Volume 40 — Indiana Appellate Court Reports

<p>From Delaware Circuit Court; Joseph G. Lejfler, Judge.</p> <p>Action by Harry J. McClellan, as guardian of Harvey Rhoades, a person of unsound mind, against the Merchants National Bank. From a judgment for plaintiff, defendant appeals.</p>

<p>From Delaware Circuit Court; Joseph O. Leffler, Judge.</p> <p>Action by Thomas Starr against the Board of Commissioners of the County of Delaware. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Railroads. — Street Crossings. — Duty of Traveler. — Ordinary Care. — A traveler is required to use ouly ordinary care to prevent injury in passing over a railroad street crossing, such care being ■ what an ordinarily prudent person would use under the circumstances. p. 18.</p> <p>2. Same. — Street Crossings. — Travelers.—Loolc and Listen. — It is the duty of the traveler, before crossing a railroad track, to look and listen; and he is presumed to see what he could have seen and to hear what he could have heard, p. 18.</p> <p>3. Same.- — Sti-eet Crossings. — Travelers.—Loolc and Listen. — From What Place. — A traveler in crossing a railroad track must use ordinary care in selecting a place from which to look and listen for approaching trains, pp. 18, 19.</p> <p>4. Railroads. — Grossings.—Failure to Look. — Contributory Negligence. — Failure of a pedestrian to look for an approaching train, while within from ten to thirteen feet of the street crossing, does not, as a matter of law, constitute contributory negligence, p. 18.</p> <p>5. Negligence. — Contributory.—When Question for Jury. — Where the facts are such as to be reasonably subject to diverse inferences, the question of contributory negligence is for the jury. p. 19.</p> <p>6. Trial. — Verdict.—General.—When Anstoers to Interrogatories Control. — The answers to the interrogatories to the jury control the general verdict only when they exclude every reasonable hypothesis consistent with such verdict, which might have been established under the issues, p. 19.</p> <p>7. Railroads. — Negligence.—Contributory.—Street Crossings. — Ordinances. — Where defendant railroad company, in violation of a city ordinance, “kicked” a car, without a 'lookout, over a street crossing at the rate of from ten to fifteen miles an hour, striking the plaintiff, who was crossing the track and who had vainly looked for approaching cars before he crossed a parallel track from ten to thirteen feet away, and who was seen by defendants’ watchman all of the time but was given no warning, such plaintiff is not, as a matter of law, guilty of contributory negligence, p. 19.</p> <p>8. Same. — City Ordinances. — Watchmen. — Presumptions. — A pedestrian has the right to presume, in the absence of evidence to the contrary, that railroad companies will obey city ordinances and that their watchmen at the street crossings will give timely notice of impending danger, p. 21.</p> <p>9. Same. — Negligence.—Contributory.—City Ordinances. — Presumptions. — The failure of a railroad company to obey city ordinances exerts not only a great influence in determining whether the company was guilty of negligence, but also whether the plaintiff was guilty of contributory negligence, p. 21.</p> <p>10. Same. — Flagmen.—Warning.—Travelers using the city streets have a right to rely upon the flagman’s performance of duty in giving notice of danger from the approach of trains, p. 22.</p> <p>11. Same. — “Flying Switches.” — Contributory Negligence. — Question for Jury. — Whether plaintiff was guilty of contributory negligence in crossing a railroad track at a street intersection in front of a “flying switch” is a question for the jury under all of the facts, p. 23.</p>

<p>Prom Daviess Circuit Court; Hileary Q. Houghton,' Judge.</p> <p>Action by Milton Fitzgerald against the Board of Com-, missioners of the County of Daviess. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading.' — Complaint. — Paragraphs. — Sufficiency. — Appeal.—■ Where a demurrer was overruled to a complaint in two paragraphs, and one of such paragraphs is not questioned on appeal, the complaint will be held sufficient, p. 27.</p> <p>2. Same. — Complaint.—I-Iow Drawn. — Recovery.—The complaint should consist of a concise statement of the facts constituting the cause of action, and the recovery must be according to the allegations of the complaint, p. 30.</p> <p>3. Same. — Answer. — Set-Off. — Counterclaim. • — • Whether the defendant’s pleading is an answer, set-off or counterclaim must be determined from the facts stated therein, but it cannot be all. p. 30.</p> <p>4. Same. — Counter claim? — Statutes.—Under §§353, 354 Burns 1901, §§350, 351 R. S. 1881, a "counterclaim is any claim, in favor of defendant, arising out of the subject-matter or transaction set forth by the plaintiff as his cause of action, p. 30.</p> <p>5. AVords and Phrases. — -“Cause of Action.” — Pleading. — The phrase “cause of action,” as used in §353 Burns 1901, §350 R. S. 1881, imports the matter for which an action may be brought, p. 31.</p> <p>6. Action. — Causes for. — Counterclaim.—While defendant cannot have a cause of action against plaintiff, arising out of his wrongs toward plaintiff, he may have a claim against plaintiff, arising out of the same transaction from which plaintiff’s cause arises, p. 31.</p> <p>7. Pleading. — Set-Off.—Counterclaim.—Torts.— Contracts. — Independent torts cannot be made to conrpensate each other by any form of pleading; but a counterclaim arising out of the contract on which plaintiff’s action is based is permissible, p. 31.</p> <p>8. Statutes. — Words and Phrases. — “Transaction.”—Counterclaim. —The word “transaction,” as used in §354 Burns 1901, §351 R. S. 1881, is not synonymous with “contract,” as therein used, but imports something additional, p. 32.</p> <p>9. Words and Phrases. — “Transaction.”—“Contract.”—“Accident.” —“Occurrence.”—A “contract” is a “transaction,” but a “transaction” is not always a “contract,” nor is it synonymous with “accident” or “occurrence.” p. 32.</p> <p>10. Pleading. — Counterclaim.—Same “Transaction.” — How Determined. — In determining whether defendant’s counterclaim arises out of the same “transaction” as plaintiff’s cause of action, both the complaint and the counterclaim will be considered, p. 33.</p> <p>11. Words and Phrases. — “Transaction.”—Meaning.—The word “transaction” imports the management or settlement of an affair; that which is done; the conducting of a business; a negotiation; a proceeding; the performance of a matter of business; and it is not confined to a single day or place, p. 33.</p> <p>12. Pleading. — Counterclaim.—Coal Mines. — Conversion. — Where the adjacent owners of coal undertake to separate their coal in the mine and each to mine to the lino, but each ■ invades the other’s territory, and one files an action for conversion, the other may file a counterclaim and have their rights adjudicated in the same action, p. 34.</p> <p>13. Asstjmxsit. — Waiver of Tort. — Conversion.—Assumpsit lies to recover upon the implied promise to pay the value of coal wrongfully taken by defendant from plaintiffs land, the action in tort being waived, p. 36.</p> <p>14. Pleading. — Complaint.—Conversion.—Elements.—Assumpsit. — A complaint showing that defendant wrongfully, unlawfully, but by mistake and inadvertence, mined and appropriated plaintiffs’ coal, states an action in conversion and not in assumpsit, p. 36.</p> <p>15. Action. — Contracts.—Torts.—Counterclaim.—Where the facts warrant the plaintiffs in bringing an action in tort or in assumpsit, his election to bring it in tort does not deprive defendant of his right to file a counterclaim arising out of the same transaction, p. 36.</p> <p>16. Pleading. — Counterclaim.—When Proper. — The courts, in order to avoid a multiplicity of actions, adopt a liberal rule regarding counterclaims; and if the defendant has a claim connected with plaintiff’s cause of action, he may assert it as a counterclaim, p. 37.</p>

<p>1. Pleading. — Complaint.—Railroads.—Street Crossings. — A• complaint alleging that plaintiff relied upon an electric bell maintained by defendant company at a certain street crossing to give her warning; that such bell was out of repair and gave no warning; that she looked and listened for an approaching train, but could not see or hear any, and that she proceeded carefully and without negligence on her part, but was struck by defendant’s train and injured, is sufficient, p. 42. ■</p> <p>2. Trial. — Verdict.—General.—Answers to Interrogatories. — Which Controls. — Where the answers to the interrogatories to the jury are not in irreconcilable conflict with the general verdict, the latter prevails, p. 43.</p> <p>3. Same. — Instructions.—Railroads.—Street Crossings. — Failure of Signal Bell to Ring. — An instruction that if defendant railroad company’s signal bell at a street crossing had been out of order so long that the company should have known of it, and it failed to repair it, it was guilty of negligence, is not prejudicial to defendant, though there was no evidence that the bell was out of repair, the presumption being that the jury found in defendant’s favor on such fact. p. 43.</p> <p>4. Same. — Instructions.—Burden of Proof. — Contributory Negligence. — An instruction, in a personal injury ease, that the plaintiff must be freeJErom fault; that the presumption is that in crossing a railroad track she used the degree of care required by law; that such presumption may be removed by the evidence, and the burden “to remove that presumption” is on the defendant, is not • misleading, p. 43. ,</p> <p>5. Same. — Instructions.-—Peremptory.—Where the evidence, in a personal injury case, shows that plaintiff watched defendant’s signal bell at the street crossing and it did not ring; looked and listened for approaching trains, but neither saw nor heard any; that while her horses were nearing and partly on the track defendant's train approached at the rate of sixty miles an hour, inflicting injuries on her, a peremptory instruction for defendant should be refused, p. 44.</p> <p>6. Same. — instructions.-—-Contributory Negligence. — Loolc and Listen. — It is not erroneous to refuse to instruct, in a railroad street crossing case, that .if plaintiff failed to stop at the greatest possible distance from the track, from which she could look and listen for approaching trains, she would be guilty of contributory negligence, where plaintiff was relying to some extent upon a warning from the signal bell which defendant had maintained' at such crossing, p. 44.</p> <p>7. Trial. — Instructions.—Invasion of Province of Jury. — An instruction which undertakes to tell the jury what the preponderance of the evidence shows, is bad. p. 44.</p> <p>8. Same. — Instructions.—Railroads.—Crossing Signal Bells. — Notice. — The refusal to give an instruction, in a personal injury case, that while the failure of defendant railroad company to keep in repair its street-crossing signal bell, might be negligence, still, its being out of service for a long time might be notice that it had been discontinued, and therefore was not to be relied upon, was harmless, where plaintiff did not know the bell was out of order, p. 44.</p> <p>9. Appeal. — Briefs.—Failure to Set Out Interrogatories Refused.— A failure by appellant to set out in its brief the interrogatories refused, or their substance, waives the right to question rulings thereon, p. 45.</p> <p>10. Trial. — Railroads.—Negligence.—Contributory.—Crossing Signals. — The failure of a railroad company’s street-crossing signal bell to ring raises the presumption of safety, and such fact exerts a potent influence in determining plaintiff’s contributory negligence. p. 46.</p> <p>11. Railroads. — Street Crossings'. — Flagmen.—It is the duty of a railroad company to station flagmen at its much-used street crossings, p. 46.</p> <p>12. Same. — Negligence.—Contributory.—Invitation.—The law does not require the same diligence from a party allured to his inj’ury by the defendant, as from one not so allured, p. 46.</p> <p>13. Railroads. — Street Crossings. — Negligence.—Contributory.■—• Question for Jury. — Where a traveler relies upon a street-crossing signal bell which gives no warning of the approaching train, and then upon approaching the crossing, the track being obscured by buildings, she looks and listens vainly for an approaching train, and, as she drives upon the track, is struck by a train traveling at sixty miles an hour, receiving injuries, the questions of negligence and contributory negligence are for the jury. p. 46.</p>

