Volume 23 — Indiana Appellate Court Reports

<p>Action. — Death.—Right to Recover for Death of Brother. — Pecuniary Loss. — An action cannot be maintained by an administrator to recover damages, under §285 Burns 1894, for tlie death of his intestate for the benefit of the brothers of the deceased, where the deceased was Under no legal obligation to contribute to their support, had ' not done so, and no fact existed forming a reasonable expectation of pecuniary benefit to them from the continuance of his life.</p>

<p>Appeal and Eeeoe. — Facts Arising after Rendition of Judgment Appealed from. — A judgment against a guardian for pension money-received by him for his ward will be reversed on appeal where, pending the appeal, the pension department set aside the ward’s title to the pension money.</p>

<p>From the Lake Circuit Court.</p>

<p>Appeal and Error. — Harmless Error. — Overruling a demurrer to a bad paragraph of complaint is not reversible error, where it appears from the record that the recovery was upon another paragraph. pp. 15, 16.</p> <p>Telegraph Companies.- — Sunday Messages. — Failure to Transmit. —Damages.—Complaint.—A complaint in an action to recover damages for failure to transmit a telegraph message which discloses that the contract was made on Sunday must show a reasonable necessity for sending the message on that day, and that the telegraph company had notice of the necessity, pp. 16, 17.</p> <p>Same. — Sunday Message. — Necessity.—Notice.—The reasonable necessity for sending a telegraph message on Sunday, and the notice thereof to the company, may be shown by the contents- of the dispatch itself, and if the language of the message be not sufficient for such purposes, the same may be shown by the averment of extrinsic facts in the complaint in an action for damages for failure to send a telegraph message contracted for on Sunday. • pp. 17-20.</p> <p>Same. — Sunday Message. — Necessity.—Notice.—A telegraph message which stated that the sender would arrive in the city where the sendee resided at a certain time, does not, on its face, show a reasonable necessity for its transmission on Sunday, p. 19.</p> <p>Same. — Sunday Message. — Failure to Transmit. — Complaint.—Necessity. — Notice.—A complaint against a telegraph company for failure to transmit a message on Sunday, which Contains facts indicating a reasonable necessity for delivering it on that day, but which does not show that the company was informed of such facts, is bad on demurrer, pp. 19, 20.</p> <p>Same. — Sunday Message. — Damages cannot be recovered from a telegraph company for its failure to transmit a message on Sunday in violation of law. p. 20.</p> <p>Same. — Sunday Message. — Necessity.—Evidence.— In the trial of an action against a telegraph company for its failure to send a dispatch on Sunday informing the person to whom it was addressed that her sister would arrive at a certain time, evidence that the company’s agent was informed at the time the message was delivered to him for transmission, that the sender was anxious to have the message go at once, as her mother, who lived with the sister to whom the message was directed, was on her death-bed, is sufficient to show a reasonable necessity for sending the message on Sunday, p. HI.</p> <p>Telegraph Companies. — Failure to Transmit Message. — Damages.— Proximate Cause. — A telegraph message informing the person to whom it was directed that the sender would arrive in the city where the former lived at a certain time, over, a certain railroad, was delivered to the company’s agent with the request that it be sent at once, as the sender’s mother was on her death-bed at the home of the sender’s sister, to whom the message was directed. The company failed to transmit the message, and the sender brought suit for damages and obtained a verdict upon the theory that damages were recoverable for mental distress and nervous prostration suffered by plaintiff by reason of the fact that no person met her when she arrived at the railway station. Held, that such a consequence could not have been reasonably anticipated by the parties at the time the contract was made as the result of the breach of it, and that damages cannot be recovered therefor, pp. 22-%6.</p>

<p>Erom the Marion Circuit Court.</p>

<p>Instructions. — Misstatement of Pleadings. — Harmless Error.— 'Replevin. — A statement in an instruction in an action in replevin that plaintiff avers that defendant obtained possession of the property unlawfully, when no such allegation was made, is harmless, where other instructions informed the jury that it was only necessary for plaintiff to prove ownership and right of possession in the property at the time the action was commenced, pp. 30, 31.</p> <p>Same. — Harmless Error. — Where all of the instructions taken together fairly state the law applicable to the evidence, the judgment will not be reversed, p. 31.</p>

<p>County Commissioners. —Allowance, of Illegal Claim.. — Criminal Prosecution. — Curative Act. — An indictment returned against the board of county commissioners for allowing a claim against the county for the expenses of holding a gravel-road election, contrary to the provisions of §6924 Burns 1894, was properly quashed after the passage of the act of February 24, 1899 (Acts 1899, pp. 128-130), which legalized such payments.</p>

<p>Justice of the Peace. — Appeal Bond. — Dismissal of Appeal. — Action on Bond. — Where an appeal taken from a justice of the peace to the circuit court was dismissed by the appellant, the sureties on the appeal bond are liable in an action thereon, although the complaint shows affirmatively that the justice of the peace had no jurisdiction of the subject-matter of the original action.</p>

<p>Erom the St. Joseph Circuit Court.</p>

<p>From the Montgomery Circuit Court.</p>

<p>From the Fountain Circuit Court.</p>

<p>Pleading. — Practice.—Harmless Error. — Available error cannot be predicated upon the action of the Court in overruling a demurrer to a bad reply, where the answer to which it was addressed was also bad. pp. 67, 68.</p> <p>Same. — Partnership.—Decedents’ Estates. — In an action on a promissory note brought by the administrator of a deceased partner against a surviving partner, an answer charging that defendant, in the settlement of the partnership, paid out of his private funds a certain sum of money which he asked to be set off against the note, is fatally defective, where it was not alleged that the partnership was insolvent and its assets exhausted, pp. 68, 69.</p> <p>Appeal and Error. — Discrepancy Between Amount of Verdict and Proof. — A cause will not be reversed on account of a discrepancy of a few cents between the amount of the verdict and the exact amount found to be due. p. 70.</p> <p>Same. — Evidence.—A judgment will not be disturbed on appeal on the weight of the evidence, where there is some evidence to support it. p. 70.</p> <p>Evidence. — In Support of Bad Answer. — Error cannot be predicated upon the action of the court in excluding evidence offered in support of a bad paragraph of answer, p. 70.</p> <p>Evidence. — Partnership.—In the trial of an action on a promissory note brought by the administrator of a deceased partner against a surviving partner, a statement made by experts, containing receipts', drafts, etc., pertaining to the partnership accounts, shown to have been taken from entries on the books made by defendant, after the death of decedent, on the information of the defendant that he had paid them, is not admissible in evidence, pp. 70, 71.</p> <p>Instructions. — Pleading—Partnership.—Where in an action on a promissory note by the administrator of a deceased partner against a surviving partner defendant pleaded as a set-off certain sums of money paid by him individually in ’ settlement of the partnership accounts without raising the question of the solvency of the partnership, no error was committed in instructing the jury that they had nothing to do with the question of the solvency of the partnership, or as to whether the defendant would have to pay the partnership claims from his individual funds on final settlement of the partnership accounts, pp. 71, 72.</p>

