Volume 39 — Indiana Appellate Court Reports

<p>1. Appeal. — Law of the Case. — Questions decided upon a former appeal are not available for a second assignment of errors. p. 2.</p> <p>2. Same. — Weighing Evidence. — The decision of the trial court upon controverted questions of fact is conclusive on appeal. p. 2.</p> <p>3. Insurance. — Mutual Benefit. — Applications. — Rejection.— Causes. — The rejection of an application for mutual benefit insurance because of the applicant’s age, is not binding upon the applicant, where the medical examiner of such association had no right to reject for such reason, p. 3.</p> <p>4. Same. — Mutual Benefit. — Applications.—Rejection.—Right of. —Upon What Depends. — Where a beneficial association gives its applicants certain beneficial rights upon a certain showing upon a medical examination, the right of an applicant depends not upon the motives of the supreme medical examiner in passing upon such showing, but upon the facts shown upon such examination, p. 3.</p> <p>5. Same. — Mutual Benefit. — Applications.—Rejection.—Manden mus. — Where an improper rejection was made of an application, by a mutual benefit association, and the applicant placed in the proper treasurer’s hands the dues payable by virtue of such application, such applicant is not compelled to mandate the officers of such association to accept such application, but he becomes a beneficial member regardless of such wrongful rejection. p. 3.</p> <p>6. Insurance. — Mutual Benefit. — Applications.—Rejection.—Acquiescence. — Facts. — Inferences. — Appeal. —■ Acquiescence in the rejection of an application for membership in a beneficial association is a question of fact; and inferences thereof from mere lapse of time are inferences of fact not open to review on appeal, p. 3.</p>

Erom Johnson Oircuit Court; W. J. Buckingham, Judge. Petition by Mary J. Dougherty to vacate an order appointing Henry Williams as administrator of the estate of Adam S. Dougherty, deceased. From an order vacating such appointment, defendant appeals.

<p>Erom Clinton Circuit Court; Joseph Claybaugh, Judge.</p> <p>Action by Stephen T. Stephens against the Vandalia Railroad Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Statutes. — Application of. — Statutes are effective only against the persons described therein, p. 18.</p> <p>2. Intoxicating Liquors. — Wholesalers. — Statutes. — Section 7283d Burns 1901, Acts 1895, p. 248, §4, providing that any room where intoxicating liquors are sold by virtue of a license shall front upon a.public street and be provided with windows and doors, so that the interior may be seen from the street, does not apply to wholesalers, but only to licensed retailers, p. 18.</p> <p>3. Same. — Restrictions of Sales of. — Statutes.—The purpose of the laws regulating the sales of intoxicating liquors is to restrict such sales, p. 20.</p> <p>4. Statutes. — Construction.-—In Pari Materia. — Statutes upon a single subject, passed at different times, will be construed together as a single act. p. 20.</p> <p>5. Criminal Law. — Intoxicating Liquors. — Sales.—Wholesalers. —Defendant, who was the agent of a brewing company, and sold intoxicating liquors from a cold-storage room in greater quantities than five gallons at a time, is not guilty of a violation of 17283d Burns 1901, Acts 1895, p. 248, §4, providing that licensed retailers shall sell in a room facing a street and provided with doors and windows through which the interior of the room may be seen from the street, p. 21.</p>

From Superior Oourt of Vanderburgh Oounty; Alexander Gilchrist, Judge. Suit by Jacob Ziegler, Sr., and others against Jacob Ziegler, Jr., James T. Walker, guardian ad litem. From a decree for plaintiffs, defendant appeals. On motion to dismiss. (For decision on merits, see — Ind. App. —.)

<p>1. Master and Servant. — Defective Machinery. — Notice.—Time to Repair. — Pleading.—The weight of the authorities sustains the rule that the complaint, in an action for damages because of injuries sustained by reason of defective machinery, need not aver that the master knew of the defect for a sufficient time in which to repair same. p. 26.</p> <p>2. Appeal. — Erroneous Ruling Precedent. — Transfer. — Where the decisions of the Supreme Court are in apparent conflict upon a question involved in a case pending before the Appellate Court, the cause will be transferred to the Supreme Court, p. 27.</p>

<p>1. Appeal. — Briefs.—Errors.—Waiver.—Where appellant in his brief states that the substance of the controversy is fairly presented by the exceptions to the conclusions of law, the Appellate Court may disregard other alleged errors, p. 30.</p> <p>2. Municipal Coepoeations. — Council. — Rules. — Contracts.—■ Public Buildings. — Janitors.—A contract signed by the mayor of a city pursuant to an order of the city council, and by the plaintiff, employing plaintiff as janitor for one year, which contract, when signed, was filed with the city clerk, is not binding on such city, where a by-law of said council provided that any vote could be reconsidered at the next subsequent meeting, and the order authorizing the mayor so to contract was reconsidered and rescinded at such succeeding meeting, p. 36.</p> <p>■ 3. Pleading. — Non est Factum. — What it Admits. — The failure to file a plea of non est factum conclusively admits the execution of the contract sued upon. p. 36.</p> <p>4. Same. — Non est Factum. — Failure to Plead. — Contracts.— Damages. — The failure to file a plea of non est factum to a complaint for damages for breach of a contract does not preclude defendant from contesting the amount of 'damages, p. 36.</p> <p>5. Judgment. — Res Judicata. — What Questions Are. — A judgment is res judicata as to all matters actually, or which might have been, litigated under the issues, p. 37.</p> <p>6. Same. — Res Judicata. — Issues. — In Whose Favor Found.— Presumptions. — Under a general finding and judgment it will-be presumed, in a subsequent suit between the same parties, that all the issues involved therein were decided in favor of the party recovering judgment, p. 37.</p> <p>7. Evidence. — Judgment. — Res Judicata. — Issues.—In Whose Favor Found. — A judgment is prima facie evidence in favor of the ¡successful party that all issues involved were decided in his favor, though there were other issues in the case, which, if-found in favor of such party, would have resulted in the same judgment, p. 37.</p> <p>8. Judgment. — Res Judicata. — Forms of Action. — To render a former judgment res judicata it is not necessary that the forms of action in such cause and the subsequent one be the same, the test being were the questions in controversy litigated, p. 37.</p> <p>9. Judgment. — Res Judicata. — When Matter Is in Issue. — A matter is in issue, so far as concerns a plea of former adjudication, when it is affirmed by one party and either denied or admitted expressly or impliedly by the other, and its determination is essential to a rendition of judgment on the merits, p. 38.</p> <p>10. Same. — Res Judicata. — Whether Decree in Equity Bars Action at Law. — A decree in an equity suit, though the proper forum for the cause was at law, bars an action at law for the same cause, p. 38.</p> <p>11. Same. — Res Judicata. — Contracts.—Injunction.—Damages.— Where a municipal corporation brings suit for an injunction to prevent its janitor from interfering with its property, and he answers a contract of employment, to which an unverified reply .in denial is filed, a decree in his favor renders the validity of such contract res judicata in a subsequent action by him for damages for the breach of such contract, p. 38.</p>

<p>Erom Madison Circuit Court; Darnel W. Comstock, Special. J ndge.</p> <p>Suit by Leo Kullman against the Elwood Natural Gas & Oil Company and others. From a decree for plaintiff, defendants appeal.</p>

Erom Jay Circuit Court; John F. La Follette, Judge. Petition by James Given, against which Ereeman Miller remonstrates. Erom a judgment for petitioner, remonstrant appeals. Motion for leave to amend assignment of - errors. (Eor decision on merits, see — Ind. App. —.)

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Action by the State of Indiana, on the relation of Estella McGill, against Charles W. Gooding. From a judgment for plaintiff, defendant appeals.</p>

<p>From Oass Circuit Court; John 8. Lairy, Judge.</p> <p>Condemnation proceedings by tbe Indianapolis Northern Traction Company (Union Traction Company of Indiana, successor) against Catherine Pfeil and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Judgment. — Default.—Setting Aside. — Excusable Neglect.— Statutes.- — -Under §399 Burns 1901, §396 R. S. 1881, a party against whom judgment has been taken through mistake, surprise or excusable neglect, has the legal right to have such judgment set aside, p. 63.</p> <p>2. Same. — Setting Aside. —■ Excusable Neglect. —• Pleading. — Trial. — Evidence.-—A complaint or motion is the only pleading necessary in a proceeding to set aside a judgment taken through the complaining parties’ inadvertence, surprise or excusable neglect; and the evidence in support thereof may be oral or by affidavits, p. 63.</p> <p>3. Same. — Setting Aside. — Application.—Defense.—Evidence.— An application to set aside a judgment taken by surprise, inadvertence or excusable neglect must set forth a meritorious defense to the original action; and evidence is admissible, on the hearing of such application, to disprove such surprise, inadvertence or neglect, but not to disprove such defense, p. 63.</p> <p>4. Deeds. — Tenancy by Entireties. — Husband and Wife. — Lands held by husband and wife as tenants by the entirety, descend to the survivor, p. 64.</p> <p>5. Judgment. — Setting Aside for Excusable Neglect. — Effect.— The setting aside of a judgment on the ground that it was taken through surprise, inadvertence or excusable neglect, merely opens the ease for another trial as though no judgment had been rendered, p. 64.</p> <p>6. Marriage. — Legality. — Presumptions. — A marriage solemnized under the laws of this State imports that the contracting parties were competent to marry, p. 64.</p> <p>7. Quieting Title. — Deeds.—Tenancy by Entireties. — Marriage. —Invalidity.—That the surviving widow had an undivorced husband living at the time of contracting the subsequent marriage constitutes a defense, on behalf of the subsequent husband’s children, to her suit to quiet title to lands held by her and the subsequent husband as husband and wife. p. 64.</p> <p>8. Judgment. — Excusable Neglect. — What is. — That the deceased husband’s children in a quiet title case did not' know, and by the exercise of reasonable diligence could not know of the surviving widow’s previous marriage, and that she was undivorced when she contracted the subsequent marriage by virtue'of which she claimed the property in question, constitutes “excusable neglect” in permitting a judgment by default to be taken against them quieting such widow’s title, p. 64.</p>

<p>Erom Boone Circuit Court; Samuel R. Artman, Judge.</p> <p>Action by Wilber Campbell, by bis next friend Eobert M. Campbell, against tbe Indianapolis and Northwestern Traction Company. Erom a judgment for defendant, plaintiff appeals.</p>

<p>1. Trial. — Verdict.—General.—Interrogatories.—Which Controls. —Where the answers to.the interrogatories to the jury are not in irreconcilable conflict with the general verdict, it prevails, p. 77.</p> <p>2. Same. — Interrogatories to Jury. — Conflict.—Street Railroads. —Negligence.—An answer to an interrogatory to the jury that the motorman of the street car causing the injury had no reason.to anticipate that the switch would not remain in position, conflicts with answers showing that a car had formerly been derailed by such switch, that the motorman could have anticipated that the car would not pass in safety and that the company had reason from the history of such switch to anticipate the injury, p. 79.</p> <p>3. Street Railroads. — Negligence.—Defective Switches. — Notice. ■ — Actual knowledge that a switch is defective is not necessary to render the operating street railroad company liable for injuries caused thereby, such liability existing if by the exercise of reasonable care the defect could have been ascertained, p. 79.</p> <p>4. Trial. — Interrogatories to the Jury. — Conflict.—An answer to an interrogatory to the jury that there was no evidence that the motorman of the car causing the. injury had reason to think the switch would not remain in position is in conflict with an answer showing that with proper inspection of the switch the accident could have been anticipated, p. 80.</p> <p>5. Same. — Answers to Interrogatories to Jury. — Conflict.—Effect. — Conflicting answers to the interrogatories to the jury nullify each other and do not overthrow the general verdict. p. 80.</p> <p>' 6. Same. — Interrogatories to Jury. — Street Railroads. — Negligence. — Defective Switches. — Answers to interrogatories to the jury showing that defendant street railroad company’s use of a switch made by a reputable manufacturer and generally in use, but which had become defective, a reasonable inspection being sufficient to disclose the defects, sustain a general verdict for plaintiff, who was driving on the street and was injured by the derailing of a street car, occasioned by such defective switch, p. 80.</p>

