal.

<p>From Daviess Circuit Court; James W. Ogdon, Judge.</p> <p>Action by Michael Donahoe against Rett A. Roberts. From a judgment for plaintiffs, the defendant appeals.</p>

From Monroe Circuit Court; Robert W. Miers, Judge. Petition by James L. Norman and others to establish a drain, in which Chicago, Indianapolis and Louisville Railroad Company filed a remonstrance. From a judgment establishing the ditch, the remonstrator appeals.

<p>From Posey Circuit Court; Herdis■ F. Clements, Judge.</p> <p>Prosecution by the State of Indiana against James Wheeler. From a judgment of conviction the defendant appeals.</p>

<p>From Dekalb Circuit Court; Dan M. Link, Judge.</p> <p>Prosecution by the State of Indiana against Ernest Peters. From a judgment of conviction, the defendant appeals.</p>

<p>1. Appeal. — Review.—Finding.—Evidence.—Sufficiency.—On appeal, when the insufficiency of evidence to support the finding is assigned as error, the Supreme Court will consider only the question whether the evidence most strongly tending to support it is sufficient to sustain the verdict, p. 135.</p> <p>2. Sunday. — Illegal Contracts.- — Pleadings.—The issue that a contract was illegal because made on Sunday would have been sufficiently presented by a general plea that it was entered into on Sunday, leaving the defendant the burden of showing by way of reply, that it came within an exception as being made by persons who conscientiously observed the seventh day of the week. p. 136.</p> <p>3. Sunday. — Illegal Contracts. — Pleadings.—Burden of Proof.— Where a defendant by his answer asserts that a contract was made on Sunday and that neither of the parties to the contract came within the exception as being persons who conscientiously observed the seventh day of the week as Sabbath, the defendant assumed the burden of proving the defense set up. p. 136.</p> <p>4.. Sunday.— Illegal Contracts.— Statutes.— A contract entered into on Sunday by persons,- who do not conscientiously observe the seventh day of the week as Sabbath, which was not agreed to or ratified on any secular day, is in violation of the statute (§2364 Burns 1914, Acts 1909 p. 436) and cannot be enforced by suit. p. 139.</p> <p>5. Evidence. — Admissibility.—Conclusions.—In an action by an employe against his employer for alleged commissions due, questions as to who had charge or control of defendant’s store in his absence propounded to the plaintiff, were properly excluded, as calling for conclusions of the witness, p. 139.</p> <p>6. Evidence.— Admissibility.— Reversible Error.— In an action by an employe for alleged commissions due on sales, a letter written by the defendant, after the plaintiff had left his employ, inclosing a check for a small amount as commissions, was admitted over the objection that it was given in settlement or compromise, the letter not so stating, its introduction was not reversible error, p. 140.</p>

<p>From Hamilton Circuit Court; Earle Sample, Special Judge.</p> <p>Action' by Dora E. Rooker and others against the Fidelity Trust Company. From a judgment for defendant, the plaintiffs appeal.</p>

<p>From Marion Criminal Court (51,444) ; James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Frank Thompson. From a judgment of conviction, the defendant appeals.</p>

<p>1. Trial. — Request for Peremptory Instructions. — Waiver.—The error, if any, in denying the motion for a peremptory instruction was waived by defendant’s subsequent introduction of further evidence under the issues, p. 172.</p> <p>2. Appeal.— Answers to Interrogatories.— Review.— Specifications in a motion for a new trial that answers to certain interrogatories were not sustained by sufficient evidence presents no question for review where judgment was rendered on the general verdict, p. 172.</p> <p>3. Master and Servant. — Workmen’s Compensation Act. — Employer’s Failure to Comply with Act. — Election of Remedies.— An employer who elected to operate under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918), and had duly insured its liabilities in an authorized company, and had filed proof of that fact to the satisfaction of the Industrial Board, suffered its insurance to terminate and cease, and did not file application for permission to carry its own insurance until after a workman had been injured, held the employer was liable to an action at law by the employe in the manner provided by §10 of the Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918) which takes away the defenses of contributory negligence, assumed risk, and that the injury was caused by negligence of a fellow workman, p. 172.</p> <p>4. Appeal.— Record. — -.Bill of Exceptions.— Filing.— Sufficiency of Showing. — A certificate, reciting that the defendant presented a bill of exceptions which was approved and signed by the court and ordered “to be and is now filed,” sufficiently showed that the bill of exception was filed after it was signed, p. 176.</p> <p>5. Master and Servant.— Workmen’s Compensation Act.— Pleadings. — Burden of Proof. — A general denial in an action at law for damages by an employe, in which the complaint alleged that the employer had not complied with the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918) in keeping insured as to his liabilities under the act, imposed upon the plaintiff the burden of proof to establish the facts alleged, p. 176.</p> <p>6. Master and Servant. — Workmen’s Compensation Act. — Evidence. — Sufficiency.—An action at law for injuries to an employe the fact that the Industrial' Board had notified the employer that the insurance carrier was insolvent, or that the insurance carrier notified the Industrial Board that the policy would be canceled on a certain date, without any showing that the cancellation was authorized by the terms of the policy, is not sufficient evidence to sustain a verdict that the employer had failed to keep itself insured so as to be liable at law to its employes, p. 178.</p> <p>7. Evidence. — Sufficiency.—Oral evidence offered by defendant in support of facts pleaded as a defense of which he had the burden of proof does not make the evidence insufficient to sustain the verdict for the plaintiff since the jury may not have believed the defendant’s witnesses who gave that testimony, p. 179.</p> <p>8. Master and Servant. — Refusal of Instructions. — Harmless Error. — In an action at law by an employe for damages for injuries received by alleged negligence of the employer, where the plaintiff claims the employer failed to maintain the compensation insurance required in which event the employer could not assert the defenses of contributory negligence, assumed risk and the “fellow-servant rule,” the appellant was not harmed by the court’s refusal to instruct the jury that it was a common-law action, p. 179.</p> <p>9. Trial.— Instructions.— Harmless Error.— Where defendant was entitled to an instruction setting out the substance of the complaint, a requested instruction which was incomplete, omitting material allegations of the complaint, held there was no error in refusing to give it. p. 179.</p> <p>10. Trial. — Instruction.—Refusal.—Harmless Error. — Where the court has once fully instructed the jury on a subject, it is not error to refuse other instructions which are in substance the same as those given, p. 180.</p> <p>11. Trial.— Instruction.— Election of Remedies.— Province of Jury. — In an action for injuries by an employe where the defense charged an election by plaintiff to pursue his remedy under the Workmen’s Compensation Act by receiving payments thereunder, an instruction, that receiving of such money would not constitute an electfon unless such moneys were intended as compensation and were accepted as such, was erroneous as invading the province of the jury, since a mere mental reservation on his part could not overcome the legal effect of acceptanee with knowledge that it was paid as compensation due under the law. p. 182.</p> <p>12. Master and Servant. — Workmen’s Compensation Act.— Election of Remedies. — Instructions.—Province of Jury.— Where the evidence showed that the defendant was operating in good faith under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918) and had taken out insurance approved by the Industrial Board for a term not yet expired, the question whether other alleged facts disputed by the defendant’s .witnesses existed, by reason of which an injured workman had the right to pursue his remedy under the Workmen’s Compensation Act or an action at law was for the jury, and it was error to instruct that he had such right. p. 182.</p> <p>13. Master and Servant. — Workmen’s Compensation Act.— Election of Remedies. — Instructions.—An instruction that- a servant’s right to choose between his remedy under the Workmen’s Compensation Act and his action at law would continue until plaintiff elected to pursue the one or the other of such remedies is not correct as he could lose the right to pursue a remedy by acts inconsistent with its exercise, which are not within what a jury might understand by an election to pursue the remedy, p. 182.</p> <p>14. Master and Servant.- — Workmen’s Compensation Act.— Election of Remedies. — Instruction.—Where the evidence showed that an injured employe received service of a physician and medicine with knowledge that his employer had agreed to pay for them because of his obligation under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918), it was error for the court to instruct the jury that if the defendant paid the bills without the knowledge, direction or consent of the plaintiff, such payment would not tend to establish the election to accept compensation for the injuries sustained, p. 184.</p> <p>15. Trial. — Conflicting Evidence. — Instructions.—Province of Jury. — -Questions of facts, upon which the evidence is conflicting must be submitted to the jury and not determined by the court in an instruction, p. 185. .</p> <p>16. Master and Servant. — Workmen’s Compensation Act.— Election of Remedies. — Notice to Employer not to Pay Medical Fees. — Where the evidence showed that an injured employe received services of a physician and medicine with knowledge that his employer had agreed to pay for them because of his obligations under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918), a notice to the employer not to pay for such services and medicines would not affect the employer’s liability, and, therefore would not defeat the effect of receiving such services as an election to accept compensation.- p. 186.</p> <p>17. Master and Servant. — Workmen’s Compensation Act.— Election of Remedies. — Instructions.—In an action at law by a servant, where the defense asserted, not only that the plaintiff had elected to accept compensation under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918), but also that under the facts he was not entitled to such election, defendant was entitled to an instruction informing the jury that, if he failed in that action, it would not defeat his right to receive compensation, p. 186.</p> <p>18. Master and Servant. — Workmen’s Compensation Act.— Fraud. — Refusal of Instruction. — Error.—Ignorance of Law.— In an action at law for injuries by an employe where there was no fraud of the master alleged and no evidence of fraud in taking advantage of the ignorance of employe of the provisions of the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918), it was error to refuse an instruction that one, who has accepted compensation from the master with full knowledge of all material facts, cannot avoid the consequences annexed by law to such act by alleging and testifying that he was ignorant of the law. p. 188.</p> <p>39. Master and Servant. — Workmen’s Compensation Act. — In- " structions. — Burden of Proof. — In an action at law for injuries to an employe, where the plaintiff claimed facts which gave him an election to proceed at law or under the Workmen’s Compen- ' sation Act (Acts 1915 p. 392, §80201 .et seq. Burns’ Supp. 1918), the defense that he had elected to accept compensation under the Workmen’s Compensation Act must be proved by the defendant, a requested instruction that the-burden was upon the plaintiff to establish that he received the moneys as a charity or gifts and not as compensation, was inaccurate, p. 188.</p> <p>20. Trial. — Argument of Counsel. — Answer to Interrogatories. Breach of Duty. — In an argument to the jury in a case where special interrogatories are submitted to them, it- is a breach of an attorney’s duty to state to the jury what their answer should be to a certain interrogatory, but such argument should be devoted to convincing the jurors that the evidence does or does not prove certain facts, p. 189.</p>

