Volume 26 — Indiana Appellate Court Reports

<p>Railboads. — Master and Servant. — Negligence.—Personal Injuries.— A railroad company is not liable for personal injuries sustained by tbe employe of a manufacturing company who, while employed by the latter company in loading a car, was injured by reason of a switch engine of the railroad company starting in motion cars which struck the car the employe was loading, where the railroad company in the operation of its switch engine was under the direction and control of the manufacturing company.</p>

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

<p>Pleading. — Contracts.—Exhibits.—A complaint in an action for the value of certain machinery manufactured for defendant by plaintiff, under written contract and specifications, is not bad for failure to make the blue-print of certain mechanism thereof referred to in the specifications a part of the complaint, where it appears that the blue-print was not made a part of the contract, pp. 8-10.</p> <p>TiviDmxOTS. — Objection.—Harmless Error. — Expert Testimony. — Available error cannot be predicated upon the action of the court in overruling an objection to a question propounded to a witness calling for an opinion of the witness as to the competency of a certain machine, because the question did ' not state the object or purpose for which the machine was constructed, where the witness was immediately asked, and gave his opinion of the competency of the machine to do the work for which it was constructed. pp. 10, 11.</p> <p>Same. — Expert Testimony. — Where in an action by the seller for the purchase price of a machine a witness who had worked with the machine testified to certain defects in its workings, it was proper for plaintiff to prove in rebuttal the defective nature in general of the witness’ work. p. 11.</p> <p>S¿ME.-=*Expert Testimony. — Machinery.—In an action by the seller for the purchase price of a machine the opinion of an expert as to whether the machine would do the work for which it was intended was admissible, where the machine was of intricate and complex construction, pp. 11, IB.</p> <p>Same. — Expert Testimony. — Discretion of Court. — Trial.—Whether a witness is competent to testify as an expert is a question for the trial court, and the determination of the court will not be disturbed on appeal unless there is an abuse of discretion shown, p. IB.</p> <p>Evidence. — Contracts.—Oral Negotiations. — In an action by the seller for the purchase price of machinery, based upon a written contract, evidence as to conversations between the parties, prior to the execution of the contract, tending to contradict the written contract was properly rejected, where it was not shown that the contract was obtained by fraud, pp. IS, IS.</p> <p>Same. — Expert Testimony. — Machinery.—In an action by the seller for the purchase price of a machine, drawings showing the working plans of the machine were properly introduced in evidence for the purpose of explaining the construction of the machine and facilitating the evidence, where the question as to the competency of the machine to do the work for which it was intended was in issue, p. 13.</p>

<p>Erom the J ay Circuit Court.</p>

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

<p>Negligence. — Proximate Cause. — Death.—Municipal Corporations. —Parent and Child. — A complaint against a city for the death of a child caused by the negligence of the city in so constructing a culvert that water accumulated in large volume along the side of the street, to which the child while passing on its way to school was attracted, and, while playing along the edge thereof, slipped from the edge of the sidewalk into the water and was drowned, is not defective because it shows that the accumulation of the water was the immediate cause of the death of the child, since the insufficient culvert caused the accumulation of water and was the proximate cause of the death, pp. 29-SI.</p> <p>Municipal Corporations. — Streets'.—Accumulations of Water.— The duty of a city to keep its streets in a reasonably safe condition for travel is not fully discharged by making the traveled portions thereof safe, and where there are dangerous places near the usually traveled portions, although outside thereof, it is the duty of the city to use ordinary care to protect from injury a person lawfully using the street in a reasonably prudent manner, p. SI.</p> <p>Negligence. — Complaint.'—Parent and, Child. — Action for Death of Child. — A complaint by a parent for the death of a child seven years of age, caused by the alleged negligence of defendant city, is not demurrable because of its failure to show by facts specially pleaded that the child was free from contributory negligence, or that it was non sui juris, where there was nothing averred in the complaint from which it could be said as a matter of law that the child was sui juris, or guilty of contributory negligence, and there was a general averment that the child was free from fault, since the question whether the child was sui juris was one of fact for the determination of the jury. pp. SS-Sj.</p> <p>Damages. — Parent and Child. — Death of Child. — Measure of Damages. — Where a complaint by a father for the death of his child asks damages for loss of future services of the child during its minority, the jury may consider the age of the child, its physical and mental condition and ability, and the condition of the plaintiff’s family with respect to and use for the child, and the measure of damages in such case is the value of the child’s services from the time of its death until it would have attained its majority, taken in connection with its prospects in life, less the cost of its maintenance and support during that period, p. 35.</p> <p>Trial. — Harmless Error. — Where in the examination of a witness it was developed that the witness had been subpoenaed by the opposite side and after she had related her proposed testimony counsel had directed her to go home as she was not needed, a statement made by the court that he did not think such evidence important or material was not reversible error, p. 36.</p>

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

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

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

<p>Contracts. — Voidfor Illegality — Ratification.—A contract expressly prohibited by statute, such as a promissory note given for money won from the maker by the payee on the result of a wager, is absolutely void, and cannot be ratified without a new and valid consideration to support it. pp. 68, 69.</p> <p>TS.STOP'P'EL.^-Illegality of Contract. — A party may estop himself as against an innocent purchaser for value to set up the illegality of a contract as a defense to an action thereon, p. 69.</p> <p>S&MM.^Illegal Consideration. — Statements of Obligor. — Where the maker of a note given for an illegal consideration, upon being asked concerning the note by one who said that he intended purchasing it replied that it was all right, but requested the questioner not to buy it until he could make an effort to pay it by a transfer of property to the payee, and such questioner bought it for a valuable consideration, in reliance upon such statement, the maker is estopped to deny the validity of the note. p. 59.</p> <p>Fraud. — Misleading Statements. — The denial of that which has been previously affirmed constitutes fraud, where another, who was induced to act by the first statement, is thereby injured, p. 60.</p>

<p>Corporations. — Agency.—The duties of an officer in an association or corporation determine the question of his agency, p. 62.</p> <p>Insurance.— Waiver of Forfeiture. — A forfeiture of an insurance certificate by engaging in a prohibited occupation may be waived by the insurer or its authorized agent, p. 62.</p> <p>Principal and Agent. — Knowledge.—Knowledge possessed by an agent while engaged in the duties of his agency is the knowledge of his principal, p. 62.</p> <p>Insurance. — Fraternal Society. — Agency.— Waiver of Forfeiture.— Where the constitution of a fraternal insurance society and of its local branches gave the recorder of a local branch authority to collect from the members all moneys and assessments when due, and to give receipts and forward the payments to the supreme body, and provided for the payments of dues and assessments to nobody else, such recorder was the agent of the supreme body as between it and the members in doing what its constitution required him to do, and had authority to waive the forfeiture of a certificate of insurance by the acceptance of dues and assessments with knowledge of the forfeiture, notwithstanding the constitution of the local branch, prescribed by the supreme body, provided that “ it is expressly understood that a district recorder is an agent of the district court and not the agent of the supreme court to do anything except such acts as are specifically authorized in the fundamental laws.” p. 62.</p>

<p>Bills and Notes. — Several Obligation. — A promissory note reading, “ I promise to pay P. or order §100,” etc., signed by two makers is a joint and several note, and not merely a joint obligation, p. 6¿.</p> <p>Same. — Merger of Aetion.~Separate Judgment. — Under §§322, 678„ 579 Burns 1894, §§320, 569, 570 Horner 1897 a judgment against one defendant in an action on a joint and several obligation does not merge the cause of action, but the plaintiff has a right to take judgment against one or more of the defendants and have the action proceed against the other defendants who are severally bound with him. p. 64.</p> <p>Bills and Notes. — Election.—Joint Obligation. — The fact that the holder of a note signed by two makers sued both makers jointly does not conclusively show that he elected to treat the obligation as joint. pp. 6Jf, 65.</p>