<p>Prom Superior Court of Vanderburgh County; John U. Foster, Judge.</p> <p>Action by H. Rudolph Broermann against the Evansville & Princeton Traction Company. Prom a judgment for plaintiff, defendant, appeals.</p>

<p>From Putnam Circuit Court; Presley O. Colliver, Judge.</p> <p>Action by Estella Lenz against William A. McClure, as administrator of the estates of Josephus Davis and Mary E. Davis, deceased. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Negligence. — Contributory.-—Proxipiate Cause. — Interrogatories to Jury. — When Controlling. — Proximate cause and contributory negligence are questions of fact; and answers to the interrogatories to the jury control the general verdict only when irreconcilable therewith upon any supposable hypothesis within the issues, p. 65.</p> <p>2. Negligence. — Master and Servant. — Factory Act. — Dangerous Machinery. — Proximate Cause. — Where the evidence shows that the master failed to guard a circular saw and that a servant was injured by such saw, a finding that the absence of a guard was the proximate cause of such injury, is warranted, p. 65.</p> <p>3. Same. — Proximate Cause. — Contributing Causes. — Master and Servant. — Liability.—The fact that there were other contributing causes besides the absence of a guard, will not relieve the master whose servant vras injured by an unguarded circular saw at which he was working, p. 66.</p> <p>4. Same. — Proximate Cause. — Injury.—Anticipation of. — It is not necessary for the servant to show that his pirecise injury could or should have been anticipated, his injhry resulting from the master’s breach of a legal duty being sufficient to establish the master’s liability, p. 66.</p> <p>5. Master and Servant. — Factory Act. — Care Required by Servant. —The servant who works at an unguarded circular saw, is required to use ordinary care only. p. 60.</p> <p>6. Same. — Factory Act. — Dangerous Machinery. — Notice.—Contributory Negligence. — Notice of the unguarded condition of a circular saw does not constitute the servant working thereat guilty of contributory negligence as a matter of law. p. 67.</p> <p>7. Same. — -Factory Act. — Dangerous Machinery. — Use of Unguarded Saw. — Contributory Negligence. — The facts that a servant has at former times used the unguarded saw in question without injury, that the board he was cutting was not laid crosswise against the saw, and that the board lay on the table after the accident, are not conclusive of contributory negligence as a matter of law. p. 67.</p> <p>8. Trial. — instructions. — Master and Servant. — Negligence.— Factory Act. — An instruction, in an action by a servant for injuries received because of the master’s violation of the factory act, that a failure by the master to guard the circular saw in question, if possible and practicable, was negligence, and if the servant, without contributory fault, was injured by reason thereof, he should recover, is not erroneous, p. 67.</p>

<p>1. Pleading. — Answer. — Argumentative Denial. — Sufficiency. — Overruling a demurrer to an answer of argumentative denial is harmless error, p. 72.</p> <p>2. Same. — Answer.—Overruling Demurrer to, Harmless, Where Interrogatories Show Truthfulness of. — Where the interrogatories to the jury show the allegations of a paragraph of answer to be true in fact, overruling a demurrer to such paragraph is harmless error, p. 72.</p> <p>3. Trial. — Instructions.—Defining Contributory negligence. — Question for Jury. — It is not erroneous to refuse to instruct what constitutes contributory negligence, such question being exclusively for the jury. p. 72.</p> <p>4. Same. — Intervening Brrors. — When Harmless. — negligence.— Municipal Corporations. — In an action for damages against a municipal corporation, because of injuries resulting from an alleged defective sidewalk, a finding of the use of ordinary care on the part of the corporation renders harmless erroneous rulings on the answers, as well as all other intervening errors, p. 72.</p> <p>5. Trial. — Answers to Interrogatories. — Evidence.—Presumptions. —Answers to the interrogatories to the jury are presumed to be justified by the evidence, p. 72.</p> <p>6. Municipal Corporations. — Negligence. — Sideioalks. — Grass-Plots. — The maintenance, by the owner, of a wire around a grass-plot between the improved sidewalk and the street, for the protection of grass and trees growing thereon, is not negligence on the part of a city, though it made and adopted the plans permitting such use, where the sidewalk was sufficiently wide to accommodate the demands of travel, p. 73.</p> <p>7. Same. — Negligence.-—Sidewalks.—Shade Trees. — It is not negligence per se for a city to permit the maintenance of shade trees in or along its sidewalks, p. 73.</p> <p>8. Negligence. — Evidence.—Res Ipsa Loquitur. — Municipal Corporations. — Sidewalks.—Question for Jury. — The fact that a pedestrian was injured by a wire maintained around a grass-plot between the improved sidewalk and the street does not alone show a defect rendering the city liable, the question of a defect and the city’s liability therefor being for the jury. p. 73.</p> <p>9. Municipal Corporations. — -Streets.—Sidewalks.—Control Over. —While the public is ordinarily entitled to the free use of any portion of the streets or sidewalks, still, the corporation may lawfully devote portions thereof to other useful public purposes, p. 7-i.</p>

From Gibson Circuit Court; O. M. Welborn, Judge. Action by the State of Indiana, on the relation of Anna P. Roe and others, against James A. Dudley and another. From a judgment on a verdict for plaintiff for $1,750, defendants appeal.

<p>1. Trial. — Motion for Contmumce. — Absence of Party. — A motion for a continuance on account of the absence of the defendant ' should be sustained, where it is properly shown that she was sick and unable to be present; that her presence was necessary for the conduct of the case in advising with counsel and in giving testimony not obtainable from others; that her deposition could not, on account of her mental condition, be taken at the time, but that it could probably be taken within a month, and that her senior counsel, who had prepared her defense, was sick and unable to attend at the trial, p. 78.</p> <p>2. Same. — Continuance.—Statutes.—Section 413 Burns 1901, §410 It. S. 1881, providing for a continuance on account of absent evidence as shown by affidavit, unless the adverse party shall admit that such absent documentary evidence is true aud that such absent witnesses will testify to the facts set out, is not strictly applicable to a motion made by the sole defendant for a continuance because of her sickness and her consequent inability to be present and to testify, p. 80.</p> <p>3. Same. — Continuance.—Discretion.—Review.—Appeal.—The ruling of the trial court on a motion for a continuance is largely discretionary but is subject to review on appeal, p. 80.</p>

<p>Prom Wabash Circuit Court; A. H. Plummer, Judge.</p> <p>Action by the Matthews Glass Company against Benjamin P. Burk. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Insubanoe. — Payment of Premiums. — Extensions of Time. — Principal and Agent. — Question for Jury. — Where the general agent of an insurance company accepted partial payments of overdue premiums and, upon final payment of the premiums, delivered the company’s regular receipt for the entire premium, the jury may find that the assured was not in default in the payment of an overdue premium, where such agent had granted a time beyond’ the date of his death in which to make such payment, though the policy provided that agents could not alter the terms thereof and that the company’s liability was conditioned upon prepayment of such premiums.</p>

<p>Prom Bartholomew Circuit Court; Perry E. Bear, Special Judge.</p> <p>Suit by Sadie Jonas Hirshberg against Nellie M. Jonas and the Medora State Bank. Prom a decree for plaintiff and said bank, defendant Jonas appeals.</p>

<p>1. Street Railroads. — Passengers.—Riding on Seats. — Contributory Negligence. — Passengers, riding on the seats provided in a summer car, cannot be held guilty of contributory negligence as a matter of law, where the car in rounding a curve hurls them from the seat to the ground and runs over them. p. 102.</p> <p>2. Negligence. — Contributory.—Soto Determined. — Whether a person was guilty of contributory negligence must be determined from the conditions known before the happening of the accident, p. 103.</p> <p>3. Street Railroads. — Passengers. — Contributory Negligence. —■ Where a passenger is injured, while in his proper place in the street-car, the question of contributory negligence does not arise, p. 103.</p> <p>4. Damages. — Infants.—Question for Jury. — The amount of damages recoverable by the parent for the death of a seven-year-old boy is largely a question for the jury, no mathematical computation being possible, p. 103.</p> <p>5. Same. — Excessive.—A verdict of $1,000 in favor of' a parent for the loss of a seven-year-old boy does not show prejudice, partiality or improper motive on the part of the jury, and is not excessive. p. 104.</p> <p>6. Trial. — Instructions.—Damages.—Confuting to Evidence. — Experience of Jurors. — An instruction, in a personal injury case, confining the jury, in estimating damages, to the evidence and to their experience as men, is not erroneous, p. 104.</p> <p>7. Same. — Instructions.—Confining to Evidence. — Where the instructions repeatedly confine the jury to the evidence in arriving at their verdict, the fact that an incorrect phrase is used in one instruction, is not misleading, p. 104.</p> <p>8. Same. — Instructions.—Infants.—Capacity.—Issues.—Instructions submitting to the jury the question whether an infant, who was killed by defendant street railroad company, was non sui juris, are erroneous, where the pleadings presented no issue on such fact, p. 105.</p> <p>9. Same. — Instructions.—Outside Questions. — Infants. — Contributory Negligence. — The giving-of an instruction, in a personal injury case, submitting to the jury the question whether the infant, killed by defendant, was non sui juris, is not reversible error, where there was no evidence tending to show that the child did not use ordinary care for one of its age. p. 105.</p>

<p>Prom Delaware Circuit Court; E. J. Paulus, Special Judge.</p> <p>Action by the Mud Valley Oil & G-as Company against William Ii. Hitchcock and another.. Prom a judgment for defendants, plaintiff appeals.</p>

<p>' Prom Hamilton Circuit Court; Ralph K. Kane, Special Judgé. '</p> <p>Prosecution by the State of Indiana against Charles O. McNulty. Prom a judgment of conviction, defendant appeals.</p>

<p>Mechanics’ Liens. — Time of Filing. — Additional Work. — Where a contractor agreed to do certain work on a house, and, upon an examination, the owner required him to do certain additional work in completion of the contract, a notice of an intention to hold a mechanic’s lien, filed within the statutory time after the comple-’ tion of such additional work, is within the proper time.</p>

<p>Prom Elkhart Circuit Court; Francis D. Merritt, Judge.</p> <p>Suit by Samuel D. Coppes and others against the Union National Savings & Loan Association. Prom a decree for defendant, plaintiffs appeal.</p>

<p>1. Evidence.- — Declarations as to Payment of Insurance Assessments. — -Mutual Benefit. — The declarations oí a member of a fraternal insurance order, that he was unable to pay his August assessment, and that if the lodge would pay it, he would repay the lodge, are admissible in favor of the order to show the ability and disposition of such member to pay his assessments, although the alleged default was in the failure to pay the September assessment. p. 124.</p> <p>2. Same. — Objections.—General.-—Objections that offered evidence ' was irrelevant and immaterial, are unavailing, though such evidence was taken, upon interrogatories, under an agreement that such interrogatories and the answers should be read in evidence, “questions of relevancy and competency only being reserved.” p. 124.</p>

From Tippecanoe Circuit Court; Richard P. DeHart, Judge. Action by The Tippecanoe Loan and Trust Company, as administrator of the estate of John B. Oglebay, Jr., deceased, against Ada May Carr and another. From a judgment for defendant, plaintiff appeals.