<p>From Rush Circuit Court; Vincent G. Clifford, Special J udge.</p> <p>Suit by Alfred Kendall against. Marcus A. Kendall. From a decree for plaintiff, defendant appeals.</p>

<p>.From Superior Court of Marion County (68,105); Vinson Carter, Judge.</p> <p>Action by John M. Bailey against Herman Cordes. From a judgment for plaintiff, defendant appeals.</p>

<p>From Hancock Circuit Court; Edward W. Felt, Judge.</p> <p>Action by Flora McKinney against tbe Indiana Union Traction Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Complaint.—Negligence.—Municipal Corporations. ■ — Defective Sidewalks. — A complaint showing that a town constructed a sidewalk seven inches above the ground and negligently failed to provide any guards therefor or place any signal thereby, by reason of which plaintiff stepped off of same in the night, receiving injuries, states a cause of action for negligence. p. 96.</p> <p>2. Pleading. — Complaint. — -Municipal Corporations. — Defective Sidewalks. — A complaint showing that defendant town -constructed a sidewalk seven inches above the ground, leaving it without barrier or signal, sufficiently shows that it was dan- ■ gerous to plaintiff in traveling over it in the night, p. 97.</p> <p>3. Municipal Corporations. — Sidewalks.—Negligence.—A town is liable to a person using due care for injuries caused by its construction of a sidewalk seven inches above the ground, and by its negligent failure to provide barriers or signals for the protection of pedestrians, p. 98.</p> <p>4. Negligence. — Contributory.—Question for Jury. — Municipal Corporations. — Whether plaintiff was guilty of contributory negligence in walking in the night along a sidewalk constructed seven inches above the ground and provided with no barriers or signal lights, without notice of such danger, is a question for the jury. p. 98.</p> <p>5. Trial. — Instructions.—Damages.•—Limiting to Evidence. — It is not reversible error to instruct the jury that if they find for plaintiff they should assess her damages in any amount they deem proper, where in another instruction they were expressly limited to the evidence in the case. p. 99.</p> <p>6. Same. — Instructions.—Assuming Facts. — In giving instructions, it is not error for the courts to assume undisputed facts as established, p. 99.</p> <p>7. Damages. — Excessive.—A verdict for $450 for plaintiff, fifty years old, crippled permanently, one leg shortened one and one-half inches by the injury sued for, confined to her bed eight months, suffering great pain and paying out $100 for medical services, does not indicate any unfairness, prejudice or passion against the town by whose negligence the injuries were caused. p. 100.</p> <p>8. Trial. — Instructions.—Contributory Negligence. — Burden of Proof. — Evidence.—An instruction that contributory negligence is a defense to be proved by defendant, but that all of the evidence should be considered on such question, is correct, p. 100.</p>

<p>1. Appeal. — Instructions.—How Made Part of the Record. — In order to make instructions a part of the record on appeal it must affirmatively appear that such instructions were filed with the clerk, p. 102.</p> <p>2. Same. — Instructions. — Refusal to Give.' — Presumptions.— Where the record fails to show affirmatively that the instructions set out were all that were given, the presumption is that a refused correct instruction was covered by one given, p. 102.</p> <p>3. Evidence. — Cross-Examination.—Credibility of Witnesses.— Questions Affecting. — Discretion of Court. — It is within the sound discretion of the trial court, to be exercised with caution, to permit a party on cross-examination to be asked, as a preliminary question affecting his credibility, whether he was the same party who, in a former suit in court, swore that he did not execute the note involved in such case. p. 103.</p> <p>4. Same. — Credibility of Witnesses. — Facts Tending to Disgrace. —Discretion of Court. — It is within the sound discretion of the trial court whether a witness, upon cross-examination upon a collateral matter, may be compelled, over his claim of privilege, to answer a question tending to his disgrace, as affecting his credibility, p. 104.</p>

<p>Erom Eulton Circuit Court; Harry Bernetha, Judge.</p> <p>Suit by tbe State of Indiana against Norman R. Stoner and others. Erom a decree for defendants, plaintiff appeals.</p>

<p>Banks and Banking. — Checks.—Gifts of. — Collection.—Consid eration. — Decedents’ Estates. — A bank check given, without consideration, as a present to a servant, is not enforceable either against the bank on which drawn or against the drawer or his estate, such check being insufficient to constitute a gift of a fund inter vivos or causa mortis.</p>

<p>1. Pleading. — Complaint.—Contracts.—Carriers.—Railroads.—A complaint showing that shippers “informed” the railroad agent that they would want certain cars in which to ship stock, and such agent “notified” them that he “would endeavor” to secure them, does not show a contractual relation between such shippers and such company, p. 119.</p> <p>2. Same. — Complaint.—Contracts.—Usage.—Railroads.—A complaint counting on the breach of a custom to deliver cars at station P when they are under contract for delivery at A, must, to be sufficient, allege a contract for delivery at A. p. 120.</p> <p>3. Railroads. — Furnishing Cars. — Custom. — Liability.—Where plaintiffs ordered two double-decked stock-cars for shipment of stock from A, expecting, by virtue of an alleged custom, to send such cars to P to be loaded with stock there, and the railroad company furnished two single-decked cars, which were sufficient to hold their stock at A but not also the stock at P, the company is not liable for its failure to transport the stock at P, there being no custom of the company that cars ordered at A could be used at P and the company furnishing the cars at P as soon as possible after being apprised of the need of cars there, p. 120.</p>

Erom Superior Court of Marion County (66,000); James M. Leathers, Judge. Action by John J. Blackwell, as administrator of tbe estate of Micbael McGlynn, deceased, against Julius Ealender and others. From a judgment for plaintiff, defendants appeal.

<p>Erom Putnam Circuit Court; Presley O. Oolliver, Judge.</p> <p>Action by Georgia A. Hamrick against Everett R. Robards. Erom a judgment for plaintiff, defendant appeals.</p>

<p>From Clinton Circuit Court; Joseph Claybaugh, Judge.</p> <p>Action by Sanford Bennett against the Indianapolis & Eastern Railway Company. From a judgment on a verdict for plaintiff for $1,500, defendant appeals.</p>

From Orange Circuit Court; Thomas B. Bushirlc, Judge. Action by Rosa Sanders, for whom, on her death, William Sanders, as her administrator, was substituted; against the Western Union Telegraph Company. Erom a judgment for $100 for plaintiff, defendant appeals.

<p>1. Pleading. — Allegations. — General.- — Specific.—The specific, control the general allegations in a pleading, p. 156.</p> <p>2. Same. — Complaint.—Railroads.—Backing Train over Railroad Crossing. — Negligence.—A complaint showing that defendant railroad company backed its train over a railroad crossing while another train was crossing, the other train having the right of way, and while the signal which was in plain view showed that such other train had the right of way, states a cause of action in favor of a passenger of such other train, injured thereby, p. .157.</p> <p>3. Negligence. — Separate Acts. — Joint Result. — Liability.— Where two or more joint tort-feasors’ acts, without concerted action, unite in producing damage, they are severally but not jointly liable therefor, p. 157.</p> <p>4. Same. — Railroads.—Flagmen.—Joint Liability for Acts of.— Separate railroad companies uniting to maintain a common system of signals and to employ a flagman at a common railroad crossing, are jointly liable for negligence in respect to their common undertakings, p. 157.</p> <p>5. Pleading. — Complaint. — Negligence. — Proximate Cause. — Railroads. — Backing over Crossing. — A complaint showing that defendant railroad company negligently backed its train over a railroad crossing which was occupied by another train and that the signal showed such other train had the right of way, shows that defendant’s negligence was the proximate cause of the damage at such crossing, p. 158.</p> <p>6. Negligence. — Proximate Cause. — Negligence may be the • proximate cause of an injury without being its sole or immediate cause, p. 159.</p> <p>7. Railroads. — Crossings. — Collisions. — Passengers. —A passenger of one railroad company can maintain an action against another company for an injury resulting from a negligent collision at a railroad crossing, although his own company was also negligent, p. 159.</p> <p>8. Negligence. — Proximate Cause. — The proximate cause of an injury is such a cause as, without the intervention of an unforeseen independent cause, produces such injury, and without which such injury would not have occurred, p. 160.</p> <p>9. Appeal. — Briefs.—Waiver.—Only those points objected to and which objections áre supported by argument, will be considered on appeal, p. 160.</p> <p>10. Same. — Instructions.—Joint Exceptions. — Where the defendant excepted “to the action of the court in giving these instructions,” the exception was joint and not well taken unless every one of such instructions was bad. p. 160.</p> <p>-11. Trial. — Instructions.—Railroads.—Crossings.—Backing over. —An instruction that the jury should find for the plaintiff if they found that defendant railroad company negligently backed its train over the railroad crossing, causing plaintiff’s injuries without his fault, is not incorrect, where the fact of the backing and plaintiff’s freedom from fault were undisputed, p. 161.</p> <p>12. Same. — Instructions.—Railroads.—Contributory Negligence. —An instruction,, in a personal injury case, that if contributory negligence were proved, plaintiff would forfeit his right of recovery and that the burden of proving same was on defendant, is not objectionable, p. 162.</p> <p>13. Same. — Instructions.—Railroads.—Crossings.—Care Required. ■ — An instruction, in a personal injury case, that the “stop, look and listen” rule is as imperative upon a railroad company whose train is approaching a railroad crossing as upon a pedestrian approaching a highway crossing, where such company is running its train over a railroad crossing having no derailing device, and controlled by a flagman employed by both companies, and whose signals commanded defendant not to cross, is not erroneous, p.' 163.</p> <p>14. Railroads. — Collision.—Liability.—Where a passenger of one railroad company is injured by a collision of his train with the train of another company, he may maintain his action against the negligent one, or both, if they are jointly negligent. p. 164.</p> <p>15. Appeal. — Briefs.—Waiver.—Points not discussed on appeal are waived, p. 164.</p> <p>16. Same. — Consideration of Appeals. — Appeals to the higher courts are considered solely upon the récord, p. 164.</p> <p>17. Same. — Joint Defendants. — Appeal by One. — The Appellate Court cannot disturb a verdict for one defendant, in an appeal by the other, where the record presents no question as to the acquitted defendant, p. 165.</p> <p>18. Railroads. — Negligence. — Injuries.—Fraud.—Compelling a railroad company to pay damages for negligently backing its train against another train, thereby causing plaintiff, a passenger on such other train, to suffer a supra-cotyloid dislocation of his hip, confining him to his bed for three weeks and rendering him unable to work for three months, does not constitute “a bold fraud,” nor is such an injury “simulated.” p. 165.</p> <p>19. Damages. — Excessive.—Where improper influences do not appear to have misled the jury, the damages assessed will not be considered excessive, p. 166.</p> <p>20. Appeal. — Instructions. — Exceptions. — Statutes. — Under §544a Burns 1905, Acts 1903, p. 338, §1, exceptions, orally taken to the instructions given, and afterward entered in the order-book, are reviewable on appeal, the giving of such instructions being assigned as reasons for a new trial, p. 166.</p> <p>21. Trial. — Instructions. — Defining Negligence. — Invasion of Province of Jury. — An instruction that if the jury should find certain facts to exist, such facts would constitute negligence, is not an invasion of the province of the jury. pp. 168, 169.</p> <p>22. Same. — Instructions.—How Considered. — Instructions must be considered as an entirety and if they thus fairly present the case to the jury, they will not be held erroneous, p. 169.</p>