<p>From Tippecanoe Superior Court; Charles W. Hanley, Judge Pro Tent.</p> <p>Proceedings by John McLaughlin and others, opposed by Martin P, Gray and others, for the repair and improvement of a public drain. From a judgment establishing the drain, the opponents appeal.</p>

<p>From Marion Criminal Court (50,719) ; James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Harry Parsons. From a judgment of conviction, the defendant appeals.</p>

<p>From Elkhart Superior Court; William B. Hile, Judge.</p> <p>Prosecution by the State of Indiana against William Graves; From a judgment of conviction, the defendant appeals.</p>

<p>From Lawrence Circuit Court; Robert Mellen, Special Judge.</p> <p>Prosecution by the State of Indiana against William R. Taylor and others. From a judgment of conviction, the defendants appeal.</p>

<p>From Grant Circuit Court; J. F. Charles, Judge.</p> <p>Action by Sarah Beasley and others against Jane A. Jones and. others. From a judgment for plaintiff, the defendant appeals.</p>

From Marion Probate Court (1,053) ; Mahlon E. Bash, Judge. Action by Margaret Collett and another against Adolph G. Emhardt, administrator with the will annexed of the estate of Edward A. Adams, deceased. From a judgment for plaintiffs, the defendant administrator appeals.

<p>From Marion Criminal Court (51,254) ; James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Frank Patterson. From a judgment of conviction, the defendant appeals.</p>

<p>1. Criminal Law. — Nuisance.—Affidavit Charging More Than One Offense. — In a prosecution for violation of §20 of the Prohibition Act (Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1918) under a count in an affidavit charging more than one offense, the defendant can be found guilty of any one- of them, p. 231.</p> <p>2. Intoxicating Liquors. — Nuisance.—Evidence.—Sufficiency.— In a prosecution for violation of §20 of the Prohibition Act (Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1918) proof that the defendant maintained the place where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, was sufficient, p. 231.</p> <p>3. Criminal Law. — Intoxicating Liquors. — Opinion.—Evidence. —In a prosecution for violation of §20 of the Prohibition Act (Acts 1917 p. 15, §8356a et seq. Bums’ Supp. 1918) testimony that a pitcher found in defendant’s possession contained whisky, which they knew from their sense of smell, was properly admitted. p. 231.</p>

<p>1. Appeal. — Briefs.—Waiver of Error. — Instructions.—The assignment of error alleged in a motion for a new trial that the court erred in giving and in refusing to give certain instructions is waived by appellant’s failure to present any point or authority in his brief in support of his assignment, p. 234.</p> <p>2. Indictment and Information. — Duplicity.—Statute Making Distinct Acts Punishable. — Proof.—Where a statute makes punishable the doing of two or more distinct acts, a person who in one transaction commits all of such acts violates the statute but once and incurs only one penalty, yet the doing of one of the specified acts is equally a violation of the statute; therefore, an indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden acts as the pleader chooses,' employing the conjunction “and” where the statute has “or” and it will not be double and will be established by proof of any one of them. p. 236.</p> <p>3. Indictment and Information. — Affidavit.—Gaming.—Surplusage Need Not be Proved. — An affidavit, charging that defendant kept a building to be used and occupied for gaming “and” permitted a certain named person and others unknown to play at certain games for money and other things of value, merges into a single offense' of keeping a gambling house, and the allegation that the defendant permitted a certain named person and others unknown to play at certain games for money and other things of value is surplusage and need not be proved to sustain a conviction, p. 236.</p> <p>4. Criminal Law. — Appeal.—Review.—Evidence Susceptible of Conflicting Inferences. — Where the circumstances are of such character that the jury might reasonably have drawn an inference of guilt of the accused, the question is one of fact for the jury and trial court, and cannot be reviewed on appeal as it is not within the province of the Supreme Court to determine what inference the jury should have drawn, p. 237.</p> <p>5. Criminal Law. — Appeal.-—Review.—Evidence.—Sufficiency.— Question of Fact for Jury. — If there be no evidence to support the verdict or finding the error is one of law which may be reviewed and corrected on appeal; but if the jury find against the clear preponderance of the evidence, even in case of conflict, it is the duty of the trial court to correct such error by granting a new trial on the ground that the verdict is not sustained by sufficient evidence, in such ease the Supreme Court having no power to review, p. 237.</p> <p>6. Criminal Law. — Appeal.-—Revietv.—Evidence.—Sufficiency.— Scope of Review. — In reviewing the sufficiency of the evidence to sustain a verdict, only evidence in favor of the prevailing party, with the inference and conclusions to be drawn therefrom, can be considered, p. 238.</p> <p>7. Criminal Law. — Appeal.—Admissibility of Evidence. — Waiver of Objections. — Where special objections are stated to the ad-mission of evidence, the implication is that there are no other objections, or if others, they are waived, p. 243.</p> <p>8. Criminal Law. — Appeal.—Presenting Questions for Review. —Objections to Admission of Evidence. — The particular ground of objection to the admission of evidence must be stated to the trial court and the same ground of objection must be brought before the Supreme Court to present any question for consideration on appeal, p. 243.</p> <p>9. Criminal Law. — Appeal.—Harmless Error. — Admission of Evidence. — In a prosecution for keeping a place for gaming, the erroneous admission in evidence of transcripts of a city court on pleas of guilty and conviction of persons found in the place and on the date named in the affidavit was harmless, where the fact was conclusively established by other testimony to which no objection was made. p. 243.</p>

<p>From Lake Superior Court; Walter T. Hardy, Judge.</p> <p>Action by Peter H. Bick against Irving Cowles. From an order appointing a receiver, the defendant appeals.</p>

<p>From Pike Circuit Court; W. D. Curll, Judge pro tem.</p> <p>Action by Anna Hollon against Dewitt Corn. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Porter Superior Court; Harry L. Crumpacker, Judge.</p> <p>Proceedings in quo warranto by the State of Indiana, on the relation of Clyde Hunter, prosecuting attorney, etc., against the town of Hessville, etc., and others. From a judgment for defendants, the relator appeals.</p>