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

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

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

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

<p>Pleading. — Facts and Conclusions. — Nature of Animal. — Allegations that a dog was of a fierce nature, and had a propensity to bite mankind, are facts, and not conclusions, and the sufficiency of a complaint containing them is not affected by allegations of mere conclusions which it also contains, pp. 94, 95.</p> <p>Animals. — Vicious Dog. — Habit.—Allegations of the vicious or mischievous propensity of an animal, the owner’s knowledge thereof, and an injury resulting therefrom are sufficient to require the owner to answer, without showing a habit or custom of the animal to attack mankind, and the owner’s knowledge of such habit, p. 95.</p> <p>Trial. — Interrogatories.—Insufficient Evidence. — The failure of the answers to special interrogatories to state a material fact on which plaintiff’s right to recover depends will not enable such answers to overthrow the verdict. A general verdict for plaintiff finds all the material facts in issue in his favor, and the answers to interrogatories cannot overthrow it unless they affirmatively find facts in conflict with the verdict, pp. 95, 96.</p> <p>Animals. — Vicious Dog. — Restraint.—The keeper of a vicious dog is bound so to secure it as to prevent mischief to any one who is where he has a right to be, and if such dog is kept in a house to which people are invited on business it must be effectually restrained therein, p. 97.</p>

<p>Pleading. — Demurrer. — Jurisdiction. — Presumption. — It is only where the want of jurisdiction affirmatively appears on the face of the complaint that a demurrer thereto for that cause will lie; the jurisdiction of the circuit court, or other court of general jurisdiction, is presumed until the contrary is shown, pp. 99, 100.</p> <p>Same. — Misnomer.—Abatement.—Demurrer.—Misnomer of the defendant is matter in abatement, and is not reached by a demurrer for want of facts, p. 100.</p> <p>Same.: — Township.—Designation in Complaint. — The designation of a civil township merely as “ ..... township” (according to its name) without naming the county where it is located, or stating that the civil township is intended, would seem to be sufficient in a complaint by or against such township, p. 99.</p> <p>Bridges. — Township Liability, — Notiee.—To render a township liable to pay §75 of the cost of building or repairing a bridge located therein, as provided by §6833, Burns 1894, the township trustee must first move in the matter by giving notice of the necessity therefor to the board of commissioners, and the board must act upon the notification thus given, p. 101.</p> <p>Bbidges — Notice by Trustee. — Presumption.— Section 6833 Burns 1894 makes it the duty of a township trustee to notify the board of commissioners of his county of the necessity for any bridge or culvert the construction or repair of which will cost more than $75, and a notice which he gave to a member of the board, by whom it was submitted to the full board, which acted upon it, may be presumed to have been given in discharge of such duty. pp. 101, 102.</p>

<p>Mortgages. — Release. — Corporations. — Penalty. — Under §1091a, Homer 1897, before its amendment by act of 1901 (Acts 1901, p. 56), a corporation which failed, neglected and refused to satisfy a mortgage held by it which had been fully paid and discharged did not thereby incur a penalty, but the statutory penalty for such neglect or refusal could only be enforced against the officer of such corporation whose duty it was to release the mortgage.</p>

<p>Contracts. — Arbitration. — Condition Precedent.-— Action on Contract. — It is only when a contract which provides for submitting differences between parties to arbitration also provides that no action shall be maintained upon the contract until after an award by the arbitrators, or when such an agreement is necessarily implied from its terms that the award becomes a condition precedent to the right of action on such contract; otherwise a breach of the agreement to submit the amount of claims under the contract to arbitration may support a separate action, but it cannot be pleaded in bar to an action on the principal contract, p. 110.</p> <p>Contracts. — Repudiation.—Excusing Performance. — A declaration by the owner that he would pay no more than a specified sum for extra work on his house was equivalent to a declaration that he would not abide by the amount fixed by the architect if it exceeded that sum, and excused the contractor from a strict compliance with a condition in the building contract calling for arbitration of differences by the architect, p. 110.</p> <p>Same. — Performing Condition After Suit. — Where the owner of a house, after declaring that he would not pay more than a certain sum to the contractor who built it, and after the contractor had sued him to recover the balance due, procured the architects to estimate the amo'rnt of such balance as provided by the building contract, their estimate did not affect the contractor’s right to recover in his pending suit. pp. 110-11%</p> <p>Same. — Appraisement by Architects. — Condition Precedent. — The pro vision in a building contract that “in case the owners and the contractor cannot agree upon the value of any change made or to be made the same shall be appraised by * * * the architects ” does not make such appraisement a condition precedent to the bringing of an action for the cost of making changes, pp. 110, 111.</p> <p>Same. — Certificate of Architect. — Defense.—A provision in a building contract for the payment of certain portions'of. the price as the work shall progress upon certificates from the architects that certain parts of the rvork are completed does not make the failure of the architect to issue a proper certificate a bar to an action by the contractor to recover the balance due him for extra work after the house has been fully completed, pp. 110-112.</p> <p>Tender. — Taking Money Out of Court. — Where an unconditional tender of money acknowledged to be due is made and refused, and the money is paid into court to keep the tender good, the defendant’s power over it ceases, and the money becomes the property of the plaintiff and may be taken out by him without affecting his right to recover an additional sum due him. p. 113.</p>

<p>Bill or Exceptions. — Evidence.—Where the record shows that the official reporter filed the longhand manuscript of the evidence in the clerk’s office; that the appellant requested in writing that such original longhand manuscript be embraced in the bill of exceptions, without copying, and this was done; that the bill thus prepared was presented to the trial judge for settlement and signature within the time allowed, and was approved and signed by him, and that when so signed it was duly filed in the clerk’s office and a vacation entry made thereof, and that such bill was incorporated in the transcript without copying, the evidence forms a part of the record. p. 116.</p> <p>Bams. — Instructions.—Copying.—Instructions which are embraced in a bill of exceptions containing the evidence that is certified up on appeal without copying do not thereby become a part of the record, and cannot be considered by an appellate court, pp. 116, 117.</p> <p>Evidence. — Sufficiency.—Weighing.—If the plaintiff in an action against a decedent’s estate gave evidence fairly tending to sustain her claim, and there was an entire absence of evidence to the contrary, an appellate court can say that a verdict for the defendant is not sustained by sufficient evidence, but otherwise it cannot. If there is any conflict in the evidence this court cannot weigh it. pp. 117, 118.</p> <p>Contracts. — Common Family. — Mixed Question. — Whether or not parties live together as a common family is a mixed question of law and fact. p. 120.</p> <p>Same. — Evidence.—Submission to Jury. — Where the daughter-in-law of deceased prosecuted a claim against his estate for boarding and caring for him, the testimony of a son of the claimant, as to statements by-the decedent when the claimant was nursing and waiting on him that she should be paid, and proof that he once paid her for “board, washing, and services rendered,” together with evidence that she rendered valuable services in caring for and waiting on him, sufficiently tended to establish a contract on his part that he would pay her to entitle her to have the case submitted to the jury, although she and the deceased were living together as members of one family, pp. 118-120.</p> <p>Evidence. — Contract.—Receipt.—A receipt given by the claimant to the deceased for money paid on account of board, washing, and services rendered, and found among his papers after his death is admissible in evidence to prove a contract on his part to pay for boai'd furnished and services rendered after its date, while still-living in the same relation as when it was given, p. 119.</p> <p>Contracts. — Compensation.—Implied Rate. — Where a promise or agreement to pay is established, but no amount or rate of compensation is proved, the law will imply that the compensation -shall be such a reasonable sum as the facts warrant, p. 120.</p> <p>Husband and Wife. — Contract of Wife. — A married woman may lawfully contract to furnish board and perform services in caring for persons other than her husband or family, and may lawfully charge and enforce payment for the same in her own name. pp. 120-122.</p>

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

<p>Pleading. — Construction.—Negligence.—A complaint which alleges facts showing that plaintiff, a workman in a stone quarry, was injured while in the performance of his ordinary duties and while in a place that was unsafe, solely by reason of the defective condition of a rope, of which it is alleged that defendant had knowledge and plaintiff did not, must be regarded as counting upon the defective condition of the rope and defendant’s knowledge thereof, and allegations as to an express direction by the employer to work in a dangerous place do not aid the complaint, pp. 131-135.</p> <p>Same. — Inconsistent Allegations. — The fact that plaintiff was a “derrick boss” in a stone quarry is not inconsistent with an allegation that he did not know of a defect in a rope used in lowering the derrick, p. 135.</p> <p>Master and Servant. — Pleading.—Negligence.—A servant suing his employer for damages sustained by reason of the breaking of defective appliances is not bound to show in his complaint that he had inspected the same, or that he had not had an opportunity to inspect them, or that he could not have learned of the defects by the exercise of ordinary care and diligence, p. 185.</p> <p>Trial. — Verdict.—Answers to Interrogatories. — Answers to interrogatories returned with a general verdict do not constitute a special verdict, p. 185.</p> <p>Witness — Expert.—Opinion Evidence. — A witness of long experience in the use of ropes in handling and lowering derricks, who had personal knowledge of the size, length of use and condition of the rope which broke and injured plaintiff when lowering a derrick, and of the use to which it was being put when it broke, and who had fully stated to the jury the facts on which his opinion was based, was competent to express an opinion as to whether the particular rope was of sufficient strength for the use to which it was being put in lowering the particular derrick when it broke, pp. 135,136.</p> <p>Trial.— Variance. — Harmless Error. — A variance between the complaint and the evidence which was not of such a character as to mislead defendant in the preparation of its defense is not cause for reversal, pp. 137, 138.</p>