<p>Erom Superior Court of Marion County (64,912) ; Vinson Carter, Judge.</p> <p>Action by Lewis Bolin against the Indianapolis Street Railway Company and another. Erom a judgment for plaintiff, defendants appeal.</p>

<p>1. Building and Loan Associations. — Withdrawal.—Notice.— Waiver. — Under §4447 Burns 1901, Acts 1885, p. 81, §4, stockholders in a building and loan association ’ must give three months notice of withdrawal before they have the legal right to the value of their stock, but such notice may be waived by the association, p. 190.</p> <p>2. Same. — Payment of Forged Certificates. — Notice.—Whether a building and loan association paid, on forged assignments, certificates of stock, with or without notice, is immaterial in an action by the true owner for the value thereof, p. 191.</p> <p>3. Building and Loan Associations. — Forged Assignments of Stock.- — Evidence.—Where plaintiff testifies that she never executed, nor authorized any one else to execute, assignments of her stock in a building and loan association, and another testified that the assignments were not signed by plaintiff, and it is shown that the alleged assignees had absconded, a finding that plaintiff is entitled to recover the value of her shares is justified, p. 191.</p> <p>4. Same. — Stock.—Forfeiture.—Where plaintiff’s shares in a building and loan association were assigned by forgery, and paid to such assignee, plaintiff’s failure to pay further thereon did not subject her shares to a liability to forfeiture, plaintiff being thereafter a creditor of such association, p. 192.</p>

<p>Erom Jackson .Circuit Court; Thomas B. Buskirk, Judge.</p> <p>Suit by Abrabam C. Branaman against the Board of Commissioners of the County of Jackson and another. Erom a decree for plaintiff, defendants appeal. Reversed.</p>

<p>From Franklin Circuit Court; Ferdinand 8. Swift, Judge.</p> <p>Suit by Jobn Holliday against John C. Morin and others. From a decree for plaintiff, defendants appeal.</p>

<p>1. Pleading. — Complaint. — Insurance Premiums. — Void Policies. — A complaint for the recovery of premiums paid on a void policy is not founded upon such policy, and such policy is not a necessary part of such complaint, p. 218.</p> <p>2. Pleading. — Complaint. — Insurance. — Insurable Interest. — Mother-in-law. — A complaint merely showing that plaintiff took out a policy of insurance on the life of his mother-in-law, affirmatively shows that such policy was void ab initio, p. 218.</p> <p>3. Same. — Complaint.—Insurable Interest. — Assent of Assured. ■ — Statutes.—A complaint for the recovery of premiums paid on a void insurance policy, which fails to allege that the mother-in-law, upon whose life the policy was issued, had knowledge thereof, is bad, since by §4902 Burns 1901, Acts 1883, p. 203, §6, a mutual life policy whose premiums are paid by another who has no insurable interest in assured’s life is invalid, unless consent thereto is given in writing by assured, p. 219.</p> <p>4. Same. — Complaint.—Conclusions.—Insurance.—An allegation, in a complaint for the recovery of premiums paid on a void life policy, that “plaintiff had no insurable interest in the life insured,” is a mere conclusion and must be disregarded, p. 219.</p> <p>5. Insurance. — Premiums. — Recovery. — Void Policies. — Premiums paid on a void policy of insurance may be recovered by the person paying same, unless the parties were equally guilty in relation to such policy, p. 219.</p> <p>6. Same. — Premiums.-—Recovery.—Void Policies. — Public Policy. ■ — Public policy requires that equally guilty parties to a void insurance policy be left where they have placed themselves. p. 220.</p> <p>7. Same. — Void. — Premiums. — Recovery. — Wrong Conduct.— Equity. — Where the person paying premiums on a void insurance policy is not equally guilty with the company, equity permits a recovery of the premiums paid. p. 220.</p> <p>8. Pleading. — Complaint.—Insurance.—Void.—Recovery of Premiums.- — Freedom from Fault. — A complaint by the person paying premiums on a void insurance policy, to be sufficient, must show that he was not equally guilty with the company in reference to such policy, p. 221.</p> <p>9. Same. —• Complaint. — Insurance. — Void. — Recovery of Premiums.- — A complaint showing that plaintiff took out a life policy on his mother-in-law; that the company after the first payment required him to increase his premium payment; that he believed the policy was valid, is insufficient, since it does not absolve him from wrongful conduct in relation to such policy. p. 222.</p> <p>10. Equity. — Mistakes of Law. — Relief from. — Maxims.—Unless the defendant has exercised an undue advantage over the plaintiff, neither equity nor law will afford relief from mistakes due to plaintiff’s ignorance of the law, the maxim, “ignorantia juris non excusat,” applying, p. 222.</p> <p>11. Pleading.,— Complaint. — Insurance. — Void. — Recovery of Premiums. — A complaint showing that defendant company solicited the plaintiff to take a life policy on his mother-in-law; that defendant represented to him that such a policy would be valid, and that, believing such representation, he accepted same; that he performed all of the conditions on his part and that the policy was void, as defendant knew, because of his want of an insurable interest, is insufficient, since plaintiff is not shown to be sufficiently free from wrong in reference to such policy, p. 223.</p> <p>12. Equity. — Maxims.—Knowledge of Law. — There is no presumption that every person knows the law, since such a presumption would obviously be untrue, p. 224.</p> <p>13. Same. — Mistakes of Law. — Relief from. — Where a mistake of law is made by the plaintiff because of the inducement, encouragement and solicitation of defendant, and the defendant reaps a reward therefrom at plaintiff’s expense, equity may grant relief therefrom, p. 224.</p>

Erom Eountain Circuit Court, Joseph M. Babb, Judge. Suit by Theodore M. Meeker and others against James T. Bell, as county auditor of Eountain county, and an other. Erom a decree for plaintiffs, defendants appeal.

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

<p>1. Appeal. — Parties. — Complaint. — Executors and Administrators. — Error in overruling a demurrer to an alleged defective complaint because the executor of a will had joined as plaintiff with the remaindermen to enjoin waste to the devised premises, committed by the life tenant, is harmless where judgment was rendered’ against such executor, p. 248.</p> <p>2. Pleading. — Complaint. —• Injunction. — Waste. — Wills.—Evidence. — A complaint to enjoin the life tenant of devised lands from committing waste is not founded upon the will, and it is not a necessary exhibit, such will being mere evidence of plaintiff’s rights, p. 249.</p> <p>3. Wills. — Life Estates. — Power of Disposition. — A will in form: “I give and bequeath to my beloved wife * * * all my property, both personal and real, to be hers during her lifetime and at her death I wish what property is left to be applied toward building a Methodist Episcopal church at or near Houston, Indiana,” gives such widow a life estate only in such property, and she has power to dispose of only such interest. p. 250.</p> <p>4. Injunction. — Waste.—Trespass.-—Injunction lies on behalf of remaindermen to prevent waste by the life tenant, p. 250.</p> <p>5. Deeds. — Estates.—Life Tenancy. — A life tenant cannot convey a fee-simple title, p. 250.</p>

<p>Erom Superior Court of Marion County (63,629) ; John L. McMaster, Judge.</p> <p>Action by Matilda Neff against the Metropolitan Life Insurance Company. Erom a judgment for defendant, plaintiff appeals.</p>

<p>From Vigo Circuit Court; James E. Piety, Judge.</p> <p>Action by Edward S. Johnson against Norbert C. Kintz. From a judgment on a verdict for plaintiff for $500, defendant appeals.</p>

<p>From Parke Circuit Court; Gould 8. Rheuby, Judge.</p> <p>Action by William C. Pavey against the Toledo, St. Louis & Western Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal. — Joint Assignment. — Several Judgment. — Where two joint defendants join in an assignment, of errors, and the judgment appealed from was against one of them only, no question is presented, no joint injury being shown.</p>

<p>. From Morgan Circuit Court; Joseph W. Williams, Judge.</p> <p>Suit by Eliza A. Eutb against William H. Eutb. From a decree for plaintiff, defendant appeals.</p>

<p>Erom Harrison Circuit Court; G.'W. Cools, Judge.</p> <p>Action by James M. Graham against the Chicago, Indianapolis & Louisville Eailway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Contracts. — Mortgages.—Redemption.—Extension of Time for. — A verbal agreement to loan plaintiff money to pay the redemption price of plaintiff’s land sold on foreclosure, to take the purchaser’s certificate of sale, by assignment, as security for the money so loaned, and to extend the period of redemption one year, is valid and enforceable, p. 321.</p> <p>2. Same. — Mortgages.—Certificates of Sale. — Redemption.—Extension of Time for. — Deeds.—The taking of a sheriff’s deed on a certificate of sale under a mortgage foreclosure, in violation of the holder’s verbal agreement with the owner to hold such certificate for one year from the date of such agreement, does not cut off the owner’s right to redeem within such year. p. 321.</p> <p>3. Words and Phrases. — “Redeem.” — Mortgages. — The word “redeem” imports that the owner of the equity in real estate sold under execution or decree may have the title, which has been divested by sale, vested again in him by the payment of the proper amount of money to the purchaser, p. 321.</p> <p>4. Contracts. — Redemption.—Extension of Time for. — An agreement by the holder of a certificate of sale on a decree of foreclosure to extend the period for redemption beyond the statutory period is valid, but such redemption must be made within the agreed time or the right will be lost. p. 322.</p> <p>5. Same. — Redemption. — Extension of Time for. — Receipt of Part.- — Where the holder of a certificate of sale under decree of foreclosure agrees with the owner to extend the period of redemption beyond the statutory period, and receives a part payment of the redemption price, such certificate thereafter becomes merely a lien upon the land as security for the balance due. p. 322.</p> <p>6. Pleading. — Complaint. — Redemption. — Extension of Time for. — Breach.—Excuse.-—A complaint to redeem lands under an agreement by the certificate holder to extend the period beyond the statutory period must show a redemption or an offer within such extended period, or a sufficient excuse therefor, and the holder’s taking a deed in violation of such agreement to extend is not a sufficient excuse, p. 322.</p> <p>7. Same. — Complaint.—Redemption.—Extension of Time for.— Breach. — Excuse.—A complaint by the owner to redeem lands under an oral contract with the defendant certificate holder to extend the period of redemption beyond the statutory period, showing that by reason of such holder’s taking out a deed in violation of such agreement, plaintiff was prevented from selling the land, and that except for such holder’s taking out such deed plaintiff could and would have sold the land and redeemed same, is insufficient, p. 322.</p> <p>8. Judicial Sales. — Redemption. — Statutes. — Contracts. — Whether the right of redemption from a judicial sale exists by virtue of a statute or by a contract, the provisions giving such right must be strictly complied with, or the right will be lost, p. 323.</p> <p>9. Appeal.- — -Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, p. 323.</p>