<p>1. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting oral evidence, p. 132.</p> <p>2. Highways. — Width.—Use.—The boundaries of a highway laid out without any established width are determined by the limits of the way actually used. p. 133.</p> <p>3. Boundaries. — Fences.—Ancient Tradition. — Fence lines indicating boundaries will prevail over tradition as to where such boundaries were intended to be. p. 133.</p> <p>4. Highways. — Boundaries. — Encroachment. — Acquiescence. — Where a fence has from time immemorial marked the boundary line of a highway, the public cannot, because of long acquiescence and presumptive abandonment, go beyond such fence and assert another as the true boundary line of the highway, p. 133.</p> <p>5. Evidence. — Understanding of Width of Highway. — Evidence of the witness’s understanding of the width of a highway laid out before his birth is incompetent, where fences had marked the boundaries of such highway from time immemorial, and where such highway was not established with any definite width, p. 135.</p>

From Vanderburgh Circuit Court; Louis O. Basch, Judge. Action by the State of Indiana, on the relation of Samuel Smith, as guardian of Henry Meyerhoff, Jr., against the United States Fidelity and Guaranty Company and another. From a judgment for plaintiff, defendant company appeals.

Prom Jennings Circuit Court; Francis M. Thompson, Judge. Objections by Margaret W. Coy and others to the appointment of Benjamin P. Kinnick as administrator of the estate of I-Iarvey R. Weeks, deceased. Prom an order setting aside such appointment and appointing another, said Kin-nick appeals.

<p>1. Appeal. — Bills of Exceptions. — Omission of Evidence. — Where the evidence shows that models were used at the trial below and tliat tbe references thereto are not intelligible without them, their omission from the bill Is an affirmative showing that the evidence Is not all In the record, p. 145.</p> <p>2. Same. — Bills of Exceptions. — Omissions.—Effect.—Where the evidence omitted from a bill of exceptions is not necessary to the consideration of the questions presented on appeal, such omission does not prevent the consideration of such questions, p. 146.</p> <p>3. Master and Servant. — Factory Act. — Dangerous Machinery. — ■ Guards. — Where a skilled servant was provided with proper guards for the machine with which he was working, but he voluntarily removed them, and used the machine without them, refusing to replace them, he cannot recover for injuries received because of his employer’s failure to guard such machines, p. 146.</p>

<p>From Posey Circuit Court; O. M. Welborn, Judge.</p> <p>Action by Minnie Lerch against the Evansville Electric Railway. From a judgment for plaintiff, defendant appeals.</p>

Prom Marion Circuit Court (14,357); W. W. Thornton, Judge pro torn. Action by Katherine D. Aerea against the Cincinnati, Hamilton & Dayton Railway Company and another. Prom a judgment for plaintiff, defendants appeal. On motion to dismiss appeal as to Cincinnati, Hamilton & Dayton Railway Company. (Por decision on merits, see — Ind. App. —.)

<p>1. Pleading. — Complaint.—Quieting Title. — “Oil and Gas” Lease.— A complaint to quiet title alleging that the plaintiff is the owner in fee simple of certain property subject to an “oil and gas” lease, is good on demurrer, p. 158.</p> <p>2. Tkial. — Questions of Law. — Duty of Courts. — Jury.—Interrogatories. — Appeal.—Courts, in the trial of civil cases, cannot delegate to the jury a pure question of law, nor can the courts take the opinion of the jury on matters of law by the submission of interrogatories ; and if such interrogatories are submitted the answers will be disregarded on appeal, p. 160.</p> <p>3. Same. — Interrogatories to Jury. — Presumptions.—All reasonable presumptions are indulged in favor of the general verdict and against the answers to the interrogatories to the jury. p. 161.</p> <p>4. Same. — Payments.—Presumptions.—Oil amd Gas Leases. — It will be presumed that payments made on an oil and gas lease were made to extinguish some liability thereon, p. 161.</p> <p>5. Leases. — Oil and Gas. — Contracts.—Consideration.—The nominal consideration ordinarily expressed in a gas and oil lease does not constitute the entire consideration, the anticipated profits resulting from the sale of the products being the principal consideration. p. -161.</p> <p>G. Same. — Gas and Oil. — Construction.—Gas and oil leases are construed in view of the well known characteristics of the gas and oil business, p. 1G2.</p> <p>7. Same. — Oil and Gas. — Extensions by Rental Payments. — The lessee in an ordinary gas and oil lease cannot, over the objections of the landowner, refuse to develop the property and, by payment of the rentals provided, retain control of the land and prevent its development, p. 1G2.</p> <p>S.' Same. — Oil and Gas. — Extensions by Payment. — Reasonable Time.- — Question for Jury. — Where a gas and oil lease does not fix a definite time in which the property shall be developed, the lessee has only a reasonable time in which to develop same; and what is a reasonable time is ordinarily a question for the jury. p. 162.</p> <p>9. Trial. — Verdict.—Answers to Interrogatories. — Presumptions.— Intendments. — Ail presumptions and intendments are made against the answers to the interrogatories to the jury and in favor of the general verdict, p. 163.</p> <p>10. Same.- — Instructions.—Lato for the Court. — Facts for the Jury.— An instruction, in a civil ease, that the jury “are the sole judges of the law and the facts,” is erroneous, p. 163.</p> <p>11. Same. — Instructions.—When Harmless. — An erroneous instruction which does not mislead the jury is harmless, p. 164.</p> <p>12. Same. — Instructions.—Misleading.—Oil and Gas Leases. — An instruction virtually submitting to the jury the interpretation of an oil and gas lease, where such interpretation is doubtful and material, is erroneous and misleading, p. 164.</p>

<p>Prom Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Action by Job Miller against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

Prom Lake Cirenit Court; Willis G. McMahan, Judge. Suit by the Grand Trunk Western Railway Company against the Railroad Commission of Indiana and another. Prom a decree for defendants, plaintiff appeals (Transferred from Supreme Court, see 167 Ind. 261).

From Wells Circuit Court; C. W. Watkins, Special Judge. Suit by George B. Mason and another against Mary Hanley and others. From a decree for plaintiffs, defendants appeal. (For decision on merits see ■ — • Ind. App. —.) On motion to dismiss appeal.

<p>From Superior Court of Marion County (64,640) ; John L. McMaster, Judge.</p> <p>Action by the Glucose Sugar Refining Company against the Climax Coffee & Baking Powder Company. Prom a judgment for defendant on its counterclaim, plaintiff appeals.</p>

<p>1. Pleading. — Complaint.—Conclusions.—Pacts.—Street Railroads. —Passengers.—An allegation that (lie plaintiff was allowed to ride on defendant street railroad company’s ear “for his own convenience and not because it was necessary in the performance of any labor for the defendant” is one of fact, and shows the circumstances under which plaintiff was riding, p. 189.</p> <p>2. Woeds and Phbases. — “Passenger."—Street Railroads. — The word “passenger” imports one who travels in a public conveyance by virtue of a contract supported by a consideration consisting of the payment of fare or that which is accepted as the equivalent thereof, p. 190.</p> <p>3. Pleading. — Complaint.—Passengers. — Street Railroads. — Free Tickets. — A complaint alleging that the defendant street railroad company furnished plaintiff’s decedent a ticket good on any car; that he took passage on one of defendant’s cars; that by reason of the negligence of defendant’s employes he was killed, and that he was allowed to ride for his own convenience and not in the performance of any labor for defendant, states a cause of action, the specific allegations being insufficient to show that the decedent was a mere fellow servant, and not a passenger, p. 190.</p> <p>4. Teial. — Verdict.—Interrogatories.—Street Railroads. — Passenger or Fellow Servant. — Free Tickets. — Answers to interrogatories to the jury showing that plaintiff’s decedent was riding from his work to his home on defendant street railroad company’s car, by virtue of an employe’s 'free ticket; that such ticket was good on any car going in that direction; that he was not engaged in any service for defendant at the time; that he was riding in the car as other passengers; that no contract existed as to the use of such ticket; that he obtained and used similar tickets for other purposes than riding to and from home; that such tickets were furnished because of his employment as a servant, and that he was killed by the negligence of defendant’s employes, are not in irreconcilable conflict with a general verdict for plaintiff on the theory that decedent was a passenger, p. 191.</p> <p>5. Same. — General Verdict. — Ansicers.—Conflict.—The general verdict controls, unless the answers to the interrogatories to the jury are in irreconcilable conflict therewith, p. 193.</p> <p>6. Stbeet Raileoads. — Railroad Crossings. — negligence.—Contributory. — A street railroad company is guilty of negligence in running its car upon a railroad crossing, without first investigating whether a train is near, and without attempting to stop the car; and a passenger killed thereby is free from contributory negligence. pp. 193, 195.</p> <p>7. Same. — Passengers.—Who Are. — An employe of a street railroad company seated on the front seat of a passenger-car and using an ordinary transfer given with the ordinary car ticket is a passenger. p. 194.</p> <p>8. Damages. — Excessive.—Street Railroads. — A verdict for $5,000, in an action for death caused by negligence, is not excessive, where the evidence shows that decedent was in good health, had good habits, was fifty-eight years old, earned $10.50 per week and left a widow, one minor son and five adult children, p. 194.</p> <p>9. Damages. — Measure of. — Death.—In the case of the death of the husband and father, from negligence, the damages should include the loss, to the child, of the parent’s care, as well as the pecuniary-loss to those entitled to recover, p. 194.</p> <p>10. Municipal Corporations. — Ordinances.—Stopping Street-Gars at Railroad Crossings.- — An ordinance compelling motormen to stop their cars before going upon a railroad crossing until the conductors go across the farthest track and signal to cross, is valid, p. 195.</p> <p>11. Trial. — Instructions.—Peremptory.—A peremptory instruction for defendant should be refused, where there is some evidence tending to support the material allegations of the complaint, p. 195.</p> <p>12. Appeal. — Briefs.—Evidence.—Alleged errors in permitting certain questions to be answered will not be considered, where the briefs of appellant fail to show such answers, p. 195.</p> <p>13. Evidence. — Incompetent.—Estoppel.—Where defendant street railroad company has questioned its witnesses concerning its customs and practice in issuing tickets to its enrployes, it can not complain of the admission of similar evidence on behalf of plaintiff. p. 196.</p> <p>14. Street Railroads.' — -Carriers.—Passengers.—Free Tiekets. — A servant of a street railroad company riding to his home after the close of his day’s work, on a free ticket issued by such company for his convenience, is a passenger, and not a fellow servant of those in charge of the car. p. 196.</p>