<p>1. Burglary. — Affidavit. — Sufficiency. • — ■ “Entering Dwelling House”. — In a prosecution for burglary, an affidavit charging that defendant broke into and entered into the “dwelling house” of a person named, situated, etc., held sufficient to charge burglary in the first degree under §2268a Burns’ Supp. 1918, Acts 1915 p. 619, defining that offense as the act of breaking and entering into any “dwelling or other place of human habitation,” the word “dwelling” importing a human habitation, p. 264.</p> <p>2. Criminal Law. — Confessions.—Proof of Corpus Delicti. — A naked confession is one which is not corroborated by independent proof of the corpus delicti, and upon such a confession made in open court, a conviction of any crime and sentence therefor may be had; but in case of all extra-judicial confessions it is the rule that the corpus delicti must be proved by additional evidence before a conviction upon the naked confession alone will be upheld, p. 268.</p> <p>8. Criminal Law. — Burglary.—Evidence.—Sufficiency.—Failure to Prove Corpus Delicti. — In a prosecution for burglary, where there was no proof of the corpus delicti, except defendant’s extra-judicial confession held that a verdict was not sustained by sufficient evidence, since before a conviction will be upheld upon such a confession, the corpus delicti must be proved by additional evidence, p. 269.</p> <p>4. Criminal Law. — Harmless Error.- — Instructions.—Instruction <as to Statute Superseded by Later Act. — In a prosecution for burglary under §2268a Burns’ Supp. 1918, Acts 1915 p. 619, an instruction in the language of §2264 Burns 1914, Acts 1907 p. 249, which had been superseded by such later act, was harmless, where all that part of the earlier statute which refers to buildings other than a dwelling had no application to the facts in the case, and the penalty stated in the instruction was the same as that fixed by the later act. p. 270.</p> <p>5. Trial. — Instructions.—Applicability.-—The refusal of tendered instructions which are not applicable to the facts shown by the evidence is proper, p. 270.</p>

From Washington Circuit Court; James L. Tucker, Judge. Action by the State of Indiana, on the relation of Charles E. Wyman and others, against James S. Hall and others, as the board of commissioners of the county of Washington. From a judgment for defendants, the relator appeals.

<p>From Madison. Circuit Court; Luther F. Pence, Judge.</p> <p>Action by Theodore L. Hensley, administrator de bonis non of the estate of William J. Smith, deceased, against Herman E. Rich and others, in which Patrick Ryan, foreign administrator of such estate filed a cross-complaint. From the judgment rendered, the plaintiff appeals.</p>

<p>From Marion Criminal Court (51,155); Romney L. Wilson, Special Judge.</p> <p>Prosecution by the State of Indiana against James J. King. From a judgment of conviction, the defendant appeals.</p>

<p>1. Frauds, Statute op. — Applicability.—Oral Contract to Make Will. — A decedent’s oral contract to execute a will making claimant against his estate his legatee was within the statute of frauds, and no action can be maintained upon it. p. 314.</p> <p>2. Frauds, Statute op. — Contracts within Statute. — Services Rendered in Consideration of Agreement to Make Will. — Recovery on Quantum Meruit. — Where services have been performed in consideration of decedent’s oral agreement to execute a will making claimant against his estate his legatee, which contract was unenforceable under the statute of frauds, claimant is entitled to recover the value of his services, not pursuant to the terms of the contract, but on the quantum meruit; the value of the services performed, and not the value of the property agreed to be conveyed, being the measure of damages, p. 314.</p> <p>3. Frauds, Statute op. — Services Rendered Under Unenforceable Contract to Make Will. — Recovery on Quantum Meruit.— Value of Property to be Conveyed. — Admissibility.—In an action to recover on the quantum meruit for services rendered pursuant to an oral agreement to make a will in favor of plaintiff, such contract being unenforceable under the statute of frauds, the value of the property to be conveyed or the benefit stipulated for cannot be received in evidence on the subject of the value of the services rendered, and such testimony will be excluded, expecially when the value of the equivalent to be rendered is contingent and indeterminate at the time of the execution of the contract, p. 316.</p> <p>4. Executors and Administrators. — Services Rendered and Unenforceable Contract. — Recovery on Quantum Meruit. — Presumption of Gratuitous Service. — Proof of Contract. — In an action against decedent’s estate by one claiming under an oral agreement that decedent make a will in his favor in consideration of claimant living with decedent and his wife, proof of the contract and its terms was admissible to rebut the presumption that plaintiff, while living with decedent’s family, rendered his services gratuitously, or that they were performed under the mere expectancy that the decedent would leave plaintiff a legacy, p. 317.</p> <p>5. Appeal. — Review.—Instructions.—Action to Recover for Services in Consideration of Contract to Make Will. — Measure of Recovery. — In an action against a decedent’s estate to recover on a quantum meruit for services rendered pursuant to decedent’s oral agreement to execute a will making plaintiff his legatee, if he would live with decedent, held that, in view of the evidence, the giving of an erroneous instruction authorizing the jury to consider the value which decedent and his wife placed upon plaintiff’s companionship, etc., was prejudicial to defendant administrator, p. 317.</p> <p>6. New Trial. — Verdict Contrary to Law. — Verdict Improperly Affected by Error of Law. — A verdict improperly affected by any error of law occurring at the trial is a verdict contrary to law. p. 317. ■</p> <p>7. Trial. — Instructions.—Refusal.—Repetition.—It is not error to refuse correct instructions where the subject-matter thereof is embraced in other instructions given, p. 318.</p> <p>8. Parent and Child. — Emancipation of Child. — Parent’s Consent to Live with Another Family. — Where the parents of a child consented to his living with others who, in consideration, agreed to make a will in his favor, such consent emancipated the child, p. 318.</p> <p>9. ' Parent and Child. — Emancipation of Child. — Consent. of . Parents. — Failure to Support- Child. — Emancipation of a child may be effected by the consent of the parents evidenced by a written or oral agreement, or from circumstances when the parents fail to support the child, p. 318.</p> <p>10. Witnesses. — Contract to Make Will in Favor of Emancipated Child. — Action for Breach. — Competency of Parents to Testify. — Statutes.—Where the parents of a child emancipated him by consenting to his acceptance of a contract with his uncle to live with him in consideration of which the uncle agreed to make him his sole heir, the parents were not incompetent witnesses, under §§521, 523, 525 Burns 1914, §§498, 500, 501 R. S. 1881, in the child’s action against the administrator of the uncle’s estate for breach of such contract, p. 319.</p>

<p>1. Intoxicating Liquors.- — Wine for Domestic Consumption.— Manufacture and Possession. — Statutes.—Under §§5, 35 of the Prohibition Act (Acts 1917 p. 15, §8356a et seq. Bums’ Supp. 1918), one has a right to make and keep for his own domestic use and consumption regardless of its alcoholic content, and there is no restriction upon the amount of such wine which may be kept in the owner’s home. p. 322.</p> <p>2. Intoxicating Liquors., — Keeping for Sale. — Evidence of Intent. — Quantity of Liquor in Defendant’s Possession. — Statutes. —The mere finding of a large amount of wine in defendant’s home does not indicate an intention to keep such wine for sale, in view of §35 of the Prohibition Act (Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1918.) p. 323.</p> <p>3. Intoxicating Liquors. — Keeping for Sale. — Evidence.—Statutes. — In a prosecution for a violation of §4 of the Prohibition Act (Acts 1917 p. 15 §8356a et seq. Burns’ Supp. 1918), making it an offense to keep any intoxicating liquor with intent to sell, where there was evidence from which the court may have found that defendant had actually sold a quantity of wine, such sale would be some evidence that a large quantity of wine found in defendant’s residence was kept with intent to sell, p. 323.</p> <p>4., Intoxicating Liquors. — Keeping with Intent to Sell. — Evidence. — Proof of Alcoholic Content. — Statutes.—In a prosecution for a violation of §4 of the Prohibition Act (Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1918), making it unlawful ■ to keep intoxicating liquor with intent to sell it, intoxicating liquor being defined .as any liquor containing so much as one-half of one per cent of alcohol by volume, where defendant was charged with unlawfully keeping for sale a large quantity of wine found in his residence, proof that the wine containéd a greater alcoholic content than that allowed by the act was not required to sustain a conviction, since §§5, 35 of the act, permitting any person to manufacture wine for his own domestic consumption 'and keep such wine in his own home for such use, without limit as to quantity, clearly shows that wine is expressly within the definition and prohibition of the statute; the word “wine,” when used without any qualification, meaning ■ the fermented juice of the grape, p. 323.</p>

<p>1. Street Railroads. — Crossing Accidents. — Last Clear Chance Doctrine.— Applicability.— Where plaintiff, while riding a motorcycle, was struck by defendant’s freight car at a street intersection, and the evidence showed that both plaintiff and defendant’s motorman had an unobstructed view, as the motorman and car ran toward the crossing, but that the motorman did not actually see plaintiff nor have actual knowledge that he was in danger until just as the rear part of the car struck the motorcycle, held that the doctrine of last clear chance was inapplicable, p. 325.</p> <p>2. Street Railroads. — Last Clear Chance. — Instructions.—The last clear chance contemplates a peril of which the motorman knows, and knowing can avoid by due care, and an instruction that it was applicable to a case of negligence in failing to look and know was erroneous, p. 325.</p>

<p>From Marion Criminal Court (51,217); James M. Leathers, Special Judge.</p> <p>Prosecution by the State of Indiana against John Dampier. From a judgment of conviction, the defendant appeals.</p>

From Clark Circuit Court; James W. Fortune, Judge. Action by the State of Indiana on the relation of James S. Chenoweth and others, against the Board of Commissioners of Crawford county. From a judgment for relators, the defendant appeals.