<p>Appeal and Error. — Buies.—Abandonment of Appeal. — Rule two of this court providing that when notice of an appeal is given below an<J. the transcript is not filed in the clerk’s office within sixty days afterward the appeal shall be treated as abandoned, and the subsequent filing of the transcript shall be deemed the taking of an appeal as of the time it is filed is a valid rule, and not repugnant to the statute fixing the time allowed for taking an appeal, pp. 139-141.</p> <p>Same. — Dismissal.—Notice.—Where the transcript was filed after such an abandonment of an appeal that had been begun by serving notices below, but within one year after judgment, and there was no appearance by appellee and no steps were taken to serve him with notice within ninety days, the appeal must be dismissed under rule thirty-five. pp. 141, 14%.</p> <p>Same. — Notice of Appeal. — Waiver.—Service of a notice of an application for a supersedeas and delivery to the appellee of a copy of appellant’s brief on the merits three days before filing the transcript did not dispense with the necessity for legal notice of the appeal, pp. 141, 142.</p>

<p>Appeal and Error. — Assignment of Error. — Discussion in Brief.— The assignment of errors must specifically point out the alleged errors relied on and such errors must be the same that are discussed in appellant’s brief or no question will be presented for decision. pp. UfS, Hi.</p> <p>Same. — Pointing Out Rulings — Page and Line. — Alleged errors in giving and refusing instructions and in other rulings made in the course of the trial must be pointed out by reference to the page and line of the transcript where the matters discussed may be found, or they will not be considered, p. m.</p>

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

<p>Evidence. — Weight.—A verdict will not be disturbed on the weight of conflicting evidence, p. 151.</p> <p>Same. — Contents of Letter. — Oral Proof. — The admission of plaintiff’s testimony as to what she wrote defendant in regard to the money sued for, without first accounting for the absence of her letter or laying any foundation for proof of its contents was error. pp. 151, 152.</p> <p>Same. — Deposition.—Impeachment.—In the absence of any foundation laid for the impeachment of a witness by asking him questions at the time his deposition was taken, it was error to admit in evidence letters written by such witness to the adverse party containing statements which tended to show that the testimony in his deposition was not true. p. 152.</p>

<p>From the J ackson Circuit Court.</p>

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

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

<p>Rewards. — Knowledge of Offer. — Complaint.—In an action by one wbo has recovered stolen property and apprehended the thief to recover a reward offered by public advertisement for the performance of such services it is not necessary to allege in the complaint that the services of plaintiff were rendered with a knowledge of the reward offered by the defendant and in consideration of such offer being made. pp. 167-169.</p> <p>Exceptions, Bill oe. — Formal Beginning and End. — A bill of exceptions is not required to be in any particular form, and if it clearly appears where a bill of exceptions begins, where it ends and what it contains, the omission of the usual formal beginning and conclusion will not prevent this court from treating it as a part of the record, pp. 169-171.</p> <p>Same. — Date of Presentation. — Presumption.—Whena bill of exceptions is shown to have been signed and filed within the time allowed by the court, a failure to state in the bill the date of its presentation for the judge’s signature is not material, as it will be presumed to have been presented the day it was signed, pp. 171, 172.</p> <p>Same. — Filing.—Indorsement.—A paper is sufficiently filed when it is delivered to the proper officer for that purpose, and the failure of the clerk to indorse a file mark on the bill of exceptions is not material where his certificate shows that it was duly filed, p. 172.</p> <p>Same. — Judge’s Certificate. — Evidence.— The interposition of a certificate of the official reporter between the statement in a bill of exceptions that “this was all the evidence given in the cause” and the authentication and signature of the judge does not invalidate the bill. pp. 172, 173.</p> <p>Rewards. — Capture of Thief. — Giving Information. — One who merely located a thief and told the deputy sheriff where he could be found was not entitled to a reward offered for the “capture of the thief,” although the deputy sheriff went at once to the place designated, and arrested him. p. 173.</p> <p>Same. — Interrogatories.—Surrender of Property. — In a suit for a reward offered by defendant for the “ return” of his stolen horse the court properly refused to submit to the jury an interrogatory as to whether “plaintiff put defendant in possession of” his horse before bringing the suit, because plaintiff would not be bound to put him in actual possession while the promised reward was due and unpaid. pp. 173, 17k-</p>

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

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

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

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

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

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

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

<p>Pleading. — Answer.—Trial.—Burden of Proof. — Right to Open and Glose. — Bills and Notes. — In an action upon a promissory note the complaint alleged that the note was stolen by some person unknown to plaintiff and came into the possession of defendant, the principal, who mutilated the note for the fraudulent purpose of defeating its collection. Defendant answered admitting the execution of the note, denied the larceny thereof, and alleged that after the note became due he paid same to plaintiff’s attorney who surrendered to him the note. Held, that the burden of the issue was upon plaintiff, and that he had the right to open and close.</p>

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

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

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

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

<p>Appeal and Error. — Waiver.—An assignment of error which is not discussed is waived, p. 239.</p> <p>Same. — Record.—Marginal Notes. — The evidence will not be considered on appeal where counsel fails to comply with rule thirty as to marginal notes, p. 239.</p>

<p>Appeal and Error. — Joint Assignment of Error. — Where a complaint was directed against two defendants, but the verdict and judgment were against but one of the defendants, without any reference to or mention of the other defendant, a joint assignment of error by both defendants on appeal from such judgment is not available.</p>

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

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

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

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

<p>Trial.— Verdict. — Answers to Interrogatories. — The general verdict finds all the material facts averred by the party in whose favor it is returned to be true, and is supported by all reasonable presumptions and intendments, and it can only be overcome by the specific findings of fact in answer to interrogatories, if such findings, without conflict among them, and without the aid of any presumptions in their favor, state facts in irreconcilable conflict with the general verdict, pp. 275, 276.</p> <p>Same. — Presumption.—Evidence.—A finding of specific facts in answer to interrogatories will not control a general verdict for plaintiff. where it was possible under the allegations of the pleadings to have proved other specific facts not inconsistent with those specially found which would show plaintiff entitled to recover, pp. 276-278.</p>

<p>Statutes. — Legislative Authoi'ity. — Defining Crime. — One legislature cannot impose restrictions on succeeding legislatures in the enactment of laws, and §237 Burns 1894, requiring that crimes and misdemeanors shall be defined will not have the effect to render invalid a later statute inconsistent therewith, pp. 280-283.</p> <p>Same. — Construction.—Uncertainty.—Where the terms of a statute are so uncertain as to their meaning that the court cannot discern with reasonable certainty what is intended, it will pronounce the enactment void. pp. 281, 282.</p> <p>Criminal Law. — Narrow Tires. — Definition of Offense. — The court cannot say as a matter of law that wagon tires of a certain width are either wide tires or narrow tires, and §2047 Burns 1894, providing a penalty against any one who cuts up gravel roads or turnpikes by heavy hauling, is so indefinite in so far as it refers to hauling on a narrow-tired wagon that a prosecution thereunder for that offense cannot be sustained. (See Acts 1901, p. 52, amending said section.*) pp. 288, 28k-</p>