<p>From the Jay Circuit Court.</p>

<p>From the Delaware Circuit Court.</p>

<p>Erom the Hamilton ’Circuit Court.</p>

<p>From the Parke Circuit Court.</p>

<p>Mortgages.— Foreclosure.— Rents During Year of Redemption.— Appellant brought suit to foreclose a mortgage, and appellee and others filed cross-complaints for the foreclosure of junior mortgages and mechanics’ liens. The judgment of appellant was made a first lien, and that of appellee the second. The property was sold under appellant’s judgment and bid in by appellant for the full amount of its judgment and costs, and at the expiration of the year for redemption appellant received a deed for the property. The court, upon the application of appellee, directed the receiver to pay the rents collected during the year of redemption to appellee, from which appellant appealed. Held, that neither appellant nor appellee was entitled to the rents.</p>

<p>Decedents’ Estates. — Desperate Claims. — Suit by Creditor. — Where an administrator files in court claims due the estate for the benefit of the creditors, heirs, and legatees of decedent, suit may be brought thereon, in the manner provided by statute, while the estate is pending, or after final settlement and discharge of the administrator. pp. 102, 103.</p> <p>Same . — Desperate Claims. — Suit by Creditor. — Where an estate has been finally settled, a creditor whose claim remains in whole or in part unpaid may bring suit in his own name upon claims filed by the administrator for the benefit of the creditors of decedent, p. 103.</p> <p>Same. — Desperate Claims. — Suit by Creditor. — Complaint.—A complaint by a creditor of a decedent’s estate, in an action on a claim due the estate, which does not state that the claim sued on was filed • by the administrator for the benefit of creditors, and fails to allege that any attempt was made by plaintiff to collect his debt, or that it was ever filed against the estate, does not state a cause of action. p. 103.</p> <p>Decedents’ Estates. — Desperate Claims. — Suit by Creditor. — Administrator De Bonis Non. — Where a claim due an estate never came into the possession of the administrator, and the administrator was discharged without administering on the claim, a creditor’s remedy is through an administrator de bonis non, under §2395 Burns 1894, not by an action on the claim, p. 103.</p>

<p>From the Wells Qireuit Court.</p>

<p>Prisons. — Care of County Prisoners by City. — County not Liable.— A county is not liable to a city located in the county for the board • of prisoners incarcerated in the city jail, nor for the expense-of transporting such prisoners to the county jail.</p>

<p>Negligence. — Knowledge of Danger. — Cities.—The fact that plaintiff, a month before her injury, knew of a defect in a sidewalk.is not inconsistent with a finding that she had no knowledge of it at the . time of her injury, p. 115.</p> <p>Contributory Negligence. — Personal Injuries. — Defective Sidewalk. —Cities.—Plaintiff recovered a judgment for damages for injuries caused by a defective sidewalk. Answers to interrogatories showed that she was walking carefully along the sidewalk, wheeling a baby carriage in front of her, and stepped into a hole in the alley crossing and was injured; that she could see the walk within a distance of ten feet in front of her, but the hole was at the,near side of the alley crossing, which was four inches lower than the sidewalk, and the view thereof was obstructed. Held, that the answers were not in conflict with the general verdict upon the question of contributory negligence, pp. 115, 116.</p> <p>Verdict. — Answers to Interrogatories. — Presumptions.—No presumptions will be indulged in favor of answers to interrogatories as against a general verdict, p. 116.</p> <p>Appeal and Error. — Weight of Evidence. — Where there is evidence in support of the general verdict the Appellate Court will not disturb same on the weight of the evidence, pp. 116. 117.</p> <p>Law op Case. — Subsequent Appeal. — Where it is held on appeal that a party cannot recover on the facts disclosed, such decision is binding on a subsequent appeal if the facts remain the same; but if the facts are different, and warrant a different conclusion, the former decision is not conclusive on the subsequent appeal, p. 117.</p> <p>Excessive Damages. — Review.—The verdict of the jury in an action for damages on account of personal injuries will not be disturbed on appeal as excessive, unless the amount is so excessive as to indicate prejudice, partiality or corruption, pp. 117, 118.</p>

<p>Appeal and Error. — Replevin.—Decedents’ Estates. — An appeal by an administrator from a judgment in an action in replevin is not governed by §§2609, 2610 Burns 1894, relating to decedents’ estates, where it was not a case growing out of a matter connected with the estate, p. 119.</p> <p>Verdict. — Special Findings. — Practice.—Where a general verdict was returned for plaintiff in an action in replevin, and the special findings were so antagonistic that a conclusion of law as to the ownership of the property could not be deducted therefrom, the general verdict must prevail, p. ISO.</p> <p>Abatement. —Pleading.—No error was committed in sustaining a demurrer to an answer in abatement which alleged facts going to the merits of the cause, and not to its abatement, p. 120, 121.</p>

<p>Life Insurance. — Warranties.—Breach.—Pleading.—Waiver.— Defendant filed answer seeking to avoid the payment of an insurance policy because of certain false representations made by the assured as to the condition of his health, and the breach of a promise contained in the application to abstain from the excessive use of intoxicating liquors. Plaintiff replied that defendant issued the policy and accepted premiums thereon with full knowledge that the answers in question were false. Held, that the reply was demurrable, since it should have averred that defendant had notice of the violation of the agreement not to use intoxicating liquors to excess, and, with such notice, accepted payment of premiums, pp. 122-125.</p> <p>Same. — Forfeiture.—Waiver by Agent. — Where the agent of an insurance company, authorized to solicit applications and collect premiums, continued to collect premiums from assured with knowledge of the fact that he was using intoxicating liquors to excess, in violation of the policy, such action amounted to a waiver of the right to declare a forfeiture, although such knowledge was not communicated to the company, pp. 125-127.</p> <p>Same. — Forfeiture.—Pleading.—An answer seeking to avoid the payment of a policy of insurance because of false statements made by assured in his application in regard to his health, need not show that the company was imposed upon by the false statements, or that it believed the statements were true, where the policy which was made part of the .answer stated that it was issued in consideration of the representations, agreements and warranties made in the application. pp. 127, 128.</p> <p>Same. — Policy.—Warranty.—Use of Intoxicating Liquor to Excess.— An application for insurance containing questions and answers, the medical examiner’s report and an agreement reciting that 1 ‘ the preceding statements and answers, and the application and this agreement are made part of the policy ” form part of the insurance contract, and an agreement therein that the insured would abstain from the excessive use of intoxicating liquor, was a promissory warranty, and not the statement of an expectation, p. 188.</p> <p>Life Insurance. — Warranty.—Forfeitures. — Use of Intoxicating Liquor to Excess. — The fact that an insurance company knew that assured was in the habit of drinking intoxicating liquor to excess prior to the issuance of the policy will not prevent the company from avoiding payment on account of a breach of a promissory warranty not to drink intoxicating liquor to excess, p. 129. '</p>

