Volume 38 — Indiana Appellate Court Reports

<p>From Franklin Circuit Court; Ferdinand S. Swift, Judge.</p> <p>Action by Albert Loos against tbe Cleveland, Cincinnati, Cbieago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Insurance. — Return of Policy. — Cancelation. — Intent.— Whether the return of an insurance policy to the company was an exercise of the right of cancelation depends upon the intent with which it was returned, p. 13.</p> <p>2. Same. • — ■ Return of Policy. — Cancelation. — Evidence.—Where assured returned her policy to the company and demanded her premium notes, saying that would settle the matter, the insurance ceased, there being no room for diverse inferences, p. 14.</p> <p>3. Same. — Cancelation.—Enforcement of Premium Note. — Where assured cancels her insurance, the attempted enforcement of the premium notes, so far as they were earned before cancelation, is not inconsistent with such cancelation, p. 14.</p> <p>4. Insurance. — Cancelation.—Assent.—Where assured is given the right of cancelation in an insurance policy, she may exercise such right regardless of the insurer’s assent, p. 14.</p>

<p>Erom Ripley Circuit Court; Willard New, Judge.</p> <p>Action by John Laughlin against George Bessler and others. Erom a judgment for plaintiff, defendant Bessler appeals. (On transfer, see ■ — - Ind. —.)</p>

<p>From Pulaski Oircuit Court; T. F. Palmer, Special Judge.</p> <p>Suit by Emily Agnew against Joseph B. Agnew and others. From a decree for plaintiff, defendants appeal.</p>

<p>From Grant Superior Oourt; B. F. Harness, Judge.</p> <p>Action by John A. Knote and another against the Diamond Plate Glass Company and others. ’ From a judgment for plaintiffs, defendants appeal.</p>

<p>Erom Jackson Circuit Court; William T. Branaman, Special Judge.</p> <p>Suit by Eehecca A. Daggy and others against Lilly Wells and another. Erom a decree for defendants, plaintiffs appeal.</p>

<p>Erom Hendricks Circuit Court; Thomas J. Gofer, Judge.</p> <p>Action by Henry I. Eaton against the Board of Commissioners of the County of Hendricks. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Decedents’ Estates. — Executors and Administrators.- — -Final Settlement. — The filing of a final report and the giving of notice thereof confer jurisdiction upon the court to hear and determine the matters involved in such report, p. 35.</p> <p>2. Decedents’ Estates. — Distribution.—A judgment approving an administrator’s final report is conclusive so long as it stands, and it is immaterial whether the administrator distributes the money directly or procures an order to pay it to the clerk for designated persons, such order being a part of the final settlement. p. 35.</p> <p>3. Same. — Final Settlement. — Setting Aside. — Conversion. — A final settlement, based upon an administrator’s final report showing that such administrator and another were the only heirs, when in fact they were not heirs but another party was the only heir, will be set aside whether distribution was made directly by such administrator or whether an order was procured to pay the funds to the clerk and for such clerk to pay to such persons, whether such money was converted or is still in the hands of the clerk being immaterial, pp. 36, 37.</p> <p>4. Same. — Administration.—Whát Is. — Administration upon the estate of a decedent imports a reduction of such decedent’s estate to money, the payment of his debts and a distribution of the proceeds to those legally entitled thereto, p. 36.</p>

<p>1. Trial. — Counterclaim.—Refusal of Permission to File. — Abuse of Discretion. — It is not an abuse of discretion for the trial court to refuse to permit, when a cause is ready for trial, the filing of a counterclaim where a demurrer had just been sustained to one substantially the same. p. 38.</p> <p>2. Evidence. — Warranty. — Breach.—Notice.—Waiver.—Receipt. —Question for Jury. — Where defendant festifies that he properly mailed a notice of defects to plaintiff and plaintiff denies receiving such notice, the question of the receipt of such notice is for the jury. p. 41.</p> <p>3. Sales. — Warranty — Notice.—Waiver.—Where property is sold on a warranty which requires a specified kind of notice within a given time that it fails to fulfil the warranty, any notice received by the grantor and acted upon by him is a waiver of the notice required by the warranty, p. 41.</p> <p>4. Evidence. — Inferences.—Question for Jury. — It is not necessary to establish a fact that the evidence shall be direct, but inferences may be properly drawn from other proved facts to establish the fact in question, whether such fact is established being primarily a question for the jury. p. 42.</p> <p>5. Trial. — Instructions.—Directing Verdict. — Invasion of Province of Jury. — Where the determination of an issue involves the credibility of witnesses and rests upon inferences to be drawn from facts proved, it is an invasion of the province of the jury to direct a verdict in favor of the party upon whom rests the burden, p. 42.</p>

<p>1. Trial. — Instructions.—Peremptory.—Evidence.—How Considered. — To determine the propriety of giving a peremptory instruction all facts and inferences should be considered against the party asking such instruction, and in ease of conflict, all that evidence favorable to the asking party should be excluded, p. 45.</p> <p>2. Same. — Instructions.—Peremptory.—Contributory Negligence. —Contributory negligence is a defense in a personal injury case, and a peremptory instruction for defendant is erroneous unless the facts and inferences are such that no other reasonable conclusion could be reached, p. 46.</p> <p>3. Street Railroads. — Passengers.-—Who Are. — Persons boarding a street car which stops upon the street are passengers thereon, such stopping, in the absence of notice to the contrary, being an invitation to take passage; and payment of fare is not essential to make such persons passengers, p. 46.</p> <p>4. Appeal and Error. — Appellate Court Buies. — Briefs.—Where appellant has made a good-faith attempt to comply with Appellate Court rules in preparing his brief and has in his way presented in a substantial manner the errors relied upon, his appeal will not be dismissed, p. 47.</p>

<p>1. Trusts. — Parol. — Husband and Wife. — Real Property. — A trust is not created by the husband’s securing conveyances of real estate which he paid for to be taken in the wife’s name upon an oral promise by her to reconvey to him when the purchase price was fully paid, such agreements being made prior to the act of 1881 (Acts 1881, p. 527). p. 50.</p> <p>2. Fraudulent Conveyances.' — Setting Aside. — Husband and Wife. — Where a wife by fraud secures the legal title to her husband’s real estate, the same may be set aside, p. 52.</p>

Erom Newton Circuit Court; Charles W. Hanley, Judge. Suit by the State of Indiana against the Board of Commissioners of the County of Newton and others. Erom a decree for defendants, plaintiff appeals. On motion for a temporary injunction.

<p>From Grant Superior Court; H. J. Paulus, Judge.</p> <p>Suit by David P. Long against Martin Pence and others. From a decree for plaintiff, defendants appeal.</p>

<p>From Clark Circuit Court; William G. Dtz, Special J udge.</p> <p>Action by Lloyd Harris against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, From a judgment for plaintiff, defendant appeals.</p>

<p>1. Statutes. — Criminal Law. — Intoxicating Liquors. — Illegal Sales. — Holidays.—Section 2194 Burns 1901, §2098 R. S. 1881, did not prohibit the sale of intoxicating liquors on any holidays except those specifically mentioned therein, p. 83.</p> <p>2. Same. — Holidays.—Commercial Paper. — Intoxicating Liquors. - — Section 7531 Burns 1901, Acts 1891, p. 394, designating certain days as legal holidays with reference to commercial paper, did not designate such days as holidays with reference to the sale of intoxicating liquors, p. 84.</p> <p>3. Same. — Holidays.—Intoxicating Liquors. — Police Power. — The legislature has the power to designate holidays; and under the police power it may prohibit the sale of intoxicating liquors on such days. p. 86.</p> <p>4. Same. — Construction.—Meaning of Words. — The words of a Statute will be given their ordinary meaning, unless the context shows that they were used in a different sense, p. 87.</p> <p>5. Words and Phrases. — “Holiday.”—The word “holiday” means a consecrated day; a day of cessation from ordinary labor, p. 87.</p> <p>6. Statutes. — Title. — Limitations. — Construction.—Where the title of an act limits the act to certain purposes, such act will be construed as effective only as limited thereby. State v. Atkinson, 139 Ind. 426, distinguished, p. 87.</p> <p>7. Same. — In Pari Materia. — Statutes, concerning the same subject-matter, passed at the same session, will be construed in pari materia if possible, p. 88.</p> <p>8. Same. — Holidays. ■ — • Intoxicating Liquors. — Illegal Sales. — “Labor Day.” — Under the act of 1905 (Acts 1905, p. 196) making “labor day” a legal holiday, and the act of 1905 (Acts 1905, pp. 584, 721, §579) prohibiting the sale of intoxicating liquors on “any legal holiday,” it is a crime to sell intoxicating liquors on “labor day.” p. 89.</p> <p>9. Police Power. — Protection of Private Right. — Public Policy. —Enlightened public policy and a quickened public conscience demand that on holidays when people congregate in large numbers they shall be safeguarded in their private rights by the prevention of the doing of those things which are liable to incite riots and create discord, p. 89.</p>

<p>Carriers. — Railroads.—Passenger Alighting from Moving Train. • — Contributory Negligence. — A passenger who, in the darkness, alights from a moving train without any effort to ascertain its speed and sustains injuries thereby, where sufficient time was given for her to alight while the train was stopped, is guilty of such contributory negligence as precludes a recovery.</p>