From Lake Circuit Court; C. M. Greenlee, Special ■ Judge. Action by the State of Indiana, on the relation of the city of Hammond, against George M. Foland, auditor of Lake county. From a judgment for defendant, the relator appeals.

<p>From Gibson Circuit Court; Henry Kister, Special Judge.</p> <p>Prosecution by the State of Indiana against Della Steele. From a judgment of conviction, the defendant appeals.</p>

<p>' From Laporte Circuit Court; Julius C. Travis, Special . Judge.</p> <p>' Action by the Clark Construction Company against Armanis F. Knotts. From a judgment for plaintiff, the defendant appeals.</p>

<p>Indictment and Information. — Sale of Intoxicating Liquor.— Indictment. — Sufficiency.—Duplicity.—Statutes.—Section 4 of the Prohibition Act (Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1918) making it unlawful to sell, barter, exchange, give away, furnish and otherwise dispose of any intoxicating liquor, is not intended to name several offenses, but only the one offense of getting intoxicating liquors into the possession of other persons, which may be committed in different ways;' hence, an indictment under this section charging conjunctively that defendant unlawfully sold, bartered, exchanged, gave away, furnished, and otherwise disposed of intoxicating liquor, is not bad for duplicity</p>

<p>Ckiminal Law. — Trial.—Jury.—Taking Indictment into Jury Boom. — It is proper to permit the jury to take with them the affidavit, or indictment, when they retire to deliberate on their verdict, provided there is nothing of a prejudicial character attached thereto, or indorsed thereon.</p>

<p>From Putnam Circuit Court; James P. Hughes, Judge.</p> <p>Action by Essie Phillips against the Terre Haute, Indianapolis and Eastern Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Evidence. — Judicial Notice.~Múnicipal Elections. — Statutes. —The Supreme Court has judicial knowledge of the holding of municipal elections pursuant to §8644 Burns 1914, Acts 1913 p. 933. p. 397.</p> <p>2. Judgment. — Vacating Judgment. — Power of Courts. — In a proceeding to condemn land for the opening of a street across a railroad, where the court had inadvertently entered a finding and judgment, when counsel for the city was not present which did not fully protect the city’s interests, the court had full authority to set the judgment aside before the expiration of the term at which it was rendered, either upon motion of appellee, or upon its own motion, p. 397.</p> <p>3. Judgment. — Vacating Judgment. — Power of Courts. — Proceedings in Fieri. — A motion to set aside and vacate a judgment duly presented before the expiration of the term kept the proceedings in fieri, so that the motion could be ruled on at a later term with the same effect as if the judgment had been set aside at the same term. p. 398.</p> <p>4. Judgment. — Vacating Judgment. — Motion.—Supporting Affidavits. — Proceedings in Fieri. — A motion asking the court to set aside and vacate a judgment because of facts shown by the record, or within the personal knowledge of the judge, in a cause that is still in fieri, is not required to be supported by affidavit, and the court can act upon knowledge of facts which occurred in open court without formal proof, p. 398.</p> <p>5. Eminent Domain. — Judgment Awarding Benefits and Damages.— Vacation. — Dismissal of Action. — Statutes. — Under §8705 Burns’ Supp. 1918, Acts 1915 p. 690, relating to condemnation proceedings, where the damages assessed by the board of public works of a city in a proceeding to condemn land for a highway crossing over a railroad were increased on appeal to the superior court, and a judgment then rendered was afterward vacated on the city’s motion, the city may, upon payment of costs, discontinue the proceedings, p. 398.</p> <p>6. Motions. — Demurrers.—Motion to Strike Out Motion.— Neither a demurrer to a motion nor a motion to strike out a motion present any question for decision on appeal, p. 399.</p>

<p>From Gjbson Circuit Court; Robert C. Baltzell, Judge.</p> <p>Prosecution by the State of Indiana against Martin Mullen. From a judgment of conviction the plaintiff appeals.</p>

<p>1. Criminal Law. — Appeal. — Briefs. — Sufficiency.—Questions Presented. — Where appellant’s brief fails to set out the affidavit under which she was prosecuted or any of the counts in it, no question is presented for review as to the trial court’s rulings on motions attacking such affidavit, p. 408.</p> <p>2. Criminal Law.— Appeal.— Briefs.— Sufficiency.— Condensed Recital of Evidence. — Rules of Court. — Under Rule No. 22, cl. 5, of this Supreme Court, providing that, when the sufficiency of the evidence to sustain the verdict is questioned, appellant’s brief shall contain a condensed recital of. the evidence in narrative form, so as to present the substance clearly and concisely, appellant’s brief is insufficient to present for review any question as to the sufficiency of the evidence or as to the vérdict being contrary to the law, where the brief gives extracts from the testimony of only four of the thirteen witnesses testifying, most of such recital being copied literally from the bill of exceptions, and nothing is stated concerning the remainder of the evidence, p. 408.</p> <p>3. Criminal Law. — Appeal.—Questions Presented.- — Rulings on Instructions and Evidence. — Failure to Specify as Grounds for New Trial. — Alleged error in the giving of instructions and the admission of evidence cannot be challenged on appeal, where such error was not assigned as cause for a new trial, p. 409.</p> <p>4. Criminal Law. — New Trial. — Grounds.—Rulings on Pleadings Before Arraignment. — Rulings upon motions addressed to pleadings, made before defendant was arraigned or entered her plea, could not be successfully challenged by a motion for a new trial, even if erroneous, p. 409.</p>

<p>1. Criminal Law. — Trial.—Submission of Affidavit to Jury.— Prejudicial Indorsements. — Statutes.—Where defendant was convicted in a city court for a violation of the Prohibition Law (§8356a et seq. Burns’ Supp. 1918, Acts 1917 p. 15), and appealed to the circuit court, it was reversible error to permit the jury to take with them on their retirement the affidavit, where it had upon it indorsements indicating the finding and judgment of the city court, p. 411.</p> <p>2. Criminal Law, — Conviction in Federal Court. — Prosecution in State Court for Same Act. — Former Jeopardy. — If the same act is an offense under both the federal and state laws, the accused may be prosecuted under both, and, if he is convicted by a federal authority, he cannot successfully plead former jeopardy when prosecuted by the state authority, p. 411.</p> <p>3. Criminal Law. — Violation of Federal and State Laws.— Transportation of Liquor into Dry State. — Keeping with Intent to Sell. — One convicted in the federal court for a violation of the Reed Amendment (§§8739a, 10387a-10387c U. S. Comp. Stat. Ann. Supp. 1919), prohibiting the transportation of intoxicating liquor into a dry state, was charged with a separate and distinct offense in the state court, where the act charged was keeping intoxicating liquor within the state with intent to sell, in violation of the state Prohibition Law (§8356a et seq. Burns’ Supp. 1918, Acts 1917 p. 15). p. 412.</p>

<p>1. Criminal ' Law. — Appeal.—Review.—Harmless Error. — Instructions. — Informing Jury that Case■ Was on Appeal from City Court. — In a prosecution for unlawfully selling intoxicating liquor, the giving of an instruction reciting that the cause came up on appeal from the city court, if error, was harmless, where the jury had been informed by numerous questions asked by defendant’s counsel, and answers thereto, that the case had been tried in the city court, p. 414.</p> <p>2. Criminal Law. — Appeal.—Questions Reviewable. — Instruct tions. — Specification of Error in Motion for New Trial.- — A specification in a motion for new trial that the court erred in giving “instructions number one to-inclusive,” presents for review on appeal only instruction No. 1. p. 414.</p> <p>3. Criminal Law. — Appeal. — Review.-—-Overruling Motion to ■ Strike Out Evidence. — Scope of Review. — A party is not permitted on appeal to challenge the overruling of a motion to strike out the answer of a witness for reasons not stated to the trial court at the time the objection was made and the exception saved, p. 414.</p> <p>4. Witnesses. — Examination. — Leading Questions. — Exclusion of Answers. — In a prosecution for unlawfully selling whisky, where defendant had testified that she had no interest in the place in which the liquor was alleged to have been sold, exclusion of defendant’s answer to a question propounded by her own counsel, “You do not get any profit out of it?” held not an abuse of the trial court’s discretion, the question being improper in form, in that it was an assertion of fact by counsel when examining his own client, p. 415.</p>