<p>From Vanderburgh Circuit Court; Louis O. Basch, Judge.</p> <p>Action by Solomon W. Rogers against Theodore Sasse and another. From a judgment against Sasse, he appeals.</p>

<p>From Morgan Circuit Court; Joseph W. Williams, Judge.</p> <p>Action by Elizabeth Formes against the Indianapolis Traction & Terminal Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Complaint.—Motion to Make More Specific. — Interurdan Railroads. — Negligence.—A motion to make more specific a complaint, against an interurban railroad company, alleging that defendant suddenly started the car after inviting plaintiff to alight and after plaintiff had stepped down upon the step of the car, by showing whether the car had fully stopped prior to the accident or was slowly moving, should be overruled, p. 215.</p> <p>2. Same. — Complaint.—Interurdan Railroads. — Negligence.—A complaint alleging that the conductor of defendant interurban railroad company’s car invited plaintiff, a passenger, to alight; that plaintiff stepped down on the step, at which time the motorman suddenly, without warning, started such car with a lurch, thereby throwing plaintiff upon the ground, to his injury, is sufficient. p. 216.</p> <p>3. Trial. — -Interrogatories.—Interurdan Railroads. — Negligence.— Answers to interrogatories to the jury showing that the plaintiff, who was a passenger upon an interurban car, was invited by the conductor to alight; that he stepped down upon the step of the car; that the car was going around a curve; that the motorman released the brakes, thus giving the car a sudden lurch, are not in conflict with a general verdict for plaintiff, the complaint alleging that by reason of such sudden lurch plaintiff was thrown from the car and injured, p. 216.</p> <p>4. New Trial. — Evidence.—Negligence.—Interurdan Railroads.— In an action against an interurban railroad company for negligence, a new trial will not be granted to defendant because of insufficient evidence, where the evidence showed that the conductor of the car invited plaintiff to alight and he in obedience stepped down upon the step of the car, at which time the motorman released the brakes thus causing a sudden lurch and throwing plaintiff to the ground and injuring him. p. 217.</p> <p>5. Trial. — Instructions.—Withdrawing Evidence. — An instruction withdrawing from the jury evidence objected to cures any error ■in the admission thereof, p. 217.</p> <p>6. Same. — Instructions.—Limiting Purpose of Evidence. — It is the right and duty of the trial judge to instruct for what purposes evidence admitted may be considered, p. 218.</p> <p>7. Depositions. — Motions to Suppress. — When Made. — A motion to suppress a deposition must be made before the beginning of the trial, p. 218.</p> <p>8. Trial. — Instructions. — Damages. — Effect of Injuries Upon Health. — An instruction, in a personal injury case, that the jury, in estimating plaintiff’s damages, may consider tlie future effect of the injuries upon plaintiff’s health, is proper, where the averments of the complaint will admit evidence of permanent injuries. p. 218.</p>

<p>From Marion Circuit Court (14,521) ; Henry Clay Allen, Judge.</p> <p>Application by Henry J. Arszman for license to sell intoxicating liquor. From an order denying same, the applicant appeals.</p>

<p>Prom Porter Superior Court; Harry B. Tuthill, Judge.</p> <p>Action by Catherine Callaban against the New York, Chicago & St. Louis Railroad Company. Prom a judgment for plaintiff for $800, defendant appeals.</p>

<p>1. Trial. — General Verdict. — Effect.—The general verdict carries with it a finding of all the material facts, within the issues, necessary to its support, p. 230.</p> <p>2. Negligence. — Evidence.—Trial.—Contributory negligence must be found upon a consideration of all of the evidence and not upon a part only. p. 231.</p> <p>3. Trial. — Interrogatories.—Street Railroads. — Injuries to Travelers. — Answers to interrogatories to the jury showing that plaintiff, after looking for the approach of a car and seeing none, attempted to drive across the street railroad tracks, when he was struck by a car coming from the rear and which could have been stopped in time to avoid the collision, are not in conflict with a verdict for plaintiff, p. 231.</p> <p>4. Street Railroads. — Excessive Speed. — Collisions.—A street railroad company, operating a ear at an excessive speed, cannot escape liability for a collision which it, in the exercise of ordinary care, could have prevented but for such excess, p. 231.</p> <p>5. Trial. — Evidence.—Conflict.—Question for Jury. — Where the evidence upon a question is conflicting, such question is for the jury. p. 231.</p> <p>6. Street Bailroads. — Exercise of Care. — Judicial Absolution'from Liability.- — Street railroad companies should base freedom from liability upon the exercise of care commensurate with the dangerous results likely to flow from their collisions with travelers, rather than upon judicial declarations that the traveler who fails to escape, is ipso facto, guilty of contributory negligence, p. 231.</p> <p>7. Trial. — Instructions.—Street Railroads. — Travelers.—An instruction that it is the duty of a street railroad company to exercise care and diligence to prevent injuries to travelers on the street, and for a failure thereof such company is liable, is correct, p. 232.</p> <p>8. Same. — Instructions Requested Covered by Those Given. — Instructions requested, which are already covered, should be refused. p. 232.</p>

<p>1. Railroads. — Killing Stools. — Fences.—A railroad company is liable for stock killed by its trains upon its track, where its employes in repairing the fence along its right of way left the gate unfastened so that such stock wandered upon the track, such employes having assured the stock owner that the gates would be left securely fastened, p. 235.</p> <p>2. Same. — Failure to Fen.ce. — A railroad company, which, in repairing its fence along its right of way, leaves a gate insecure over night, is liable, under §5323 Burns 1901, Acts 1885, p. 224, §1, requiring it to fence its right of way, for stock, which escapes thereby, and is killed by its trains, p. 235.</p>

<p>Prom Gibson Circuit Court; Oscar M. Welborn, Judge.</p> <p>Action by Gottfried Prick against Eben H. Wolcott and another. Prom a judgment for plaintiff, defendants appeal.</p>

From Clark Circuit Court; Harry C. Montgomery, Judge. Action by Sargent W. Evans against the Baltimore & Ohio Southwestern Railroad Company. From a judgment on a verdict for plaintiff for $100, defendant appeals. (For decision on the merits, see 169 Ind. —.)

Prom Kosciusko Circuit Court; Lemuel W. Boyse, Judge, pro tern. Action by the State of Indiana, on the relation of the Board of Commissioners of the County of Kosciusko, against Oliver P. Smith and others. Prom a judgment in favor of plaintiff, defendants appeal. (Por decision on the merits, see 169 Ind. —.)

<p>1. Pleading. — Complaint.—Railroads.—Dangerous Exits. — Passengers. — A complaint alleging that defendant railroad company negligently failed to discover and remove a banana peel lying on the step of its passenger-car, by reason of which the plaintiff, a passenger, in alighting, stepped thereon and fell, to his injury, states a cause of action. Ualott v. Sample, 104 Ind. 645, distinguished, p. 242.</p> <p>2. Trial. — Ansivers to Interrogatories. — Railroads.—Injuries to Passengers. — Dangerous Exits. — Answers to interrogatories to the jury showing that plaintiff, a passenger, was injured by stepping on a banana peel on the step of defendant railroad company’s car; that defendant cleaned such car after the morning run and before the afternoon run, but failed to show whether such peel was left on such step; that it was on such step on the prior run; that defendant’s conductor and brakeman were busy with other work, and did not see it, and that it had remained on such step an unknown length of time, are not in necessary conflict with a general verdict for plaintiff, p. 244.</p> <p>3. Same. — Interrogatories. — Verdict. — Inferences. — The general verdict controls the answers to„ interrogatories to the jury, unless such interrogatories are in irreconcilable conflict therewith; and no inferences can be indulged in their favor, p. 246.</p> <p>4. Pleading. — Complaint.—Evidence Admissible Under. — Railroads. —Dangerous Exits for Passengers. — A complaint alleging that the defendant railroad company, by the exercise of ordinary care, could have discovered and removed a banana peel, upon which the plaintiff, a passenger, stepped and fell, is sufficient to admit as evidence the facts relating to the length of time such peel remained on the step, where it lay, and defendant’s conduct in relation thereto, p. 250.</p> <p>5. Carriers. — Passengers. — Duty Toward. — Railroads.—Common carriers are required to exercise the strictest vigilance and the utmost care and human foresight to guard their passengers from injury; and this duty applies from the beginning to the end of the journey, p. 250.</p> <p>6. Same. — Passengers.—Duty Toward. — Railroads.—-Common carriers are not insurers of the safety of their passengers, but must exercise such strict care as is reasonably consistent with their business, p. 251.</p> <p>7. Same. — Passengers.—Care. — Circumstances. — Dangers Caused by Third Parties. — 2lotice.—The care required from carriers toward passengers must be commensurate with the consequences that may ensue from carelessness under the circumstances; but if injury results from the act of a third party, of which the carrier has no notice, the degree of care required is not so great, a reasonable time, in such case, being given to the carrier to ascertain and to remove the danger, p. 251.</p> <p>8. Railroads. — Passengers.—Dangerous Exits from Coaches. — A railroad company is not liable for injuries to a passenger, caused by his stepping upon a banana peel on the step of the coach from which he was alighting, such peel being thrown there by some third party, without the knowledge of the company, and which had lain there only a short time. p. 254.</p>

Prom Owen Circuit Court; George W. Grubbs, Special Judge. Action by Dolly M. Barker, as administratrix of the estate of Albert S. Barker, deceased, against the Chicago, Indianapolis & Louisville Railway Company. Prom a judgment on a verdict for plaintiff for $5,000, defendant appeals. (Por decision on the merits, see 169 Ind.-.)