<p>Erom the Howard Circuit Court.</p>

<p>Appeal and Error. — Assignments of Error. — Waiver.—Assignments of error which are not discussed are waived, p. HO.</p> <p>Same. — Record.—Omissions.—Supplied by Agreement. — The record on appeal must be founded upon proceedings actually had in a trial court, and an omission from the record of a material matter cannot be supplied by an agreement between the parties made after the trial of the cause, pp. HO. HI-</p>

<p>Erom the Decatur Circuit Court.</p>

<p>From the Lawrence Circuit Court.</p>

<p>From the Lawrence Circuit Court.</p>

<p>Street Improvements. — Declaratory Resolution. — Jurisdiction.—It is not necessary to pass a resolution declaring the-necessity of a street improvement in order to give the common council jurisdiction. p. 165.</p> <p>Same. — Cities.—Legality of Incorporation. — The legality of the incorporation of a city cannot be raised in an action to foreclose assessments for street improvements, p. 165.</p> <p>Same. — Ordinance for Improvement of Two Streets. — Assessments.— Where an ordinance was passed for the improvement of two streets and only one was improved, the costs thereof cannot be assessed on both streets, p. 165.</p> <p>Same. — Pleading.—Fraud.—Due Process of Law. — An answer to a complaint in an action to foreclose assessments for street improvements charging fraud and want of due process of law must state facts from which the court can determine the existence of fraud or the want of due process of law. p. 165.</p> <p>Appellate Court. — Constitutional Law. — The Appellate Court has no jurisdiction of constitutional questions, p. 165.</p>

<p>Street Improvements. — Cities.—Legality of Incorporation. — The legality of the incorporation of the city cannot be attacked in an ' action to foreclose assessments for street improvements, p. 166.</p> <p>Appellate Court. — Transfer of Cause. — Questions Decided by Supreme Court. — Questions which have been decided by the Supreme Court cannot be presented to the Appellate Court when the cause is transferred to such court, p. 167.</p> <p>Practice. — Motions.—New Trial. — Arrest of Judgment. — A motion for a new trial cannot be made after filing a motion in arrest of judgment, p. 167.</p>

<p>From the Vanderburgh Superior Court. •</p>

<p>From the Huntington Circuit Court.</p>

<p>Erom the Monroe Circuit Court.</p>

<p>Verdict. — Special Findings. — Conflict.—The general verdict will be upheld unless the facts found and stated in the special findings are so antagonistic to the general verdict as to preclude reconciliation. p. 191.</p> <p>Master and Servant. — Defective Machinery. — Knowledge of Danger. —A manufacturing company is not chargeable with actionable negligence on account of its failure to place guards over the revolving knives of a wood jointing machine in order to protect the operator, where the danger was open and obvious, pp. 192-203.</p> <p>Same. — Notice of Danger. — Negligence cannot be based upon the failure of an employer to warn an operator of a wood jointing machine of the increased danger incident to planing a small stick of timber, pp. 192-203.</p> <p>Verdict. — Special Finding.— Conflicts. — Master and Servant.— A general verdict for plaintiff on an allegation of the complaint charging that defendant was negligent in not warning plaintiff of the increased danger in operating a wood jointing machine while planing short, narrow, and thin pieces of lumber, as compared to larger and heavier pieces is in irreconcilable conflict with a special finding that such increased danger was as apparent to plaintiff as to defendant, pp. 208-207.</p>

<p>Erom the Lake Circuit Court.</p>

<p>Erom the Elkhart Circuit Court.</p>

<p>From the Marion Superior Court.</p>

<p>Erom the Lawrence Circuit Court.</p>

<p>Pleading. — Complaint.—Motion to Make More Specific. — Practice.— A complaint will not be held bad on an assignment that it does not state facts sufficient to constitute a cause of action, where the defects could have been reached by a motion to make more specific.</p>

<p>Prom the Jasper Circuit Court.</p>

<p>Bills and Notes. — Corporations.—Notes Signed by Officers. — Liability of Parties. — Answer.—Parol Evidence. — In. an action on a promissory note by the indorsee it appeared by the note that defendant was payee in > the body thereof, that the note was signed by a corporation, and by defendant and another, their signatures being followed by “Pres.” and “Secy.,” respectively. Credits amounting to ®3,500 were indorsed on the note, and the note was afterward transferred by defendant by indorsement, without recourse. Defendant answered that the note was given by the corporation for money advanced to it by him, and that the signatures of the president and the secretary were intended to bind the corporation only, all of which was known by his indorsee; that said indorsee afterward assigned the note to plaintiff who also had full notice and knowledge of the facts alleged, and that after defendant assigned the note the corporation paid the interest which was credited thereon by the first indorsee. Held, that the answer was sufficient to authorize the admission of parol testimony to determine the liability of the parties.</p>

<p>Vendor and Purchaser. — Fraud.—Where a vendor in negotiating a sale of real estate falsely represented to the purchaser that a certain mortgage thereon in favor of a building and loan association had all been repaid except $500, which was payable in monthly instalments of' $13.47 ; that the association had represented to vendor that the loan would be fully repaid in seventy-two instalments, and that only thirty-six instalments remained to be paid, when in fact the association represented to him that the stock would not mature in less than eighty-four months, such representation' was not the statement of an opinion, but of a fact on which the purchaser had the right to rely, pp. 24.6-249.</p> <p>Same. — Fraud.—Deeds.—Failure to Read Clause in Deed. — Where the purchaser of real estate encumbered by a mortgage could not read because of defective eyesight, was inexperienced in business, and wholly unacquainted with the forms of deeds and contracts, but had confidence in the vendor, who upon reading the deed to him failed to read a clause therein stating that grantee assumed and agreed to pay a certain mortgage, when in fact the purchaser had only agreed to pay a certain balance represented by vendor to be due thereon, such failure was a fraud upon the purchaser. pp. 246-249.</p>