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

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

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

<p>Action. — When Acts Complained Of were Violative of City Ordinance. — The fact that a penalty was prescribed by a city ordinance for the acts complained of in an action against a gas company for damages will not preclude plaintiff from maintaining an action in his own hehalf for the recovery of such damages as he may have suffered from such wrongful acts. p. SIS.</p> <p>Action. — Torts.—Contracts.—Qast—An action against a gas company for damages caused by shutting off the supply of gas in plaintiff’s house was an action in tort„ although plaintiff was receiving gas under a contract, since the contract is but a statement of the reasonable conditions under which the company was required to perform its duty. p. SIS.</p> <p>Pleading. — Harmless Error. — Error in sustaining a demurrer to a paragraph of answer was harmless where the facts pleaded were provable under the general denial,, which was pleaded, p. SIS.</p> <p>Gas. — Failure to Furnish. — Damages.—Removal of Mixer. — The fact that plaintiff removed the mixer and conducted gas into his stove through a large pipe without the use of a mixer, in violation of his contract with the gas company, did not absolve the company from liability for injuries sustained because of the failure of the company to furnish a sufficient supply of gas for which it had received pay in advance, pp. Sll¡., S15.</p> <p>Verdict.- — Interrogatories.—Conflict.—In order that answers to interrogatories may control the general verdict, they must be in irreconcilable conflict therewith and consistent with each other. pp. 815, 316.</p> <p>Same. — Interrogatories.—Conflict.-«-Where the jury returned a general verdict in favor of plaintiff on a paragraph of complaint seeking damages for physical injuries and mental suffering, and in answer to an interrogatory stated that upon such paragraph plaintiff was entitled to recover a named sum, and in answer to another interrogatory said they found nothing .as damages for injury to plaintiff’s health, the general verdict will stand, since the answers are in conflict with each other, p. S16.</p> <p>Payment. — Recovery of Payments. — Where a consumer paid a gas company an excessive and illegal rate as a matter of necessity, in order to obtain a supply of gas, he may recover the same, although he knew at the time of payment that the demand was unjust, since the parties were not treating on equal terms, pp. S16, S17.</p> <p>Verdict. — Interrogatories.—Conflict.—Gas.—The findings of the jury in an action for injuries resulting from the failure of defendant gas company to furnish plaintiff a sufficient supply of gas that the gas pipes were made of wrought iron and steel of the approved kind, and such as were in general use by gas companies, and that defendant employed a sufficient force of men to maintain an efficient system of oversight and superintendence of its lines, are not necessarily in irreconcilable conflict with a general verdict, finding, in effect, that defendant by its neglect had allowed its lines to become rotten, decayed, and broken, pp. S17, S18.</p> <p>Damages.— Excessive Damages. — A verdict will not be disturbed on the ground of excessive damages unless it is shown that the jury abused the discretion vested in them. p. S18.</p> <p>New Trial. — Motion to Make Complaint More Specific. — Overruling a motion to make a complaint more specific is not a proper cause for a new trial, p. 318.</p> <p>Trial. —Evidence.—Harmless Error. —Available error cannot be predicated upon the action of the court in sustaining an objection to a question where the witness afterward answered substantially the same question in another form. p. 319.</p> <p>Evidence. — Insufficient Supply of Gas. — In an action against a gas company for injury resulting from the failure of the company to furnish plaintiff a sufficient supply of gas, it was not error to permit plaintiff to show that there was an insufficient supply of gas in other buildings, where it was shown that such buildings were attached by means that would furnish as much or more gas than the attachment at plaintiff’s stove, p. 319.</p> <p>Same. — Gas.—Insufficient Supply. — Where, in an action against a gas company for injuries caused by the failure of the company to furnish plaintiff a sufficient supply of gas, a witness testified that during the preceding year defendant had drilled a number of new wells, it was competent to show on cross-examination that there had also been an increase in the number of consumers, pp. 319,320. Instructions. — Must Be Considered as a Whole. — Instructions must be considered as a whole, and cannot be held erroneous by considering detached portions, p. 320.</p> <p>Gas. — Insufficient Supply. — Damages.—Where a gas company operating under a franchise granted by a city to furnish gas to the citizens thereof receives and retains the agreed price for furnishing a sufficient supply of gas to a consumer, it is liable for damages resulting from a failure to furnish a sufficient supply of gas, and it is no defense to an action for failure to supply sufficient gas for the gas company to prove that it had no gas, or that it furnished all the gas it had. pp. 320-322.</p>

<p>Appeal and Eeeoe. — Evidence.—A verdict will not be disturbed on the evidence where there is some evidence on each material point. pp. 322-825.</p> <p>Conteaots. — Sales.—Parol Evidence. — Where a written contract for the sale of a tile factory specifies but one tile mill and there were two tile mills on the premises at the time the contract was executed, both of which were claimed by the purchaser under the contract, parol evidence is admissible to show that one of the mills was not included in the contract of sale. pp. 825-829.</p>

<p>Judgments. — Review.—Oomplaint.—A complaint in an action to review a judgment must contain in the body thereof enough of the pleadings in the cause sought to be reviewed to present the question of the alleged error without resorting to the transcript of the record filed with the complaint as an exhibit, and specifically set forth the ruling of the court relied upon as error, the facts upon which the ruling is based, and show that the plaintiff at the time of such ruling excepted thereto.</p>

<p>Insurance. — Pleading.—Non est Faetum. — Where a complaint on an insurance policy alleges that defendant executed the policy, and the policy itself shows that it was issued by defendant’s board of control, the policy will be held to have been issued by defendant in the name and style in which it was signed, in the absence of a plea of non est faetum. pp. 334-336.</p> <p>Same. — Fraternal Societies. — Action on Policy. — Complaint.—In an action on a fraternal insurance policy it is not necessary to allege in the complaint that the insured was in good standing under the laws of the order at the time of his death. . pp. 336, 337.</p> <p>Same. — Suicide.—Question of Fact. — The question of suicide in an action on an insurance policy may be submitted to the jury, although the circumstances attending the death of the insured point strongly to the conclusion that he committed suicide, pp. 339. 340.</p> <p>Same. — Warranties.—Use of Intoxicating Liquors. — Habit.—An application for insurance contained the following questions and answers: “To what extent do you use intoxicating liquors ? (State kind and average quantity each day.)” Answer. “Not at all.” “ Have you always been temperate in their use ? ” Answer. “Yes.” Held, that the questions and answers related to the habits of the insured, and that the question of habitual intemperance was for the determination of the jury. pp. 340-346.</p> <p>Same. — Suicide.—Instructions.—In an action on an insurance policy it was not error to instruct the jury that in determining whether the defense of suicide was proved or not it was proper for them to consider the instinctive love of life which ordinarily exists in the human breast, and that men as a rule attempt to preserve their lives, p. 347.</p> <p>Evidence. — Harmless Error. — Trial.—Overruling an objection to a question which improperly called for the opinion of the witness was harmless where there was proper evidence covering the same matter testified to by the witness, and no evidence to the contrary. pp. 348, 349.</p> <p>Same. —Insurance.—Suicide.—Where, in an action on an insurance policy, defendant set up the suicide of insured as a defense, the evidence of the wife of insured, who was the beneficiary, as to statements made by insured upon leaving home was properly admitted as tending to throw light upon the question as to whether the death of the insured was the result of an accident or of his own design, p. 343.</p>

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

<p>Negligence. — Evidence.—Sufficiency.—A verdict for plaintiff in an action for injuries to his horse and buggy caused by a collision with defendant’s wagon and team while the latter was running away will not be disturbed on appeal on the insufficiency of the evidence to show negligence on the part of defendant, where the question of negligence was submitted to the jury, under proper instructions, and there was some evidence to sustain the conclusion reached.</p>

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

<p>Negligence.— Railroads.— Injury at Crossing.— Complaint.— Contributory Negligence. — Although an averment in a complaint in an action for injury to plaintiff and his team at a railway crossing as to freedom from fault applied only to the striking of the team, the complaint is sufficient on the general averment that the injury complained of was received without the fault or negligence of plaintiff, where it does not appear from the facts pleaded that, notwithstanding such general averment, plaintiff’s negligence contributed to his injury, pp. 369, 370.</p> <p>Railroads. — Injury at Crossing. — Verdict.—Answers to Interrogatories. — A judgment for plaintiff in an action for injuries received at a railroad crossing will be reversed on appeal where the answers to interrogatories show that plaintiff might have heard the approaching train and avoided the injury if he had stopped and listened attentively, pp 371-373.</p>