<p>Prom Jackson Circuit Court; John M. Lewis, Judge.</p> <p>Action by George I. Allen against the City of Columbus. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Prom Superior Court of Vanderburgh County; John H. Foster, Judge.</p> <p>Action by Annie Bell Cox and others against the Sovereign Camp, Woodmen of the World. Prom a judgment for plaintiffs, defendant appeals.</p>

<p>Prom Superior Court of Vanderburgh County; John E. Foster, Judge.</p> <p>Action by Caroline Craiger against the Modern Woodmen of America. Prom a judgment for defendant, plaintiff appeals.</p>

<p>From Grant Superior Court; B. F. Harness, Judge.</p> <p>Suit by Frederick N. Boswell against the City of Marion and another. From a decree for defendants, plaintiff appeals.</p>

<p>1. Municipal Corporations.— Street Improvements. — Patented Process. — Competition.—Contracts.—A city cannot lawfully contract for the construction of a street pavement to be made by a patented process, where the patentee retains the exclusive right to use and to sell the right to use to others, the statute (§3519 Burns 1905, Acts 1905, pp. 219, 281, §95) requiring competitive bidding, p. 301.</p> <p>2. Words and Phrases. — “BitulitMc.”—The word “bitulithie” is a registered trade mark and imports a bituminous macadam pavement made according to a process patented by Warren Brothers Company, p. 303.</p> <p>3. Municipal Corporations. — Street Improvements. — Patented Process. — Contracts.—Competition.-—Under §3519 Burns 1905, Acts 1905, pp. 219, 281, §05, requiring competitive bidding and preventing collusion in the awarding of contracts for the construction of street improvements, a city cannot lawfully contract for the construction of a street pavement to be made of material manufactured by a designated company by its patented process, even though such company agreed with the city in advance that such material would be furnished to any bidder at a stipulated price, such price to include the services of a person, to be furnished by such company, to superintend the laying of such pavement, p. 303.</p> <p>4. Municipal Cokpoeations. — Street Improvements. — Competition. —Statutes.—Purpose.—Tbe purpose of §3519 Burns 1905, Acts 1905, pp. 219. 281, §95, requiring competitive bidding and preventing collusion in the awarding of contracts for street improvements, was to protect the property owners; and city officials may not disregard the provisions thereof, p. 306.</p> <p>5. Same.' — Street Improvements. — Contracts.—Public Policy. — Contracts for street improvements are void, where full competition in all respects is not assured, the public policy of the State, as expressed by the legislature, requiring same. p. 306.</p>

<p>Prom Posey Circuit Court; O. M. Welborn, Judge.</p> <p>Action by Catherine Polz against the Evansville Electric Railway. Prom a judgment for defendant, plaintiff appeals.</p>

Prom Superior Court of Marion County (66,555) ; James M. Leathers, Judge. Action by Newton IToltzclaw against the Indianapolis Traction & Terminal Company and another. Prom a judgment for plaintiff for $5,000 against said company, it appeals. On motion to dismiss appeal. (Por decision on merits, see 41 Ind. App. -* — .)

<p>Prom Lawrence Circnit Court; James B. Wilson, Judge.</p> <p>Action by James Hickman against the Baltimore & Ohio Southwestern Eailroad Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Pleading. — Complaint. •— Railroads. — Conductors. — Platforms. — Alighting. — A complaint against a railroad company for failing to provide a platform on wbicb passengers could safely aligbt and for tbe conductor’s failure to assist plaintiff to aligbt as be bad agreed to do, and wbicb fails to show that tbe place at wbicb sucb passenger attempted to aligbt was a regular stopping place prescribed by tbe company’s rules and schedules, is bad, although such conductor agreed when such passenger entered tbe train to permit her to aligbt at such place.</p>

<p>Prom Wayne Circuit Court; Henry C. Fox, Judge.</p> <p>Action by Noab Myers against tbe National Drill Company. Prom a judgment for plaintiff, defendant appeals.</p>

Prom Howard Circuit Court; J. F. Elliott, Judge. Action by Michael Grace against the Globe Stove & Range Company. Prom a judgment for defendant on the answers to interrogatories notwithstanding the general verdict for plaintiff for $3,000, plaintiff appeals.

<p>From Superior Court of Marion County (64,569); James M. Leathers, Judge.</p> <p>Action by Jennie Fearnaught against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals.</p>

Prom Superior Court of Marion County (63,349); Vinson Carter, Judge. Action by Martha A. Crover against Joseph R. Cavanagh and others. Prom a judgment for the individual defend-. ants, the plaintiff appeals.

<p>1. Appeal. — Briefs.-—Errors assigned, but not argued on appeal, are waived, p. 349.</p> <p>2. Same. — Weighing Evidence. — The Appellate Court will not weigh the evidence in a case, where there is some evidence tending to prove every material fact. p. 350.</p> <p>3. Trespass. — Gutting Trees. — Telegraphs and Telephones. — Evidence. — Where the evidence shows that a telephone company obtained permission to attach its guy wire to a tree near plaintiffs’ dwelling, and that it proceeded to cut the top and limbs off of an ornamental pine tree along the walk, a verdict for plaintiffs for damages therefor is justifiable, p. 350.</p> <p>4. Trial. — Evidence.—Inferences.—Jury.—The drawing of deductions and Inferences from conflicting evidence is for the jury. p. 351.</p> <p>5. Same. — Neio Trial. — Verdict.—When Contrary to Law. — Where plaintiffs introduce some evidence on all of the material points of their case, a verdict in their favor is not contrary to law. p. 351.</p> <p>6. Evidence. — Cutting Trees. — Manner of. — Trespass.—It was not erroneous, in a case of trespass for cutting plaintiffs’ tree, to permit a witness to answer the question, “Describe to the jury the manner in which these boughs were cut off, whether or not in a symmetrical manner or otherwise; just describe them to the jury.”, p. 351.</p> <p>7. Same. — Value of Realty Before and After Trespass. — Damages. —Evidence, showing the value of plaintiffs’ real estate before and after the cutting of their ornamental shade tree by the defendant telephone company, is admissible to prove the damages caused by such trespass, p. 351.</p> <p>8. Real Property. — Timber.—Growing trees are a part of the freehold. p. 352.</p> <p>9. Appeal. — Instructions.—Sow Made Part of the Record,. — Statutes. — Where the transcript shows the filing of requested instructions immediately after the submission of the evidence, such requested instructions being set out, and it further shows that after the argument to the jury the court instructed the jury, setting out such instructions, and no order-book entry was made of the instructions requested, and none showing that exceptions were taken to any of them, no question is presented, under §544a Burns 1905, Acts .1903, p. 338, §1, or otherwise, on the instructions. p. 352.</p>

<p>1. Pleading. — Comp taint. — Misrepresentations.—Existing Facts. — • Insurance. — Averments in a complaint that defendant insurance, company and its agents falsely represented to plaintiff that it w'as issuing a policy with certain provisions and would issue him one of the same if he would execute to it his note for a certain amount, are allegations of existing facts; and a complaint founded thereon for deceit is sufficient, p. 357.</p> <p>2. Fraud. — Opinions.—Future Matters. — Fraud consists, not in the expression of one’s intentions or opinions merely, but in the misrepresentations of existing facts, or in misrepresenting, as a fact, a matter to occur in the future, p. 358.</p> <p>3. Deceit. — Intent.—Fraud.—Damages.—The gist of an action in deceit for damages for fraud, is the defendants’ evil intent — the intent to deceive, p. 35S.</p> <p>4. Same. — Intent.—Rescission.—Cancelation.—The action in deceit, being founded upon defendants’ moral delinquency, requires proof of evil intent — false representations made with intent to deceive; while a suit for rescission or cancelation may be maintained without such proof, p. 359.</p> <p>5. Same. — Evidence.—Essentials.—To establish deceit there must • be proof of false representations made (1) knowingly, or (2) without belief in their truth, or (3) recklessly, careless whether they be true or false, p. 360.</p> <p>6. Evidence. — Similar False Representations to Others. — Deceit.— Insurance. — In an action in deceit for damages caused by false representations, made by an insurance company and its agents, evidence of similar false representations, made by such agents to others, is admissible on the .question of fraudulent intent, p. 362..</p> <p>7. Trial. — Instructions. — Deceit. ■— Concealment. — When Fraudulent. — Insurance.—An instruction, in an. action in deceit against an insurance company and its agents for false representations causing damage, that if defendants undertook to explain to plaintiff the benefits accruing from its policy, and concealed the fact that if he died from smallpox without being vaccinated, the plaintiff being unvaccinated at the time, to defendants’ knowledge, such concealment would constitute a fraud, is correct, p. 364.</p> <p>8. Same. — Instructions.—Damages.—Amount of. — Fraud.—An instruction, in an action in deceit against an insurance company and its agents for falsely representing an insurance policy, that plaintiff was entitled to recover the amount he had been compelled to pay on account of defendants’ fraud, with interest, together with all other damages proximately caused by such- fraud, is correct, p. 365.</p> <p>9. • Same. — Instructions.—Damages.—Punitive. — Insurance. — Misrepresentations. — An instruction, in an action in deceit against an insurance company and its agents for falsely representing an insurance policy, that if the jury find that the defendants wilfully deceived plaintiff, to his injury, in misrepresenting an insurance policy, they might assess punitive damages, is incorrect, since such conduct constitutes a crime, p. 366.</p> <p>10. False Pretenses. — Insurance- Policies. — Misrepresentations.— The securing of a person’s bankable note in payment of the premium on an insurance policy, the provisions of which have been falsely misrepresented by the accused, constitutes a violation of §2352 Burns 1901, Acts 1883, p. 126, §1, providing that the making of such misrepresentations shall constitute a crime, p. 367.</p> <p>11. Damages. — Principal and Agent. — Insurance.—An insurance company, which is liable only by the fraudulent acts of its agents in misrepresenting the provisions of its policy, cannot be liable in deceit for a greater sum than that for which such agents are liable, p. 367.</p> <p>12. Damages. — Separation of. — Appeal.—Final Judgment. — Where damages assessed consist of- $32.32 on account of the payment of a note, and $250 for damages generally, and the evidence shows only the damage caused by the payment of the note, a final judgment will be directed for such amount on plaintiff’s filing a remittitur for the remainder: p. 367.</p> <p>13. Costs. — Remittitur.—Affirmance.—Ordinarily, where a judgment is affirmed on condition that a remittitur is filed by appellee, the costs fall upon appellee; but such rule is subject to variance in the discretion of the court, p. 368.</p> <p>14. Same. — Misrepresentations. — Insurance. — Where defendants’ wilful acts caused plaintiff injury and his recovery was larger than the evidence warranted, the plaintiff’s conduct being fair, the Appellate Court may tax the costs of an appeal against it; where the case is affirmed on condition that appellee file a remittitur. p. 368.</p>

From Putnam Circuit Court; C. C. Matson, Special Judge. Proceeding by the Central Trust Company of Greencastle, as administrator of the estate of Daniel L. Henry, deceased, against Jasper J. Henry and others. From a decree for plaintiff, defendants appeal.

<p>Prom Monroe Circuit Court; James B. Wilson, Judge.</p> <p>Action by Minnie Woodworth against the City of Bloomington. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Howard Circuit Court; James E. Elliott, Judge.</p> <p>Action by Robert Y. Saylor against the Union Traction Company. From a judgment for defendant, plaintiff appeals.</p>

Prom Superior Court of Vanderburgh County; John H. Foster, Judge. Action by Ada H. Rank against the Illinois Life Insurance Company. Prom a judgment of dismissal and an order overruling William P. Miedreich’s motion for leave to prosecute the action for his benefit, as plaintiff’s attorney, he appeals.