<p>Mechanics’ Liens. — Foreclosure.—Parties.—Section 5299 Horner 1897, relative to the foreclosure of mechanics’ liens, does not authorize a joinder of plaintiffs whose claims and interests are several, but since the statute authorizes the consolidation of such actions by the court, available error cannot be predicated upon the action of the court in overruling a demurrer to a complaint in which several mechanics and material men joined, where the claims were stated severally, and the finding and judgment were several as to each claimant, pp. 251, 252.</p> <p>Same. — Failure to Record Notice of Lien. — Intervening Mortgage.— Where notice of intention to hold a lien is filed by a mechanic or material man as provided by law, the failure of the recorder to record it in the miscellaneous record, as required by §5296 Horner 1897, will not defeat the priority of the lien as against the holder of an intervening mortgage, pp. 252-254.</p> <p>Same. — Mortgages.—Priority.—Mechanics' liens relate back to the time when the work was commenced! or the materials were begun to be furnished, and a mortgage does not gain priority over a lien by reason of the fact that it was executed and recorded prior to the filing of the notice of the mechanic’s lien. p. 254.</p> <p>Same. — Complaint.—Special Finding. — Description of Real Estate.— Variance. — A complaint in an action to foreclose a mechanic’s lien described the lots as 94 and 95 in the town of Kewanna, and the findings showed that the materials were furnished for and the work done on buildings erected on lots 94 and 95 in A. D. Toner’s addition to the town of Kewanna. • Held, not to constitute a fatal variance, since the complaint could have been amended to show that there were no lots in the town with duplicate numbers, p. 255.</p> <p>Same. — Notice.—Lien on Two Lots. — Where material was furnished and labor performed in the construction of a house and barn, the barn being constructed orí a lot adjoining that on which the house stood, both lots belonging to the same person, in the same inclosure, and used together as constituting the home residence of the owner, a single notice of a'mechanic’s lien against the two lots was sufficient, pp. 255, 256.</p>

<p>Continuance. — Withdrawal of Juror.— Dismissal and Nonsuit.— During the progress of a trial plaintiff moved for leave to file an amended complaint, which was sustained, and he thereupon asked leave to withdraw a juror, which was granted, and the court discharged the jury and continued the cause over defendant’s objection and motion to dismiss. Held, that the withdrawal of the juror was superfluous and gave plaintiff no additional rights, and that defendant’s motion to dismiss should have been sustained.</p>

<p>Bills and Notes. — Alteration.—Principal and Surety. — Release of Surety. — Where an agreement was made that a note should bear eight per cent, interest, and the principal and surety signed the same in blank as to the rate of interest, the subsequent insertion of the rate by the principal and payee, without the knowledge of the surety, constituted a materal alteration in the note, and released the surety.</p>

<p>Executors and Administrators. — Decedents’ Estates. — Final Report. — Collateral Attack— The approval by the court of the final report of the administrator, and his discharge, duly entered of record in the proper order-book, has the force and effect of a final judgment, and cannot be collaterally attacked unless the adjudication was without notice, p. 273.</p> <p>Sam:e. — Guardian and Ward. — Administrator as Guardian. — A guardian who is the administrator of an estate cannot represent the interest of his ward in such estate, and a judgment approving the final report of an administrator who as guardian receipted for his ward’s interest in the estate, without notice, or the appointment of a guardian ad litem, is void as to such ward. pp. 278, %7k-</p>

<p>Appeal and Error. — Assignment of Error. — Defeat of Parties. — A defect of parties is not presented by an assignment that the complaint does not state facts sufficient to constitute a cause of action. p. 277.</p> <p>Same. — Assignment of Error. — Waiver.—An assignment of error is waived by failure to discuss it. p. 277.</p> <p>Same. — Assignment of Error. — Defeat of Parties. — An assignment of error “that there is a defect in parties plaintiff, in that necessary parties plaintiff have not been made ” presents no question on review. p. 277.</p> <p>Appeal. — Assignment of Error. — Error in. finding against appellant on a plea in abatement is not properly presented by an assignment that “the court erred in overruling and finding against appellant’s plea in abatement herein filed.” p. 277.</p> <p>Replevin. — Action on Bond. — Parties.—The assignee of a judgment may maintain an action on a bond given the sheriff in replevin of goods levied upon by virtue of an execution issued for the collection of the judgment without making the sheriff a party, pp. 278, 279.</p> <p>Appeal and Ebrok. — 'Joint Assignment of Error. — No error is presented on a joint assignment as to the action of the court in sustaining a demurrer to several’ paragraphs of a pleading if either paragraph is bad. p. 279.</p> <p>Same. — Record.—Available error cannot be predicated upon the ruling of the court on a demurrer, where the demurrer is not in the record. p. 279.</p> <p>Same. — Assignment of Error. — Verdict.—An assignment “that the court erred in its conclusions of law in its findings for the appellee ” presents no question where there was a general verdict, p. 279.</p> <p>Evidence. — Harmless Error.-^-Replevin. — Alleged error in the admission of evidence in the trial of an action on a replevin bond, as to the value of a horse which had’ died after the execution of the bond, was harmless, where there was nothing in the judgment to indicate that the court considered the value of the horse in arriving at the amount of the judgment, p. 280.</p>

<p>From tlie Huntington Circuit Court.</p>

<p>Brokers. — Commission.— Sales. — Condition Precedent. — Plaintiff entered into a written agreement with defendant to negotiate the sale of certain bonds which the latter had agreed to take in payment for county work which he had contracted to do, the commission to be paid from the second payment realized from the sale of the bonds. Plaintiff procured a purchaser who was able and willing to buy the bonds under the terms prescribed in the contract, but before the bonds were delivered to plaintiff the sale thereof was declared illegal and perpetually enjoined. Held, that plaintiff was not entitled to the commission, since by the contract the payment was made to depend upon a contingency that never arose.</p>

<p>Appeal and Error. — Harmless Error. — Pleading.—Where the record affirmatively shows that the judgment was based upon a good paragraph of complaint, available error cannot be predicated upon the ruling of the court on other paragraphs.</p>