<p>1. Criminal Law. — Appeal.—Review.—Harmless Error. — Admission of Evidence. — Proof of Offense by Competent Evidence. —In a criminal prosecution, where there is proof by undisputed evidence which is competent that defendant'committed the acts charged, a judgment of conviction will not be reversed because of the admission of incompetent evidence tending to prove the same facts, p. 418.</p> <p>2. Criminal Law. — Appeal.—Briefs.—Sufficiency.—Recital of Evidence. — Rules of Court. — Under Rule 22 of the Supreme Court it is the imperative duty of one appealing from a judgment of conviction to recite in his original brief in narrative form so much of the evidence as would inform the court what evidence there was proper to be considered in deciding the questions sought to be presented, p. 418.</p> <p>3. Criminal Law. — Appeal.—Briefs.-—Absence of Evidence.— Admission of Incompetent Evidence. — Presumptions.—Where appellant claimed error in the admission of evidence, but there was no condensed recital of the evidence, in narrative form in his brief, so as to permit a review of questions requiring a consideration of the evidence, it must be presumed on appeal that the evidence sustained the verdict, and therefore-that appellant was not harmed by the admission of the evidence objected to, even if it should have been excluded, p. 418.</p>

<p>From Lake Superior Court; Virgil S. Reiter, Judge.</p> <p>Action by Kasimir Waznitsky against George B. Limbert and Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Criminal Law. — Trial.—Misconduct of Counsel. — Reference by Prosecuting Attorney to Conviction of Coindictees of Defendant. — In a prosecution for conspiracy to commit arson, reference by counsel for the state in the examination of witnesses and in the argument to the jury to the fact that coindictees of defendant had been convicted, was improper, and when counsel first made reference to such fact they' should have been so admonished as to have deterred them from repeating the offense, p. 429.</p> <p>2. Criminal Law. — Trial.-—Examination of Witnesses. — Argument to Jury. — Discretion of Court.- — The examination of witnesses and arguments of counsel are subject to the control of the trial court, in the exercise of a sound discretion, and not every improper act or statement permitted by the court will require that the submission be set aside and the jury discharged, or that the judgment be reversed on appeal, though flagrant offenses, often repeated, with an apparent intent to prejudice the defendant before the jury, may require such action, p. 430.</p> <p>3. Criminal Law. — Appeal.—Review.—Refusal of Instructions to Disregard Improper Statements of Counsel. — In a prosecution for criminal conspiracy, where counsel for the state repeatedly, in the examination of witnesses and in argument to the jury, referred to the conviction of defendant’s coindictees, and in each case objection was made and a motion offéred to set aside submission, it was reversible error to refuse instructions that such improper statements should not be considered or defendant prejudiced thereby, p. 430.</p>

<p>1. Criminal Law. — Appeal.—Harmless Error. — Sustaining Demurrer to Plea of Former Adjudication. — Statutes.—In a criminal prosecution, where the court overruled a motion to quash the affidavit, but, after a jury was impaneled and sworn, set aside its former ruling, and sustained the motion, and discharged the jury, after which an amended affidavit was filed upon which defendant was tried, defendant cannot complain on appeal of the court’s action, before quashing the original affidavit, in sustaining a demurrer to his plea of former adjudication; the original affidavit, together with the plea and the demurrer thereto, no longer constituting any part of the record on appeal, in view of §691 Burns 1914, §650 R. S. 1881 and §§2228, 2231 Burns 1914, Acts 1905 p. 584. p. 433.</p> <p>2. Indictment and.Information. — Motion to Quash. — Reversal of Erroneous Ruling. — Power of Court. — Where the court overruled a motion to quash an affidavit, and defendant then filed a plea of -former adjudication, to which a demurrer was sustained, but defendant did not withdraw his motion to quash, it was not error for the court to set aside its former ruling and sustain the motion, the jury, which had been impaneled and sworn, being discharged, after which defendant was tried on an amended affidavit; the court having the power to set aside its ruling and sustain the motion at any time before final judgment. p. 433.</p> <p>3. Criminal Law. — Burglary.—Plea of Former Jeopardy. — Sufficiency. — Conviction of Larceny. — A conviction or acquittal of larceny will not bar a subsequent prosecution for burglary committed as a means of taking the goods stolen, unless the indictment for larceny also charged the offense of burglary, p. 433.</p> <p>4. Criminal Law. — Appeal. — Questions Revieivable. — Ruling Sustaining Motion to Quash. — Estoppel to Challenge. — In a prosecution for criminal conspiracy, where the court overruled defendant’s motion to quash the affidavit, but, after the jury had been impaneled and sworn, set' aside its former ruling and sustained the motion and discharged the jury, and defendant was subsequently prosecuted on an amended affidavit and convicted, he could not on appeal challenge the ruling sustaining the motion to quash, since the filing of a motion will estop a party to attack a ruling sustaining such motion, pp. 434, 435.</p> <p>5. Appeal. — Review.—Invited Error. — A party cannot successfully complain on appeal of an error which he procured the trial court to commit, p. 434.</p> <p>6. Criminal Law. — Appeal.—Harmless Error. — Sustaining Demurrer to Plea of Former Jeopardy. — In a prosecution for criminal conspiracy in which defendant pleaded not guilty, error, if any, in sustaining a demurrer to defendant’s special plea of former jeopardy, was harmless, in the absence of any showing that he was denied any advantage to which he would have been entitled under his special plea, since under §2069 Burns 1914, §1763 R. S. 1881, defendant hád the right to prove any matter of defense except insanity, p. 435.</p>

From Marion Superior Court (106,966); Henry J. Spaan, Special Judge. Action by the Lake Erie and Western Railroad Company against the Public Service Commission of Indiana and others. From a judgment for plaintiff, the defendants appeal.

<p>From Allen Superior Court; William N. Ballou, Judge.</p> <p>Habeas corpus proceeding by William Fleming against George -W. Gillie, sheriff. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Witnesses. — Establishment of Lost Will. — Beneficiary.— Competency. — Matter Occurring Prior to Testator’s Death.— ■ — Statutes.—In an action to establish, an alleged lost or destroyed will, a son of testator who benefited by the will was not a competent witness to prove, either directly or indirectly, that testator signed and certain other persons witnessed the alleged will and codicil, whether by proving the handwriting of the testator and the witnesses or otherwise, nor was he competent to testify that a paper produced by him was a copy of decedent’s will, or of papers bearing the genuine signature of his father and witnesses, or otherwise to identify papers found in his father’s desk as having been executed by him, although he was competent to testify that after his father’s death certain papers were found in his desk, and that he made a copy of those papers, and to identify the cox>y, under §522 Burns 1914, §499 R. S. 1881, as to the competency of heirs or devisees to testify as to matters occurring prior to the death of the ancestor. p. 462.</p> <p>2. Appeal. — Review.—■Admission of Evidence. — Cure of Error by Cross-Examination of Incompetent Witness. — In an action to establish an alleged lost or destroyed will, error in permitting beneficiary under the will to testify that signatures to papers found in decedent’s desk, claimed to be the will and codicil, were those of the alleged testator and witnesses, was not rendered harmless by questions propounded on cross-examination of the witness which did not bear directly upon his knowledge of the testator’s handwriting, but rather upon the knowledge of the handwriting in which certain papers were drawn to which testator’s name was subscribed, and upon his business relations with testator in connection with some contracts produced by the witness which he said bore a signature that was' his father’s; the contention being thát defendants made the beneficiary their own witness, p. 464.</p> <p>3. Witnesses. — Memory.—Refreshing by Copy of Instrument.— A witness who, after refreshing his memory, does not remember the exact language of a written instrument, cannot use a copy made by some unknown person, which he has not compared with the original, to enable him to testify to the contents of such instrument, of which he - does not have an independent recollection even after looking at the supposed copy. p. 464.</p> <p>4. Evidence. — Copy of Written Instrument. — Testimony as to Correctness. — Verification.—A witness cannot be permitted to testify that a copy of a writing is correct and accurate, when he did not make the copy and has not compared it nor verified it in any way except by his recollection of what he wrote twenty years before, p. 465.</p> <p>5. WinLS. — Establishment of Lost Will. — Copy of Lost Will.— Admissibility. — Until identified by competent evidence as the copy of a valid will, duly executed, which was in existence at the time of the testator’s death, or which had been destroyed in his lifetime without his consent, or otherwise fraudulently disposed of, such copy is not admissible, under §3167 Burns 1914, §2609 E. S. 1881, as to proof required to establish a lost will. p. 465.</p>

<p>From Marion Criminal Court (50,696); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against James Hamilton. From a judgment of conviction, the defendant appeals.</p>

From Starke Circuit Court; William C. Pentecost, Judge. Action by Melvin Clark, administrator, against the Pennsylvania Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1399 Burns 1914, Acts 1901 p. 569.)