<p>Master and Servant. — Landlord and Tenant. — Principal and Agent. —In an action for personal injuries it was shown that the factory-in which plaintiff was employed when he received the injury was being operated under a written agreement by the terms of which the owner thereof leased the factory and grounds for a certain term, receiving as rent therefor all of the profits made by such lessee in operating the factory, except the sum of §3,100. The lease further provided that in the event of the death of lessee during the term of the lease the property should at once revert to the lessor, by paying to lessee’s heirs any balance due under the contract. It was shown that the factory was operated by the lessee. Held, that the instrument was in form and effect a lease, giving lessee control of the factory, and that the action for personal injuries could not be maintained against the lessor.</p>

<p>Contracts. — Promise for Benefit of Another. — A complaint alleging that defendant’s mother placed him in charge of her store and business, and agreed with him that at her death the goods should become his absolutely, upon the condition that he pay a certain claim due plaintiffs, and that he accepted and took possession of the property, and agreed with his mother that he would pay the claim, and after the death of his mother retained possession of the goods and promised plaintiffs that he would pay their claim in consideration of his mother’s transfer to him of the goods, states a cause of action.</p>

<p>Bills and Notes. — Check Given for Money Won at Gaming. — A check given for money won at gaming is void in the hands of a bona fide holder, for value, under §6675 Bums 1894.</p>

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

<p>Contracts.- — Consideration.—Partnership.—The sale and transfer of all interest in the partnership property by one partner to another constitutes a sufficient consideration for an agreement on the part of a creditor of the firm to release the retiring partner and accept the continuing partner as the sole debtor, pp. 400, 401.</p> <p>Trial. — Instructions.—When Evidence Not in Record. — Where the evidence is not in the record, instructions will not be held erroneous if proper under any evidence admissible under the issues. p. 402.</p> <p>Partnership. — Dissolution.-—Release of Retiring Partner from Partnership Debts. — The agreement of a creditor to release a retiring partner from the firm indebtedness assumed by the continuing partner need not be an express agreement, but may be implied from the facts and circumstances surrounding the particular case. pp. 403-405.</p> <p>Trial. — Mistake.—Sending Instructions to Jury Room. — Harmless Error. — A cause will not be reversed because of the action of the court in inadvertently placing in the hands of the jury the instructions given at the request of defendant instead of the interrogatories, where at the earliest opportunity the instructions were withdrawn and the jury informed of the mistake and properly instructed relative thereto, pp. 405-408.</p>

<p>Husband and 'Wife.: — Antenuptial Contraéis. — -No formality is required in antenuptial contracts, and a liberal construction will be given them, in every case giving effect, if possible, to the intention of the parties, since such contracts are favored in law as adjusting property questions and promoting domestic happiness, p. 411.</p> <p>Same. —Antenuptial Contracts. — Consideration.—Parties contemplating marriage may orally agree as to the disposition of their property and confirm such agreement in writing after marriage, and it is not necessary to the validity of such contract that it state the consideration, as marriage is a sufficient consideration, pp. 411, 412.</p>

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

<p>Bills and Notes. — Extension of Time. — Where the maker of a promissory note agrees with the payee that if the latter will extend the time of payment for a definite time he will pay the same at the expiration of that period, and the time is so extended, such promise of the maker constitutes a new contract, binding in law, and capable of enforcement, though the maker may have had a good defense to the note before the agreement to extend was made. p. 416.</p> <p>Contracts. — Oral Warranties. — In a written contract embracing a warranty or warranties, all warranties, whether oral or implied, are merged in the written contract, pp. 417, 418.</p>

<p>Railroads.— Fences. — Action by Landowner to Recover Costs of Construction. — Complaint.—A complaint by a landowner against a railroad company under §§5323, 5324 Bums 1894 to recover the costs of building a) fence along his lands where the same abuts the railroad right of way must negative the provision of the statute that fences shall be built “ except at the crossings of public roads and highways, and within such portions of cities and incorporated towns and villages as are or may hereafter be laid out and platted into lots and blocks,” etc. A mere description of the line of the fence from which it might be inferred that the fence was constructed upon farm land is insufficient.</p>

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

<p>Law of Case.— Mines. — Negligence.—Master and Servant. —A suggestion in the opinion in a former appeal in an, action by a mine worker for a personal injury from falling coal as to the absence of any finding as to whether the overhanging coal could have been propped without undue interference with the work is without force, where it was shown in the subsequent trial that the negligence consisted in not removing the top coal, not in failing to prop it. p. 4%6.</p> <p>Master and Servant. — Mines.—Negligence.—In an action by a mine worker for a personal injury caused by the alleged negligence of defendant in failing to prop the roof of the mine, a judgment was properly rendered for defendant on answers to interrogatories, notwithstanding the general verdict for plaintiff, where the answers showed that the mine boss, the plaintiff, and assistants examined the roof of the mine after the blast was fired and decided that it was safe, and that the accident was caused in not removing the coal, not from failure to prop it. pp.</p>

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

<p>Justice oe the Peace. — Jurisdiction.— Replevin. — Verification of Complaint. — Bond.—Statute Construed. — A justice of the peace has no jurisdiction of an action in replevin unless the complaint is verified and a bond executed by plaintiff, as required by §1547 Horner 1897, since §1433 Horner 1897 simply determines the jurisdiction as to amount and character of actions within the jurisdiction of the justice, while the procedure and practice are determined by §1547, supra.</p>

<p>Verdict. — Setting Aside. — Minority of Defendant. — Waiver.—Where a minor in an action for damages for an assault was duly served with process, appeared in person and by counsel, filed an answer, went to trial, and waited the return of the verdict without setting up his infancy as a defense, he cannot interpose his minority as a ground for setting aside the verdict, since the defense of infancy is a personal privilege, and is waived by going to trial without pleading it.</p>

<p>Appeal and Error. — Final Judgment. — Where a demurrer has been, sustained to a paragraph of reply, and subsequently the general denial tendered in the reply is withdrawn and the case stands on the complaint and plea in abatement, an order suspending the cause pending payment of costs is not a final judgment from which an appeal will lie.</p>

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

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

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

<p>Pleading.— Complaint.~~ Insufficiency ofDefiniteness. — Personal Injury. — A complaint for injuries sustained by an alleged defective machine with which plaintiff was working in a planing-mili, for want of guards and rollers, is insufficient where it does not appear from the complaint that the injuries complained of were due to the want of guards or rollers, or because plaintiff was holding down the timber in the machine when the Injury occurred, nor that it was negligence to allow plaintiff to hold the timber, and no fact is stated showing that there was danger incident to the work which plaintiff was performing, and the complaint does not state, except by way of recital, that guards were necessary to the safe operation of the machine, since the complaint is lacking in definiteness and in statement of facts as to negligence.</p>

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

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

<p>Appeal and Error. — Motion to Modify Judgment. — Conclusions of Laxo. — No question is presented by a motion to modify the judgment where the judgment follows the conclusions of law. The remedy is by exception to the conclusions of law. p. 480.</p> <p>Same. — Conclusions of Law. — Joint Exception. — An exception, “Defendants separately except to the conclusions of law, which exceptions are by the court overruled, and the defendants except,” presents no question unless all of the conclusions of law are erroneous p. 480.</p> <p>Same. — Conclusions of Law. — Joint Exception. — Where the exception to the conclusions of law in the court below, or assignment of error thereon on appeal, is joint, no question is presented on appeal, unless all of the conclusions are erroneous, p. 480.</p>

<p>Injunction Bond. — Attorneys' Fees. — Attorneys’ fees are allowable as damages in an action on an injunction bond. p. 481.</p> <p>Appeal and Error.— Evidence.— Questions on the admissibility of evidence will not be considered on appeal where counsel fail to call the attention of the court to the place in the transcript where the evidence objected to may be found, pp. 481, 482.</p>

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

<p>Appeal and Error. — Assignment of Error. — Record.—No question is presented for review on an assignment of error based upon the action of the court in overruling demurrers to the complaint, where the record does not disclose that any demurrer was overruled.</p>

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

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

<p>Contracts. — Building Contractors Bond. — Action to Recover Claims Paid by Owner. — Complaint.—Where a building contract authorized the owner to pay any valid claim remaining unpaid by the contractor, a complaint in an action on the bond given to secure the performance of the contract must show that the claims paid for which a recovery was sought were valid liens.</p>