<p>From the Huntington Circuit Court.</p>

<p>Natural Gas. — Negligence of Company. — Insurance.—A complaint by an insurance company against a natural gas company, charging that certain property insured by plaintiff was destroyed by fire by reason of the carelessness and negligence of defendant in failing to provide a night watchman to control the supply of gas, without fault of the owner, and that plaintiff had paid the loss and had been subrogated to the rights of the owner, states a cause of action, pp. 298-300.</p> <p>Evidence. — Natural Gas. — Negligence of Company.— In an action against a natural gas company for damage to property by fire caused by an overheated stove on account of the alleged negligence of defendant in failing properly to regulate the supply of gas, proof that on the night of the fire other consumers noticed that their stoves were overheated was improperly admitted, where it was shown that the mixers furnished consumers were of different sizes, some admitting more gas than others, and that there was a key under the control of each consumer with which he could regulate the flow of gas into his stove and turn it off entirely, pp. 301-305.</p>

<p>From the Clay Circuit Court.</p>

<p>Master and Servant. — Negligence.—Complaint.—A complaint alleging that plaintiff was employed by defendant to perform a certain service which was unattended by danger, and that while so employed he was ordered by defendant to perform another and different service, in which he was inexperienced, which was attended by great peril,- and that defendant carelessly and negligently failed to instruct him or warn him of such danger, and that such danger was not apparent to an inexperienced person, states a cause of action, and does not show that the servant assumed the risk incident to the employment, pp. 319-323.</p> <p>Special Finding. — When in Conflict with General Verdict. — Master and Servant. — Where, in an action for damages for personal injuries received by plaintiff while employed in a quarry, the complaint alleged that plaintiff was employed to do special work as a wheeler, which was not dangerous, and that he was ordered to leave his said employment and work upon a channeling machine, which was dangerous, without any warning of the danger, a special finding that plaintiff was employed to do general work is in conflict with a general verdict for plaintiff, under the allegations of the complaint, and precludes a recovery, pp. 823-329.</p>

<p>Counties. — Change of Venue. — Costs.—Attorney's Fees for Defending Poor Person. — The board of county commissioners has exclusive jurisdiction of claims against the county, and an allowance made attorneys for defending a poor person, under §§1847, 1848 Burns 1894, by the court of the county to which a change of venue had been taken is not conclusive against the county from which the cause was removed, but is only prima facie evidence of the correctness of the amount allowed.</p>

<p>Bills and Notes. — Action by Indorsee. — Consideration.—Evidence.— Where in an action on a promissory note by an indorsee a defense was interposed that the note was given for a patent right, evidence as to plaintiff's custom of loaning money and purchasing notes was properly excluded, pp. 336, 337.</p> <p>Practice. — Cross-Examination.—Offer to Prove. — Harmless Error. —A cause will not be reversed on account of the action of the court in permitting counsel to make an offer, in the presence and hearing of the jury, to prove the facts as detailed in a question propounded to a witness on cross-examination, to which an objection had been sustained, where the court informed the jury not to consider any facts stated in the offer to prove, and it appears from the record that a correct conclusion was reached by the jury. pp. 337-339.</p> <p>Evidence. — Bills and Notes. — Where in an action on a promissory note the question was raised as to plaintiff’s knowledge at the time of the purchase of the note that it was given for a patent right, no error was committed in permitting plaintiff to relate a conversation had with the payee of the note after he had purchased it, in which he was first informed that it was given for a patent right, p. 339.</p> <p>Misconduct of Counsel. — Comment on Interrogatories to Jury. — A statement made by counsel in his closing argument to the jury, that “ this interrogatory is a trap, fixed for you, and you should not be caught by it,” was a legitimate argument, since such language could only have been understood by the jury as meaning that the question was misleading, or was subject to two meanings, pp. 339, Slfi.</p> <p>Appeal and Ebeob, —Joint Assignment of Error. — Instructions.—A joint assignment in a motion for a new trial that the court erred in giving a series of instructions is not available on appeal unless all of the instructions in the series are bad. p. Slfi.</p> <p>Instbuctions. — Bills and Notes. — Where the words ‘ ‘given for a patent right” were omitted from a promissory note, the action of the court in misquoting the statute as to whose duty it was to insert such words in a note given for a patent right, in an instruction in the trial of an action on the note by a purchaser thereof, was harmless error, since the motives of the seller or maker of commercial paper have no place in determining the rights of the buyer, p. 340.</p> <p>Bills and Notes. — Commercial Paper. — Note Given for Patent Bight. —Bona Fide Purchaser. — Notice.—Where a note is offered for sale which is in form commercial paper, and is without any infirmity appearing upon its face, the purchaser is not put upon inquiry as to any equities existing between the original parties to the note. p. 341.</p> <p>Same. — Commercial Paper. — Note Given for Patent Bight. — Failure of Maher to Insert “ Given for Patent Bight.” — The maker of a note given for a patent right who fails to place or cause to be placed in the note the words which destroy its negotiability is guilty of negligence, and he cannot defend against it in the hands of a bona fide holder for value before maturity and without notice, p. 341.</p>

<p>From the Grant Circuit Court.</p>

<p>Contracts. — Alteration.—Release of Surety. — Á change in a contract to remodel a house by substituting frame for brick in the construction of the second story, and shingling instead of weather-boarding on the frame portion, made without, the knowledge or consent of the sureties on a bond executed to secure the performance of the contract, is not such a material alteration as will release the sureties, where the contract provided “ that any necessary or desired changes may be made in the plans and specifications for said building during the progress of the work thereon without in any manner affecting the validity of the contract.” pp. 348-354.</p> <p>Same. — Alteration.-—Parties.—An answer to an action on a bond given to secure the performance of a building contract that a new and different contract was entered, into without the knowledge or consent of the sureties, signed by but one of the plaintiffs, and thereby substituted different contracting parties, is insufficient, where the complaint averred that the contract was signed on behalf of both plaintiffs, since the capacity in which plaintiff signed the contract may be proved by parol, p. 355.</p> <p>Same. — In Conflict with City Ordinance. — Alteration of Contract.— Validity. — Where the manner of constructing a building as provided by the plans and specifications was prohibited by a city ordinance, such contract was not thereby rendered invalid, where the contract provided that any necessary or desired changes might be made in the'plans and specifications during the progress of the work without affecting the validity of the contract, and the plans were changed so as not to conflict with the provisions of the ordinance. pp. 358-362.</p>