<p>1. New Trial. — Motion.—Requisites.—Statement of Exceptions. —Although §585, cl. 8, Burns 1914, §559 R. S. 1881, authorizes a new trial for an error of law occurring at the trial only when it has been excepted to by the party making the application, whether or not a proper objection was made and an exception taken is to be determined from what is shown by the record, and not from the recitals in the motion for new trial, and such motion need only point out, with reasonable certainty the ruling of which complaint is made, so that a motion for new trial is not insufficient because of a failure to state that exceptions were taken to each of the rulings of the court specified as error, p. 481.</p> <p>2. Railroads. — Crossing Accidents.- — Negligence.-—Failure to Provide Watchman or Safety Gates. — Instructions.—In an action for injuries in a crossing accident, instructions submitting to the jury the question whether defendant railroad was guilty of negligence at the crossing, in which there was no reference to the speed or manner in which the train causing the injury, or other trains, were operated over the crossing, were erroneous. • p. 483.</p> <p>3. Railroads. — Crossing Accidents. — Evidence as to Warning Signals at other Crossings. — Admissibility.—In an action for injuries in a railroad crossing accident, evidence that there was no watchman, electric bell, or signal provided, at the crossing to warn travelers on the highway of the approach of trains, was competent on the question whether due care was exercised in the operation of the train causing the injury but it was error to admit evidence of plaintiff showing that automatic signals and bells were used at other highway crossings, p. 483.</p> <p>4. Damages. — Personal Injuries. — -Measure of Damages. — Shortening of Life. — Instructions.—Though a consideration of the nature and extent of personal injuries may lead indirectly to some consideration of their probable effect, the jury, in an action for personal injuries, should not be instructed to award damages to plaintiff.for the years taken off his life by his injury. p. 483.</p> <p>5. Damages.— Personal Injuries.— Measure of Damages.— Recovery for Peril to Life. — Instructions.—In an action to recover for personal injuries sustained by plaintiff in a collision on a highway crossing between an automobile in which he was riding and defendant railroad company’s train, where plaintiff did not' realize the danger in which he was placed by the approaching train until he recovered consciousness eight weeks later, he was not entitled to an instruction allowing the jury to consider, in assessing the damages, “the danger and peril, if any, that said injuries occasioned to plaintiff’s life” at the time of his injury, p. 484.</p> <p>6. Damages. — Personal Injuries. — Measure of Damages. — Recovery for Mental Anglish. — One suing for personal injuries cannot recover damages for mental anguish consisting of apprehension which he felt, during the period of convalescence, of a fatal termination of his injuries, since pecuniary damages cannot be recovered for mental anguish as the remote consequence of past negligence, where the only basis for assessing damages would be plaintiff’s own description of his mental condition, at a time when defendant was doing nothing which infringed his legal rights, p. 484.</p> <p>7. Damages. — Personal Injuries. — Value of Wife’s Ccure and Nursing. — Evidence.—Admissibility.—In an action for personal injuries, there was no error in admitting evidence of the value of services rendered by the injured person’s wife in nursing and caring for him while he was disabled as a result of his injury, p. 485.</p>

<p>1. Corporation. — Dissolution. — Contracts.—Assignment.—Statutes. — Where a corporation, after having fully performed its contract with a city for the construction of a public improvement, was dissolved, one succeeding to its matured right of action on the contract, as provided by the statute (§§4084b, 4084d Burns 1914, Acts 1913 p. 634, §§2, 4) authorizing its dissolution, was entitled to maintain an action to enforce that right notwithstanding a provision in the contract that there could be no assignment thereof without the consent of the city’s board of public works, p. 489.</p> <p>2. Appeal. — Review.—Ruling on Demurrer to Complaint. — Comstruction of Complaint. — Presumptions.—A complaint being capable of a construction which makes it sufficient to withstand a demurrer, it will be assumed on appeal that the court adopted • that construction when it overruled the demurrer, p. 489.</p> <p>3. Appeal. — Review. — Ruling on Demurrer to Complaint.— Waiver of Error. — Objection Not Presented to Trial Court.— Objections to the sufficiency of the complaint which were not presented to the trial court by the memorandum accompanying the demurrer are waived, p. 490.</p> <p>4. Municipal Corporations. — Public Improvements. — Action against City on Contract. — Complaint.—Sufficiency.—Authority of Officers to Execute Contract. — Statutes.—A complaint alleging that defendant city entered into a contract for a public improvement set out in the complaint, and purporting to have been executed in its name by its officers, is not required to state facts showing that authority had been given such officers, since, if the contract was not lawfully executed, pursuant to authority duly conferred, that fact is a. matter of defense, which, under §370 Burns 1914, §364 R. S. 1881, is to be set up by a verified plea. p. 490.</p> <p>5. Municipal Corporations. — Public Improvements. — Release of Property Subject to Assessment. — Evidence.—Sufficiency.—In an action against a municipal corporation on a public improvement contract in which liability was predicated on the alleged release by the city of property subject to assessment, and that by reason thereof the contractor was unable to collect part of the contract price of the work, evidence held insufficient to show the city’s liability within the rule that where a city, after letting a contract for a public improvement to be paid for by assessments on private property to which such property is liable, and after a large part of the expense of making the improvement has been incurred by the contractor, does such acts without the consent of the contractor as operate to release from liability part of the property subject to assessment, and thereby makes it impossible for the contractor to collect part of the contract price for his work, the city will be liable to him for the amount thus made uncollectible, p. 491.</p>

From Wayne Circuit Court; William.A. Bond, Judge. Action by the State of Indiana, on the relation of Benjamin F. Wissler and Elbert Huddleston, as members of the board of trustees, and Huddleston as treasurer of the board, of the consolidated schools of the school town of Cambridge City and Jackson school township, against Amos E. Ehle, trustee. From a judgment for relators, the defendant appeals.

From St. Joseph. Superior Court; Walter A. Funk, Judge. Jackson D. Seymour intervened in an action between the M. Ewing Fox Company and others. From the judgment rendered,, the intervener appeals.

<p>From Marion Criminal Court (51,313) ; James A. Collins, Judge.</p> <p>Prosecution by the State of- Indiana against Harry Lee. From a judgment of conviction, the defendant appeals.</p>

<p>1. Wills.— Contest.— Nonexpert Witness.— Cross-Examination. —Extent.—Harmless Error. — In an action to contest a will on the ground of testator’s unsoundness of mind, hypothetical questions on cross-examination to nonexpert witnesses, who had testified that testator was of unsound mind, calling for their opinions as to his physical condition, held harmless, even though erroneous, where the answers contained nothing .prejudicial to appellant, p. 523.</p> <p>2. Wills.— Contest.— Testamentary Capacity.— Instructions.— Harmless Error. — In an action to contest a will on the ground of testator’s unsoundness of mind, an instruction that a delusion, moving the testator to make his will, would not necessarily render the will invalid, unless the “delusion entered into and affected the manner of the disposition of testator’s property,” though an inaccurate statement of the law, held not prejudicial, in view of the other instructions given, pp, 526, 527.</p> <p>3. Wills.— Contest.— Testamentary Capacity.— Delusions.— A delusion which merely moves the testator to make a will, but does not influence or control him in disposing of his property, does not destroy his testamentary capacity, p. 526.</p> <p>4. Trial.— Instructions.- — Mental Incapacity. — Delusions.—Cure of Erroneous Instruction by Other Instructions. — In an action to contest a will on the ground of testator’s mental incapacity, an instruction that a delusion which would invalidate the will must have been permanently in testator’s mind, and not a mere temporary dream “due to high fever or other temporary cause, which idea and belief the testator himself recognized as unreal and without foundation,” though inaccurate, held harmless, when considered with the other instructions and in connection with the evidence, p. 527.</p> <p>5. Appeal. — Review.—Misconduct of Counsel. — Argument.—Discretion of Trial Court. — The control of the argument of counsel is peculiarly for the trial court, and judgment will be reversed for misconduct in argument only where the trial court is shown to have abused its very wide descretion. p. 528.</p> <p>6. Appeal. — Presenting Questions for Review. — Misconduct of Counsel. — Briefs.—To present for review on appeal the action of the trial court with relation to the conduct and statements of counsel in argument, a party must procure a bill of exceptions to be filed, certifying what was done and said, what objections and motions were made, how the court ruled thereon, and what exceptions were reserved, and the briefs must set out enough of the facts thus shown, and of the evidence to which the argument related, to make it clear that the discretion of the court was abused, and indicate by reference to the pages and lines of the transcript where the matters referred to may be found, p. 528.</p>