<p>Erom Superior Court of Tippecanoe County; Henry II. Vinton, Judge.</p> <p>Action, by Charles H. Henderson against the Indianapolis & Northwestern Traction Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Complaint.—Railroads.—Allegations that Engineer Was in Charge of Engine. — Recitals.—A complaint showing that the collision causing the injuries “was brought about by the carelessness of defendant’s engineer * * * in charge of said locomotive on which plaintiff was working; * * * that said injury occurred on a curve and said engineer was on the inside of said curve, and said train on which plaintiff was riding and which collided, was in plain view from said engineer’s side,” sufficiently alleges that said engineer was in charge of the engine, p. 335.</p> <p>2. Evidence. — Others Injured in Railroad Wreck.- — -Character of Collision. — Evidence of the number of people injured in a railroad wreck is admissible, in an action for injuries sustained in such wreck, to show the force and character of such wreck, p. 337.</p> <p>3. Same. — Visibility of Approaching Train. — Evidence that there was no obstruction between an engineer and an approaching train and that the approaching train could be seen from such engineer’s window, is admissible in an action by such engineer’s fireman for injuries sustained by the collision of such trains, p. 338.</p> <p>4. Same. — Railroads.—Collisions.—Engineer’s Admissions. — Res Gestae. — Admissions of an engineer as to the cause of a wreck are not admissible against the company unless a part of the res gestae; but where there is uncontradicted evidence warranting' the inference of such engineer’s negligence as the cause, the admission of such engineer’s statement, made from twenty to forty-five minutes after the collision, is harmless error, pp. 338, 341.</p> <p>5. Trial. — Instructions.—Employers’ Liability Act. — “Due Care and Diligence.” — An instruction that the servant, to recover under the provisions of the employers’ liability act (§7083 Burns 1901, Acts 1893, p. 294, §1), providing that servants under certain circumstances and when “in the exercise of due care and diligence” may recover for injuries, must have been in the exercise of “due care,” is not bad, since “due care” includes “diligence.” p. 339.</p> <p>6. Same. — Assuming Facts. — Railroads.—Defective Works and Ways. — An instruction that if the jury find that plaintiff was injured and that such injury occurred because of defective condition of defendant’s works and ways in that there was no provision for signaling trains or any telegraph or telephone the verdict should be for plaintiff if he was in the exericse of due - care, is not misleading as an assumption of defendant’s negligence p. 340.</p> <p>7. " Master and Servant. — Employers’ Liability Act. — Railroads. —Engineers. — Firemen. — Fellow Servants. — Under the employers’liability act (§7083 Burns 1901, Acts 1893, p. 294, §1) railroad companies are liable to a fireman for injuries received because of the negligence of his engineer, p. 340.</p> <p>8. Trial. — Instructions. — Peremptory. — Evidence.—A peremptory instruction for defendant should not be given where there is some evidence to support plaintiff’s case. pp. 340, 342.</p> <p>9. Same. — Instructions Refused Covered by Those Given. — It is not error to refuse to give a requested instruction substantially covered by those given, p. 341.</p> <p>10. Railroads. — Collisions.—Engineer’s Failure to Look. — Evidence. — A railroad company is liable to a fireman injured in a collision caused by the negligence of the engineer in failing to see an approaching train, p. 341.</p> <p>11. Appeal. — Right Result. — Where a right result on the merits is reached by the trial court, its judgment will not be disturbed. p. 341.</p> <p>12. Trial. — Witnesses.—Failure of Party to Produce. — Inferences. — Evidence.—The failure of a party to produce or account for an important witness whom he could secure may properly be considered by the jury in determining the merits of the case. p. 342.</p>

<p>From Superior Court of Madison County; Henry C. By an, Judge</p> <p>Action by Elizabeth Fleming against the City of Anderson. From a judgment for defendant, plaintiff appeals.</p>

■ Erom Eloyd Circuit Court; William O. Utz, Judge. Suit by Margaret J. Whalen against Delphia A. Eisman and others. Erom a decree for plaintiff and cross-complainants, defendant and another appeal.

From Railroad Commission of Indiana; Union B. Hunt, Chairman, Charles V. McAdams and William, J. Wood, Commissioners. Appealed by the Chicago, Indianapolis & Louisville Railway Company from an order of the Railroad Commission of Indiana in fixing’ the rate for the shipment of coal. (On motion to dismiss appeal, motion overruled. See 38 Ind. App. 439.)

<p>1. Replevin. — Possession.—Unlawful Detention. — The gist of the action of replevin is defendant’s unlawful detention of the plaintiff’s property, p. 367.</p> <p>2. Same. — Defenses. — Special Right of Possession. — A special right of possession is a good defense to an action in replevin, though plaintiff is the owner of the property, p. 368.</p> <p>3. Liens. — Equitable.—Personalty.—Pledging as Security by Oral Executory Contracts. — An oral executory contract to deliver to defendant a certain horse at a certain time to be held as security for a certain debt constitutes an equitable lien upon such horse enforceable against the contractor, his heirs, personal representatives or voluntary assignees, p. 368.</p> <p>4. Replevin. — Counterclaim. — Contracts.—A counterclaim setting up an equitable lien created by contract may be pleaded in an action of replevin, a liberal construction of such action being adopted for the interest of justice, p. 369.</p> <p>5. Same. — Counterclaim.—Equitable Liens. — In an action for the replevin of a horse, a counterclaim for the foreclosure of an equitable lien thereon lies under the code (§358 Burns 1901, §350 R. S. 1881). p. 369.</p> <p>6. Pleading. — Judgment.—Effect on. — The form of judgment finally rendered in a cause has no effect on the rights of the parties as to their pleadings, p. 370.</p> <p>7. Replevin. — Unlawful Detention. — Receiving Property from Bailee. — Defendant’s securing of plaintiff’s horse from plaintiff’s liveryman, without plaintiff’s consent, and subsequent detention thereof, does not constitute defendant’s present possession unlawful, where he has an equitable lien upon such horse, p. 370.</p> <p>8. Liens. — Liveryman's.—Assignability.—Right of Possession.— Statutes. — A liveryman’s lien, as provided by §7254 Burns 1901, §5292 R. S. 1881, is not assignable so as to give the assignee the right of possession of the property cared for. p. 371.</p> <p>9. Contracts. — Specific Performance. — Replevin. — Equitable Liens. — Where plaintiff agreed to give defendant a certain horse at a certain time as security for a certain debt, and he failed to do so, defendant cannot compel specific performance of such contract, nor can he replevy such horse, but he can have a lien declared, p. 371.</p> <p>10. Pleading. ■— Cross-Complaint. — Counterclaim. — Though a pleading is styled a cross-complaint, it will be considered as a counterclaim where its allegations show it to be such. p. 372.</p> <p>11. Judgment. — Form of.- — Replevin. — Equitable Liens.- — -The decree, in an action in replevin and a counterclaim of an equitable lien, should be for the defendant for the amount of his interest and upon payment thereof for the return of the property. p. 372.</p>

<p>1. Appeal. — Briefs.—Waiver.—Alleged errors not discussed on appeal are waived, p. 374.</p> <p>2. Tkial. • — • Instructions. — Street Railroads. — Negligence.—Last Clear Chance. — An instruction that it is the duty of a street railroad company to avoid inflicting injuries to persons on or near its track, and for its motorman to stop its car where danger is observed, or where such danger should be observed in the exercise of ordinary care, is not erroneous, p. 375.</p> <p>3. Street Railroads. — Failure to Stop Cars. — Collisions.—Liability. — Where the motorman of a street-car saw plaintiff’s wagon obstructing the track and without waiting until plaintiff could get off, ran his car against such wagon, inflicting injuries to plaintiff, such company is liable, p. 375.</p> <p>4. Trial. — Instructions.—Street Railroads. — Speed of Cars. — An instruction as to the proper rate of speed of a street-car in a city is not harmful to the company, where the evidence shows that just before the injury the car was standing still and the motorman saw plaintiff’s wagon on the track and voluntarily ran into it, causing the injuries, p. 376.</p>

From Hancock Circuit Court; Edward W. Felt, Judge. Action by tbe State of Indiana, on the relation of the Board of Commissioners of the County of Hamilton, against Oincinnatus B. Williams and others. From a judgment for plaintiff against Williams for part of its claim, and in favor of the other defendants, plaintiff appeals.

<p>1. Statutes. — Construction.—Intent.—The words of a statute should be given such a construction as to carry out the legislative intent, p. 386.</p> <p>2. Municipal Corporations. — Statutes.—Police Pensions. — The act of 1903 (Acts 1903, p. 102) was intended to give to the widows and orphans of policemen gratuities (1) where such policemen died while performing duties enjoined upon them, and (2) where they died from natural causes while in service or after the term of service, p. 386.</p> <p>3. Statutes. — Police Pensions. — Intention.—The act of 1903 (Acts 1903, p. 102), granting pensions to policemen and their widows, where such policemen were killed or disabled “while in line of duty,” was not intended to put a premium upon reprehensible conduct of policemen, p. 386.</p> <p>4. Same. — Interpretation.—Subsequent Statutes as Aid. — Subsequently passed statutes upon the same subj'ect-matter may be looked to as an aid in the interpretation of a prior statute, p. 387.</p> <p>5. Words and Phrases. — Police Pensions. — “Line of Duty.” — The phrase “line of duty” denotes that the act of duty performed must have causal relation to the wound, inj'ury or disease producing disability or death, p. 388.</p> <p>6. Municipal Corporations. — Police Pensions. — “In Line of Duty.” — Suicide.—-A policeman who, while acting as such, commits suicide, does not come to his death “while in the line of duty,” as provided by clause three of section seven of the act of 1903 (Acts 1903, p. 102); and his widow is not entitled to a pension on account of such- death, p. 391.</p> <p>7. Insurance. — Death by Accident. — Suicide.—Death by suicide while insane is an “accident” within the meaning of a policy of insurance, p. 392.</p> <p>8. Pleading. — Complaint.—Police Pensions. — Suicide.—“Line of Duty.” — Causal Connection. — A complaint by the widow of a policeman who, while on duty, became insane and committed suicide, for a pension as provided by clause three of section seven of the act of 1903 (Acts 1903, p. 102), must show that such insanity was caused by the performance of some duty, p. 392.</p>