<p>1. Mechanics’ Liens. — Notice.—Signature.—A notice of a lien for materials furnished in the erection of a house, signed in the name of the lienor by his attorney, is sufficient. ,p. 97.</p> <p>2. Same. — Notice.—Contents.—It is not necessary in a notice for a lien for materials furnished in the construction of a house to state more than that such lien is claimed for materials furnished in the construction of such house, p. 97.</p> <p>3. Same. — Heating Plant. — Completed Building. — A lien may be enforced for the furnishing of materials for the installation of a heating plant in a hotel building, p. 97.</p> <p>4. Pleading. — Complaint.—Mechanics’ Liens. — Basis of Suit to Foreclose. — The contract between the material man and the contractor of a building is not the basis of a suit for the foreclosure of a lien in favor of such material man and an exhibit thereof is not necessary in the complaint, p. 98..</p> <p>5. Assignments. — Choses in Action. — Balance Due on Building Contract. — An unaccepted order by the contractor to the owner of a building for such owner to pay a balance due such contractor to the plaintiff, is not an assignment of such amount, p. 98.</p> <p>6. Mechanics’ Liens. — Additional Materials. — A material man furnishing materials for the installation of a heating plant is entitled to a lien for all materials furnished, though notice of such lien was filed after sixty days from the completion of the original contract, where additional material was furnished for the completion of the entire improvement within sixty days prior to such notice, p. 100.</p>

<p>1. Railroads. — Rights of Way. —• Fences. — Liens. — Under the • statutes (§§5323-5325 Burns 1901, Acts 1885, p. 224), providing that railroad companies must fence their rights of way so as to turn stock and “may” use barbed wire, and in case of failure the abutting landowner may erect same and retain a lien therefor, such landowner may recover for a fence made of woven wire with two barbed wires at the top, though such fence was costlier than barbed wire. p. 101.</p> <p>2. New Trial. — Evidence. — Sufficiency.—Railroads.—Fences.— Attorneys’ Fees. — Evidence showing that defendant railroad company refused to build a fence along its right of way; that plaintiff, after giving notice, built such fence; that defendant failed to pay therefor; that plaintiff brought suit; that his complaint was signed by his attorney; that such attorney represented plaintiff in all the proceedings in court and that a reasonable attorney’s fee was a certain amount, sustains a finding for plaintiff for attorney’s fees. p. 103.</p> <p>3. Railroads. — Fences. — Attorneys’ Fees. — Statutes.—Validity. —The statute (§§5324, 5325 Burns 1901, Acts- 1885, p. 224), providing for the recovery of attorneys’ fees in the foreclosure of liens for fencing railroad companies’ rights of way, is valid, p. 103.</p>

<p>Action, by Melvin D. Robinson against Joseph W. Littler and others. Erom a judgment for plaintiff, defendants appeal.</p>

<p>From Grant Superior Court; B. F. Harness, Judge.</p> <p>Suit by Charles Eobinson and others against Mary L. Korporal and another. From a decree for plaintiffs, defendants appeal.</p>

<p>Erom Howard Superior Court; B. F. Harness, Judge.</p> <p>Action by Philip Harbaugh against the Indianapolis Horthern Traction Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Erom Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Action by Edward Mullally against the City of Indianapolis. Erom a judgment on a verdict for plaintiff for $2,500, defendant appeals.</p>

From Superior Court of Marion County (66,553); Vinson Carter, Judge. Action by Jean Lowry, by his next friend, against Joseph A. Eink and others. From a judgment on a verdict for plaintiff for $5,000, defendant Eink appeals.

<p>1. Appeal and Error. — Bills of Exceptions. — Duty of Judge to Correct Errors in. — Under §641 Burns 1901, §629 R. S. 1881, providing that the judge shall correct and file bills of exceptions presented to him, his denial of the correctness of a statement in a bill is a sufficient correction thereof, p. 142.</p> <p>2. Same. — Instructions.—Exceptions.—Where no exceptions were taken to the giving of instructions, no questions can be raised thereon on appeal, p. 143.</p> <p>3. Trial. — Instructions. ■ — • Prejudicial. — The giving of correct instructions cannot be considered as prejudicially affecting the jury. ' p. 143.</p>

<p>Erom Martin. Circuit Court; James T. Rogers, Special Judge.</p> <p>Action by Mary Q. O’Brien against the Baltimore & Ohio Southwestern Eailroad Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Erom Marshall Circuit Court; Harry Bernetha, Judge.</p> <p>Action by Charles C. Kanarr against the Vandalia Kailroad Company. Erom a judgment for plaintiff, defendant appeals.</p>

From Olay Circuit Court; Presley O. Colliver, Judge. Proceedings for the establishment and construction of a levee. From the assessment of damages against Samuel Boyer the Lewis Township Improvement Company appeals.

<p>1. Receivers.- — Relation to Creditors. — Executions. — The appointment of a receiver does not affect the relation of creditors to the assets in his hands, but merely suspends the ordinary remedies for the enforcement of debts, p. 158.</p> <p>2. Subrogation. — On What Depends. — The doctrine of subrogation is independent of contract relations, and applies in all cases where another in good conscience ought to pay. p. 158.</p> <p>3. Executions. — Delivery Bonds. — Principal and Surety. — The principal upon a delivery bond given to recover possession of property taken upon execution is primarily liable, and his duty is to hold his surety thereon harmless, p. 158.</p> <p>4. Subrogation. — Surety on Delivery Bond. — Receivers.—The surety on a delivery bond is subrogated to the rights of the judgment creditor, as against the receiver for the judgment debtor, where such surety has been compelled to pay such bond; and it is not necessary that the question of suretyship be adjudicated in the statutory manner, in order for him to claim such right of subrogation, p. 158.</p> <p>5. Executions. — Personal Property. — Liens.—An execution is a lien upon the judgment debtor’s personal property from the time it comes into the proper officer’s hands, p. 159.</p> <p>6. Same. — Lien.—Suspension.—The taking of the judgment debtor’s delivery bond entitles such debtor to the custody of the goods named therein for the time, but does not discharge the lien of such execution, p. 159,</p> <p>7. Subrogation. — Surety.—Executions.—Receivers.—Appeal and Error. — The surety on a delivery bond, who is compelled to pay such bond, is entitled to priority in his claim filed with the receiver of the execution debtor, and if such priority be denied by the trial court, he may appeal, p. 160.</p>

<p>1. Appeal and Error. — Complaint.—Initial Attack on Appeal.— A complaint will be considered sufficient when attacked for the first time on appeal, where it does not wholly fail to allege the material facts necessary to constitute a cause of action, mere uncertainty or inadequacy of averment being insufficient to render it bad. p. 164.</p> <p>2. Same. — Complaint.—Initial Attack on Appeal. — A complaint attacked for the first time on appeal will be held good if it states facts sufficient to bar another action, p. 165.</p> <p>3. Street Railroads. — Person in Peril. — Duty of Company. — It is the duty of a street railroad company when it sees a person in peril from the operation of its cars to act so as not to increase such danger, p. 165.</p> <p>4. Pleading. — Complaint.—Street Railroads. — Failure to Look.— A complaint alleging that the motorman of defendant street railroad company negligently failed to look ahead; that by the exercise of reasonable care he could have seen plaintiff in his dangerous position on the track from which he could not extricate himself, and that by reason of such negligence plaintiff was injured, is sufficient, when attacked for the first time on appeal, p. 165.</p> <p>5. Appeal and Error. — Weighing Evidence. — Street Railroads. — Negligence. — Contributory. — Question for Jury. — Where the evidence was conflicting whether the defendant street railroad company was negligent in failing to see and avoid injury to plaintiff while driving a heavily loaded wagon on its track on a narrow street, and whether plaintiff was guilty of contributory negligence in going on such street, the verdict is conclusive on appeal, p. 166.</p> <p>6. Trial. — Instructions.—Street Railroads. — Failure to Look.— An instruction that defendant street railroad company must use reasonable care to discover persons on its track, and its failure to do so, or failure to stop its car, when possible, after such discovery, resulting in injury, renders it liable for such injuries, is correct, p. 170.</p> <p>7. Same. — Instructions.—Negligence.—Failure to Negative Contributory Negligence. — An instruction that plaintiff should recover if defendant’s negligence is established is not bad where, in other instructions, the jury were told that if plaintiff was guilty of contributory negligence he could not recover, p. 170.</p> <p>8. Same. — Instructions.—Undisputed Facts. — The court may assume in his instructions the truth of undisputed facts without invading the province of the jury. p. 171.</p> <p>9. Same. — Instructions.—Street Railroads. — Person in Peril.— Care Required. — An instruction that the defendant street railroad company, after discovering a person in peril by the operation of its car, must exercise the highest degree of care to avoid •his injury, is not erroneous, p. 171.</p> <p>10. Same. — Instructions.—Street Railroads. — Failure to Look.— An instruction that if. the conditions were such that the motorman of defendant street railroad company’s car could have seen plaintiff in peril by the exercise of ordinary diligence, and could have stopped his car in time to avoid the injury, and he failed to do so, defendant is liable therefor, provided plaintiff was not guilty of contributory negligence, is correct, p. 172.</p> <p>11. Damages. — Excessive.-—Where there is nothing to indicate that the jury was improperly influenced by prejudice or partiality, the damages assessed will not be considered excessive, p. 172.</p>

Action by Elam Eobbins, as administrator of the estate of Bertha Sherburn, deceased, against the New York, Chicago & St. Louis Eailroad Company. Erom a judgment on a verdict for plaintiff for $2,000, defendant appeals.