<p>1. Master and Servant. — Automobiles.—Operation by Employe. —Liability of Master.- — -Where a chauffeur, either with or without the consent of the owner employing him, uses an automobile for his own business or pleasure when not engaged at his regular duties, and inflicts injury on another by reason of his negligence in operating the car, the owner is not liable by reason of-the relation of master and servant, p. 533.</p> <p>- 2. Bailment. — Bailor and Bailee. — Creation of Relationship.— Where the owner of an automobile loans or hires it to another to be used by the latter in his personal business, or for his own pleasure, the relation of bailor and bailee is thereby created, p. 533.</p> <p>3. Master and Servant. — Automobiles.—Employe’s Use of as Compensation. — Liability of Master. — A chauffeur who, as part of his wages or compensation' was permitted to have full control and use of his employer’s automobile- for his own pleasure at times when he was not engaged at his regular duties, was a hirer of the automobile, paying for its use in services, and therefore a bailee, for whose negligence the employer as bailor was not liable to third persons, p. 534.</p> <p>4. Bailment. — Bailment of Automobile to Employe. — Injuries to Third Persons. — Bailor’s Liability. — Where a chauffeur was permitted to have the. use of his employer’s automobile at certain times under such circumstances to constitute him a bailee, the employer was not responsible for his negligence, while in possession of the machine as bailee, under the exception to the • general rule existing when a bailor intrusts a dangerous article to one who he knows is incompetent to use due care, where the chauffeur was a skillful and experienced driver, though in the habit of becoming intoxicated, and while in that condition had been guilty of negligent and wrongful conduct, as automobiles are regarded as vehicles, and not as being in the same category as dangerous contrivances and agencies, p. 534.</p> <p>5. Bailment.— Automobiles.— Use of by Bailee when Intoxi- . cated. — Injuries to Third Persons. — Bailor’s Liability. — Where a bailee of an automobile was not intoxicated or otherwise incapable of exercising due care in operating it when put in possession thereof, but subsequently became intoxicated, thereby converting the non-dangerous instrument into one liable to inflict injury without any action by the bailor or his participation therein, the presence of a responsible human agency rendered inapplicable the doctrine applying where a bailor entrusts a dangerous article to one who he knows is incompetent to use due care, and the bailee alone was liable for injuries inflicted in the operation of the automobile, p. 535.</p>

<p>From Elkhart Superior Court; William B. Hile, Judge.</p> <p>Prosecution by the State of Indiana against Archibald Rowe. From a judgment of conviction, the defendant appeals.</p>

<p>From Lake Superior Court; Charles E. Greenwald, Judge.</p> <p>Action by Veronica Kaczmarczyk against Steve Dolato. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Boone Circuit Court; Willett H. Parr, Judge.</p> <p>Action by Robert A. Egbert against Paul O. Tauer, mayor, and another. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Marion Superior Court (106,614); W. W. Thornton, Judge.</p> <p>Action by the Indiana National Life Insurance Company against the Aetna Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Master and Servant. — Injuries to Servant. — Negligence.— Complaint. — Sufficiency.—In a servant’s action against the master for the loss of an eye, destroyed by a sliver of metal flying from a steel brace which plaintiff was assisting in trimming, allegations in a paragraph of complaint as to plaintiff’s inexperience and ignorance of the danger, the negligent failure of defendant’s foreman to give him' warning, etc., held to sufficiently charge negligence to state a cause of action at common law. p. 567.</p> <p>2. Master and Servant. — Injuries to Servant. — Employers’ Liability Act. — Complaint.—Assumption of Bisk. — In a servant’s action against the master for personal injuries, a complaint alleging that defendant employed more than five persons, that plaintiff was under the control and supervision of appellant’s foreman, and subject to his orders and authority, and that the foreman ordered plaintiff and others to trim up steel braces, at which work plaintiff was engaged when his eye was injured by a metal sliver, do not show that plaintiff was not chargeable with assumption of risk under §3 of the Employers’ Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914), in the absence of an allegation that the foreman directed plaintiff and his fellow servants to do the work in the particular manner in which it was being done at the time of the injury, p. 568.</p> <p>3. Master and Servant. — Injuries to Servant. — Negligence.— Failure to Furnish Servant with Protective Device.- — In a servant’s action for the loss of an eye, destroyed by a metal sliver flying from a steel brace which he was trimming, averments in the complaint that it was practicable for defendant to supply appellee with goggles, are insufficient to charge defendant with negligence, in the absence of allegations showing that the duty to supply such protective devices had been imposed by custom or contract, either express or implied, since there is no statute or common-law rule requiring them to be furnished by the employer, p. 569.</p> <p>4. Pleading. — Complaint.—Personal Injuries. — Conclusions.—In a servant’s action for personal injuries, an averment in the complaint that defendant employer failed to provide “some other device, for the protection of the workmen, though it was practicable to do so,” is not the statement of a fact. p. 569.</p> <p>5. Pleading. — Complaint.—Immaterial Averments. — -Evidence.-—■ Allegations in a complaint for personal injuries which were not material to the cause of action stated therein did not authorize the introduction of evidence of the facts so alleged, nor the recovery of damages based on such evidence, p. 569.</p> <p>6. Master and Servant. — Injuries to Servant. — Negligence.— Complaint. — Sufficiency.—In a servant’s action against the master for the loss of an eye, which was struck by a metal sliver, a paragraph of complaint alleging that defendant’s foreman, with knowledge of the danger to workman from flying slivers of metal, directed plaintiff to assist in trimming steel braces, with averments of what it was necessary to do in performing the work, but without allegations that the foreman directed plaintiff how to do the work or had knowledge of plaintiff’s ignorance of the danger from flying slivers, held not to charge actionable negligence, either at common law or under the Employers’ Liability Act (Acts 1911 p. 145, §8020 et seq. Burns 1914.) p. 570.</p> <p>7. Damages.— Personal Injuries.— Loss of Eye.— Evidence of . Trouble with Remaining Eye. — Admissibility.-—In an action for personal injuries, where the complaint alleged that plaintiff’s right eye was destroyed and that his eyesight had been greatly and permanently impaired as the result of the loss of his eye and was weak and uncertain, it was not error to permit plaintiff to testify to trouble he had experienced since the accident with his remaining eye. p. 570.</p> <p>8. Master and Servant.— Injuries to Servant.— Evidence.— Other Methods of Doing Work. — In a servant’s action for injuries sustained while assisting in trimming steel braces with a chisel and a sledge hammer, where no issue was presented as to the possibility or desirability of trimming them with shears instead of the method employed, it was error to permit witnesses for plaintiff to testify that they had never trimmed braces on an anvil, as was being done at the time of plaintiff’s injury, p. 571.</p> <p>9. Appeal. — Review.—Admission of Incompetent Evidence. — In a servant’s action against the master for personal injuries, the improper admission of' testimony by plaintiff’s witnesses that they had never trimmed steel braces with a cold chisel and a hammer, as was being done at the time of plaintiff’s injury, was prejudicial to the master, where the plaintiff had testified that the foreman stated, in giving the order for the performance of the work, that they were in a hurry for the braces, and his counsel argued on appeal and presumably at the trial that the method followed was adopted to avoid delay in waiting for the tools usually employed, p. 571.</p> <p>10. Master and Servant. — Injuries to Servant. — Negligence.— Evidence.— Failure to Furnish Protective Device Designed After Accident.- — In a servant’s action for the loss of an eye, struck by a steel sliver, testimony by a witness for plaintiff that a guard similar to that shown by plaintiff’s attorney would have prevented the injury was incompetent, where the device was one designed by the attorney after the accident, since the master was only required to use ordinary care to provide safe appliances, in the absence of statutory direction, and was not liable for failure to use a device not yet invented at the time of the accident, p. 572.</p> <p>11. Master and Servant. — Injuries to Servant. — Use of Protective Devices. — Dangerous Employment Act. — Section 4 of the- Dangerous Employment Act (Acts 1911 p. 597, §3862a et seq. Burns 1914), requiring the employer to use “every device, care and caution which it is practicable and possible to use for the protection and safety of life and limb,” is merely declaratory of the common law, and requires only the exercise of ordinary care to provide such devices, but does not impose an absolute duty to use them. p. 572.</p> <p>12. Trial. — Instructions.—Failure to Limit Recovery to Negligence Alleged. — In a servant’s action for personal injuries, an instruction that, if the jury found that plaintiff was employed by defendant as alleged in the complaint and that his injury resulted from the negligence of defendant or its agents, employes or officers, or by reason of any defect, mismanagement or insufficiency due to its or their carelessness, negligence, fault or omission of duty, and that plaintiff was not contributorily negligent, defendant was liable, was erroneous as failing to limit recovery to negligence alleged in the complaint, p. 572.</p>