<p>1. Pleading. — Complaint.—Railroads.—Ejection of. Passenger.— A complaint showing that plaintiff was a passenger on defendant’s train and that defendant’s servants and agents wrongfully and purposely assaulted him and threw him off of the train, thereby inflicting injuries, states a cause of action, p. 395.</p> <p>2. Appeal. — Trial. — Judgment. ■— Doubtful upon the Merits.— Minor Errors. — Where the judgment, on the merits, is extremely doubtful as to its justice, minor and ordinarily uninfluential errors may require a reversal, p. 396.</p> <p>3. Evidence. — Res Gestae. — Rule.—The rule of res gestae permits the introduction in evidence of all of the immediate circumstances, facts and declarations connected with and illustrative of a litigated fact. p. 397.</p> <p>4. Same. — Res Gestae. — Declarations.—Declarations made immediately after an injury by the injured party or other person present, asserting the circumstances of the event, are admissible as a part of the res gestae, p. 397.</p> <p>5. Same. — Res Gestae. — Declarations. — Questions for Trial Courts. — The question whether declarations are part of the res gestae is eminently one for the trial courts, and should be left with them exclusively, p. 397.</p> <p>6. Same. — Res Gestae. — Declarations.—Inhere the plaintiff was injured by a fall from a train, and after the train had run two car lengths the witness followed by the conductor ran back to the injured man, declarations by the plaintiff to the conductor as to the cause of his fall may be admitted as part of the res gestae; but the admission of rejection of such evidence would not be ground for reversal, p. 398.</p> <p>7. Tkial. — Instructions.—Testimony.—Partly - False. — Exclusion of All. — An instruction that if a witness’s testimony is partly false, the jury'may exclude all unless corroborated by other evidence, is erroneous, such rule applying only where the witness knowingly or purposely testifies to something false; Lemmon v. Moore, 94 Ind. 40, distinguished, p. 398.</p>

<p>Erom Jay Circuit Court; John F. LaFollette, Judge.</p> <p>Action by Leonard M. Neyens against Joe Flesher and others. Erom a judgment for defendants, plaintiff appeals.</p>

<p>1. Set-Off. — Sufficiency.—Pleading.—A set-off, to be sufficient as against a demurrer, must state a cause of action on behalf of defendant as against the plaintiff, p. 415.</p> <p>2. Contracts. — Attorney and Client. — Partnership.—Executors and Administrators. — Decedents’ Estates. — A contract by a partnership firm of attorneys to advise and assist executors to settle an estate expires at the final settlement of such estate, binds each member of such partnership for moneys collected by other members of such firm, and entitles such partners jointly to the compensation therefor, p. 416.</p> <p>3. Decedents’ Estates. — Executors and Administrators. — Money Collected by Attorneys. — Accounting.—Subrogation.—Executors are officially liable for money due their estate, collected by their attorneys and appropriated, and their payment thereof subrogates them to the rights of such estate, p. 416.</p> <p>4. Contracts. — Consideration. — Attorneys’ Fees. — Executors and Administrators. — A contract by executors to pay their attorneys more than is actually due for . such attorneys’ services, is, as to such excess, without consideration, p. 416.</p> <p>5. Set-Off. — Mutuality.—Attorney and Client. — Partnership.— Parties. — Where one attorney brings an action to recover fees due to his former firm, defendants may set off any demand due to them from such firm.' p. 416.</p> <p>6. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, p. 418.</p> <p>7. Attorney and Client. — Fees.—Set-Off.—Partnership Liability. — New Trial. — Where judgment was rendered in favor of an attorney, whose former partnership firm had collected and not accounted for a certain judgment, excluding such sum, such judgment is contrary to the law, as well as the evidence, and is cause for a new trial, p. 419.</p> <p>8. Partnership. — Members.—Contracts.—Attorney and Client. —Employment of a member of a firm of attorneys is an employment of the entire firm; and the collection of money, or deceit practiced, by one of such firm, binds all. p. 419.</p> <p>9. Demand. — Partnership.—Attorney and Client. — A demand made upon one member of a firm of attorneys is a demand upon all. p. 419.</p> <p>10. Appeal. — Set-Off. — Mandate. — Modification. — Where a just, definite set-off is excluded from the amount of the plaintiff’s judgment, the Appellate Court may modify its mandate ordering a new trial, and may order final judgment, upon the filing of a remittitur by plaintiff for such amount, p. 420.</p>

<p>From Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Suit by John W. Scott and another against the Cleveland, Cincinnati, Chicago & St. Bonis Railway Company and another. From a decree for plaintiffs, defendants appeal.</p>

<p>1. Infants. — Incorrigible. ■ — ■ Juvenile Courts. — Jury. — Trial.— Criminal Law. — Girls’ Industrial School. — A proceeding in the juvenile court, as provided under the act of 1903 (Acts 1903, p. 516), for the commitment of an eleven-year old girl to the Girls’ Industrial School, as provided by section one of the act of 1903 (Acts 1903, p. 91, §8273 Burns 1905), is not a criminal action; and such girl is not entitled to a jury trial, p. 433.</p> <p>2. Same. — Juvenile Courts. — Jurisdiction.—The jurisdiction exercised by the juvenile courts is of the same character as that exercised by the chancery courts over the persons and property of infants, and flows from the general power and duty of the state to protect children who have no other lawful protector. p. 434.</p> <p>3. Parent and Child. — Custody. — Rights of State. — Parents are the lawful custodians of their children; but when their conduct renders them unfit to have such custody, it is the duty of the state to intervene, p. 434.</p> <p>4. Appeal.' — Right of . — Statutes.—The right of appeal is statutory. p. 434.</p>

<p>1. New Trial. — As of Right. — Partition.—Quieting Title. — In an ordinary suit for partition, where the title is not put in issue, a new trial as of right cannot be demanded, p. 435.</p> <p>2. Same. — As of Right. — -Trusts.—In a suit by plaintiff against her step-father to establish a trust in land, although the title to such land is in controversy, a new. trial as of right cannot be demanded, whether such trust be express, resulting or constructive. p. 436.</p> <p>3. New Trial. — As of Right. — Joinder of Causes. — Where two causes are joined, in one of which a new trial as of right is not demandable, a new trial as of right is not demandable as to the other, p. 438.</p> <p>4. Same. — As of Right. — Cross-Complaint.—Issues.—A new trial as of right is not demandable on a cross-complaint asking partition and for the establishment of a trust in land, where the issues made thereon as to title are not separable from the other issues in the case. p. 438.</p>

<p>Erom Greene Circuit Court; Orion B. Harris, Judge.</p> <p>Suit by Winnie E. Bonham against Luther P. Doyle and others. Erom a decree for defendant Doyle, plaintiff appeals.</p>

From Olay Circuit Court; George A. Knight, Special Judge. Liquor remonstrance by Isaac B. Anderson and others. From a judgment of the circuit court in favor of George F. Weber, holding such remonstrance insufficient, remonstrants appeal.

<p>1. Statutes. — Sales.—Swamp Lands. — Deeds.—Quantity Conveyed. — Under the act of 1852 (1 R. S. 1852, p. 471), providing for the sale and conveyance of swamp lands, it was the manifest intention to sell a specific number of acres and at not less than $1.25 per acre. p. 452.</p> <p>2. Same. — Construction. — Sales. — Swamp Lands. — Public Officers. — -The act of 1852 (1 R. S. 1852, p. 471), providing that certain officers should sell the swamp lands belonging to the State, should be strictly construed in favor of the State, p. 452.</p> <p>3. Deeds. — Swamp Lands. — Amount Conveyed. — Statutes.—A deed conveying certain designated swamp lands fronting on a morass, as authorized by the act of 1852 (1 R. S. 1852, p. 471), does not convey title to any part of such morass, especially where the grantee, and later, his heirs, claimed title only to the designated swamp land. Tolleston Club v. State, 141 Ind. 197, and Tolleston Club v. Clough, 146 Ind. 93, distinguished. p. 452.</p> <p>4. Boundaries. — Official Surveys. — Meander Lines. — Deeds.— Meander lines in an official survey are not usually boundary lines, but are ordinarily used as a means of determining the quantity of land in the fractional tract, p. 453.</p> <p>5. Same.' — Deeds.—Swamp Lands. — Statutes.—The sale, by the State, of certain described lands bordering on a morass, being divided therefrom by a meander line officially established, confers title on the grantee only up to such meander line, and he obtains no title thereby to the morass, the statute (1 R. S. 1852, p. 471) directing sales to be made by the acre and at a specific price per acre. p. 454.</p>

<p>1. Contracts. — Written.—Implications.—Parol.—A contract, between lessees of certain grounds and a street railway company, for the purpose of arranging for the construction and conduct of an “electric park,” stipulating that “it is necessary that aid and assistance be extended” to such lessees by such company, imports that such company will aid in the construction of such park; and such agreement relative thereto might rest in parol, p. 460.</p> <p>2. Partnership. — Definition.—“Partnership” imports “the relation subsisting between two or more persons who have contracted together to share as common owners the profits of the business carried on by all or any of them on behalf of all -of them.” p. 460.</p> <p>3. Partnership. — Intention.—The fundamental question in determining whether a partnership exists, is to ascertain the real intention of the parties, p. 460.</p> <p>4. Same. — Intention.—How Ascertained. — The real intention of parties to create a partnership is to be deduced from all of their acts; and their purpose not to create a partnership, though expressed in terms, is not controlling, where the facts are otherwise, p. 460.</p> <p>5. Same. — Test.—Profits.—The true test of a partnership is the parties’ co-ownership of the profits as proprietors of the business. p. 461.</p> <p>6. Same. — Partners.—Estoppel.—A person who knowingly suffers himself to be represented as a partner is estopped to assert the contrary to one who was induced thereby to extend credit to the firm. p. 461.</p> <p>7. Estoppel. — Knowledge of Truth. — No estoppel lies in favor of a plaintiff who knew the truth before the transaction in suit, p. 461.</p> <p>8. Partnership. — Partners.—Estoppel.—Indemnity.—A person holding himself out as a partner, though the creditor knew that such person was to be indemnified by the real partners, is estopped to deny that he was a partner,.but is primarily liable to such creditor, the indemnitors being liable to him. p. 461.</p> <p>9. Same. — Parties. — Corporations. — A corporation has no power to enter into a partnership, unless its charter or the statute confers same. p. 462.</p> <p>10. Same. — Corporations.—Estoppel.—A corporation, though it may not lawfully become a partner, is estopped to deny that it is, in an action by a third person against it for the enforcement of a contract made for the furtherance of the objects of its creation, p. 462.</p> <p>11. Same. — Street Railroads. — Electric Parks. — A contract by a partnership, of which a street railroad company was a member, to construct the buildings for an “electric park,” one motive being the increase of such company’s traffic, renders such company liable, by estoppel, for the cost of such construction, p. 462.</p> <p>12. Contracts. — Ultra Vires. — Illegal.—Corporations.—A contract made by a corporation, because of which others have been induced to expend money, binds such corporation, where such contract is merely ultra vires, and not illegal, p. '462.</p> <p>13. Partnership. — Street Railroads. — Electric Parks. — A street railroad company which contracts with'owners of an “electric park” to assist them in constructing such park, in consideration of a share in the profits to be derived, is liable to the building contractors of such park, though it has no interest in the ownership thereof, p. 463.</p> <p>14. Same. — Street Railroads. — Electric Parks. — Contracts.— Construction by Acts. — A contract by which a street railroad company was to give help and asistance to the owners of an “electric park” in consideration of certain profits, will be construed in the light of the subsequent conduct of the parties, in determining what was meant thereby, p. 464.</p> <p>15. Same. — Street Railroads. — Estoppel. — Where a street railroad company enters into a contract with the owners of an “electric park” to give assistance in the construction of necessary buildings, because of which plaintiff constructed such buildings, largely under the direct supervision of the officers of such company, such company cannot be heard to deny its liability therefor, p. 464.</p> <p>16. Corporations. — Ultra Vires Acts. — Personal Liability of Officers. — Where a street railroad company is held liable on account of a partnership entered into by it ultra vires, its officers cannot be held liable on the ground that they acted without authority in the partnership transaction, p. 467.</p>