<p>1. Appeal and Error. — Briefs.—Waiver.—Alleged errors not discussed are waived, p. 185.</p> <p>2. Limitation of Actions. — State.—Statutes.—By the statute of 1852 (2 R. S. 1852, p. 78, §224) the State was barred in civil cases by the statute of limitations the same as other litigants, but since 1881 (§305 Burns 1901, §304 R. S. 1881) the State is barred only as to sureties, p. 186..</p> <p>3. Pleading. — Complaint.—Quieting Title. — Prescription.—State. —A complaint to quiet title filed in 1903 and alleging that plaintiff has held undisputed and adverse possession of real estate for thirty-eight years is insufficient as against the State, since it fails to show such possession for twenty' years continuously prior to 1881. p. 186.</p> <p>4. Same. — Complaint.—Quieting Title. — Prescription.—State.-^-A complaint to quiet title alleging 'that plaintiff took exclusive possession of such real estate in 1860 and that the State’s claim of title is unfounded and is a cloud thereon, is bad since it fails to show that plaintiff held such possession any length of time after acquiring it. p. 187.</p> <p>5. Trial. — Venire de novo. — Time for Motion. — A motion for a venire de novo made after final judgment should be overruled because too late. p. 188.</p> <p>6. Quieting Title. — State.—Statutes.—Section 7164 Burns 1901, Acts 1883, p. 170, §9, providing a remedy for the State to pursue to secure, possession of its lands, is not applicable to a case to determine the title to lands, such question being for adjudication by the courts, p. 188.</p> <p>7. New Trial. — Defective Verdict. — Venire de novo. — A new trial cannot be demanded because of a defective verdict, a motion for a venire de novo being the proper remedy, p. 189.</p> <p>Erom Boone Circuit Court; 8. R. Artman, Judge.</p>

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Action by the Citizens National Bank of Crawfordsville against Racbel J. Anderson. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Trial. — Pleading. — Proof. — Variance—Negligence.—Where the complaint alleges injuries caused by the negligence of defendant in the use of rotten and insufficient timbers in a derrick and the proof shows injuries caused by the breaking of an iron hook connecting a guy wire to the top of the mast, there is a fatal variance, p. 195.</p> <p>2. Appeal and Error. — Answers to Interrogatories. — New Trial. —Where the record on appeal is such that the Appellate Court cannot say that plaintiff cannot recover, a new trial will be ordered, although technically the defendant would be entitled to judgment on the answers to the interrogatories to the jury, p. 195.</p>

<p>1. Constitutional Law. — Railroads.—Fences.—Police Power.— The legislature may, in the exercise of the police power, compel railroad companies to fence their rights of way. p. 197.</p> <p>2. Appeal and Error. — Weighing Evidence. — Railroads. — Fences. — Sufficiency of, to Turn Stock. — Question for Jury.— Whether a fence repaired by a railroad company along its right of way is sufficient to turn stock as required by §5325 Burns 1901, Acts 1885, p. 224, §3, is a question of fact for the jury, and its verdict is conclusive on appeal where the evidence is conflicting, p. 197.</p> <p>3. Railroads. — Fences.—Attorneys’ Fees. — Statutes.—Where the record shows that plaintiff’s attorney filed his suit, prosecuted it to a decision and that a reasonable fee was a certain sum, a judgment making an allowance for such attorney is sustained by the evidence. Terre Haute, etc., R. Co. v. Salisbury, ante, 100, followed, p. 198.</p>

<p>From Superior Court of Madison County; Henry G. By an, Judge.</p> <p>Action by Frank Van Buskirk'against the Summitville Mining Company and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Waters and Watercourses. — Obstructions.—Nuisance.—Drains. —A judgment in a drainage proceeding is no defense to a suit to enjoin.the maintenance of a dam in a watercourse, which has been running in a regular channel between well-defined banks from time immemorial, where such portion of such stream was not obliterated, superseded or deprived of its character as a natural watercourse by such judgment.</p>

<p>1. New Trial. — Amount of Recovery. — Whether a Question of Law or Fact. — Appeal and Error. — Where the evidence is conflicting as to the amount of recovery, the amount due is a question for the jury, and its verdict is conclusive on appeal; but where there is no dispute as to the facts, the question is for the court, whose decision may be reviewed on appeal, p. 209.</p> <p>2. Pleading. — Complaint.—Sales.—Merchandise in Bulk. — Statutes. — Recovery.—No recovery can be permitted upon a complaint asserting rights under the act of 1901 (Acts 1901, p. 505, §§6637a, 6637b Burns 1901), prohibiting the sale of merchandise in bulk except under certain conditions, since such statute is unconstitutional, p. 210.</p> <p>3. Estoppel. — Statutes.— Unconstitutional. — Actions Under.— Defendant is not estopped to assert that a statute is unconstitutional because he has acted under it as though it were valid. p. 210.</p> <p>4. Pleading. — Complaint. — Guaranty. — Past-Due Accounts.— Consideration. — A complaint declaring upon a written guaranty of a past-due account must show a valuable consideration therefor, an allegation that such guaranty was made “for a valuable consideration” being a conclusion and therefore insufficient. p. 210.</p> <p>5. New Trial. — Recovery too Small. — Insufficient Complaint. — A new trial will not be granted because the amount of recovery is too small where the complaint is fatally defective, p. 211.</p>

<p>1. Appeal and Eeeoe. — Removal of Causes. — Overruling Petition for. — Assignment.—New Trial. — The overruling of a petition to remove a cause to the federal court cannot be assigned as error independently on appeal, but must be made a ground for a new trial, p. 213.</p> <p>2. Pleading. — Complaint.—Inconsistent Averments. — Railroads. —Negligence.—An averment that defendant railroad company’s train left the track because of rotten and defective ties, which would not hold the spikes, thus causing the rails to spread, and an averment that such train was derailed because of a broken axle, are inconsistent, but such inconsistency does not render such complaint bad. p. 214.</p> <p>3. Pleading. — Complaint. — Railroads.—Car Inspection. — Defective Axle. — A complaint alleging that it was defendant railroad company’s duty to inspect its cars at H.; that it kept a switch-yard at such point and maintained a car inspector there and that it failed to inspect the car causing the injuries, sufficiently shows, though not in terms, that the car causing the injuries passed through such yards, p. 214.</p> <p>4. Carriers. — Passengers. — Railroads. — “Shipper’s Pass.” — A person in charge of live stock, riding on a “shipper’s pass” on a freight-train, is a passenger for hire. p. 215.</p> <p>5. Pleading. — Complaint.—Carriers.—Railroads.—Passengers.— Position on Train. — A complaint by a passenger against his carrier for damages caused by a derailment of the train, is not bad because it fails to state at what place on the train plaintiff was riding when injured, p. 215.</p> <p>6. Appeal and Error. — Complaint.—Initial Attack on Appeal.— A complaint attacked for the first time on appeal is sufficient if it states facts sufficient to bar another action for the same cause, p. 215.</p> <p>7. Trial. — General Verdict. — Answers to Interrogatories. — When Controlling. — The answers to the interrogatories to the jury control the general verdict only when in irreconcilable conflict therewith, p. 216.</p> <p>8. Same. — Negligence. — Contributory. — General Verdict. — A general verdict for plaintiff in a personal injury case is a finding that defendant was guilty of one or more of the acts of negligence alleged and that plaintiff was free from contributory negligence, p. 216.</p> <p>9. Same. — Answers to Interrogatories. — Carriers.—Negligence.— Contributory. — Answers by the jury showing that plaintiff was riding in the cupola of a caboose of a freight-train on a “shipper’s pass;” that there were seats in the caboose; that the cupola was for trainmen and the seats were for passengers; that the caboose stayed on the track and plaintiff got off before the caboose stopped, do not show contributory negligence. p. 216.</p>

<p>Erom Huntington Circuit Court; James O. Branywn> Judge.</p> <p>Action by Samuel R. Marshall against the Chicago & Western Indiana Railroad Company and others. Erom a judgment on a verdict for plaintiff for $2,700, defendants appeal.</p>

Suit by Eobert L. Porter and others against the Cleveland, Cincinnati, Chicago & St. Lonis Eailway Company and another. Erom a decree for plaintiffs, defendant railway company appeals.

<p>1. Monopolies. — Validity.—The policy of the law is to prevent the creation of monopolies and to foster fair competition, p. 238.</p> <p>2. Conteacts. — Monopolies. — Public-Service Corporations. — A contract between public-service corporations, creating a monopoly, is void. p. 238.</p> <p>3. Same. — Monopolies.—Validity.—Burden of Showing. — Prima facie a monopolistic contract is invalid, the'burden of showing it to be valid being upon the party claiming thereunder, p. 239.</p> <p>4. Same. — Railroads.—Depots.—Sidings—Switches.—Freight.— While a railroad company has the right to purchase lands for a right of way, location of depots and sidings, and is bound to carry freight offered at such depots and stopping places, such • company cannot legally contract not to establish a depot, siding or switch at a particular place, p. 239.</p> <p>5. Same. — Ultra Vires. — Illegal.—Retention of Benefits. — Estoppel. — The doctrine that a public-service corporation cannot retain the benefits of an ultra vires contract and deny the validity thereof does not apply to contracts forbidden by statute or those contrary to public policy, p. 240.</p> <p>6. Same. — Indivisible. — Partly Invalid. — Indivisible contracts, partly illegal, and divisible promises, partly illegal, made for indivisible considerations, are wholly void. p. 241.</p> <p>7. Same. — Invalid.—Executory.—Executed.—Relief.—The court will not interfere at the suit of either party to an invalid executory contract, but will leave the parties to a partly or wholly executed contract where they have placed themselves, p. 242.</p> <p>8. Contracts. — Indivisible.—Suit to Enforce Legal Part.- — -A suit cannot be maintained to enforce the legal provisions of an invalid, indivisible contract, p. 243.</p> <p>9. Same. — Invalid.—Enforcement of Valid Part. — The court will not enforce the valid provisions of an invalid, indivisible contract and wait for the decision upon the invalid parts thereof until plaintiff affirmatively asks relief on such provisions, p. 244.</p> <p>10. Same. — Consideration.—When May Be Contradicted. — The consideration of a contract cannot be varied by parol when it is made contractual, p. 245.</p> <p>11. Same. — Construction.—Intention.—Where the intention of , the parties to a contract is clear from the language, it prevails and construction is unnecessary, p. 246.</p> <p>12. Same. — Monopolies.—Railroads.—A contract by which one railroad company restricts its right to compete with another, in consideration of its being permitted to lay its tracks across the tracks of such other, is void. p. 246.</p>

Erom Porter Circuit Court; Willis C. McMahan, Judge. Action by Edward L. Eox, by his next friend, against the Chicago & Erie Railroad Company. Erom a judgment on a verdict for plaintiff for $5,000, defendant appeals. Affirmed.