<p>Brokers.— Commission. — ■ Complaint.— Quantum Meruit. — A complaint npon tbe quantum meruit to recover a commission for services as a broker which alleges that plaintiff, at the special instance and request of defendant, procured a purchaser for a large general stock of merchandise, owned by defendant, which defendant desired to sell, and in all things complied with the request of defendant, is sufficient as against a demurrer, although it is not alleged that the purchaser was ready, willing, and able to purchase the stock, or that a sale was completed before the action was commenced, or prevented by defendant, pp. 365-371.</p> <p>Same.— Commission. — Agreement to Furnish Purchaser. — Where a broker is instrumental in bringing the owner of property and a purchaser together, and a sale or exchange is effected, the broker is entitled to a commission under a contract to furnish a purchaser to his principal, p. 371.</p> <p>Verdict. — Answers to Interrogatories. — Conflict.—The general verdict must stand as against answers to interrogatories, unless the answers are in irreconcilable conflict with the general verdict, p. 372.</p> <p>Instructions. — Harmless Error. — A judgment will not be reversed because one or more instructions given, when standing alone, were' erroneous, where, construing all the instructions together, it is apparent that the jury was not misled, and it affirmatively appears that the verdict was right upon the evidence, p. 374.</p> <p>. Trial. — Venire de Novo. — -Before a motion for a venire de novo will lie, the verdict or finding must be so defective that no judgment can be rendered thereon, p. 375.</p> <p>Same. — Venire de Novo. — The failure to find material facts in a special, finding or verdict is not cause for a venire de novo. p. 376.</p>

<p>Erom the Madison Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>Appeal and Error. — Bill of Exceptions. — Signature of Judge. — Presumption. — Where the record shows that a bill of exceptions was signed by the judge and filed, it will be presumed that the judge signed the bill and that it was then filed, p. 381.</p> <p>Bills and Notes.' — Action by Indorsee. — Burden on Plaintiff to Show that He is a Bona Fide Holder. — In an action on a promissory note by an indorsee the burden is upon plaintiff to show that he is a bona fide holder, which includes proof that he obtained the note without notice of any defense, and the plaintiff may assume this burden in his complaint, pp. 381-383.</p> <p>Bills and Notes. — Transfer.—Presumption.—Nothing appearing to the contrary, it will be presumed that a note was transferred on the day of its date. p. S83.</p> <p>Appeal and Error. — Assignment of Cross-Errors. — No question is presented on an assignment of cross-errors where it does not appear , when the assignment was made. p. 384.</p>

<p>From the Ohio Circuit Court.</p>

<p>From the Madison Superior Court.</p>

<p>From the Montgomery Circuit Court.</p>

<p>Erom the Marion Circuit Court.</p>

<p>Evidence. — Medical Services. — Action by Husband for Personal Injury of Wife. — In the trial of.¡-an action for damages on account of personal injuries to plaintiff’s wife, the court erred in admitting the testimony of a physician as to the amount of his bill for treating her for such injury, without showing the reasonable value of such services.</p>

<p>From the Wells Circuit Court.</p>

<p>Evidence. — Agreed Statement of Facts. — Appeal and Error. — A statement of the evidence agreed upon by the parties will not be treated on appeal as a statement of facts in a special finding, but will be regarded as the evidence introduced upon the trial, p. 413.</p> <p>Replevin. — Possession.—¡-In order to maintain an action in replevin it must be shown that defendant was in possession, actual or construct- ■ ive, at the commencement of the action, p. 413.</p> <p>Same. — Judgment.—In an action in replevin the judgment may be for the delivery of the property, or the value thereof in case a delivery cannot be had, and damages for the detention, p. 413.</p> <p>Same. — Demand.—Where property is obtained by a purchaser through fraud, the seller may rescind the sale and recover possession by an action in replevin without making any demand before the commencement of the action, where the property is in the possession of the purchaser or his trustee for the benefit of creditors, pp. 413,414.</p> <p>Same. — Sales.—Fraud.—The fact that the purchaser of goods was insolvent when the goods were sold and delivered, and knew of his inability to pay all of his debts, and that he mortgaged the goods purchased, and others, constituting his stock of merchandise on hand, to a trustee to pay certain bona fide debts, giving greater preference to some creditors.than others, will not alone warrant a conclusion that the purchase was fraudulent, p. 415.</p> <p>Fraud. — Preferring Creditors. — The preference of particular creditors by paying or securing their claims in full or in unequal ratio, is not in itself fraudulent or void, but is permissible, when not made in a general assignment under the statute, pp. 415-417. /</p> <p>Assignment for Benefit of Creditors. — Special Assignment. — An assignment for the benefit of creditors, which names the particular creditors for whose benefit it is made, is not a general assignment, but is special as to the persons named. . pp. 417, 418.</p>

<p>Erom the Madison Superior Court.</p>

<p>From the Lawrence Circuit Court.</p>

<p>Wills. — Construction.— Parent and Child.— Adoption. — Under a clause in a will giving property to three sons and a daughter of testator, and' providing that in the event of the death of either of the four “the shares due such as may be deceased shall go to the children of such deceased person, if there be children, and if there, be no children, then such share shall go to the survivors,” upon the death of the daughter before the bequest became operative, without issue, her adopted child was entitled to take her share by the provision of §826 Horner 1897 that the adoptive parents shall occupy the same position to an adopted child as natural parents. Wiley, J., dissenting.</p>

<p>Pleading. — Contract.—When Not Alleged to be in Writing. — Where a contract upon which an answer is based is not alleged to be in writing the answer will be treated as founded upon an oral contract, p. 484.</p> <p>Same. — Contract.—Variance.—Where a defense is based upon a contract not in writing, and the contract appears upon the trial to be a written one, the defense must fail. p. 485.</p>

<p>From the Clark Circuit Court.</p>

<p>From the Knox Circuit Court.</p>

<p>Judgment. — Motion to Correct. — Review on Appeal. — The action of the trial court in overruling a motion to strike out part of a judgment is not reviewable on appeal, p. 496.</p> <p>Same. — Correction.— Pleading.— Motion.— A motion directing the court’s attention to the specific record in which a judgment was rendered, to the parts sought to be stricken out, and assigning reasons therefor, is sufficient to correct a judgment rendered by such court at a previous term. pp. 496, 497.</p> <p>Drains. — Assessments For Repair Do Not Bear Interest. — Assessments against lands, under §5631 Burns 1894, for the repair of a ditch do not bear interest as do judgments for the recovery of money, pp. 498-501.</p>