<p>1. Insurance. — Fire Insurance. — Action on Policy. — Complaint. —Sufficiency.—Location of Insured Property. — Statutes.—Under §§343a, 376 Burns 1914, Acts 1913 p. 850, §370 R. S. 1881, a complaint, in an action on a policy of fire insurance, alleging that while the policy was in full force and effect the buildings, machinery, etc., and permanent fixtures were wholly lost and destroyed by fire, and that plaintiff has duly performed all the conditions on his part, was sufficient as against demurrer on the ground that it failed to show that the insured property had not been removed from the premises where the policy required it to be kept. p. 576.</p> <p>2. Insurance.- — Fire Insurance. — Action on Policy. — Necessary Parties. — Mortgagee.—Statutes.—Under §§251, 263, 270 Burns 1914, §§251, 262, 269 R. S. 1881, as to parties to action, where a complaint in an action on a fire policy showed that a person named had an interest in the insured property as mortgagee in excess of the amount due on the policy, and that the policy was made payable to plaintiff and the mortgagee jointly, the mortgagee was a necessary party to the action, and plaintiff was not entitled to recover without joining her either as a plaintiff or a defendant, p. 577.</p> <p>3. Appeal. — Review.—Failure to Join Necessary Parties. — Cure of Error by Evidence. — In an action on a policy of fire insurance, the failure of insured to join the mortgagee, who was jointly entitled with plaintiff to payment, was not rendered harmless by testimony of a witness that a few days before the trial he received from the plaintiff a check for the full amount of the mortgage and mailed it to mortgagee, but that he did not know whether the check was paid or whether the mortgage had been released of record, though the mortgagee had signed a release on the back of the mortgage; the evidence not being within the issues, and the mortgagee, not being a party, was not bound by the judgment or estopped to deny the truth of such testimony, p. 578.</p> <p>4. Constitutional Law.— Statutes.— Constitutionality. — When Reviewable. — Where plaintiff, in an action on a fire policy, has not shown himself entitled to recover attorney fees, a determination of the constitutionality of the statute (§4622g Burns 1914, Acts 1911 p. 525), allowing the recovery of an attorney’s fee under certain conditions in actions on fire policies, is not necessary to the decision on appeal, and such question will not therefore be reviewed, p. 579.</p>

<p>From Delaware Circuit Court; William A. Thompson, Judge.</p> <p>Prosecution by the .State of Indiana against Lance M. Coons. From a judgment of conviction, the defendant appeals.</p>

From Knox Circuit Court; B. M. Willoughby, Judge. Action by the State of Indiana, on the relation of Addie Gary, and others, against the Massachusetts Bonding and Insurance Company and others. From a judgment for relators, the defendants appeal. (Transferred from the Appellate Court under §1894, cl. 2, Burns 1914, Acts 1901 p. 565.)

<p>From Warrick Circuit Court; Robert J. Tracewell, Special Judge.</p> <p>Action by the town of Newburgh against Shiler House. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Gibson Circuit Court; A. P. Twineham, Special Judge.</p> <p>Action by Charles L. Dorth against the Princeton Coal Company. From a judgment for plaintiff, the defendant áppeals. (Transferred from the Appellate Court under §1399 Burns 1914, Acts 1901 p. 565.)</p>

From Laporte Superior Court; Harry L. Crump acker, Judge. Action by-the New York Central Railroad Company against the Public Service Commission of Indiana in which the Chicago, Lake Shore and South Bend Railway company obtained leave to become a party defendant. From a judgment for defendants, the plaintiff, appeals.

<p>From Knox Circuit Court; Thomas B. Coulter, Judge.</p> <p>Action by William Alsop, executor, against the Pacific Mutual Life Insurance Company of California. From a judgment for plaintiff, the defendant appeals.</p>

From Grant Superior Court; William H. Eichhorn, Special Judge, Action between Harmon D. Reasoner and others, trustees, and Lawson A. Herman and others. From the judgment rendered, the former appeal.'

From Marion Criminal Court (49,895); James A. Collins, Judge. John L. Partlow was convicted of receiving stolen' goods, and on appeal, the judgment of conviction was sustained. While the case was pending on rehearing, the defendant petitioned the trial court for a writ of coram nobis, and from a denial of his petition, he appeals, and asks to consolidate the two appeals.

<p>From Jefferson Circuit Court; Francis M. Griffith, Judge.</p> <p>Action by the Wayne International Building and Loan Association and others against Horace G. Beekner and others. From the judgment rendered, the plaintiff and others appeal.</p>

<p>1. Municipal Corporations.— Ordinances.— Wisdom and- Expediency.—Review by Courts.—The Supreme Court will not pass upon the wisdom or expediency of city ordinances, p. 674.</p> <p>2. Constitutional Law.—Municipal Ordinance Prohibiting Display of Banners'.—Constitutionality.—A municipal ordinance, enacted under authority given the city by §8655, cl. 31, Burns 1914, Acts 1905 p. 219, §53, making it unlawful to display any banner, placard, etc., in any public street or sidewalk, except in processions, does not deny one alleged to have violated the ordinance by wearing in public a shirt bearing the inscription, “Barber shop unfair to organized labor,” the privileges and immunities granted to participants in such processions in violation of Constitution of U. S., Amend. 14; the purpose of the ordinance being to enable the city to encompass and control whatever may attract crowds in public places or cause trouble, p. 674.</p> <p>3. Constitutional Law.—Municipal Ordinance Prohibiting Display of Banners.—Constitutionality.—A municipal ordinance, enacted under the authority given the city by §8655, cl. 31, Burns 1914, Acts 1905 p. 219, §53, making it unlawful to display any banner, placard, etc., in any public street or sidewalk, except in processions, does not deny one alleged to have violated the ordinance by wearing in public a shirt bearing the inscription, “Barber shop unfair to organized labor,” the right of free interchange of thought and opinion, or the right to speak, write or print freely as guaranteed by Constitution, Art. 1, §9; the restrictions in the ordinance being intended to assure a free enjoyment of public streets by all. p. 674.</p> <p>4. Municipal Corporations.—Ordinance Prohibiting Display of Placards.— Scope.— Wearing Shirt Bearing Inscription.— The wearing of a shirt bearing the inscription, “Barber shop unfair to organized labor,” was a violation of a municipal ordinance prohibiting the display of banners, placards, etc., in any public street or sidewalk, p. 675.</p>

<p>From Marion Criminal Court (51,151); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Tommy Hogan. From a judgment of conviction, the defendant appeals.</p>

From Clark Circuit Court; James W. Fortune, Judge. Prosecution by the State of Indiana against William Dailey and another. From an order sustaining a motion to quash the indictment, the state appeals.

<p>From Vigo Circuit Court; Charles W. Pulliam, Judge.</p> <p>Prosecution by the State of Indiana against Harry Palmer. From a judgment of conviction, the defendant appeals.</p>

<p>From Marion Superior Court (106,721); John J. Rochford, Judge.</p> <p>Action by James R. Parker against the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company. From a judgment for plaintiff 'the defendant appeals.</p>

<p>From Allen Circuit Court; Sol A. Wood, Judge.</p> <p>Prosecution by the State of Indiana against Tiro Stianoff. From a judgment of conviction, the defendant appeals.</p>

<p>From Delaware Circuit Court; W. A. Thompson, Judge.</p> <p>Prosecution by the State of Indiana against Walter Smith. From a judgment of conviction, the defendant appeals.</p>

Actions between George W. Gillie, sheriff, and Thomas Minnich and others. From a judgment in such case for the latter, the former appeals. Causes consolidated in appeal with cause No. 23,639, entitled Gillie, Sheriff v. Fleming, ante 444.