<p>1. Pleading. — Complaint.—Initial Attack on Appeal. — A complaint attacked for the first time on appeal, is sufficient, i’f the facts alleged will bar another action for the same cause, p. 404.</p> <p>2. Same. — Complaint.—Carrier and Passenger. — Street Railroads. • — Negligence.—A complaint alleging that the plaintiff was a passenger on defendant street railroad company’s car, and that as she was alighting therefrom the motorman negligently started the car, causing her to fall and receive injuries, states a cause of action, p. 404.</p> <p>3. Tkial.- — Instructions.—Enumeration of Facts Constituting Negligence. — Street Railroads. — An instruction that if the plaintiff was a passenger on defendant street railroad company’s car, and that while in the act of alighting the motorman negligently started the car with- a jerk, thereby throwing plaintiff, to' her injury, the verdict should be for her, unless the evidence shows her guilty of contributory negligence, is correct, negligence in starting the ear being the only negligence alleged in the complaint, p. 405.</p> <p>4. Same. — Instructions. — Contributory Negligence. — Evidence.— Burden of Proof. — An instruction, in a personal injury case, that if certain facts are found, the verdict should be for plaintiff, unless it Jias been “shown” by the evidence .that she was guilty of contributory negligence, is not erroneous, where other instructions clearly defined such negligence and outlined the proof nec- ' essary to establish same, and placed the burden of proof as to such issue upon defendant, p. 400.</p> <p>5. Appeal. — Weighing Evidence. — Where there is some evidence tending to establish all of the material facts in a case, the judgment will not be disturbed on appeal, p. 407.</p>

<p>1. Dxvoece. — Gruel and Inhuman Treatment. — What is. — To constitute “cruel and inhuman treatment” it is not necessary that the act or acts complained of shall consist of physical violence, p. 409.</p> <p>2. Same. — Gruel and Inhuman Treatment. — Definition.—The question of cruel and inhuman treatment is usually determined from the particular facts of each case, and the definitions thereof are usually negative rather than affirmative, p. 409.</p> <p>3. Same. — Cruel and Inhuman Treatment. — Condition of Parties.— Whether alleged conduct is “cruel and inhuman” should be determined from a consideration of the character of the parties and of their physical, social, intellectual and moral natures, p. 409.</p> <p>4. Same. — Gruel and inhuman Treatment. — Charge of Adultery.— The wife’s false charge of her lmsbautl’s adultery, widely circulated in the community, as well as the husband’s false' charge of the wife’s adultery, may constitute “cruel and inhuman treatment” sufficient to authorize the granting of a divorce, p. 410.</p> <p>5. Pleading. — Complaint.—Divorce.—Cruel and Inhuman Treatment. — A complaint for divorce by the husband showing that the wife continuously accused him falsely of being unchaste; that she endeavored to destroy his business, and scolded him for using her money therein; that she was petulant, irritable and constantly complaining, and that she was abusive, scornful, cold, and indifferent as to his happiness, states a cause of action and sufficiently shows the endangering of the husband’s physical well-being. p. 410.</p>

Prom Vanderburgh Circuit Court; Alexander Gilchrist, Special Judge. Action by the Evansville Boat Club against John N. Clarke and others. Prom a judgment for plaintiff, defendants appeal. On motion for supersedeas.

<p>1. Pleading. — Complaint. — Conversion. — Decedents’ Estates. — A complaint by an administrator against his decedent’s surviving husband,' showing that such husband converted to his own use and benefit $1,600, the property of said estate, which he, on demand, refused to turn over to plaintiff, is sufficient, the allegation of the conversion of $1,600 necessarily implying that such sum consisted of lawful money, p. 422.</p> <p>2. Same. — Demurrer.-—To Complaint. — Paragraphs.—A demurrer to a complaint should be overruled, where the complaint consisted of two paragraphs, one of which was good. p. 422.</p> <p>3. Same. — Complaint.—Paragraphs.—Separate Piling of. — Effect. —Demurrer.—Where a second paragraph of complaint was filed after issue was made on the first paragraph, the complaint thereafter consisted of both paragraphs, and a demurrer thereto questioned the sufficiency of both jointly, p. 422.</p> <p>4. Appeal. — Right Result. — Where the trial court reached the right result, its judgment will be affirmed, p. 423.</p>

<p>1. Appeal. — Vacation.—Assignment of Errors. — Parties.—In a vacation appeal, the full names of all of the parties to the judgment appealed from must be contained in the assignment of errors, p. 424.</p> <p>2. Same. — Vacation.—Term-Time.—Failure to Perfect. — A failure by appellant, to file his appeal bond, within the time and with the surety, as directed by the order of the trial court, constitutes the appeal taken a vacation appeal, p. 424.</p> <p>3. Same. — Parties.—Jurisdiction.—Dismissal.—Where all of the parties to a judgment appealed from are not before the court on appeal, such appeal will be dismissed for want of jurisdiction, p. 424.</p>

<p>Prom Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action by Leason Larter against Lucien E. Payne, as administrator of the estate of Hiram Taylor, deceased. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal. — Insufficiency of Evidence. — The Appellate Court, .in determining whether the evidence was sufficient to support the judgment, will consider only the evidence favorable to the successful party, together with the inferences therefrom, p. 432.</p> <p>2. Same. — Weighing Evidence. — Sales.—Drugs. — Evidence that plaintiff’s agent ordered, froin a druggist, phosphate of soda and placed the package received in a basket; that a few days' later she took a dose thereof, whereupon she became violently sick, and upon Investigation the package was' foun# to contain acetanilid, sufficiently shows that the defendant made a mistake in the drug sold. p. 432. ' ' • ,</p> <p>3. Pleading. — Complaints—Negligence.—Sales of Drugs. — A complaint alleging that the defendant, a druggist, negligently sold to the plaintiff acetanilid instead of phosphate of soda which was ordered, to plaintiff’s damage, states a cause of action, p. 434.</p> <p>4. Same. — Complaint.—Negligence.—Details.■—Evidence.—Variance. —Where the complaint against a druggist for selling acetanilid instead of phosphate of soda alleges negligence generally and gives the details of the transaction, it is not necessary that the evidence show such details to be true, the details being uncontrolling in the complaint as well as the evidence, p. 434.</p> <p>5. Negligence. — Presumptions, of. — Where the thing causing an accident is under defendant’s management and control, and the accident is of unusual occurrence when proper earn is used, the happening of the accident raises a presumption of defendant-s negligence, p. 435. ...</p> <p>6. Same. — Failure to Discharge Duty. — Presumptions.—Failure of defendant to discharge his legal or contractual duty raises a presumption of his negligence:' p. 435. '.</p> <p>7. Negligence. — Res Ipsa Loquitur. — Burden of Proof. — Where defendant has complete control of that which causes an accident, and the accident does not usually happen where ordinary care is used, proof of the accident together with the circumstances makes a prima facie case of negligence against defendant, and the burden is then upon him to prove his exercise of due care. p. 435.</p> <p>8. Same. — Druggists.—Sales.—Wrong Medicines. — Res Ipsa Loquitur. — Negligence is presumed, where the evidence shows that a druggist sold aeetanilid to a customer who ordered phosphate of soda and such customer was severely injured thereby, .the doctrine of res ipsa loquitur applying. Howes v. Rose, 13 Ind. App. 674, overruled, p. 437.</p> <p>9. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting oral evidence, p. 439.</p> <p>10. Tkial. — Instructions.—Druggists.—Mistakes.—Negligence.—The plaintiff, in an action against a druggist for negligence in selling to her a poisonous drug instead of the harmless drug ordered, has a right to an instruction that proof of the mistake on the druggist’s part raises a presumption of negligence against him. p. 439.</p> <p>11. —Evidence.—Impeaching.—Contradiction of Fact Testified to.— Where a druggist’s clerk denies a conversation with a witness relative to a mistake in selling aeetanilid for phosphate of soda, the evidence of such witness is admissible, in impeachment, to show that such conversation occurred, p. 439.</p> <p>Thial. — Instructions.—Outlining Issues. — An instruction, not mandatory in form, outlining the issues of the ease to the jury, is not improper, p. 439.</p> <p>13. Same. — Instructions.—Contributory Negligence. — When Omission of, Harmless. — Where the evidence showed that the mother ordered phosphate of soda from defendant, a druggist, and was given aeetanilid; that she did not know the difference between such drugs and gave to her daughter, the plaintiff, the aeetanilid thinking it was phosphate of soda, an instruction saying that such druggist was liable for such sale, omitting any' mention of plaintiff’s contributory negligence, is harmless, there ■being no evidence of contributory negligence, p. 439.</p> <p>14. Same. — Instructions.—Damages.—Confining Jury to Evidence Relative Thereto. — An instruction that the jury in estimating the damages should consider all of the circumstances “shown by the evidence — the pain and suffering endured by the plaintiff, injury to her health, loss of strength, the anxiety and privation, if any, which the plaintiff has already suffered, or may hereafter suffer, * * * and upon all the evidence” award such sum as will fairly compensate her for her injuries, is reversible error. Roby, J., dissents, collecting authorities, p. 440.</p>

<p>1. Pleading. — Complaint.—Replevin.—Description.—A complaint in replevin describing the property sought to be replevied as “a certain ear plant, which is in the possession of said defendant corporation near Bunker Hill in said county,” sufficiently identifies the property in dispute, p. 453.</p> <p>2. Evidence. — Value of Property not Involved m Action. — Harmless Error. — Replevin.—It is harmless error, in an action in replevin, to admit evidence of the value of an article, not involved in the action, where the verdict did not include damages for any property except that which was wrongfully taken and not returned. p. 455.</p> <p>3. Replevin. — Value of Property. — Verdict.—Where the property, in an action in replevin, has been delivered to the plaintiff! before verdict, such verdict, if in plaintiff’s favor, need not state the value of such property, though the code (§558 Burns 1901, §549 R. S. 188.1) provides that the jury shall assess the value of the property together with the damages for the taking and detention, p. 455.</p> <p>4. Evidence. — “Car Plant.” — Definition.—In an action to replevy a “car plant,” evidence is admissble to show of what it consists, p. 455.</p> <p>5. Trial. — Instructions.— “Car Plant.” — Meaning. — Invasion of Province of Jury. — An instruction, in an action to replevy a “car plant,” that a “ ‘car plant’ has a technical meaning * * * and is susceptible of detailed description” not only as to its use but as to its parts, is not improper as an invasion of the province of the jury. p. 455.</p> <p>6. Replevin. — Delivery Bond. — Possession.—Estoppel.—A defendant, in a replevin action, who executes a delivery bond for the retention of the possession of the property in dispute, is conclusively estopped to deny that such property was in its possession ■ at the time of its seizure, under the writ, by the sheriff, p. 456.</p> <p>7. Trial. — Instructions.—Replevin.—Possession.—Demand.— Questions for Jury. — An instruction, in an action in replevin, that if the plaintiff was the owner and entitled to the possession of the property iii dispute, at the time of the commencement of the action, then defendant’s detention was wrongful, unless defendant . obtained the property lawfully and no demand was made for its return before the action was begun, and the verdict should be for plaintiff, is correct, p. 456.</p>

<p>Prom Floyd Circuit Court; William C. Utz, Judge.</p> <p>Action by Francis A. Bulleit against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Prom Laporte Circuit Court; John C. Richter, Judge.</p> <p>Action by George Myer against M. Rumely Company. Prom a judgment for plaintiff, defendant appeals.</p>

From Jay Circuit Court; John F. LaFollette, Judge. Claim for householder’s exemption by Oliver W. Miller against Sherman Swhier, as trustee of said Miller’s property assigned for the benefit of his creditors. Prom a judgment for defendant, claimant appeals.