<p>1. Judgment. — Form of. — Guardian and Ward. — Real Property. —Title.—Parties.—The ward is not a necessary party with his guardian, in an action to recover • possession of real estate, but the judgment, sustaining the guardian’s action, should be taken in the name of the ward. p. 469.</p> <p>2. Appeal. — Parties. — Death before Appeal. — Where a party, in whose favor judgment is rendered, dies before appeal, the person in whose favor the action might have been revived, if death had occurred before judgment, is the proper party appellee, p. 469.</p> <p>3. Guardian and Ward. — Death of Ward. — Effect.—The death of the ward ends the guardianship; and the only duty left to the guardian is to make his final report, unless the personal estate amounts to $500, or less, in which event it is the guardian’s duty to settle such estate without letters of administration. p. 469.</p> <p>4. Abatement aNd Revival. — Parties.—-Real Property. — Actions to recover possession of real estate, upon the death of a party, revive in favor of the heirs at law. p. 469.</p> <p>5. Appeal. — Guardian and Ward. ■ — • Death of Ward before Appeal. — Real Property. ■ — ■ An appeal from a judgment in favor of the ward for the recovery of real property, where the ward dies after judgment and before appeal, is a nullity, where the guardian only is made the appellee.' p. 470.</p> <p>6. Same. — Assignment of Errors. — Amendment by Substitution of Party after Expiration of Year. — The assignment of errors cannot be amended after'the expiration of the year within which the appeal must be taken, by the substitution of a different appellee, p. 470.</p> <p>7. Same. — Parties.—Guardian.-—Whether Service on, Official or Personal. — Service of notice of an appeal on a guardian in her official capacity is not service upon such guardian in her personal capacity, p. 470.</p> <p>8. Appeal. — Extension of Time for Taking. — Fraud.—The time for taking an appeal will not be extended by the Appellate Court, except in a clear case of fraud; and the failure of a guardian to inform appellants of the death of her ward, who died before appeal, and in whose favor judgment had been rendered, does not constitute fraud, though such ward did not live in their vicinity, p. 471.</p>

<p>1. Negligence. — Elements.—Pleading.—A complaint for negligence must show (1) the existence of a duty from defendant to the plaintiff, (2) defendant’s breach of such duty, and (3) resulting injuries to plaintiff, p. 476.</p> <p>2. Pleading. — Complaint.—Street Railroads. — Unsafe Place to Alight. — A complaint against a street railroad company for damages sustained by a passenger by reason of compelling her to alight at an unsafe place, which fails to show that the track was built above the established street grade, or that the company was negligent in the construction or operation of the car, or that the place of alighting was improper or dangerous, or that a better place was obtainable, or that the depression in the street at the place of alighting was caused by the company, or that plaintiff was infirm and unable, without aid, to alight, to the knowledge of the company, is insufficient; and such company is under no duty to furnish an extra step to enable plaintiff, under the circumstances, to alight, p. 477.</p> <p>3. Same. — Complaint.—Street Railroads. — Duty to Assist in Alighting. — A complaint against a street railroad company for damages for failure to assist an infirm woman in alighting must show that such woman was infirm and that the company’s servants knew such fact, mere allegations that she was 50 years old, five feet high, and weighed between 185 and 200 pounds being insufficient to show infirmity as a matter of law. p. 478.</p> <p>4. Same. — Complaint.—Street Railroads. — Grade.—Negligence. —A complaint showing that the street ear tracks were one foot above the surface of the street does not show negligent construction on the part of the company, since the surface of the street may have been below the established grade, p. 479.</p> <p>5. Pleading. — Complaint.—Street Railroads. — Unsafe Place to Alight. — A complaint showing that the street, at the point where plaintiff was compelled to alight from defendant street railroad company’s car, had an “excavation or pit-fall,” without showing that because thereof plaintiff sustained injuries, is bad. p. 479.</p> <p>6. Street Railroads. — Unsafe Place to Alight. — Notice.—A street railroad company which discharges its passengers at a dangerous and unsafe place, known to it, but unknown to them, is liable for injuries suffered thereby, p. 479.</p> <p>7. Pleading. — Complaint.—Averment of Facts Showing Contributory Negligence. — A complaint for negligence which avers specific facts affirmatively showing contributory negligence, is insufficient on demurrer, p. 480.</p> <p>8. Street Railroads. — Passengers. — Alighting at Unsafe Place. — Contributory Negligence. — A person attempting to alight from a street car on a city street, where the street is depressed, thus making a longer step to the surface than usual, is guilty of contributory negligence, where she has the same means of knowledge thereof as the street railroad company. p. 481.</p> <p>9. Negligence. — Contributory.—Dangers. — Notice. — Presumptions.- — Plaintiff is presumed to see and heed what she could have seen, and a failure therein constitutes negligence on her part. p. 481.</p>

<p>1. Trial. — Quieting Title. — Special Findings. — How Considered on Appeal.■ — The special findings in a quiet-title case must be considered with reference to the law requiring plaintiff to recover upon the strength of his own title, to prove the allegations of his complaint by a preponderance of the evidence, to present facts and not mere evidence or conclusions in the special findings, facts not found being taken as not proved, p. 490.</p> <p>2. Deeds. — Descriptions. — Contradictions. ■ — • A deed describing the land conveyed as “60 acres off the south end of” a certain quarter section, and further describing it as “commencing at the southwest corner of said west half of said southwest quarter, running thence north 120 rods, thence east 80 rods, thence south 120 rods, thence west 80 rods to the place of beginning,” is contradictory, where. such quarter section was 20.90 chains wide across the south end and 20.77 chains wide across the north end; and either of such descriptions standing alone would be sufficient, p. 491.</p> <p>3. Same. — Descriptions.—General.—Particular.—Words of particular description in a deed control general terms of description where both cannot stand together, p. 491.'</p> <p>4. Same. — Descriptions.—General.—Particular.—A prior definite general description in a deed controls a subsequent, limiting particular description in such deed, unless the particular description purports on its face to be a limitation of such general description, p. 491.</p> <p>5. Same. — Descriptions.—Contradiction.—Election.—Where two different descriptions are set out in a deed, the grantee may elect which description he will accept, but, to give effect to such election, he must manifest same by some appropriate conduct, p. 493.</p> <p>6. Same. — Descriptions.—Uncertain.—Oral Evidence to Explain. —Where the description in a deed is so imperfect as to leave the intent uncertain, the declarations and acts of the parties are’ admissible in evidence to clear up the uncertainty, p. 493.</p> <p>7. Evidence. — Oral.—Contradicting Deeds. — Oral evidence is admissible to show which of two conflicting descriptions in a deed is true, although such evidence does contradict one of such descriptions, pp. 493, 497.</p> <p>8. Deeds. — Descriptions.—Contradiction.—A deed describing the granted land as “20 acres off of the north end of the west half of the southwest quarter” of a certain section “being 80 rods east and west and 40 rods north and south, containing 20 acres of land, more or less, being all of said west half not sold” to another grantee, is contradictory, where such quarter section was 20.77 chains wide across the north end and extended more than 40 rods south to the lands of such former grantee; and either of such descriptions standing alone would be sufficient, p. 494.</p> <p>9. Same. — Descriptions. — Doubts. — Where a description in a deed is doubtful, such doubt must be resolved against the grantor, p. 496.</p> <p>10. Same. — Descriptions.—Doubts.—A deed to “20 acres off of 'the north side” of a certain tract of land, being all of the land in said tract not theretofore conveyed, conveys title to all of such undisposed of tract, though it contains more than “20 acres.” p. 496.</p> <p>11. Boundaries. — Fences. —■ Deeds. — Contracts.—Principal and Agent. — Husband and Wife. — An agreement between the husband and an adjoining land owner, without the wife’s knowledge or consent, as to the building of a partition fence on a disputed boundary line between her land and that of such adjoining owner, is not binding on her. p. 496.</p> <p>12. Evidence. — Deeds. — Records.—Defective Acknowledgments. —Justices of the Peace. — Curative Statutes. — The curative statute of 1891 (Acts 1891, p. 336) cures any defect in a prior acknowledgment of a deed by a justice of the peace; and the record of such deed is admissible in evidence, p. 497.</p> <p>13. Same. — Deeds. — Boundaries. — The owner of a part of a tract, who has all of the land called for by his deed cannot complain of the admission, in evidence, of deeds tending to increase the adjoining proprietor’s tract, where none of such owner’s part is taken, p. 497.</p> <p>14. Estoppel. — Deeds.—Boundaries.—The fact that the owner of the north part of a tract of land took a quit-claim deed, from a remote grantor, to a small tract of land, the title to which was in dispute between such owner and the owner of the south part of such tract, does not estop such north owner from claiming such disputed piece under the prior deed where such deed gave it to him. p. 498.</p>

<p>From Huntington Circuit Court; Orlando H. Whiteloch, Special Judge.</p> <p>Suit by James M. Hatfield and another against George A. Mahoney and another. From a decree for defendants, plaintiffs appeal.</p>

Erom Marion Circuit Court (12,644) ; Iienry Clay Allen, Judge. Action by Eunice J.’ Cobler, as administratrix of the estate of Marshall F. Cobler, deceased, against the Chicago, Indianapolis & Louisville Railway Company. Erom a judgment for plaintiff on a verdict for $4,500, defendant appeals.

<p>From Boone Circuit Court; Samuel B. Artman, Judge.</p> <p>Action by William S. Coyner against the Indianapolis Street Railway Company. From a judgment on a verdict for plaintiff for $5,000, defendant appeals.</p>

From Johnson Circuit Court; W. J. Buckingham,, Judge. Action by John C. Ferrell, by his next friend, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment on a verdict for plaintiff for $900, defendant appeals.

<p>From Dubois Circuit Court; E. A. Ely, Judge.</p> <p>Action by Rosa M. Schnell against Peter Schnell. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Municipal Coepoeations. — Investigation of School City by Civil City. — Statutes.—Section 3478 Burns 1905, Acts 1905, p. 219, §54, providing that “the common council of every city shall have power to supervise and investigate all departments, officers and employes of the government of such city, and to examine into any charge preferred against them or any of them,” does not authorize a city council to investigate the acts of the city school trustees, pp. 570, 573.</p> <p>2. Statutes. — Construction.—Public Interest. — While a statute made in the public interest is to be liberally construed, it cannot be extended by judicial construction so as to include an intention not fairly within its purview, p. 570.</p> <p>3. Municipal Coepoeations. — Powers.—Municipal corporations have only the following powers: (1) Those expressly granted, (2) those necessarily implied from those granted, and (3) those indispensably essential to the declared objects thereof, p. 571.</p> <p>4. Schools. — Cities.—The school city is a distinct corporation from the civil city, and is an agent of the State for the support and management of the public schools therein, p. 571.</p> <p>5. Same. — Cities.—Trustees.—School trustees for cities are elected by the common councils of the respective cities; and they have charge of the schools in their respective political districts. p. 571.</p> <p>6. Same. — Cities. — Trustees.—Reports.—Boards of Commissioners. — It is the duty of the school trustees of the various cities to report their financial doings annually to their respective boards of commissioners, whose duty requires them to examine and correct such reports, and if not adjusted, to cause an action to be instituted on such trustees’ official bonds, p. 572.</p> <p>7. Same. — Cities.—Schoolhouses.—The law provides a special procedure for the erection of schoolhouses by city school trustees. p. 572.</p> <p>8. Same. — City Trustees. — Investigation of Acts of. — The board of commissioners, and not the city council, is the proper party to investigate alleged misdoings of the school trustees of a city. p. 573.</p>

Erom Clinton Circuit Court; Joseph Claybaugh, Judge. Action by Samuel Van Cleave, as administrator of the •estate of Mary Van Cleave, deceased, against the City of Crawfordsville. From a judgment on a verdict for plaintiff for $3,800, defendant appeals.