<p>Divorce. — Cruel Treatment. — Evidence.—Appeal and Error. — In a suit for divorce where the parties are both young and the alleged cruel treatment as shown by the evidence consisted of small disputes and bickerings caused largely by foolish and stubborn pride and by the husband’s failure to make allowances for the weaknesses of his young wife, the refusal of the trial court to grant such husband a divorce will not be disturbed on appeal.</p> <p>From Porter Circuit Court; Willis O. McMahan, Judge.</p>

<p>1. Wills. — Construction.—Intention.—Courts are guided in the construction of a will by the intention of the testator, and where not in contravention of law, such intention will be given effect, p. 292.</p> <p>2. Same. — Estates Devised. — Determinable Fee. — A will devising in fee, to a grandchild, certain real estate provided such grandchild pays all taxes, keeps up necessary repairs and does not encumber by mortgage or sell said real estate before she arrives at the age of forty, and if she die or “attempt to convey, mortgage or encumber all or any part of said real estate,” then over to other devisees, creates in such grandchild a determinable fee. Per Roby, J., and Comstock, C. J. It creates a conditional fee. Per Wiley, J. p. 293.</p> <p>3. Same. — Real Estate. — Alienation.—Suspending Power of.— Statutes. — A will devising lands to a grandchild and if such grandchild shall, before she arrives at the age of forty, “attempt to convey, mortgage or encumber all or any part of said real estate,” then over to other devisees, does not violate §3382 Burns 1901, §2962 R. S. 1881, providing that the power to alienate shall not be suspended longer than the existence of a life in being, etc., since such devisee is a' life in being at the time such will takes effect, p. 304.</p> <p>4. Same. — Bequests.—Trusts.—A bequest to testator’s grandchild to be held in trust until such grandchild arrives at the age of forty, at which time such bequest shall be delivered absolutely, is valid and it is the duty of the trustee to administer such trust until such time arrives, p. 306.</p>

<p>Suit by the Grand Lodge, Ancient Order of United Workmen of Indiana, against John II. Barwe. From a decree for defendant, plaintiff appeals.</p>

<p>Erom Pulaski Circuit Court; Timothy E. Eowa/rd, Special Judge.</p> <p>Suit by Jacob Stryker against the Aetna Life Insurance Company and others. Erom a decree for plaintiff, defendants appeal.</p>

Erom Johnson Circuit Court; W. J. Buckingham, Judge. Petition by John W. Johnson and others against which Aaron M. Eleener and others remonstrate. Erom a judgment for petitioners, remonstrants appeal.

<p>From Perry Circuit Court; O. W. Cook, Judge.</p> <p>Suit by James A. Stephenson, Sr., and others against Irene Richardson and another. From a decree for plaintiffs, defendant Richardson appeals.</p>

<p>1. Master and Servant. — Assumed, Risks. — Liability for. — The master is not liable for injuries caused by defects, the risks of which are assumed, p. 344.</p> <p>2. Same. — Assumed Risks. — Defects Open to Observation. — The master, in the absence of a promise to repair, is not liable for patent defects, p. 346.</p> <p>3. Same. — Electricity.—Light Poles. — Latent Defects. — Superior Position to Inspect. — The servant employed to remove wires from an electric light pole is, as a matter of law, in a superior position to that of the master to detect latent defects in such wire and pole, and therefore assumes such risks. Roby, J., dis- • senting. p. 347.</p> <p>4. Same. — Electricity.—Light Poles. — Duty to Inspect. — Where a servant is employed to take down and put up electric light wires, such work being necessarily dangerous, the master is under no duty to inspect the electric light poles and wires to discover latent defects. Roby, J., dissenting, p. 347.</p> <p>5. Trial. — Burden of Proof. — Master and Servant. — Assumed Risk. — The burden is upon the servant to prove that the defect causing his injuries was not an assumed risk. p. 349.</p> <p>6. Master and Servant. — Electricity.—Light Poles. — Safe Place. —A servant employed to remove wires from an electric light pole has no right to rely upon an implied representation that such pole is free from latent defects. Roby, J., dissenting, p. 349.</p> <p>7. Same. — Electric Light Poles. — Accidents.—Maxims.—Where an electric light lineman, according to orders, climbed a pole to remove a wire, and in doing so stuck his spur into the pole, and, by reason of a latent defect not observable by him, his spur hold broke out causing him to fall, his hand catching a wire from which the insulation had decayed, thus forming a short circuit and burning three fingers off of one hand and two off of the other, such injury is the result of an accident, and is damnum absque injuria. Roby, J., dissenting, p. 349.</p>

<p>1. Appeal and Error. — Record.—Motion to Strike Out Sustained. — Statutes.—A motion to strike out parts of a complaint, which fails to set out the parts to be eliminated, is not sufficient, under the act of 1903 (Acts 1903, p. 338, §2, §641b Burns 1905), and where the record shows such motion was sustained in part and overruled in part, but such motion is not brought into-the record by a bill of exceptions, it cannot be considered. Fairbank v. Lorig, 4 Ind. App. 451; DeKalb Nat. Bank v. Nicely, 24 Ind. App. 147; Union City, etc., Co. v. Jaqua, 26 Ind. App. 160, overruled, p. 357.</p> <p>2. Same. — Answers to Interrogatories to Jury. — Precipe. — Record. — A precipe calling for “all entries of the trial in this cause” includes the answers to the interrogatories to the jury, such answers being a part of the record without a bill of exceptions. p. 358.</p> <p>3. Words and Phrases. — “Trial.”—The word “trial” includes all of the steps taken in a cause from submission to the jury to the rendition of judgment, p. 359.</p> <p>4. Appeal and Error. — Precipe. — “Special Verdict.” — Answers to Interrogatories to Jury. — A precipe calling for the “special verdict” is sufficient to include the answers to the interrogatories to the jury, a liberal construction being given in such matters, p. 359.</p> <p>5. Trial. — Verdict.—General.-—When Controlled by Answers to Interrogatories to Jury. — The general verdict is controlled by the answers to the interrogatories to the jury only when in irreconcilable conflict therewith, p. 366.</p> <p>6. Same. — Verdict.—General.—Special.—Irreconcilable.—Test.— If, considering the pleadings, facts could have been proved which would support the general verdict regardless of the answers to the interrogatories to the jury, the general verdict controls, p. 368.</p> <p>7. Pleading. — Complaint. — Damages. — Misrepresentations of Law and Fact. — A complaint for damages for misrepresentations of matters of law and fact is good if it contains enough misrepresentations of facts to constitute a cause of action, p. 368.</p> <p>8. Fraud. — Deceit. — Conspiracy.—Misrepresentations made to an old, helpless and infirm lady, incapable of attending to her business, by which the conspirators secured possession and legal title to her property, without her consent, constitute actionable fraud, p. 368.</p> <p>9.. Trial. — -Limitation of Actions. — General Verdict. — Special.— A general verdict for plaintiff is a finding against defendants upon their defense of the statute of limitations, and where the answers to the interrogatories to the jury do not show otherwise, such verdict is conclusive on appeal, p. 369.</p>

<p>1. Taxation. — Funds.—Use of. — Private Purposes. — Taxes cannot be levied and used for private purposes, p. 373.</p> <p>2. Municipal Corporations. — Taxation.—Aids to Manufactories. ■ — -Municipal corporations have no power to levy taxes and use same for aiding manufactories, p. 373.</p> <p>3. Contracts. — Municipal Corporations. — Aids to Private Enterprises.- — -Bonds to Repay on Default of Conditions. — A bond given to reimburse a town for the failure of a manufacturing company to locate and run its factory for a certain time in consideration of a bonus paid by such town is void and unenforceable. p. 374.</p> <p>4. Same. — Illegal.—Protection of One Party. — Enforcement.— Where contracts are declared illegal, and the purpose is simply to protect one of the parties, courts may grant relief or even . enforce the agreement at the suit of the party to be protected, p. 374.</p> <p>5. Municipal Corporations. — Taxes.—Use of. — Public Policy.— The public policy requiring contracts by municipal corporations to grant bonuses to private industries to be held void lies in the protection of such corporations’ funds, and the courts will not enforce bonds for the performance of such contracts when to do so would endanger such funds, p. 375.</p> <p>6. Same. — Bonuses to Private Enterprises. — Recovery of. — Contracts. — While a municipal corporation cannot enforce a bond for the return of money given to a private company as a bonus for the establishment of a private enterprise, it may recover money thus unlawfully paid out. p. 375.</p>