<p>Pleading.— Judgments.— Jurisdiction.— Where it is averred in a complaint to enforce a judgment that the judgment was rendered by a court of general jurisdiction, it is not necessary that the averments show affirmatively that the court had jurisdiction to render - the judgment sued upon. p. 60S.</p> <p>Same. — Judgments.—A judgment is a debt of record, and, as such, may be made the foundation of an action, and, in a suit to recover such debt, an averment that it is due and unpaid is sufficient to show that the judgment is in full force, p. 60S.</p> <p>Judgments. — Appeal.—The holder of a judgment may bring suit for its enforcement pending an appeal, p. 60S.</p> <p>Bills and Notes. — City Warrant. — A city warrant is not a negotiable instrument in such a sense as to protect a bona fide holder against defenses, p. 60S.</p> <p>Attorney and Client. — Ratification of Act of Attorney. — The fact that one remains silent and does not expressly disavow an act of an attorney is not of itself conclusive of ratification, pp. 503, 50/f.</p> <p>Estoppel. — Attorney and Client. — A judgment creditor will not be estopped from maintaining an action for the enforcement of a judgment by the fact that she did not disavow a settlement made by her attorney, by reason of which a proposed appeal from the judgment was abandoned, where it is not shown that plaintiff knew all of the facts concerning the settlement and proposed appeal, or that she kept silent for the purpose of inducing the judgment debtor to abandon the appeal, p. 504.</p>

<p>Recbivbes. — Action Against. — Complaint.—The complaint in an action against a receiver must contain an averment that leave to bring the action had been obtained from the court by which the receiver had been appointed.</p>

<p>Insurance. — Complaint.—Ownership of Property. — A complaint in an action on a fire insurance policy must allege that plaintiff was the owner of the property at the time it was destroyed, pp. 507, 508.</p> <p>Same.— Complaint.— Ownership of Property. — A complaint in an action on a'fire insurance policy alleging that plaintiff was the owner of the property at the date of the policy, that the dwelling-house and contents, except certain enumerated articles, were entirely destroyed, and that “plaintiff suffered a total loss, all to his damage, in the sum of $500,” does not sufficiently aver that plaintiff was the owner of the property at the time it was destroyed. pp. 508, 509.</p>

<p>From the Elkhart Circuit Court.</p>

<p>Appeal and Ekbob. — Record.—Instructions.—Instructions requested by a party are made a part of the record without a bill of exceptions when signed by the party or his attorney and filed as a part of the record, although not signed by the judge, pp. 521-524.</p> <p>Same. — Record.—Instructions.—Instructions given by the court of its own motion, which are not signed by the judge are not properly in the record, pp. 521-524.</p> <p>Same. — Instructions.—Memorandum.—A memorandum of exception signed by the judge and dated will not make an instruction to which it is appended a part of the record, pp. 521-524.</p> <p>Same. — Instructions.—Where it does not affirmatively appear that all of the instructions given by the court are in the record, the refusal to give instructions asked will not be considered, pp. 524, 525.</p>

<p>From the Allen. Superior Court.</p>

<p>Prom the JVIarion Superior Court.</p>

<p>Attachment. — Statute Must be Strictly Followed. — Attachment proceedings being purely statutory, the statutory provisions relative thereto must be strictly followed, pp. 535, 536.</p> <p>Same. — Affidavit.-—An affidavit in attachment need not show that defendant has property subject to execution within the jurisdiction of the court, p. 536.</p> <p>Same — Affidavit.—Nature of Plaintiff’s Claim. — An affidavit in attachment which states that plaintiff’s claim is for a balance due on a judgment in favor of the plaintiff, described in the complaint, and on account of goods sold and delivered, described in the complaint, sufficiently shows the nature of plaintiff’s claim, p. 537.</p> <p>Same. — Affidavit.—Nature of Claim. — Reference May be Had to Complaint. — Where the statement of the plaintiff’s claim in an affidavit in attachment shows that it is one for which an attachment may issue, but is not so full as might be desired, reference may be had to the complaint to ascertain the. precise nature of the claim, p. 538.</p> <p>Appeal. — Brief.—Failure to Comply with Rule Requiring Reference to Pages of Record. — Where a record is voluminous, one waives his right to have a question considered on appeal when he fails to refer in his brief to the record pages where the proceedings complained of may be found, in accordance with rule twenty-two of this court. p. 539.</p> <p>Attachment. — Answer.—Abatement.—Where the facts in an affidavit in an attachment are denied by an answer, such answer is in bar of the proceedings in attachment, and not in abatement of the writ. p. 540.</p> <p>Corporations. — Consolidation.—Inability of New Corporations for Debts of Consolidating Companies. — Where a new corporation is formed out of old ones, and the assets of the old ones are turned over to it as a part of its assets, the new or consolidated corporation will be liable for the debts of the constituent corporations, to the extent of the property or assets thus acquired, p. 544.</p> <p>Same. — Action Against Consolidated Corporation for Debt of a Constituent Company. — Complaint.—In an action against anew corporation formed by consolidating several old ones, to recover a debt due from one of the consolidating corporations, it is not necessary to allege in the complaint, nor to prove on the trial, that the transfer of the stock to the new corporation was without consideration. pp. 544, 545.</p>

<p>From the Elkhart Circuit Court.</p>

<p>Insurance. — Action by Mortgagee on Fire Policy. — Pleading.—A mortgagee to whom a fire policy is payable may, where the mortgage debt exceeds the amount of the policy, prosecute an action on the policy in his own name, if the insured is made a party defendant. p. 550.</p> <p>Pleading. — Answer.—Joint Demurrer. — A demurrer stating that “ plaintiff demurs to the second and third paragraphs of defendant’s answer, on the ground that said paragraphs do not state facts sufficient,” etc., is a joint demurrer; and if one of the paragraphs is good the demurrer must be overruled as to the other, pp. 553, 553.</p> <p>Insurance. — Rights of Mortgagee to Whom Insurance is Payable. — A mortgagee to whom a loss is payable as his interest may appear is not an assignee of the policy in the sense that a new contract of indemnity is created with the insurer. Such mortgagee is therefore bound by a clause in the policy prohibiting other insurance of the property by the insured, pp. 553-557.</p> <p>Same. — Assignment of Void Fire Policy. — Rights of Assignee. — The rule of law that the assignment of a fire policy by consent of the insurer makes a new contract, and that defenses available against the assignor cannot be pleaded against the assignee is not applicable to a policy void in its inception, p. 557.</p>

<p>Prom" the Delaware Circuit Court.</p>

<p>Appeal. — Transcript.—Omission of Clerk’s Certificate. — Without the clerk’s certificate to what purports to be the transcript, the record cannot be considered on appeal.</p>

<p>Appeal and Error. — Assignment of Cross-Errors. — Intervening Errors. — Where the complaint is bad, a judgment in favor of defendant will be affirmed upon an assignment of cross-error on the sufficiency of the complaint, although subsequent errors intervened, if a right conclusion was reached, pp. 565, 566.</p> <p>Insurance. — Beneficial Associations. — Collection of Assessments. — An assessment insurance company cannot collect an assessment from one who has accepted a policy and ceased paying thereon, since the contract is unilateral, and the only penalty, which follows a refusal to pay is the loss of the policy-holder’s rights thereunder, pp. 566-569.</p>