<p>1. Pleading. — Complaint.—Divorce.—Construction.—A petition for a divorce is to be construed like tbe complaint in an ordinary civil action — liberally as to form, and strictly as to facts, and tbe specific allegations to control the general, p. 472.</p> <p>2. Same. — Demurrer.—What it Admits. — A demurrer admits only the issuable facts alleged in a pleading, p. 473.</p> <p>3. Same. — Complaint.—Divorce.—Separation.—A petition for a divorce alleging that “the plaintiff and defendant were married on June 11, 1875, and continued to live together as husband and wife until November 17, 1904, when the defendant, by a continuous and systematic course of abuse, which had been kept up for more than five years, drove this plaintiff from home,” does not sufficiently allege a separation, p. 473.</p>

<p>From Orange Circuit Court; Thomas B. Bushirh, Judge.</p> <p>Suit by William G. Hofman against Hannah Hofman. From a decree for plaintiff, defendant appeals.</p>

<p>From Floyd Circuit Court; William, C. TJtz, Judge.</p> <p>Suit by tbe Falls City Savings & Loan Association against Clara Wredman and another. From a decree for plaintiff, defendant Clara Wredman appeals.</p>

<p>Prom Posey Circuit Court; O. M. Welborn, Judge.</p> <p>Action by Henry H. Gollihur, as administrator of the estate of Loren G. Coker, deceased, against the Louisville & Nashville Railroad Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Delaware Circuit Court; Joseph G. Leffler, Judge.</p> <p>Suit by Miles J. Pittinger against Samuel Y. Ramage. From a decree for defendant, plaintiff appeals.</p>

Original action by the State of Indiana, on the relation of. the Columbus Street Railway & Light Company, against William E. Deupree, as «judge of the Brown Circuit Court. (For decision on petition to transfer, see 169 Ind. —.)

From Lake Superior Court; Harry B. Tuthill, Judge. Action by Alice Isabel Marie Blockie, by her next friend, against the Hammond, Whiting & East Chicago Electric Street Railway Company. From a judgment on a verdict for plaintiff for $14,000, defendant appeals.

<p>1. Pleading. — Complaint. — Railroads. — Permitting Passenger to Shoot Another. — A complaint showing that defendant railroad company negligently permitted one passenger to shoot another, without provocation, states a cause of action, p. 504.</p> <p>2. Railroads. — Passengers.—Duty to Protect. — It is the duty of a railroad company to protect its passengers from injuries from third parties, where it has reason for suspecting dangers therefrom. p. 505.</p> <p>3. Words and Phrases. — “Permit.”—Railroads.—To ‘‘‘permit” the shooting of a passenger by a third party, imports that the railroad company’s servants knew of the threatened danger, p. 505.</p> <p>4. Pleading. — Complaint.—Negligence.—General Allegation of.— Where a violation of duty is shown, a general allegation of negligence is sufficient, p. 505.</p> <p>5. Same. — Complaint. — Railroads. — Protection of Passengers.— Duties of Bralcesmen. — Judicial Notice. — A complaint showing that defendant railroad company’s brakesman negligently permitted a third party to shoot a passenger, sufficiently shows that the brakesman was acting within the scope of his employment, judicial notice being taken that such protection was one of his duties as brakesman, p. 506.</p> <p>6. Trial. — Instructions.—Railroads.—Shooting of Passenger try Third Party. — An instruction that it was the duty of defendant railroad company to exercise the highest care and diligence compatible with its business to protect its passengers from known • dangers, and that it is liable for the slightest neglect, if injury is caused thereby, is not erroneous, in an action against such company for negligently permitting plaintiff to he shot by a fellow passenger, p. 506.</p>

<p>Fr’om Johnson Circuit Court; IF. J. Buckingham, Judge.</p> <p>Action by Wolf Hoffman against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals.</p>

From Hamilton Circuit Court; Ira W. Christian, Judge. Action by William S. Hobbs against tbe Lake Erie & Western Railway Company and the .Ohio Farmers Insurance Company. From a judgment in favor of plaintiff and the insurance company, the railroad company appeals.

<p>From Ripley Circuit Court; Willard New, Judge.</p> <p>Action by Anthony Schneider against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Prom Grant Circuit Court; H. J. Paxilus, Judge.</p> <p>Action by Joseph A. Roberts against the Ft. Wayne Gas Company and another. From a judgment for defendants, plaintiff appeals.</p>

Prom Miami Circuit Court; Joseph N. Tillett, Judge. Action by John Walters against Benjamin P. Shearer and others. Prom a judgment for plaintiff, and a decree for defendant Shearer, plaintiff, appeals.

<p>1. Appeal. — Bight of. — Statutes.—Streets.—Vacation.—Damages.— No appeal lies from the judgment of the circuit court in a street vacation proceeding under §§3521-3526 Burns 1905, Acts 1905, pp. 219, 282-284, §§97-102, since said §3526 provides that “the judgment of such court shall be final, and no appeal shall lie therefrom.” p. 537.</p> <p>2. Same. — Certiorari.—The writ of certiorari cannot be used in this State to perform the office of an appeal, p. 538.</p> <p>3. Same. — Statutory Denial of Bight of. — Where the statute specifically denies a right of appeal, none exists, p. 538.</p> <p>4. Same. — Theory of Case. — Changes of. — Vacation of Streets. — A complaint for the vacation of a street, under §§3521-3526 Bums 1905, Acts 1905, pp. 219, 282-284, §§97-102, denying an appeal, cannot, on appeal, be considered on the theory that it is under the railroad track elevation statute (§§3667-3675 Burns 1905, Acts 1905, p. 144), which gives a right of appeal, p. 539.</p> <p>5. Damages. — Vacation of Streets. — Change of Grade. — Final Order. — Effect.—The final order for the vacation of a street is self-executing, and gives the injured property owner a right of action; but an unexecuted order for the change of the grade Of a street gives no right of action, p. 540.</p> <p>6. Appeal. — Right of. — Legislative Powers. — The legislature has the exclusive power to grant or deny the right of appeal, p. 540.</p> <p>7. Same. — Motion to Dismiss. — Notice.—Waiver.—Where appellee’s notice to dismiss the appeal was acknowledged by one of appellant’s attorneys on August 28, and on October 16, appellant filed a brief on such motion, defects in the form of such notice are waived, p. 540.</p> <p>8. Same. — Jurisdiction.—Raising Question— It is the duty of the court, on appeal, with or without a motion, to determine its jurisdiction over such appeal, p. 541.</p> <p>9. Pleading. — Complaint.—Exhibits.—Vacation of Streets. — An exhibit of the proceedings of the board of public works in an action for the vacation of a street under §§3521-3526 Burns 1905, Acts 1905, pp. 210, 283, §§97-102, constitutes .no part of a complaint, in the circuit court, to determine the correctness of the board’s order, p. 541.</p> <p>10. Jurisdiction. — How Determined. — Appeal.—The whole record, on appeal, is subject to the court’s examination, in determining the question of jurisdiction, p. 541.</p>

<p>Prom Porter Circuit Court; William Johnston, Special Judge.</p> <p>Suit 'by Frederick Kreiter and others, against George M. Eder and another. Prom a judgment for plaintiffs, defendants appeal.</p>

<p>1. Tbiae. — Instructions.—Work and Labor. — Physicians.—Services. —Voluntary Payment. — In an action by a physician against the proprietor pf a hospital for medical services rendered, at the proprietor’s request, to a patient of such hospital, and for nurse hire paid by such physician, an instruction that he could not recover for such nurse hire is proper, where he testified that he engaged the nurse without defendant’s consent and paid her for the services rendered after knowledge of defendant’s refusal to pay her. p. 553.</p> <p>2. Same. — Instructions.—Parol.—Consent.—The giving of parol instructions, without the consent of the parties, constitutes reversible error, p. 553.</p>

<p>Prom Martin Circuit Court; H. Q. Houghton, Judge.</p> <p>Action by John Qualkinbush against Louis N. Worthington. Prom a judgment for plaintiff, defendant appeals.</p>

From Miami Circuit Court; Joseph N. Tillett, Judge. Suit by Harry Nyce against Andrew Sehmoll, as city treasurer of the city of Peru, and another. From a decree for defendants, plaintiff appeals.

Prom Wabash Circuit Court; U. 8. Lesh, Special Judge. Action by the State of Indiana, on relation of David Whisler, as receiver of the partnership of Lawrence & Company, against the Amercian Bonding Company, and another. Prom a judgment for plaintiff, defendants appeal.