<p>Erom Montgomery Circuit Court; Jere West, Judge.</p> <p>Suit by Charles W. Hughes and others against Eebecca Inlow and others. Erom a decree for plaintiffs, defendants appeal.</p>

<p>1. Partnership. — Accounting.—Recovery by Partner Without.— One partner cannot recover from another any sum that may be due on account of partnership matters without an accounting, p. 398.</p> <p>2. Accounts. — Tenancy in Common. — Partnership.—Individual Debts. — A tenant in common may sue his cotenant for an accounting and have a decree without taking into account a debt of such cotenant for which the tenant is surety, the fact that such tenants each assisted in the conduct of the farm and that after their division thereof one of them managed both farms, giving the other part of the net profits as rent, not constituting a genuine partnership, p. 399'.</p> <p>From Jasper Circuit Court; Charles W. Hanley, Judge.</p>

<p>1. Pleading. — Complaint. — Jurisdiction of the Person. — Demurrer for Want of Facts. — Presumptions.—A complaint on a note and for the foreclosure of a chattel mortgage recorded in J. county and showing that defendants at the time of its execution resided in J. county does not on its face show a want of jurisdiction over defendants as against a demurrer for want of facts, although such complaint fails to show that defendants were residents of B. county, in which the suit was brought, at the time of the filing thereof, there being a presumption of jurisdiction, p. 405.</p> <p>2. Chattel Mortgages. — Description of Property. — Indefinite.— Complaint. — A chattel mortgage of “two Jersey cows, three and five years old; three work horses, age, eight years and nine years; one farm wagon,” is good as between the parties; and a complaint for foreclosure specifically describing such property is not subject to a demurrer, pp. 406, 408.</p> <p>3. Pleading. — Complaint.—Bills and Notes. — Chattel Mortgages. —Foreclosure.—Indefinite Description. — A complaint on a note and for the foreclosure of a chattel mortgage is good, though the description of the mortgaged property be insufficient, p. 406.</p> <p>4. Judgment. — Special Findings. — Conclusions of Law. — Bills and Notes. — Chattel Mortgages. — Husband and Wife. — Surety-ship. — Where the special findings show that the husband and wife executed their note and a chattel mortgage on certain articles to secure same; that the wife was surety only, and the conclusions of law were against the husband and in favor of the wife, the decree was correct, p. 406.</p> <p>5. New Trial. — Failure to Appoint Stenographer. — The failure of the court to appoint an official stenographer to report the evidence in a cause is not a ground for a new trial where no request therefor was made. p. 407.</p> <p>6. Judgment. — Motion to Modify. — Chattel Mortgages. — Foreclosure. — Indefinite Description — A motion to modify a judgment on a note and for foreclosure of a chattel mortgage by striking out the foreclosure decree should be overruled where the complaint specifically described the mortgaged property, although the mortgage did not, the rights of no innocent parties being involved, p. 408.</p> <p>7. Appeal and Error. — Briefs.—Waiver.—A failure to discuss an alleged error is a waiver thereof, p. 408.</p> <p>8. Evidence. — Chattel Mortgages. — Indefinite Description. — Identification. — Parol evidence is admissible to identify the property covered by a chattel mortgage containing an indefinite description of property, p. 413.</p>

Final report of John M. Brown, as receiver of the Havercamp-Whitney Paper Company, to which James Davy and others except. From a judgment confirming such report, the exceptors appeal.

<p>1. Appeal and Error. — Briefs.—Amendments.—Where appellant fails to show in his brief that he excepted to the alleged erroneous ruling of the trial court, but by permission of the court he amends such brief to show such exception, the alleged error is properly presented, p. 416.</p> <p>2. Master and Servant. — Negligence.—Contributory.—Factory Act. — Dangerous Machinery. — Failure to Guard. — Where the servant attempted to adjust an unguarded dangerous machine, operated by him in defendant’s factory, without stopping the same, the question of contributory negligence is properly submitted to the jury. p. 418.</p> <p>3. Trial. — Negligence.—When Question for Jury. — Where there reasonably may be a difference of opinion whether defendant is guilty of negligence, the question is for the jury. p. 419.</p> <p>4. Same. — Directing Verdict for Party Having Burden of Proof. —The court should not direct a verdict for the party having the burden of proof where the verdict must be based on the testimony of witnesses, wholly or partially, p. 419.</p>

<p>1. Pleading. — Argumentative Denial. — At is not error to hold an argumentative denial good, although its facts are provable under another paragraph of answer, p. 421.</p> <p>2. Trial. — Interrogatories to Jury. — Irresponsive.—Refusal to Submit. — It is not error to refuse to submit interrogatories to the jury where the facts sought are irresponsive to the issues, p. 421.</p> <p>3. Appeal and Error. — Interrogatories to Jury. — Request for.— Record. — To raise any question on the court’s refusal to submit interrogatories to the jury, the record must affirmatively show that- they were submitted to the court before the argument of counsel began, p. 421.</p> <p>4. Same. — Instructions.—Failure to Make Evidence Part of Record. — Where appellant fails to make the evidence a part of the record, instructions will be presumed to be applicable to the evidence given, p. 422.</p> <p>5. Same. — Instructions.—Not All in Record. — Presumptions.— Where all instructions are not affirmatively shown to be in the record, the presumption is that erroneous ones were withdrawn or corrected by those omitted from the record, p. 422.</p>

<p>Erom Rush Circuit Court; Douglas Morris, Judge.</p> <p>Action by Lucinda Bravard against the Cincinnati, Indianapolis & Western Railway Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error.- — Briefs.—Waiver.—Court’s Duty to Find Errors. — It is not the duty of the Appellate Court to hunt up errors not pointed out in the briefs; and such errors not pointed out are waived, p. 430.</p> <p>2. Pleading. — Complaint.—Initial Attack on Appeal. — A complaint attacked for the first time on appeal will be held sufficient if it states facts sufficient to bar another action for the same cause, p. 431.</p> <p>3. Appeal and Error. — Independent Assignments. — New Trial. —Causes for. — Causes for a new trial cannot be assigned as error independently .on appeal, p. 431.</p> <p>4. New Trial. — Reasons.—Statutes.-—Reasons for a new trial not prescribed by the code (§568 Burns 1901, §559 R. S. 1881) will not be considered, p. 431.</p> <p>5. Nuisance. — Foundry.—Prescription.—The operation of a foundry for more than twenty years at the same location does not give its owner a prescriptive right to continue its operation, where, prior to two years preceding the suit, it had not been dangerous to plaintiff’s property, but since such time it had set his house on fire several times, destroyed the usefulness of his cistern and caused his house to be uncomfortable and in imminent danger all of the time. pp. 431, 438.</p> <p>6. New Trial. - — - Nuisance. ■ — • Setting Fires. — Evidence. — Evidence that sparks frequently fell from defendant’s foundry on plaintiff’s house, that several fires broke out on plaintiff’s roof, always when the foundry was running, and that defendant • frequently sprinkled plaintiff’s roof before starting the foundry fire, sufficiently sustains a finding that the fires to plaintiff’s house, complained of, started from such foundry, p. 434.</p> <p>7. Appeal and Error. — Weighing Evidence. — The Appellate Court will not weigh conflicting oral evidence, in an equity case, pp. 435, 437.</p> <p>8. Trial. — General Finding. — Itemizing Damages. — Surplusage. —Appeal and Error. — Where a special finding is not called for and a general finding is made, the court’s items of damages sustained by plaintiff will be considered as surplusage; and the court will not consider whether such items are sustained by the evidence, p. 435.</p> <p>9. Evidence. — Nuisance.—Fires.—Willingness of Plaintiff to have House Inspected. — In a suit to enjoin defendant from operating a foundry which was throwing sparks on plaintiff’s ' house, it was not competent to ask plaintiff whether he would be willing to have an expert examine his flues to see if fires could not originate there, p. 436.</p> <p>10. Same.- — Record of Fire Company. — Hearsay.—The records of a fire company, kept under the regulations of the city fire department, and made by the captaip of the company from a memorandum made by another person, the captain not being at the fire, are not competent to prove the origin of the fire so recorded, being inadmissible hearsay, p. 436.</p> <p>11. Same.- — Nuisance.-—Setting Fires. — Subsequent Fires. — Evidence of subsequent fires caused by sparks from defendant’s foundry admitted as a circumstance tending to show that a similar, prior fire was caused thereby, even if erroneous, was harmless and not reversible error, p. 437.</p> <p>Erom Superior Court of Mariou County (64,228) ; Vinson Carter, Judge.</p>

Erom Eailroad Commission of Indiana; Union B. Hunt, Chairman, William J. Wood and O. V. McAdams, commissioners. Appeal by the Chicago, Indianapolis & Louisville Bail-way Company from the action of the Eailroad Commission of Indiana in fixing a rate and prescribing the way-billing of cars. On motion to dismiss appeal.