<p>Wills. — Construction.—Introductory Clause. — An expression in the introductory clause of a will of the purpose of the testator to dispose of all real and personal property that he might own at the time of his death, does not in itself dispose of any property, but may be , found useful in resolving doubts, if any exist which may be so resolved, in particular dispositive clauses, p. 571.</p> <p>Same. — Description of Property. — Intention of Testator. — Partial Intestacy. — A testator in the introductory clause of his will expressed his purpose to dispose of all his property, real and personal. In the first clause he gave all his personal property “ consisting of household goods ” to his stepdaughter and her children. By the second clause all his real estate “including tools” was to be sold and the proceeds given to his nephew and his wife and children. No mention was made in the will of a certain note and money which he owned at the time of his death. Held, that the note and money were left undisposed of. pp. 570-573.</p>

<p>From the Ripley Circuit Court.</p>

<p>From the Marion Superior Court.</p>

<p>From the Howard Superior Court.</p>

<p>Prom the Noble Circuit Court.</p>

<p>From the Boone Circuit Court.</p>

<p>Executors and Administrators. — Liability of Estate for Acts of Executor Prior to His Qualification. — Attorney’s Fees. — An attorney at law who renders services to one named in a will as executor prior to his qualification as such, by the giving of legal advice in reference to certain of his rights and duties in connection with the trust, and in assisting in procuring the bond required of such executor, is entitled to collect his fees for such services as other claims against the estate would be collected.</p>

<p>From the Marion Superior Court.</p>

<p>Pleading. — Complaint Questioned for First Time on Appeal. — When a complaint, questioned for the first time in the assignment of errors, is sufficient to bar another action for the same cause, it will he held good. p. 6S1.</p> <p>Conversion. — Complaint.—A complaint for conversion alleging that defendant, as agent and employe of the plaintiff, received from the latter certain goods, wares, and merchandise to be sold for defendant, and that plaintiff converted a part of such goods to his own use, sufficiently avers ownership by the plaintiff in the property con' verted, as against an objection raised for the first time in the assignment of errors, pp. 631-635.</p>

<p>• Carriers. — Shipment of .Live Stock. — Loss in Transit. — Pleading.— Complaint. — Tort.—In an action against a railroad company for loss of live stock in transit, the complaint alleged that plaintiff delivered to defendant certain live stock, to be transported by it as a common carrier; that the animals wer® loaded on a car furnished therefor by defendant, said car having open spaces at the sides and ends, and were bedded with hay, which was liable to be set on fire by sparks from the engine; that defendant, well knowing these conditions, placed the car near the engine, which had negligently been permitted to be and remain out of repair, by reason whereof, and by reason of its negligent and careless operation, sparks were emitted from the engine, the hay ignited and the live stock burned; wherefore plaintiff was damaged, etc. The defendant company filed answer in denial. Held, that the complaint stated a cause of action in tort, and that there could be no recovery where the evidence, on the trial, showed that the shipment was made under a written contract which, among other things, exempted the defendant from liability for any injury to the live stock caused by the burning of hay, straw, or other materials used for feed or bedding. pp. 639-656.</p> <p>Election of Remedies. — Contract.—Tort.—Where there is no legal duty except that arising from a contract, there cannot be^an election between an action on contract and one in tort. p. 648.</p> <p>Carriers. — Contract.—Notice.—Where a contract between a shipper of live stock and a common carrier provides for reasonable notice of claim, the giving of such notice being a condition precedent, it is a part of the plaintiff’s cause of action to show performance of this precedent obligation on his part, or to show a waiver of performance. p. 653.</p> <p>Same. — Limitation of Liability. — Negligence.—Where live stock is shipped under,an express contract, which relieves the carrier from liability for loss occasioned by a specified cause, the carrier is not liable for loss occasioned by such cause, if the carrier was itself without fault or negligence, p. 653.</p>

<p>Prom the Marion Superior Court.</p>

<p>Accord and Satisfaction. — Payment.—Acceptance of Check. — Plaintiff sold defendant a certain number of hoops of a certain quality, at an agreed price per thousand, to be delivered at the expense of plaintiff. Defendant sent plaintiff a check by mail for a less sum than was due, containing the statement “to be accepted in full,of account.” Plaintiff indorsed the check as credited to the account of defendant, negotiated same, and immediately notified defendant that a certain balance was still due. Held, that the acceptance of the check did not amount to an accord and satisfaction.</p>

<p>Yerdict. — Special Finding. — Conflict.—The general verdict must stand as against the facts specially found, unless such facts are in irreconcilable conflict with the general verdict, p. 68S.</p> <p>Negligence. — Railroads.—Statutory Signals. — Answers to interrogatories in an action for an injury at a railroad and highway crossing by which the jury found that the bell upon the locomotive was not rung continuously from a point not less than eighty nor more than one hundred rods from the crossing until such engine had fully passed the'crossing, shows negligence per se on the part of the railroad company, p. 684.</p> <p>Yerdict. — Special Finding. — Conflict.—Where the jury in answer to an interrogatory in an action against a railroad company for an injury at a railroad and highway crossing stated that the failure of defendant to sound the whistle and ring the bell might have been the proximate cause of the plaintiff’s injury, and in answer to other interrogatories found that defendant did sound the whistle, such findings do not establish the fact that the failure to ring the bell was the proximate cause of the injury, but leave the fact established by the general verdict that such failure was the proximate cause of the injury unimpeached, p. 684.</p> <p>Negligence. — Railroads.—Injury at Crossing. — Interrogatories to Jury. — Conflict urith General Verdict. — Answers to interrogatories in an action by plaintiff for injuries received at a railroad and highway crossing by being struck by a train, to the effect that plaintiff was approaching the crossing, which he knew to be extraordinarily dangerous, traveling in a farm wagon, and at several points from about 800 feet from the crossing he could have seen the track and approaching train, which he knew was about due, by looking through between rows of trees in an orchard; that when he got within thirty-five feet of the crossing he could have had an unobstructed view of the track for 300 feet in the direction of the approaching train, and could have heard the noise of the approaching train, show plaintiff to have been guilty of contributory negligence, and are in irreconcilable conflict with a general verdict for plaintiff. pp. 684-690.</p>

<p>Erom the Bartholomew Circuit Court.</p>

<p>Prom the Eloyd Circuit Court.</p>

<p>From the Madison Superior Court.</p>

<p>From the De Kalb Circuit Court.</p>

<p>From the Huntington Circuit Court.</p>

<p>From the Howard Superior Court.</p>