<p>1. Pleading. — Complaint.—Action upon Judgment. — A complaint to enforce a judgment of a sister state, which sets out such judgment and alleges that the court rendering same had jurisdiction over the parties, is sufficient, p. 579.</p> <p>2. Evidence. — Transcript of Sister-State Judgment. — Requirements. — A transcript of a sister-state judgment, authenticated in accordance with §§458, 479 Burns 190.1, §§454, 472 R. S. 1881, and setting out a personal judgment rendered by a circuit court of such state, is admissible in evidence, and prima facie shows the existence of a debt of the amount shown thereby, p. 579.</p> <p>3. Judgment. — Sister-State.—Presumptions of Regularity. — All presumptions and intendments are indulged in favor of the correctness, regularity and validity of a sister-state judgment, p. 580.</p> <p>4. Same. — Courts of Record. — Jurisdiction.-—Presumptions.— Where the transcript of a sister-state judgment shows that the judgment was rendered by a court of record, the presumption is that such court had jurisdiction of the parties and subject-matter, and that it rightfully rendered such judgment, p. 580.</p> <p>5. Jurisdiction. — Presumptions.—Collateral Attack. — While the presumption is that a sister-state court of record had jurisdiction when it rendered the judgment sued on in this State, such jurisdiction is subject to a collateral attack, p. 580.</p> <p>6. Judgment. — Outside of Issues. — Validity.—A judgment determines all issues which were or might have been litigated in the case; but a judgment wholly outside of the issues presented, is void. p. 581.</p> <p>7. Same. — Parties.—Jurisdiction.—Equity.—In a suit in equity in a circuit court in Wisconsin, in which plaintiffs sought the cancelation of certain notes because of defendants’ fraud in the execution thereof, a judgment for damages, instead of a decree of cancelation, against certain defendants is not void for want of jurisdiction, where the complaining defendants appeared, filed answers, and tried the case on the merits, p. 585.</p> <p>8. Same. — Equity. — Issues.—Fraud.—Cancelation.—A Itemative Relief in Damages. — In a suit for the cancelation of certain notes, where the evidence shows fraud in the procurement thereof, and that they were wholly without consideration, but that they were in the hands of a bona fide holder for value, the trial court may render a personal judgment in damages for the amount of such notes in favor of the defrauded parties, where the complaint prayed, among other things, “for such other and further order, judgment and relief as the court, upon the proof, may deem just and equitable.” p. 585.</p> <p>9. Same. — In Equity. — Character of. — The court, in an equity case, can mould its decree in any manner that justice requires, or it may render a judgment at law where the relief sought in equity is not available, p. 585.</p>

<p>1. Pleading. — 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. 588.</p> <p>2. Same. — Affirmative Answers. — Burden of Proof. — Where no general denial to the complaint is filed, the burden is upon defendant to establish the allegations of his affirmative an-' swers, the truth of the complaint being conceded, p. 589. ■</p> <p>3. Insurance.- — ■Policies.—Void Clauses. — Meaning, of. — The breach of a clause in an insurance policy does no.t ipso facto render such policy void, though the strict terms thereof so provide, but simply renders it voidable at the election of the company. p. 589.</p> <p>4. Pleading. — Answer.—Insurance.—Breach of Void Clause.— Election. — An answer, in an action on an insurance policy, that assured made certain misrepresentations and that by reason thereof the policy was rendered void by its terms, is insufficient, since it fails to show an election by the company to avoid the policy on account of such breach and fails to show a return of the unearned premium, p. 589.</p> <p>5. Contracts. — Void. ■ — • Voidable. — Fraud.—Rescission.—Election. — A contract induced by fraud is not void, but simply voidable at the election of the defrauded party; and a rescission thereof can be made by such party only by returning the value received by him. p. 589.</p> <p>6. Pleading. — Insufficient Answer. — Insufficient Reply. — A bad reply is good enQugh for a bad answer, p. 589.</p> <p>7. Same. — Argumentative Denial. — Demurrer.—It is not erroneous to overrule a demurrer to a reply consisting of an argumentative denial of the answer, p. 590.</p> <p>8. Same. — Argumentative Denial. — Confession.—An argumentative denial cannot be construed as a confession of the facts denied, p. 590.</p> <p>9. Insurance. — Breach of Policy. — Rescission.—Election.—Judgment. — Answers to Interrogatories. — Where the answers to the interrogatories to the jury show that the assured falsely represented that he was not addicted. to the use of intoxicating liquors, but fail to show a rescission or a return of the premium, defendant is not entitled to judgment thereon, as against a general verdict for plaintiff, p. 590.</p> <p>10. Same. — Misrepresentations.—Knowledge by Agent. — A company cannot evade responsibility on its policy issued to a person addicted to the use of liquor, where its agent knew of such fact, solicited such insurance and received and retained his money, p, 591. '</p> <p>H;r Same. — Public Policy. — It is against public policy to permit an' insurance company to profit through the fraud of its agent, p. 591.</p> <p>12. New Trial. — Insurance.—Fraud ■ of Agent. — Rescission.— Election.- — A new trial because of insufficient evidence will not ' be granted to an insurance company, where there was some, evidence showing fraud on the part of the company’s agent in ■ obtaining the insurance, and also that the company, upon learning of the breach of its policy, failed to rescind, p. 591.</p> <p>13. Trial. — Instructions. — Issues.—Insurance.—Fraud.—In an action on an insurance policy, where fraud is pleaded as a defense, the company is not entitled to instructions on the question of a breach of warranty, p. 592.</p> <p>14. Evidence. — Exclusion of. — When Harmless. — It is harmless error for a court to exclude evidence of a fact which the jury, in its answers to interrogatories, finds in favor of the party offering such evidence, p. 592.</p>

<p>1. Appeal. — Trial.—Decisions.—Res Judicata as to what Questions. — A decision of the Supreme or Appellate Court is res judicata as to the points that are decided, but not as to others presented and not decided, p. 596.</p> <p>2. Same. — Decisions.—Points Arising. — Constitutional Law.— The constitutional provision (Art. 7, §5) that “the Supreme Court shall upon the decision of every case, give a statement in writing of each question arising in the record of each case, and the decision of the court thereon,” means such questions presented by the record and necessary to a decision of the case in the Supreme Court, p. 596.</p> <p>3. Same. — Reversals.—Number Permitted. — The losing party has the right to appeal and secure a reversal of the judgment against it as often as such judgment is wrongful or unfair, p. 597.</p> <p>4. Trial. — Complaint. — Paragraphs. — Judgment.—Interrogatories to Jury. — Conflict.—Where a complaint for damages, in the first two paragraphs, alleged negligence, and in the third, wilfulness, and an answer to an interrogatory to the jury showed that the motorman of defendant street railroad company purposely ran the car against plaintiff, and another answer showed that such motorman did not see plaintiff as he was about to enter upon the track, the Appellate Court cannot determine on which paragraph the jury rested the verdict, such answers being contradictory, p. 597.</p> <p>5. Trial. — Verdict.—Venire de Novo. — A motion for a venire de novo lies only where the verdict is uncertain or inconsistent, p. 598.</p> <p>6. Same. — Complaint. — Paragraphs. — Judgment. — Motion to Modify. — Overruling a motion asking the court to modify the judgment by indicating upon which of three paragraphs of complaint the same was rendered, is harmless error, where the plaintiff was entitled to judgment on one of them, since defendant’s burden was not increased thereby, p. 598.</p> <p>7. Evidence. — Exclusion of. — Conflict.—Street Railroads. — Due Care of Traveler. — The court cannot disregard the plaintiff’s testimony that he looked for the coming of a car, while he was approaching a street crossing on his bicycle, but could see none, and that when he was on the track, a car without headlight struck him, inflicting serious injuries, although defendant’s as well as plaintiff’s other witnesses testified that, under their particular circumstances, the car was visible, p. 600.</p> <p>8. Negligence. — Contributory.—Street Railroads. — Bicyclists.— It does not constitute contributory negligence, as a matter of law, for a bicyclist to cross a street-car track in the night without alighting and looking intently in both directions to observe approaching cars. p. 600.</p> <p>9. Street Railroads. — Bicyclists.—Use of Streets. — Headlights. —Street railroad companies and bicyclists have reciprocal rights in the use of the streets, and bicyclists have the right to assume that street cars will be equipped with headlights. p. 601.</p> <p>10. Same. — Crossings.—Travelers.—Due Care. — The same degree of care, required of travelers at steam railroad crossings in the country, is not required of travelers in crossing in front of a street car on a street crossing, p. 601.</p> <p>11. Same. — Travelers.—Street-Crossing Accident. — Contributory Negligence. — A-bicyclist, struck by a street car at a crossing, is not guilty of contributory negligence as a matter of law because he could hear the noise of such car, but thought the noise to be that of a car which had just passed, p. 601.</p> <p>12. Street Railroads. — Negligence.—Collisions.—A street railroad company, running a car without a headlight and because thereof ran it against the plaintiff, who was crossing its tracks and exercising due care, is guilty or negligence, p. 602.</p> <p>13. Trial. — Instructions.—Duplication of. — It is not erroneous to refuse to give an instruction where the substance thereof has been given in other instructions, p. 602.</p> <p>14. Street Railroads. — Headlights.—Knowledge by Company.— Presumptions. — A street railroad company is conclusively presumed to know that the headlight on one of its cars was not burning, where its motorman stood in the front vestibule and controlled the car. p. 602.</p> <p>15. Trial. — Answers to Interrogatories to Jury. — Motion tc Make Specific. — A motion to make more specific answers to certain interrogatories should be overruled, where definite answers covering such interrogatories are made to other interrogatories, p. 603.</p> <p>16. Evidence. — Declarations Among Others. — Street Railroads. —Conductors.—The admission in evidence of a declaration that “there is a man under the car,” made by a witness to the conductor of defendant’s street car, is harmless, where there is no dispute that at that time the plaintiff was being dragged under the fender of such car. p. 603.</p> <p>17. Same. — Appearance of Car Track on Morning after Accident. — It is harmless.error to admit evidence of the appearance of the street-car track the next morning after the accident complained of, where the evidence shows without dispute that plaintiff was dragged along such track, p. 603.</p> <p>18. Same. — Opinions.—Loss of Senses of Taste and Smell. — The admission of opinion evidence, by plaintiff’s wife, that plaintiff had lost the senses of taste and smell, is harmless, where plaintiff’s testimony that he had lost such senses was not disputed, p. 604.</p>