<p>1. Constitutional Law. — Taxation.-—Exemptions.—Powers of Legislature. — The legislature has no power to exempt property from taxation which is not exempted by the Constitution, p. 481.</p> <p>2. Same. — Taxation.—Cemeteries.—The framers of the Constitution did not look upon the family burying-ground nor the churchyard as property, and such are exempt from taxation within the spirit of the Constitution, p. 481.</p> <p>3. Taxation. — Exemption from. — Burden of Proof. — The burden is upon the person claiming property as exempt from taxation to establish that such property is within the exemptions defined by the Constitution, p. 482.</p> <p>4. Same. — Cemeteries.—Used for Gain. — Statutes.—An incorporated cemetery association in the business of selling lots for purposes of gain is not exempt from taxation under §4708a Burns 1901, Acts 1895, p. 18. p. 482.</p>

<p>1. Indictment and Information. — Canada Thistles. — Permitting to Grow.- — Statutes.—-An affidavit charging that defendant did “knowingly and unlawfully allow Canada thistles to grow and mature, and become of length of more than 6 inches upon his land” states a criminal offense under Acts 1905, pp. 584, 738, §627, §2308 Burns 1905, regardless of the giving of notice as prescribed in §627a of said act. p. 483.</p> <p>2. Same. — Sufficient, Connected with Insufficient, Charge. — Where an affidavit charges one crime sufficiently, but insufficiently charges another, the affidavit is sufficient, the insufficient charge being treated as surplusage, p. 485.</p> <p>3. Same. — Charging Conjunctively. — Where the statute makes it a crime to do any one of a number of things mentioned disjunctively, the penalty for all being the same, they may all be charged conjunctively in a single count, p. 485.</p> <p>4. Same. — Second Offense. — Presumptions.—Where an affidavit fails to show that the crime charged is a second offense, it will be presumed to be a first offense, p. 486.</p>

<p>1. Life Estates. — Growing Timber. — Rights of Life Tenant.— A life tenant in lands has the right to use the growing timber thereon for use upon the land in making repairs generally, p. 488.</p> <p>2. Same. — Waste.—If the life tenant uses more timber than necessary for making repairs he is guilty of waste, for which a proper action will lie. p. 488.</p> <p>3. Words and Phrases. — “Waste.”—“Waste,” at the common law, was the destruction of real property, by a person in possession not having the inheritance, to the injury of the immediate remainder or reversion in fee. p. 488.</p> <p>4. Injunction. — Life Estate. — Growing Timber. — Injunction lies on behalf of the life tenant to prevent the reversioner from cutting and removing from the land timber which is necessary for repairs, p. 488.</p> <p>5. Same. — Irreparable Injury. — Great, as well as irreparable injury will sustain an injunction for a threatened trespass, p. 489.</p>

<p>1. Sales. — Contracts.—Delivery by Vendor. — Refusal to Accept by Vendee. — Recovery.-—Where the vendor executes his contract by tendering the property sold and the vendee refuses to accept or pay for the same, the vendor may hold such property for such vendee and recover the contract price, p. 491.</p> <p>2. Same. — -Delivery. — Title. — Vesting.—Purchase Money. — Recovery.- — Before the vendor can recover the contract price of an article sold, he must have delivered such property or must have done such things as vest the title thereto in the vendee, p. 492.</p> <p>3. Same. — Contracts.—Title Retained by Vendor. — Measure of Damages for Breach. — Where the vendor retains title to the goods contracted to be sold, the measure of damages for the vendee’s breach of contract is the actual injury such vendor sustains, p. 492.</p> <p>4. Same. — Title to Remain in Vendor. — Right of Vendor to Treat Sale as Absolute. — Election.—Action for Contract Price. — Effect. — Where a vendor in his contract of sale provides that “the title to said goods shall not pass until settlement is concluded and accepted” by such vendor, and the goods are shipped and tendered as provided for in the contract, and the vendee refuses to accept, an action by such vendor for the contract price is an election to treat the sale as absolute, and the absolute title immediately vests in the vendee, pp. 493, 494.</p>

Erom Sullivan Circuit Court; Orion B. Harris, Judge. Action by the State of Indiana, on the relation of Mattie W. Eellows as administratrix of the estate of Frank A. Fellows, deceased (Fred E. Dyer being substituted as administrator), against William B. Harrah and others. From a judgment for plaintiff, defendants appeal.

<p>1. Appeal and Error. — Perfecting Appeal. — Time.—Notice.— The filing of a transcript and assignment of errors on appeal within one year from the rendition of the judgment, perfects the appeal, as to the appellees, without the service of notice. Tate v. Hamlin, 149 Ind. 94, followed, p. 509.</p> <p>2. Same. — Briefs.—Dismissal of Appeal. — The filing of a brief, by appellant, of less than one page and complying in no respect with Appellate Court rules, is ground for dismissal of such appeal, p. 511.</p>

<p>Erom Orange Circuit Court; Thomas B. BusTcirlc, Judge.</p> <p>Prosecution by the State of Indiana against Charles W. Heard. Erom a judgment of conviction, defendant appeals.</p>

<p>1. Street Railroads. — Passengers.—Riding on Running-Board. —Contributory Negligence. — A passenger riding on the running-board of a street car is not guilty of contributory negligence as a matter of law. p. 519.</p> <p>2. Trial. — Contributory Negligence. — Burden of Proof. — Verdict. — General.—Contributory negligence is a defense in actions for personal injuries, and a general verdict for plaintiff is a finding of freedom from such negligence, p. 519.</p> <p>3. Same. — Verdict.—General.—Special.-—When Controlling. — The answers to the interrogatories to the jury control the general verdict only when they are irreconcilable therewith upon any state of facts provable under the issues, p. 520.</p> <p>4. Street Railroads. — Care Required. — Passengers.—Presumptions. — A passenger on a street car has the right to presume that all necessary precautions have been taken by the company for his safe transportation, p. 520.</p> <p>5. Street Railroads. — -Passengers.—Contributory Negligence.— Questions for Jury. — A passenger on a street car, who knowingly exposes himself to a danger such as ordinarily prudent men would not encounter, or who, by the exercise of ordinary care, could avoid danger and who fails to do so, is guilty of contributory negligence, and these questions are usually for the jury. p. 520.</p> <p>6. Same. ■ — ■ Passengers. — Riding on Running-Board. — Presumptions. — Passengers riding on the running-board of a street car are presumed to be so riding with the consent of the company, p. 521.</p> <p>7. Same. — Bridges.—Passengers.—Notice.—Contributory Negligence. — Question for Jury. — Because a passenger knows of a bridge and has ridden over it, does not, as a matter of law, render him guilty of contributory negligence in riding over same on the running-board of a street car, such question being for the jury. p. 522.</p> <p>8. Same. — Passengers.—Notice of Defects. — Contributory Negligence.- — Question for Jury. — It is a question for the jury whether plaintiff was guilty of contributory negligence in riding, facing backward, on the .running-board of a street car through a bridge of which he had a general knowledge and in which he was struck by a post and injured, the car being crowded except the front vestibule, and the conductor knowing of plaintiff’s position, the fact that no other person was ever so injured being a fact for the jury’s consideration, p. 522.</p> <p>9. Trial. — Negligence.—General Damages. — Special.—Loss of Time.- — It is erroneous to permit plaintiff, in an action for personal injuries, wherein he demands general damages only, to recover damages for loss of time, earning capacity or business loss, such damage being special, p. 527.</p>

<p>1. Pleading. — Complaint. — Theory. — Sufficiency.—A complaint drawn upon a definite theory should be good upon such theory, or is bad on demurrer, p. 536.</p> <p>2. Insurance. — Life.—Extension Tables. — From What Date Calculated. — The table of extended insurance in a twenty-payment life policy, granting 7 years and 235 days’ insurance upon the payment of three premiums, means 7 years and 235 days from the date of the policy and not from the date of lapse, such extension from the date of lapse being unreasonable. Roby, J., dissenting, p. 536.</p> <p>3. Same. — Premiums.—When Payable. — A twenty-payment life policy providing for the payment of the first premium in advance and for a like amount annually thereafter for twenty years, requires such following annual premiums to be made in advance, p. 537.</p> <p>4. Same. — Premiums.—Period Covered by Payments of. — Debts. —The payment of the annual premium on a life policy continues the insurance upon assured’s life for such year and gives him the right to continue such payments at the same rate, and such premiums do not constitute a debt. Roby, J., dissenting, p. 538.</p> <p>5. Pleading. — Complaint. — Insurance. — Life. — Extension. — A complaint for the recovery of insurance, alleging that plaintiff’s decedent duly paid four annual premiums on a twenty-payment life policy, by which he secured an extension of such policy for 10 years by virtue of the table of extended insurance, and that decedent died within such time, shows that such policy was alive at decedent’s death, p. 538.</p> <p>6. Bills and Notes.--Negotiable. — Payment.—Presumptions.— There is a disputable presumption that a negotiable note is a payment of the debt for which it was given, p. 539.</p> <p>7. Insurance. — Life.—Premiums.—Payment.—Bills and Notes. —The failure of assured to pay his negotiable note, conditioned that if not paid when due the policy, for whose annual premium such note was given, lapses as for nonpayment of premium, does not' keep such policy alive as a payment of such premium, pp. 539, 540.</p> <p>8. Insurance. — Forfeiture.—When Enforced. — Forfeitures are odious, but will be enforced where there is no reasonable excuse for the default, p. 539.</p> <p>9. Same. — Premiums.—Notes Given for. — Election.—The payment of a negotiable note, given for an annual premium on a life policy, and providing that if not paid at maturity such policy lapses as for nonpayment of premium, is optional with the assured and not with the insurer. Roby, J., dissenting, p. 540.</p>

<p>Master and Servant. — Railroads.—Ways, Works and Machinery. —Steel Punch. — Assumption of Risk. — A servant, holding a steel punch, used until its head is burred and battered, while his fellow servant strikes it for the purpose of driving out an iron bolt, assumes the risk that small pieces of steel may fly therefrom and injure him, such defect being appreciated and being known by such servant.</p>