<p>Limitation of Actions. — Wills,— One who accepts the benefits and provisions of a will, by the terms of which he was released from the payment of interest for a stated time upon a mortgage held by the testator against him and his real estate, is estopped iron setting up the statute of limitation during such period against the mortgage</p>

<p>Breach of Marriage Promise. — Damages.—The law does not fix any measure of damages for a breach of marriage promise, and a judgment giving plaintifE one cent damages will not be reversed because of insufficiency of damages awarded, where the record does not disclose prejudice, partiality or corruption on the part of the jury. p. 502.</p> <p>Costs. — Review.—Appeal and Error. — A party objecting to a judgment for costs must move to modify or correct the same in order to have it reviewed on appeal, p. 503.</p>

<p>Banks and Banking. — Payment of Forged Cheeks. — Notice.-^ In an " action by a depositor against a bank it was shown that his deposits had been withdrawn on checks drawn by his wife,; that the depositor was old, had lost his eyesight, and authorized his wife to draw a portion of the checks, but some of the checks were drawn by her without his knowledge or consent, but he was furnished a statement of his account from time to time, and made no objection to the bank of the payment of checks drawn by his wife. Held, that plaintiff acquiesced in the bank's action in paying the checks and that he could not recover the amounts so paid.</p>

<p>Pleading. — Harmless Error. — Where it affirmatively appears that the finding and judgment were based on the first paragraph, which is admitted to be sufficient, available error cannot be predicated upon the ruling of the court upon the second paragraph of complaint, p. ffl4-</p> <p>Appeal and Error. — Evidence.—A judgment will not be reversed on the insufficiency of the evidence, where there is some evidence to sustain it. p. 514-</p> <p>Same.— Trial. — Evidence.—Harmless Error. — Available error cannot be predicated upon the action of the court in the admission of certain evidence, where the same facts it tended to establish were proved by uncontradieted evidence to which there was and could have been no valid objection, p. 514.</p>

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

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

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

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

<p>Replevin. — Animals.—Body of Dead, Dog. — An action will lie under §1286 Burns 1894 to replevin the body of a dead dog.</p>

<p>Taxation. — Removal from County — Injunction.-—Where a property owner removed from the county in February and listed her personal property for taxation in the county to which she removed, and paid the taxes thereon to the treasurer of that county, the treasurer of the county from which she removed will be enjoined from collecting taxes on such property for said year, assessed without the owner’s knowledge, and the owner was not required to appear before the board of review.</p>

<p>Appeal and Error. — Complaint.—Questioned for First Time on Appeal. — A complaint cannot be successfully questioned for the first time on appeal unless some fact essential to the existence of the cause of action is wholly omitted from the pleading, p. 533.</p> <p>Divorce. — Complaint.—Appeal and Error. — A divorce decree will not be set aside on account of the insufficiency of the complaint, attacked for the first time on appeal, where the averments taken together were sufficient to admit evidence showing such treatment as would entitle plaintiff to a divorce upon the ground of cruel and inhuman treatment, pp. 533, 534.</p> <p>Same. — Judgment.—Fraud.—A judgment granting a divorce will not be set aside on motion of defendant to the effect that she was misled and did not appear at the trial for the reason that she was advised as to certain matters, where it does not appear that plaintiff was in any way responsible for such advice, and no fraud is shown. p. 534-</p>

<p>Parties. — Action on Bond. — Joint Obligees. — In an action on a bond given in favor of joint obligees all of the obligees must be made plaintiffs, or if any refuse to join as plaintiffs they should be made defendants and the reason for so doing stated in the complaint.</p>

<p>Townships. — Money Borrowed by Trustee for Construction of Schoolhouse. — A recovery may be had for money advanced a township trustee for the purpose of completing a schoolhouse in course of construction, where the money was in fact applied to that purpose. pp. SS9, 510.</p> <p>Judgment. — Interest.—Finding.—Plaintiff is entitled to interest on money furnished a township trustee for the construction of a schoolhouse only from the commencement of the action for its recovery, in the absence of any finding as to when the money was furnished or used or demand made for its repayment, pp. 5Ifl, B41.</p>

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

<p>Pleading. — Sufficiency of Complaint. — Personal Injury. — Master and Servant. — A complaint alleged that plaintiff was in the employ of defendant, who was engaged in quarrying stone.and manufacturing lime; that plaintiff was injured while assisting in dumping a car of stone in the kiln, without fault on his part, but wholly by the fault of defendant in allowing the floor of the platform to become old and decayed, and the rails of the track to become worn, rusted, and rotten, and because of the negligence of defendant in using a loose chock which slipped, permitting the car of stone to run off the end of the track, breaking one of the rails which was old and rotten, and the other rail, because of the defective condition of the platform, was forced out of its place and hit plaintiff causing his injuries; that plaintiff had no knowledge of the defects, and could not have discovered them without special examination, but that defendant did have knowledge of the defective and dangerous condition of the appliances. Held, that the complaint states a cause of action, pp. 544-646.</p> <p>Appeal and Ebeoe. — Sufficiency of Evidence. —Directing Verdict. ■ — Refusal to instruct a jury to return a verdict in favor of appellant will not be considered in the Appellate Court where there was evidence submitted to the jury tending to support the appellee’s cause of action, and the case was properly submitted to the jury upon the evidence, p. 546.</p> <p>Tbial. — Interrogatories to Jury. — Irresponsive.—Refusal.—In an action for personal injuries based upon several paragraphs of complaint the defendant submitted the following interrogatories: (1) If you find for the plaintiff, state specifically under which paragraph of complaint you find; (2) if you find for plaintiff under more than one paragraph of complaint, state specifically how much you find under each paragraph; (3) what do you find to be the immediate and approximate cause of the accident ? Held, that the interrogatories were properly refused because they do not call for any fact presented by the issues, as required by §555 Burns 1894. pp. 546, 547.</p> <p>Same. — Interrogatories to Jury. — Answer.—Sufficiency.—In an action for personal injuries sustained by an employe at a limekiln, the interrogatory was submitted, “Was the kiln so open at the mouth that one could have seen the fact at a casual glance?” Answer. “Owing to where you were standing.” Held, that there was no error in refusing to require the jury to return a more direct answer to the interrogatory, pp. 547, 548.</p>

<p>Appeal and Error. — Ground for New Trial. — Order for Production and Inspection of Papers. — Alleged error of the court in ordering the production and inspection of certain papers cannot be made the subject of an independent-assignment of error, but must be assigned as a reason for a new trial under §568 Burns 1894. p. 549.</p> <p>Same. — Ground for New Trial. — Independent Assignment. — Error in Overruling a motion to strike out and suppress a deposition must be presented as a ground for a new trial, and not as an independent assignment of error, p. 550.</p> <p>Same. — New Trial.- — Evidence Not in Record. — Error in overruling a motion for a new trial and in overruling a motion to modify a judgment cannot be considered in the absence of the evidence from the record, p. 550.</p> <p>Same. — Bill of Exceptions. — Filing.—Where the filing of a bill of exceptions does not appear by order-book entry nor by certificate of the clerk, the bill is not properly in the record, p. 550.</p> <p>Same. — Directing Verdict.— Ruling of Court.— Presumption.— The action of the lower court in instructing the jury to return a verdict for one of the parties will be presumed to be correct, in the absence of the evidence from the record, p. 550.</p>

<p>Pleading.— Complaint. — Personal Injury. — Clearness of Statement. —A complaint alleged that plaintiff was being carried as a passenger on a street car in consideration of a certain fare paid to the defendant; that such car by the negligence of the defendants in the managing and running their cars was struck, run into and caused to collide with a car being run upon the tracks of one of the defendants; and that in said collision “plaintiff was struck and injured ; and that said accident, collision and bruises, etc.” were caused on account of the carelessness and negligence of the defendants. Held, that the complaint was insufficient on demurrer for want of facts, since no designated negligence by defendants causing the injury was shown, and did not comply with §341 Burns 1894, requiring a statement in plain and concise language, so as to enable a person of common understanding to know what is intended.</p>