<p>1. Appeal.; — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, p. 606.</p> <p>2. Railroads. — Highway Crossings. — Negligence.—Contributory. —Question for Jury. — Whether a railroad company was guilty of negligence in permitting a rut to remain in a highway crossing, and whether plaintiff was guilty of contributory negligence in failing to observe same when he drove into it with a load of sewer-pipe in the daytime, thereby causing his wagon to tip and the sewer-pipe to fall over and seriously injure him, are questions for the jury. p. 609.</p> <p>3. Negligence. — Contributory.—Knowledge of Defects. — Knowledge of a defect in a highway crossing, by a person driving over the same in the daytime, does not conclusively render him guilty of contributory negligence, p. 610.</p> <p>4. Negligence. — Contributory. — Knowledge of Defects. — If a known danger is so great that an ordinarily prudent person would not incur the risk thereof, the person injured thereby is guilty of contributory negligence as a matter of law. p. 610.</p> <p>5. Trial. — Answers to Interrogatories to Jury. — Contributory Negligence. — Answers to interrogatories to the jury showing that plaintiff, while riding on the top of a sewer-pipe, with one foot within same, such tile standing uprightly on the top of another, was injured because one wheel of his wagon fell into a rut, thereby causing the tile to fall on him, and that, except for such rut, the injury would not have occurred, are not in irreconcilable conflict with a general verdict for plaintiff. p. 610.</p> <p>6. Same. — Instructions.—Contributory Negligence. — Question for .Jury. — It is not error to refuse an instruction charging that certain specific acts constitute contributory negligence as a matter of law, but all of the facts involved in plaintiff’s con- ' duct should be considered, the question being one of fact for the jury. p. 611.</p> <p>7. Same. — Instructions.—Contributory Negligence. — Question for Jury. — It is not error to refuse to instruct the jury that riding on a sewer-pipe, loaded in such manner that if the wheel of the wagon should drop into a rut, or if the wagon should go down an incline, such pipe would fall, constitutes the person riding guilty of contributory negligence as a matter of law, since the question is whether an ordinarily prudent man would so ride, and such question is for the jury. p. 612.</p> <p>8. Same. — Instructions.—Duplication of. — Where requested instructions have been substantially given in others, they should be refused, p. 612.</p>

Erom Clark Circuit Court; Ha/rry G. Montgomery, Judge. Appeal by Samuel P. Kelly from an order of the board of commissioners allowing John W. Lawson a claim. Erom an order of the circuit court dismissing the appeal, appellant again appeals.

<p>1. Negligence. — Elements.—To constitute actionable negligence, there must be a duty owing from defendant to plaintiff, a breach of such duty by defendant, and proximately resulting injuries to plaintiff, p. 620.</p> <p>2. Pleading. — Complaint.—Negligence.—Duty.—How Alleged.— An averment in a complaint that it was defendant’s duty to do certain things is merely a conclusion, good pleading requiring the facts from which the duty arises to be set out. p. 620.</p> <p>3. Same. — Complaint.-—Master and Servant. — Safe Place. — A complaint for the negligence of the master, which states facts from which such master’s breach of a non-delegable duty to provide a safe place may be inferred, is good. p. 620.</p> <p>4. Pleading. — Complaint.—Master and Servant. — Safe Place.— • Mines. — A complaint by the servant, showing that he was employed to haul coal out of the cross-entries in a coal mine; that the master failed to provide any flagman or signal to prevent a collision between him and the main-entry haulers; that because thereof, plaintiff, without any notice, and in the darkness, came in collision with a main-entry hauler and sustained injuries thereby, states a cause of action, p. 620.</p> <p>5. Same. — Complaint.—Master and Servant. — Safe Place. — Alternative Allegations. — A complaint by a servant in a coal mine, alleging that defendant neglected to station a watchman at the junction of the cross-entry road with the main-entry road, or to provide any system of signals, and that no precautions whatever were taken to prevent a collision between the drivers on the two roads, sufficiently shows that neither a watchman .nor a system of signals was provided, p. 621.</p> <p>6. Same. — Complaint.—Master and Servant. — Assumption of Risk. — A complaint showing that the servant was employed to haul coal out of a cross entry in a coal mine; that no watchman nor system of signals was provided to prevent a collision between such servant and the haulers in the main entry; that because thereof such servant, without any notice that a watchman or such system of signals had not been provided, received injuries in such a collision, does not show that such servant assumed such risk. p. 622.</p> <p>7. Master and Servant. — Assumption of Risk. — A risk, created by the master by the omission of a precaution which, in the exercise of ordinary care such master should have taken, is not assumed by the servant, p. 622.</p> <p>8. Same. — Assumption of Risk. — Notice of Defects. — To be chargeable with the assumption of a risk, the servant’s knowledge of the defect must be shpwn. p. 622.</p> <p>9. Pleading. — Complaint.—Duty.—Failure to Perform. — Inference of Knowledge. — Where a complaint alleges that defendant failed to do an act which it was its duty to perform, knowledge of its failure is inferred, p. 623.</p> <p>10. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, p. 623.</p> <p>11. Negligence. — Contributory.—Master and Servant. — Mines. —Whether á servant in a coal mine was guilty of contributory negligence in driving out of a cross entry in a coal mine into the main entry in the dark without getting off of his car and trying to ascertain whether any cars likely to cause a collision were coming in the main entry, is a question for the jury, p. 623.</p> <p>12. Appeal. — Trial. ■ — ■ Instructions Not in Record. — Presumptions. — Where the instructions are not a part of the record, the presumption is that they were correct, p. 624.</p>

From Oass Circuit Court; John 8. Lairy, Judge. Miltou Kraus appealed from an order of the Board of Commissioners of the County of Miami to construct a courthouse. From an order dismissing such appeal, he again appeals.

<p>From Clay Circuit Court; Presley O. Golliver, Judge.</p> <p>Action by Thomas Phillips and another against Samuel Jones and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Erom Gibson Circuit Court; O. M. Welborn, Judge.</p> <p>Action by George Vinyard against the Louisville & Nashville Railroad Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Erom Laporte Superior Court; Charles H. Truesdell, Special Judge.</p> <p>Action by Ered Smith against the Inland Steel Company. Erom a judgment for plaintiff, defendant appeals. (Appealed to the Supreme Court under subd. 3, §1337j Burns 1901, Acts 1901, p. 565, §10. See 168 Ind. 245.)</p>

Erom Montgomery Circuit' Court; Harry N. Fine, Judge, pro tem. Suit by Nellie M. Corbin, as administratrix of the estate of John VA. Corbin, deceased, against Ingram D. Hill and others. Erom a decree for defendants, plaintiff appeals.

<p>1. Mechanics’ Liens. — Contracts to Keep Premises Free from. —Subcontractors.—Where a subcontractor covenanted with his contractor to keep the premises on which the proposed building was to be erected free from mechanics’ liens, and the contractor had a similar provision in the contract with the lessee company erecting the building, such subcontractor cannot enforce a mechanic’s lien against either the lessee company erecting such building, or its lessor, but must seek relief from the contractor alone, p. 659.</p> <p>2. Same. — Contracts.—Waiver.—The right to claim a mechanic’s lien may be waived by contract. Reid v. Johnson, 132 Ind. 416, distinguished, p. 661.</p> <p>3. Damages. — Liquidated.—Contracts.—Parties to a contract may fix a certain sum to be paid as liquidated damages in case of a breach of such contract, p. 662.</p> <p>4. Same. — Liquidated. — Conditions Precedent. — Contracts. — Failure to Comply with. — Where a contract between a contractor and a subcontractor provided that for delays occasioned by the subcontractor — which question was to be decided by the architect whose certificate thereof was to be final — the subcontractor should pay such contractor a certain sum per day, such sums cannot be collected except upon the architect’s certificate, and, in the absence thereof, the actual damages only are recoverable, p. 663.</p> <p>5. Same. — Nominal.—Contracts.—Breach.—Where there is no evidence as to the damages caused by defendant’s breach of contract, nominal damages only should be awarded, p. 663.</p> <p>6. Same. — Contracts.—To Take Stock. — Breach.—At What Time Value Should Be Determined. — Where a subcontractor agrees to take a certain amount of stock in a hotel company as part payment for certain work, it is the duty of the contractor to tender such stock at the completion of such work; and if the evidence fails to show such tender, or a sale of such stock, or what had become of same, the subcontractor should be credited with the par value thereof at the time of such completion, such being the actual value at such time. p. 663.</p>

From Hancock Circuit Court; Edward W..Felt, Judge. Action by Rudolph V. Zimmerman, as administrator with the will annexed, of David Bowers, deceased, against Joseph Beatson and others. From a judgment for defendants, plaintiff appeals.

<p>Erom Clay Circuit Court; Presley O. Qolliver, Judge.</p> <p>Action by Charles Apman against the Supreme Council of Knights and Ladies of Columbia and another. Erom a judgment for plaintiff, said council appeals.</p>

<p>1. Trial. — Directing Verdict. — It is error to direct a verdict for defendant, where there is any evidence, or legitimate inferences therefrom, to support a verdict for plaintiff, p. 690.</p> <p>2. Master and Servant. — Place of Work. — Trespass.—Railroads. — A servant engaged in repairing the end wall of a railroad freight-station is not a trespasser in going on and across the ends of the tracks adjacent to such wall in the necessary discharge of his duties, p. 691.</p> <p>3. Same.- — Negligence.—Proximate Cause. — Where a servant put his knee against a bumping-post, in an effort to pitch a tool over the railroad track, and his knee slipped and was caught by a backing freight-car, the backing of such car was the proximate cause of his injury, p. 691.</p> <p>4. Negligence. — Proximate Cause. — What Is. — The proximate cause of an injury is the responsible cause — the cause which is the active, operative, continuing and natural source of the injury. p. 691.</p> <p>5. Master and Servant. — Negligence.—Contributory.—Selecting Dangerous Way. — Question for Jury.. — The Appellate Court cannot hold as a matter of law that a servant was guilty of contributory negligence in attempting to carry a tool between freight-cars standing in the freight-station and the bumping-post, when that was the most direct and least obstructed way, such question being for the jury. p. 692.</p> <p>6. Trial. — Instructions. — Master and Servant. — Negligence.— Contributory. — In an action by a servant for damages caused by the backing of freight-cars against a bumping-post, between which plaintiff’s knee was caught and crushed, an instruction that if his knee was caught because cinders gave way under his foot the verdict should be for defendant is properly refused, since how the knee bent down is immaterial, and since the instruction wholly omits any mention of defendant’s negligence, p. 692.</p> <p>7. Same. — Instructions.—Non-Direction.—Evidence.—-An instruction on the subject of damages which fails to state that the jury must confine itself to the evidence is not misleading where in another instruction the jury was told that it should determine the facts from the evidence, p. 693.</p> <p>8. Trial. — Instructions. — Damages. — Crippled Condition. — Resulting Unpleasantness. — In a personal injury case, where plaintiff’s knee was crushed, resulting in the loss of his leg, an instruction that the jury may consider the fact, if it be one, that “plaintiff will be deprived of the pleasure and satisfaction in life that those only can enjoy who are possessed of a sound body and the free use of all of its members,” is correct, p. 694.</p>

<p>Erom Henry Circuit Court; John M. Morris, Judge.</p> <p>Suit'by John W. Myers against tbe Puritan Oil Company. Erom a decree for plaintiff, defendant appeals.</p>

<p>From Clay Circuit Court; Presley O. Colliver, Judge.</p> <p>Action by Walter K. Pritchard against the Chicago, Indianapolis & Louisville Railway Company. From a judgment for plaintiff, defendant appeals. Transferred to the Supreme Court under Acts 1901, §15, §1337o Burns 1901.</p>

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