<p>1. Appeal and Error. — Complaint. — Paragraphs. — Judgment Resting on Good. — Where a judgment appealed from affirmatively appears to rest on a good paragraph of a complaint, the overruling of a demurrer to a bad paragraph is not reversible error, p. 557.</p> <p>2. Pleading. — Complaint.—Master and Servant. — Negligence.— Several Acts of. — Proof of One.- — -Where the servant alleges several acts of negligence of the master in causing his injuries, proof of one of such acts is sufficient to support a judgment for plaintiff, p. 563.</p> <p>3. Trial. — Master and Servant. — Negligence.—Proximate Cause. —Interrogatories to Jury. — An answer to an interrogatory to ' the jury, stating that plaintiff would not have received the injury complained of but for the defective condition of the derrick, shows such defect to be the proximate cause of the injury, p. 563.</p> <p>4. Master and Servant. — Safe Place. — Promise to Repair. — Where the master promised to repair the defective cogs in a derrick used in moving heavy stones at a quarry, and the servant, thinking and being assured by the master "that such repairs were made, took his position and because of the non-repair of such cogs, a large stone fell, causing one of plaintiff’s feet to be caught and crushed, the master is liable, p. 563.</p> <p>5. Master and Servant. — Assumption of Risk. — Promise to Repair. — Where the master promised the servant to repair the cogs in a derrick and afterwards assured the servant that such repairs were made, the servant does not assume the risks therefrom, where it is shown that such repairs were not made as promised, p. 565.</p>

<p>Erom Daviess Circuit Court; H. Q. Houghton, Judge.</p> <p>Action by Charles Gr. Sefrit against the Western Union Telegraph Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Complaint.—■Principal and Agent. — Receipt.—Authority of Agent. — An allegation in a complaint that defendant bank, by its attorney, receipted for certain money, affirms the authority of such attorney to receipt for such bank. p. 572.</p> <p>2. Pleading. — Complaint.—Judicial Sales. — -Purchase Price. — Inadequacy. — Presumptions.—In order to set aside a judicial sale on the ground of the inadequacy of the purchase price, it is necessary to allege such fact, the presumption being that the property sold for its cash value, p. 572.</p> <p>3. Officers. — Sheriffs. — Judicial Sales. — Payment. — Title.— A sheriff, being a public officer whose powers are- specially prescribed by statute, cannot pass title to property sold by him on execution, unless payment therefor is made to him in money, p. 572.</p> <p>4. Same. — Sheriffs. — Judicial Sales. — Purchase by Execution Creditor. — Payment.—A receipt by the execution creditor for the purchase price of the execution debtor’s property, sold on execution by the sheriff, is a payment in money within the meaning of the law. p. 573.</p> <p>5. Execution. — Payment. — Satisfaction. — The receipt of the money from the execution debtor, or the sale of the debtor’s property and receipt of the money therefor, by the sheriff, is a satisfaction of such execution and releases the debtor, regardless of what the sheriff does with the money, p. 573.</p>

<p>Erom Delaware Circuit Court; J oseph G. Leffier, Judge.</p> <p>- Action by Alexander Hennessey against tbe Lake Erie & Western Eailroad Company. Erom a judgment on a verdict for plaintiff for $1,000, defendant appeals.</p>

<p>1. Pleading. — Complaint. — Telegraphs and Telephones. — Messages. — Discrimination.—A complaint against a telegraph company showing that it aeted in bad faith, with negligence, partiality and discrimination, and neglected to transmit plaintiff’s message in the order in which it was received, sufficiently shows a violation of the statute (§5511 Burns 1901, Acts 1885, p. 151, §1) requiring messages to be transmitted impartially, p. "583.</p> <p>2. Same. — Complaint.—Telegraphs and Telephones. — Messages.— Wilful Failure to Transmit. — Negligence.—A complaint to recover the penalty provided by statute (§5512 Burns 1901, Acts 1885, p. 151, §3) for failure to deliver a telegraph message, which alleges negligence and wilfulness as the cause of such failure, is sufficient, since a failure from either cause renders the company liable, p. 583.</p> <p>3. Pleading. — Duplicity.—Motion to Paragraph.- — Striking Out. —-A motion to paragraph or strike out is the proper remedy for a complaint which is bad for duplicity, p. 583.</p> <p>4. Telegraphs and Telephones. — Messages.—Duty to Transmit. — It is the duty of a telegraph company under §5511 Burns 1901, Acts 1885, p. 151, §1, to transmit messages (1) impartially, (2) in their order as received and (3) without discrimination or conditions of service, p. 583.</p> <p>5. Appeal and .Error. — Briefs.—Waiver.—Failure to discuss an alleged error in the brief on appeal waives such error, p. 584.</p> <p>6. Statutes. — Penalties. ■ — ■ Construction. — Penal statutes are strictly construed, but the whole statute must be considered, p. 585.</p> <p>7. Telegraphs and Telephones. — Messages.—Emergencies.—A message in form: “Send wagons to Clayton for corpse. No. 43 goes over the Van,” addressed to a bus man, shows on its face that an emergency exists to transmit it. p. 585.</p> <p>8. Same. — Messages. — Transmission.—Overcharge.—Discrimination. — An emergency message received at Indianapolis and not transmitted to its destination at Danville, 20 miles away, for two hours, and for which an excessive charge was paid, is, both in delay and overcharge, a violation of §5511 Burns 1901, Acts 1885, p. 151, §1, requiring messages to be transmitted without discrimination, p. 586.</p> <p>9. Trial. — Telegraphs and Telephones. — Failure to Transmit Messages. — Defense.—Burden of Proof. — The burden is upon the telegraph company to prove that an apparently unreasonable delay in transmitting a telegram was caused by the transmission of other prior messages, p. 586.</p> <p>10. Same. — Instructions.—Telegraphs and Telephones. — Failure to Transmit. — An instruction, in an action to recover a penalty for the violation of §5511 Burns 1901, Acts 1885, p. 151, §1, that if plaintiff failed to show that defendant telegraph company set aside plaintiff’s message and sent subsequently received messages ahead of it, the verdict should be for defendant, is erroneous, p. 586.</p> <p>11. Evidence. — Failure to Produce When Within Party’s Control. —Presumptions.—Where a party fails to produce evidence peculiarly within his control, the presumption is that, if produced, such evidence would be against him. p. 587.</p>

<p>From Washington Circuit Court; Thomas B. Buskirk, Judge.</p> <p>Action by Charles P. Bush and others against Charlie Bullington and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>From Parke Circuit Court; A. F. White, Judge.</p> <p>Suit by Elias S. Holliday and another against Henry W. Perry and another. From a decree for defendants, plaintiffs appeal.</p>

Erom Porter Circuit Court; Willis O. McMahan, Judge. Action by Phillip E. Roper, by his next friend, against the Rational Fire Proofing Company. Erom a judgment on a verdict for plaintiff for $4,000, defendant appeals.

<p>1. Pleading. — Complaint.—Master and Servant. — Work Outside Scope of Employment. — Variance.—Where the complaint proceeds upon the theory of an injury to the servant, caused by dangerous work outside of the scope of his employment, and the proof shows that he was working within the scope thereof, a verdict in his favor is not supported, p. 610.</p> <p>2. Master and Servant. — Assumed Risk. — Telegraphs and Telephones. — Removal of Old Poles. — Defects.—Where a servant, a part of whose duty was the removal of old telegraph poles and •the substitution of new ones, depending upon his own inspection and oversight, climbed an old pole, released the wires at the top preparatory to taking it down, and, because of decay under the ground, rendering the supports placed at the foot of the pole by the servant’s assistants insufficient, the pole fell injuring the servant, the risk of danger from such defect was assumed though the defect was not known, and could not have been discovered by the use of ordinary care, by such servant, p. 611.</p>

<p>Erom Gibson Oircnit Court; O. M. Welborn> Judge.</p> <p>Suit by David M. Burton and others against Thomas J. Carnahan and another. Erom a judgment for defendants, plaintiffs appeal.</p>

<p>From Gibson Circuit Court; O. M. Welborn, Judge.</p> <p>Action by the Climax Specialty Company against the Never-Split Seat Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Erom Starke Circuit Court; Hwrley A. Logan, Special Judge.</p> <p>Suit by Elmira J. Wooderson against Dora A. Stevens and another. Erom a decree for plaintiff, defendants appeal.</p>

<p>1. Pleading. — Complaint.—Construction.—Doubt.—A pleading, in cases of doubt, will be construed most strongly against the pleader, p. 622.</p> <p>2. Same. — Complaint.—Theory.—Construction by Trial Court.— A complaint will be construed on appeal according to the construction adopted and acquiesced in by the parties at the trial, p. 623.</p> <p>3. Trial. — Complaint. — Theory.-—Evidence.—Variance.—Where the complaint proceeds upon a definite theory and the evidence shows a substantially different one to be true, no recovery is permitted, p. 623.</p> <p>4. Contracts. — Construction. — Enforcement.—Contracts should be enforced according to the intention reasonably deduced from the language thereof, p. 623.</p> <p>5. Same. — Construction.-—Interpretation.—In the construction thereof a contract should be considered as a whole; and the evidence may be considered, as giving a correct viewpoint for its interpretation, not for the purpose of changing the contract but of enforcing it in its true intent, p. 623.</p> <p>6. Same. — Not to Engage in Business. — Clerkship.—A contract by a person dealing in second-hand goods “not to engage in the business of conducting a second-hand store or to buy or sell second-hand goods” in his home city, does not prevent him from clerking for another dealer in second-hand goods in such city, p. 624.</p>