<p>Municipal Corporations. — Street Improvements. — Barrett Law.— Waiver. — Personal Liability. — One whose property is assessed for street improvements made under the Barrett law, §§4288-4298 Burns 1894, who executes a waiver and agreement authorized by §4294 Burns 1894, in cons'deration of being permitted to pay his assessment in instalments, becomes personally liable for the amount of the assessment because of such waiver and agreement.</p>

<p>Contributory Negligence. — Sufficient Averment. — Personal Injury. —Street Railway Passenger. — Where a complaint for injuries incurred while alighting from a street car avers, after a description of plaintiff’s movements in alighting, that “all of which was without negligence on the part of this plaintiff contributing thereto”, it sufficiently negatives contributory negligence, pp. 576-578.</p> <p>Appeal and Error. — Sufficiency of Evidence. — Variance.—In a complaint for personal injuries incurred while alighting from a street car, an allegation that the street car was negligently started forward with a “sudden quick jerk” causing the injuries complained of, is supported by evidence tending to prove that the car moved either forward or backward causing such injuries, pp. 578, 579.</p> <p>Same. — Sufficiency of Evidence. — The appellate tribunal will not disturb a verdict on the ground that it is not supported by the evidence, if there is any evidence at all to support it. p. 579.</p> <p>Trial. — Argument to Jury. — Waiver.—One of plaintiff’s attorneys made argument to the jury, whereupon counsel for defendant announced his willingness to submit the case to the jury without further argument, and declined to present his views of the case. The attorneys for plaintiff demanded that thpy be permitted to continue the argument, which the court allowed over the exceptions of counsel for defendant. Counsel for defendant then answered new points which had been raised in the argument. Held, that if the declination of defendant’s counsel to continue the argument could deprive opposing counsel of their right, the error of the court in allowing plaintiff’s counsel to continue the argument was waived by the subsequent argument of the case by defendant’s counsel. pp. 579, 5SO.</p> <p>Trial. — Instructions to Jury. — Personal Injury. — Street Car. — Issues. —An instruction that plaintiff claims she was thrown from the car by the motorman releasing the brake, whereby the car was caused to start forward with a sudden jerk, and that if the jury find that when plaintiff was in the act of alighting from the car the motorman released the break, causing it to start with a sudden jerk and throwing plaintiff, without her fault, she should recover, is not erroneous, where there is evidence that the motorman released the brake as stated, although the complaint charges that while plaintiff was alighting from the car defendant negligently “started said car forward with a sudden quick jerk,” since such instruction was applicable to the issues, pp. 580, 581.</p>

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

<p>Patents. — Statute Construed. — Sale of Patented Article. — A note executed in consideration of the sale and transfer to the maker of the note of the exclusive right and privilege of selling for use a certain article for which the payee claimed to have obtained letters patent of the United States, does not come within the provision of §§8130-8132 Burns 1894, relative to the sale of patent rights, since the statute relates to the sale of the intangible right secured by the letters patent, and not to articles manufactured under the patent.</p>

<p>Damages. — Injury to One’s Business. — Teacher.—Advising Pupils not to Patronize Plaintiff. — A school teacher who maliciously and by persuasion, threats, and intimidation prevented his pupils from patronizing plaintiff in the purchase of confectioneries and school supplies, whereby plaintiff’s place of business was brought into disrepute and discredit among the people of the city where plaintiff’s business was carried on, to his damage, is not liable to plaintiff for damages resulting from such acts, since it was not unlawful for tiie teacher to advise or persuade his pupils not to patronize plaintiff, and the fact that he acted maliciously does not make the acts unlawful.</p>

<p>Pleading. — Insufficient Answer.— Breach of Warranty.— A paragraph of answer counting upon a breach of a written warranty, which contains no averment as to the parties to the breach is insufficient on demurrer, pp. 593, 594.</p> <p>Same. — Insufficient Answer. — Failure of Consideration. — A paragraph of answer drawn on the theory of failure of consideration of the purchase price of machinery is insufficient where it fails to set out facts showing a breach of warranty or the worthlessness of the machinery, p. 594.</p> <p>Trial. — Instructions to Jury. — Request for Written Instructions.— Reading Pleadings with Oral Explanations. — Where the court is duly requested to instruct the jury in writing, it is reversible error for the court to read from the complaint, answers, and replies and give oral explanations without incdrporating such pleadings and explanations in the written instructions, pp. 594, 595.</p> <p>Same. — Open and Close. — Burden of Proof. — Pleadings-.—Where in an action on a promissory note alleging that the note was lost and that $40 is a reasonable attorney’s fee, defendant withdrew his general denial, leaving standing other affirmative paragraphs of answer, he is not entitled to open and close the case, since the burden of proof is determined by the pleadings, p. 595.</p>

<p>Pleading. — Wilful Killing of Horse.— Contributory Negligence.— An allegation of freedom from fault or negligence on the part of the plaintiff is not necessary in an action against a railroad company for wilfully killing plaintiff’s horse, p. 696.</p> <p>Master and Servant.— Complaint. — Charging Wilful Killing by Servants but not by Defendant. — Where a complaint against a railroad company for wilfully killing plaintiff.’s horse alleges that the act was done by defendant’s agents and employes, without showing that the agents and employes were acting in the line of their employment, or under the direction of defendant, it does not state a cause of action against defendant, pp. 696-699.</p>

<p>Carriers. — Shipping Goods to Party Other Than Consignee.- — Liability. — -Failure to give notice of loss as provided by bill of lading, -will not preclude a right of action for the loss, where the loss was occasioned by the initial carrier billing the goods direct to a party other than the consignee, whereby the goods were lost to plaintiff, since the carrier lost the benefit of exceptions from liability by billing the goods to a party other than the consignee without authority to do so. pp. 603-606.</p> <p>Same. — Violation of Contract of Shipment. — Exemption from Liability. — Connecting Carrier. — A stipulation in a contract of shipment that the receiving carrier shall not be liable for loss or damage to property after it has been delivered to a connecting carrier is not available to the initial carrier, where it has violated the contract of shipment by billing the goods to a party other than the consignee, and thereby causing plaintiff’s loss of the goods, pp. 606, 607.</p> <p>Same. — Violation of Shipping Contract. — Delivering Goods Without Production of Bill of Lading. — Failure to write the word “order” in the column of the way-bill containing the names of the consignee and the destination will not authorize the carrier to deliver the goods without the production of the bill of lading, where the carrier billed the goods to a party other than the consignee named in the bill of lading, thereby causing the loss of the goods to plaintiff, p. 607.</p> <p>Trial. — Setting Aside Submission of Case and Hearing Additional Evidence. — The court in its discretion may set aside the submission of a cause and hear additional evidence, and such action will not be reviewable in the absence of abuse of discretion, p. 608.</p> <p>Appeal and Error. — Weight of Evidence. — Judgment.—Theappellate tribunal will not disturb a judgment on the weight of the evidence, where there is ample evidence to support the material facts found. pp. 608, 609.</p> <p>Same. — Waiver.—Failure to Discuss Error. — Failure to discuss an assignment of error by the party assigning it constitutes a waiver thereof, p. 609.</p> <p>Same. — Waiver.—Failure to Refer to the Page and Line of Record.— .Under Appellate Court rule twenty-six, requiring that in discussions arising on the admission or exclusion of evidence, reference shall be made to the evidence by page and line of the record where it can be found, the failure to point out the objectionable evidence as re- ' quired by the rule amounts to a waiver of appellant’s right to have it considered, p. 609.</p>

<p>Pleading. — Joint Demurrer. — Appeal and Error. — A demurrer to “second, third and fourth paragraphs of answer on the ground that neither of said paragraphs states facts sufficient to constitute a cause of defense” is joint, and if either paragraph of answer is good, available error cannot be predicated on the action of the court in overruling same. p. 611.</p> <p>Same. — Answer.—An answer to an action on a note and to foreclose a mortgage which purports on its face to answer the entire complaint and responds to the mortgage and is wholly silent as to the note is bad as against a demurrer, pp. 611-613.</p>