<p>1. Words and Phrases. — “Device.”—A “device” is a thing devised or formed by design, a contrivance, an invention, p. 626.</p> <p>2. Indictment and Information. — Intoxicating Liquors. — Permitting Music Box to Remain in Saloon. — An indictment charging that defendant unlawfully permitted a certain device for music, to wit: a Regina music box to be and remain in his saloon, does not state an offense under §7283b Burns 1901, Acts 1895, p. 248, §2, providing that it shall be unlawful to permit any “devices for amusement or music of any hind or character” in a saloon, p. 627.</p> <p>3. Statutes. — Construction.—Wrongs To Be Remedied. — In the construction and interpretation of a statute the courts will consider the wrongs the legislature sought to remedy, p. 627.</p> <p>4. Same. — Construction. — Punctuation. — Intoxicating Liquors. — Section 7283b Burns 1901, Acts 1895, p. 248, §2, reading in part: “And no devices for amusement or music of any hind or character,” properly interpreted requires a comma after the word “amusement,” and it will be considered as though the comma was so inserted, p. 628.</p>

<p>1. Pleading. — Complaint. ■ — Theory. — Briefs. — The Appellate Court in determining the theory of a complaint may examine the whole record and also the briefs of counsel, p. 630.</p> <p>2. Appeal and Error. — Trial. — Rulings.—Presumptions.—Appellate courts will indulge all reasonable presumptions in favor of the rulings of the trial court, p. 631.</p> <p>3. Pleading. — Complaint. — Execution.—Supplemental Proceedings. — Surplusage.—Statutes.—A complaint showing that plaintiff recovered a judgment against defendant; that execution was returned unsatisfied; that defendant is a resident of the county; that his codefendant owes him money which an execution will not reach and which the defendant “wrongfully refuses and fails to apply to the satisfaction of said judgment,” states . a cause of action under §§827, 831 Burns 1901, §§815, 819 R. S. 1881, the quoted clause being treated as surplusage, p. 631.</p> <p>4. Execution. — Exemption.—Road Labor. — Statutes.—No exemption can be claimed by virtue of §715 Burns 1901, §703 R. S. 1881, as against an execution on a judgment for commutation on defendant’s failure to work the roads as provided by §6825 Burns 1901, Acts 1883, p. 62, §11. p. 631.</p> <p>5. Execution. — Exemptions.—Bight of. — The right of exemption is purely statutory, p. 632.</p> <p>6. Appeal and Error. — Questions Presented Twiee. — Disposal of. — A question, on appeal, decided on the sufficiency of the complaint will not be decided again on the ruling on a motion for a new trial, p. 632.</p> <p>7. Trial. — Evidence.—Surplusage.—It is not necessary to offer any proof to support surplusage in the pleadings, p. 632.</p> <p>8. New Trial. — Evidence. — Supplemental Proceedings. — The transcript of a justice’s docket showing a- judgment against defendant for commutation for failure to work the road, together with evidence that such judgment is in force and uncollectible by execution, sustains a judgment in supplemental proceedings against defendant’s debtor and in denial of defendant’s alleged exemption, p. 632.</p> <p>9. Evidence. — Judgment.—Collateral Attack. — Execution.—Supplemental Proceedings. — The original judgment cannot be attacked, in a supplemental proceeding, by evidence tending to show it was erroneous, where no issue is made as to its validity. p. 633.</p> <p>10. Appeal and Error. — Weighing Evidence. — The Appellate Court cannot weigh conflicting oral evidence, p. 633.</p> <p>11. Same. — Independent Assignments. — New Trial. — Questions which can be included in a motion for a new trial cannot be assigned independently on appeal, p. 634.</p>

<p>Pleading. — Complaint. —• Exhibits. — Contracts. — Injunction. —A complaint to prevent a gas company from violating its contract to furnish plaintiff gas so long as the supply lasts, which fails to set out a copy of such contract or an exhibit thereof, is bad.</p>

From Olay Circuit Court; Presley O. Colliver, Judge. Action by Louise Hadley, as administratrix of tbe estate of Goldie Hadley, deceased, against tbe Collins Coal Company. From a judgment on a verdict for plaintiff for $5,000, defendant appeals.

From Madison Circuit Court; Vinson Garter, Special J udge. Action by Eldon 33. Pierse against Calvin A. Bronnenberg and another, as administrators of the estate of Frederick Bronnenberg, deceased. From a judgment for defendant, plaintiff appeals. On motion to dismiss the appeal and for leave to amend assignment of errors. (For decision on merits, see — Ind. App. —.)

Erom Railroad Commission of Indiana; Union B. Hunt, Chairman, William J. Wood and Charles V. McAdams, Commissioners. Petition by tbe Chicago & Erie Eailroad Company against the Grand Eapids & Indiana Eailway Company. From an order for petitioner, defendant and another appeal. (For denial of petition to transfer to Supreme Court, see 161 Ind. 214.)

<p>Erom Decatur Circuit Court; Marshall Hacker, Judge.</p> <p>Suit by Nettie West against Charles West. From a decree for defendant, plaintiff appeals.</p>

Erom Oass Circuit Court; John 8. Lairy, Judge. Suit by Eobert Cromer and another against the City of Logansport. Erom a decree for plaintiffs for less than their' claim, they appeal.

<p>Erom Parke Circuit Court; Gould G. Bheuby, Judge.</p> <p>Action by Fairbanks, Morse & Company against Lincoln E. Jessup and others. Erom a judgment for plaintiff, defendants appeal.</p>

<p>1. Appeal and Error. — Weighing Evidence. — Bills and Notes.— The Appellate Court will not weigh conflicting evidence to overthrow the trial court’s finding that the note in suit was not a renewal of a former note. p. 679.</p> <p>2. Mortgages. — Validity. — Widow Remarrying. — Descent and Distribution. — A mortgage executed by a married woman, who inherited the lands mortgaged from a former husband by whom she had children living, is void under §2641 Burns 1901, §2484 R. S. 1881. p. 679.</p> <p>3. Judgment. — Without Relief. — Bills and Notes. — A judgment rendered upon a note containing a provision that it shall be collectible without relief from valuation or appraisement laws should, under §585 Burns 1901, §576 R. S. 1881, provide for the collection thereof without any such relief, p. 679.</p> <p>4. Same. — Without Relief. — Evidence.—An unimpeached stipulation in a note that such note should be collectible without relief entitles the plaintiff to a judgment so collectible, p. 680.</p> <p>5. New Trial. — Contrary to Law. — Insufficient Evidence. — Failure to Find Proven Facts. — A failure to find material proven facts renders the decision pronounced upon the special findings contrary to law; and a new trial will be granted therefor as well as upon the ground of the insufficiency of the evidence. p. 680.</p>

<p>Erom Clinton Circuit Court; Joseph Claybaugh, Judge.</p> <p>Action by John P. Gagen against the Home Insurance Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Erom Adams Circuit Court ; B. K. Erwin, Judge.</p> <p>Suit by Calvin Miller against George E. McKean and others. Erom a decree for defendants, plaintiff appeals.</p>

<p>1. Judicial Sales. — What Are. — A judicial sale is one authorized by a competent tribunal and made by an officer authorized by law to make such sale. p. 698.</p> <p>2. Same. — Partition. — Confirmation by Court. — A sale made under the order of a court by an officer appointed thereby for the purpose, and which sale becomes effective only upon confirmation by such court is a judicial sale, partition sales being included, p. 698.</p> <p>3. Same. — Partition.—Conveyances.—Wife Not Joining. — Husband’s Creditors. — Wife’s Rights. — Statutes.—Where the wife of one of the tenants in common of certain lands did not join in any conveyance of such lands, she ought to be held to be a proper party in a suit for the partition of such lands and should be entitled under §2669 Burns 1901, §2508" R. S. 1881, to receive the one-third part of the proceeds of the husband’s share in preference to her husband’s creditors. Haggerty v. Wagner, 148 Ind. 625, contra, p. 698.</p> <p>4. Appeal and Error. — Erroneous Ruling Precedent. — Transfer. —Where a ruling precedent of the Supreme Court is deemed erroneous, the Appellate Court will transfer the cause to the Supreme Court with a recommendation that such precedent be overruled, p. 699.</p>

<p>From Howard Superior Court; B. F. Harness, Judge.</p> <p>Action by William Hancock against the Diamond Plate Glass Company and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Grant Superior Court; B. F. Harness, Judge.</p> <p>Suit by Deborah Covalt and others against the Diamond Plate Glass Company and others. From a decree for plaintiffs, defendants appeal.</p>

<p>From Delaware Circuit Court; Joseph G. Leffler, Judge.</p> <p>Action by the Muncie, Hartford & Ft. Wayne Railway Company against Samuel S. Carrell. From a judgment for plaintiff, defendant appeals.</p>

<p>From Miami Circuit Court; Joseph N. Tillett, Judge.</p> <p>Action by Andrew Troutman and another against the Cincinnati, Richmond & Muncie Railroad and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>From Howard Superior Court; B. F. Harness, Judge.</p> <p>Action by Simeon Spurgeon against the Indianapolis Northern Traction Company and others. From a judgment for plaintiff, defendant traction company appeals.</p>

<p>From Madison Circuit Court; Daniel W. Comstock, Special Judge.</p> <p>Suit by Mollie A. Hughes against the Elwood Natural Gas & Oil Company and others. From a decree for plaintiff, defendants appeal.</p>

<p>From Madison Circuit Court; Daniel W. Comstock, Special Judge.</p> <p>Suit by Henry Etchison against the Elwood Natural Gas & Oil Company and others. From a decree for plaintiff, defendants appeal.</p>