<p>Law of Case. —Pleading.— Amendment. — Where a oomplaint' is amended in such manner as not materially to change the character of the pleading, the ruling on the former appeal that the complaint was sufficient remains the law of the case. p. 615.</p> <p>Railroads. — Damages to Adjoining Property Owner. — Instructions.— In an action against a railroad company for damages arising from the construction of a switch track over a strip of ground dedicated as a part of a public highway adjoining plaintiff’s premises an instruction that the measure of damages was the depreciation in value of the real estate by reason of the means of access thereto being impaired or interfered with by the construction and maintenance of the railroad is not objectionable in not confining the damages allowed to the time of bringing the action, pp. 616, 617.</p> <p>Dedication.— Intent. — Highways.—The intention of the owner to dedicate his land to public use may be implied from his acts, declarations and conduct, pp. 617, 618.</p> <p>Same. — Estoppel.—A landowner may by his acts estop himself from denying that there has been a dedication of his lands to the public. p. 618.</p>

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

<p>Decedent’s Estates. — Negligence.—Fires.—Damages.—In an action against a decedent’s estate for damages for the destruction of plaintiff’s bam, the evidence showed that decedent, a man of about fifty years of age, had been non compos mentis all of his life; that he ljyed with his mother until her death, after which he lived with the neighbors, sometimes sleeping in bams. He was an habitual smoker and always carried clay pipes and matches. He also carried a clevis-pin fastened to his wrist with a cord, also an iron link. On the evening of the fire he was seen in town intoxicated, where he visited a number of stores exhibiting the link and pin as weapons. He was last seen about ten o’clock at night going east in the direction of the bam. The next day his headless body was found in the ruins of the barn burned to a crisp. Held, that the evidence was not sufficient to establish a claim against decedent’s estate for the burning of the barn.</p>

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

<p>Municipal Corporations.— Indianapolis City Charter. — Health.— City Hospital. — Malpractice of Hospital Surgeon. — Damages.—The commissioners of the board of health of the city of Indianapolis act for the public, not as the agents of the municipality in its corporate character, and an action cannot be maintained by a patient of the city hospital against the city for damages for alleged malpractice of a hospital physician.</p>

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

<p>Law of Case. — Pleading.— Amendment. — The ruling on appeal as to the sufficiency of the complaint constitutes the law of the case, and an amendment which does not substantially change the character of the pleading does not take the case out of the rule. p. 633,</p> <p>Contracts — Agreement to Exchange Lands. — Referee.— Breach of Contract. — Where a contract for the exchange of lands provided that should plaintiff decide to take a certain other tract of land a third party named should decide the number of acres he should receive, and plaintiff parted with his property, and made his selection of the lands he would take in exchange, it became the duty of the defendant through such third person to determine the relative value of the lands and the number of acres he should receive, and the failure and refusal of defendant to act constituted a breach of the contract for which an action will lie. pp. 633-639.</p> <p>Same. — Agreement to Exchange Lands. — Breach of Contract. — Measure of Damages. — Where a contract for the exchange of lands by its terms fixed the relative value of the lands to be exchanged and from which one of the parties had the right to select,- such values formed a basis of recovery in an action for the breach of the contract, pp. 637-639.</p> <p>Appeal and Error. — Evidence.—Record.—The manuscript of the evidence must be incorporated in the bill of exceptions and cannot be brought into the bill by reference, pp. 639-64-1.</p> <p>Same. — Evidence.—Record.—The manuscript of the evidence must he-incorporated in a bill of exceptions, certified and signed by the judge and afterward filed with the clerk, pp. 641, (>4%.</p>

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

<p>Executors and Administrators. — Decedents’ Estates. — Wills—Action by Legatee.— Complaint.— A complaint alleged that plaintiff was the widow of decedent, who died testate, and that defendant was the duly qualified and acting executor of his will; that the estate had been pending settlement for more than a year, all of the debts had been paid, and the annual report of the executor showed a certain amount of property in the hands of the executor; that • plaintiff elected to take under the will and “that by the terms of the will she is the sole legatee of all of the property of said decedent, both personal and real, to be hers during her lifetime; that she is entitled to the immediate possession of said balance of the assets of said estate remaining in the hands of said executor ” which the executor refuses to pay over to her. Held, that the complaint is bad on demurrer, pp. 643-64S. ■ ,</p> <p>Wills.- — Personal Property. — Life Tenant. — Where personal property is bequeathed for life generally with remainder over with no directions that the property shall continue as at death of testator, a direction to invest in permanent securities will be implied, and only the income paid over to the life tenant, p. 645.</p>

<p>Appeal from tlie Lawrence Circuit Court.</p>

<p>Wills. — Husband and Wife. — Tenancy in Common. — Entireties.—A devise to husband and wife share and' share alike, and if either should not survive testatrix the survivor to take the entire estate, does not create an estate by entireties, but confers the property upon the devisees as tenants in common, pp. 658-655.</p> <p>Quieting Title.— Execution Sales.— Unrecorded Deed. — Notice.—A complaint to quiet title to real estate as against a purchaser at execution sale alleging that the land was devised to plaintiff and her husband, and the interest of the husband quitclaimed to plaintiff, is bad on demurrer under §§3345, 3350 Burns 1894, where it is not shown that the deed was recorded, or that at the time of the purchase defendant had any notice, actual or constructive, of the conveyance from the judgment debtor to his wife. pp. 655-657.</p>

<p>Appeal and Error. — Parties.—Vacation Appeal. — Where in a vacation appeal the appellant does not make the coparties to the judgment from which the appeal is taken co-appellants the appeal will be dismissed.</p>

<p>Trial. — Special Finding. — Amendment.—An amendment to the special findings may be made at any time before final judgment and during the period within which a motion for a new trial may rightfully be filed, but an amendment made thereafter nunc pro tunc is invalid.</p>

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

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

<p>Injunction.— Judgments.— Execution Sales.— Plaintiff obtained a judgment foreclosing a mortgage, and one of the defendants in the same proceeding obtained a judgment against the same defendant on a cross-complaint. The court ordered the property sold, the proceeds to be first applied to the payment of plaintiff’s judgment and costs, and the balance to be applied to the cross-complaihant’s judgment. The sheriff advertised the property in accordance with the decree, and on the day before the day set for the sale cross-complainant entered himself replevin bail for the judgment of plaintiff, and the order of sale was returned and the property readvertised. Before the sale occurred the court on the complaint of the plaintiff issued an order restraining the sheriff from selling the property upon the cross-complainant’s judgment. Held, that plaintiff was not entitled to injunctive relief.</p>

<p>New Trial. — Motion to Set Aside Summons. — Overruling defendant’s motion on his special appearance to set aside the summons and return thereof and quash the writ is not a proper ground for a new trial, p. 67S.</p> <p>Trial. — Evidence.— Leading Questions. — Available error cannot be predicated upon the action of the court in overruling objections to questions which were leading and called for conclusions and opinions of witness, where the complaining party cross-examined the witness and was given an opportunity to elicit the facts, and to test the credibility of the witness, p. 680.</p> <p>Trial. — Evidence.—Divorce.—In an action for divorce in which defendant claimed the separation was due to plaintiff’s mother, it was proper to prove by defendant on his cross-examination the amount of damages assessed and the result of an action brought by him against his mother-in-law for damages for causing the separation, where defendant had testified fully as to the relations between himself and his wife. p. 681.</p> <p>Divorce. — Evidence.—A judgment for divorce will not be reversed' on the insufficiency of the evidence where it was shown that the husband at the time of the marriage was without a home and practically without any money to provide one; that the wife was living with her widowed mother on a farm; that during the six weeks in which they sustained the relation of husband and wife they lived at the home of the mother; that some trouble arose between the husband and his mother-in-law, and without just cause he left his wife, saying that he was going to bring suit for divorce, and soon afterward brought suit against his wife’s mother for damages for causing the separation; that he wrote letters to his wife asking her to leave her mother and come to him, but did not offer to furnish her the means-to come to him, nor to provide for her support. pp. 681-688.</p>

<p>, Receivers. — Action Against Life Tenant. — An action cannot be maintained by the owner of real estate against the life tenant solely for the appointment of a receiver for the property on a complaint that the life tenant failed to keep the property in repair and allowed taxes and street improvement assessments to remain unpaid, pp. 688-688.</p> <p>Estates.— Life Tenant. — Permanent Improvements. — Assessments for street and sewer improvements are not charges against the life estate solely, but must be equitably prorated between the remainder-man and the life tenant, taking into consideration the probable duration of the life estate, and all other relevant facts, p. 688.</p>

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

<p>From tire Vanderburgh Circuit Court-</p>

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

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

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

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

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

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

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

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

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