<p>Prom Hancock Circuit Court; Edward W. Felt, Judge.</p> <p>Action by Ella Manion, as administratrix of the estate of Michael Manion, deceased, against the Lake Erie & "Western Railway Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Pleading. — Complaint.—Injunction.—Easement. — Obstructions. —A complaint alleging that the plaintiff is the owner in fee simple of certain land; that defendant has an easement thereover for the use of wagons and other vehicles; that the plaintiff has constructed a first-class farm gate at the entrance of said easement, and that defendant threatens to destroy same, states a sufficient cause for an injunction, p. 576.</p> <p>2. Easements. — Rights of Way. — Servient Owner’s Right to Obstruct. — The servient owner ordinarily has the right to maintain gates, in a reasonable manner, at the termini of a right of way over his land. p/577.</p> <p>3. Same. — Incidents. —■ Complaint. — Allegations. — Nothing except what is requisite to its reasonable enjoyment passes as an incident to the grant of an easement; and an allegation that °an easement is a private right of way for wagons and other vehicles shows such way is for passage only. p. 578.</p> <p>4. Pleading. — Complaint.—Easements.—Obstructions.—Defenses.— Where a complaint to enjoin defendant from removing plaintiff’s gate from the entrance to defendant’s right of way alleges that defendant has a right of way for the use of wagons and other vehicles, the inference therefrom being that plaintiff has the right to maintain such gate, defendant’s contention that he has a right to an open way constitutes a defense and must be availed of by an answer, p. 578.</p> <p>5. Evidence. — Deeds.—Mistakes.—Reformation.—Easements.—In a suit for an injunction to prevent defendant from removing plaintiff’s gate from the entrance to defendant’s right of way, the deed conveying such right of way is admissible in evidence, though the description therein does not locate the way as used, evidence of a mutual mistake in the description being produced; and a reformation of such deed is not necessary in such suit or in any other, to render it admissible, p. 579.</p> <p>6. Easements. — Rights of way. — Oates.—Width.—A gate ten feet wide at the entrance to a right of way sixteen and a half feet wide does not constitute an unreasonable obstruction, where it appears that such gate was not an interference with the free passage to and from such way. p. 580.</p>

<p>1. Pleading. — Complaint.—Injunction.—Taxation.—Initial Attach on Appeal. — A complaint for injunction showing that defendant city treasurer is threatening to assess taxes against plaintiff upon property properly listed and paid upon at her home city, and that she is not an inhabitant of the defendant’s city, is sufficient, when attacked for the first time on appeal, p. 583.</p> <p>2. Taxation. — Situs.—“Inhabitant.”—Words and Phrases. — Statutes. — Under §8421 Burns 1901, Acts 1S97, p. 250, providing that “all personal property shall be assessed to the owner in the township, town or city of which he is an inhabitant,” the word “inhabitant” imports the concurrence of the owner’s habitancy or domicile with an intention of making such place his home. p. 587.</p> <p>3. Words and Phrases. — “Resident."—The word “resident,” as used in clause four, §240 Burns 1901, §240 R. S. 1881, providing that the word “ ‘inhabitant’ may be construed to mean a resident in any place,” means the true, fixed place from which the person has no present intention of moving, p. 588.</p> <p>4. Taxation. — Situs.—“Inhabitants.”—Who Are. — Where a woman lived with her husband, until his death, at Vevay, and then took up a temporary abode at Peru, still owning several houses at Vevay and several farms near there, and always considered that as her home, and listed her credits there, paying taxes thereon, she is not an “inhabitant” of Peru, within the taxing statute (§8421 Burns 1901, Acts 1897, p. 250), and such property is not taxable to her at Peru. p. 590.</p> <p>5. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting oral evidence, p. 591.</p>

<p>1. Judgment. — Res Judicata. — Sustaining Demurrer to Complaint. —A final judgment, even upon sustaining a demurrer to the complaint, is res judicata as to ail issues presented, p. 595.</p> <p>2. Same. — Res Judicata. — Compla/int.—Omitted Facts. — Sustaining Demurrer. — The sustaining of a demurrer to a complaint omitting facts essential to the cause of action, is not res judicata in a subsequent action where the complaint alleges all of the essential facts, p. 595.</p> <p>3. Pleading. — Complaint.—Sitretyship and Guaranty. — Contracts.— Compliance with Terms. — A complaint on a contract of surety-ship must show that the plaintiff acted within the terms thereof, p. 595.</p> <p>4. Same. — Complaint.—Suretyship and Guaranty. — A complaint showing that plaintiff advanced money to defendant’s agents, with which they bought for spot cash and shipped to defendant a car load of lemons, and that defendant had contracted with plaintiff to repaj' to plaintiff money advanced by plaintiff to such agents for spot cash purchases of lemons in car lots, is sufficient, p. 596.</p> <p>5. Words and Phrases. — “Spot Cash.” — Sales.—A sale for “spot cash” imports that money for the purchase is paid immediately, p. 590.</p> <p>6. Principal and Agent. — Suretyship.—Authority.—Scope of.— Contraéis. — Where a principal contracted to repay to a bank all money advanced by it to the principal’s agents for the purchase of lemons in ear lots for spot cash, the fact that such agents had bills of lading executed in their own names as consignors and consignees can not justify the principal in refusing to repay the money advanced in accordance with the terms of such contract, p. 596.</p> <p>7. Judgment. — Res Judicata. — Complaints.—Contracts.—Assumpsit. — A final judgment sustaining a demurrer to a complaint upon a special contract is not res judicata in a subsequent action for money had and received, p. 597.</p>

Prom Probate Court of Marion County (15,257) ; Merle N. A. Walker, Judge. Petition by Oliver. P. Ensley, as county treasurer of Marion county, against Charles R. Hasely, as executor and special administrator of the estate of Benjamin Rowley, deceased. From a judgment for petitioner, defendant appeals.

<p>Prom Porter Circuit Court; Willis G. McMahan, Judge.</p> <p>Action by Belle Schwerdt against the City of Valparaiso. Prom a judgment on a verdict for plaintiff for $400, defendant appeals.</p>

<p>1. Pleading. — Complaint.—Exhibits.—Railroads.—Fences. ■ — • In an action against a railroad company to recover the cost of a fence built by the abutting landowner, the itemized account of the cost thereof, given to the company, is not the basis of the action and is not a necessary exhibit to the complaint, p. 617.</p> <p>2. Same. — Complaint.—Assumpsit.—WorJc and Labor. — Railroads. —Fences.—The basis of the action for the building of a fence, by an abutter, along a railroad right of way, is the work and labor furnished which has inured to defendant’s benefit, an allegation of the value of the fence together with a statement of the material used and labor performed being manifestly sufficient, p. 617.</p> <p>3. Railroads. — Fences.—Conditions Precedent. — Fencing by Landowners. — In order that an abutter may compel a railroad company to pay for his erection of a fence along its right of way it is not necessary to prove that he has a “lawful” fence in good repair around the other portions of his field, p. 618.</p> <p>4. Same. — Fences.—Replacing Old, with Few. — Statutes.—Where a railroad company has permitted its fence along its right of way to decay, and the abutter has been compelled to erect a new fence in its stead, he has a right of recovery under §5325 Burns 1901, Acts 1885, p. 224, §3, providing for the “repair” of a right of way fence by the abutting landowner, p. 619.</p>

<p>Prom Gibson Circuit Court; L. G. Embree, Special Judge.</p> <p>Action by the Plano Manufacturing Company against Elmer E. Stamets and others. Prom a judgment for plaintiff, defendants appeal.</p>

<p>1. Contracts. — Commissions.-—Sales.—Beal Property. — A contract by which plaintiff agreed to pay to defendant a certain sum for the purchase, for plaintiff, of a certain tract of land, is not within §6029a Burns 1901, Acts 1901. p. 104, §1, providing that no contract for the payment of money for the finding or procuring of a purchaser for real estate shall be valid unless in writing, p. 631.</p> <p>2. Same. — Beal Property. — Statute of Frauds. — Defendant’s contract to purchase, in defendant’s name, a certain tract of land for the plaintiff and subsequently to convey same to plaintiff is within §6629 Burns L901, cl. 4, §4904 R. S. 1881, providing that “no action shall be brought * * * upon any contract for the sale of lands” unless the contract be in writing, p. 631.</p> <p>3. Same. — Performance.—Statute of Frauds. — Beal Property.— Where defendant purchases with his own money a tract of land upon an oral agreement to convey the same to plaintiff, and defendant. in violation thereof, sells such tract to another, there is no performance of such contract sufficient to take the case out of the statute of frauds, p. 631.</p>

<p>Prom Owen Circuit Court; Joseph W. Williams, Judge.</p> <p>Action by the Sullivan Machinery Company against William T. Breeden, and others. Prom a judgment for defendants, plaintiff appeals.</p>

<p>1. Drains. — Statutes.—Repeal. — Pending Proceedings. — Section 5635 Burns 1905, Acts 1905, p. 450, §14, repealing prior drainage laws, with certain exceptions, did not affect pending drainage proceedings which had not reached final judgment where the-proposed drain would not affect any lake whose high-water, surface area did not exceed ten acres, p. 642.</p> <p>2. Judgment. — Setting Aside. — Fraud.—Special Findings. — Unquestioned special findings must be considered as true; and where a judgment is impeached because of fraud, such findings must affirmatively show a legal fraud, or the suit fails, p. 643.</p> <p>3. Same. — “Rendition” of, in Vacation. — Entry.—Words and Phrases. — A judgment “rendered” in vacation is void; but a judgment pronounced by the judge in term-time may lawfully be entered in vacation, p. 644.</p> <p>4. Same. — Rendition.—Recording.-—Time of. — Validity.—A judgment pronounced in open court, the entry of which was directed to be prepared and entered later, in vacation, and it was so prepared and entered, the record being signed in vacation by the judge and reread and approved in open court at the succeeding term, is neither fraudulent nor void. p. 645.</p>

<p>Prom Hancock Circuit Court; Robert L„ Mason, Judge.</p> <p>Claim by Joseph Osborn against Nathan Hunt, as administrator of the estate of Henry Hunt, deceased. Prom a judgment for claimant, defendant appeals.</p>

From Marion Circuit Court (15,371); Henry Clay Allen, Judge. Action by Daniel Yanthis and others against William Kemp and others. From a judgment for defendants, plaintiffs appeal. On motion to dismiss appeal. (Por decision on merits see — Ind. App. —.)

<p>From Steuben Circuit Court; Emmet A. Bratton, Judge.</p> <p>Action by Henry Brandt against Prank A. Hall and another. Prom a judgment for defendants, plaintiff appeals.</p>

<p>1. Railroads. — Fences.—Repairing Toy Landoioner. — Discretion.— Where a railroad company, upon demand, refuses to repair its fence along its right of way, the abutting landowner is entitled to use his discretion, subject to judicial review, whether he should use the old and decayed materials in making repairs, or should build a new fence, p. 660.</p> <p>2. Same. — Fences.;—Location.—Where a railroad company refused, upon 'demand, to repair the fence along its right of way, an abutting landowner, building a new fence upon a line staked by the company’s supervisor, is entitled to recover, though such fence be a few inches from the true line. p. 661.</p>

Prom Madison Circuit Court; Vinson Carter, Special Judge. Action by Eldon B. Pierse against Calvin A. Bronnenberg and another, as administrators of the estate of Frederick Bronnenberg, deceased. Prom a judgment for defendants, plaintiff appeals. (For opinion on motion to dismiss appeal, and for leave to amend assignment of errors, see 38 Ind. App. 655.)

<p>From Superior Court of Vanderburgh County; W. M. Wheeler, Special Judge.</p> <p>Action by William Earl Taschner, by his next friend, against the United States Furniture Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Prom Superior Court of Madison County; Henry C. By an, Judge.</p> <p>Suit by the Burlington Savings Bank against Laura M. Diven and others. Prom a decree for plaintiff, defendants appeal.</p>

<p>1. Contempt. — Neio Trial. — Appeal.—Under §§1023, 1025 Burns 1901, §§1011, 1013 R. S. 3881. the defendant, in cases of direct or indirect contempt, may move for a new trial, file bills of exceptions, and appeal, as in criminal cases, p. 681.</p> <p>2. Appeal. — Assignments of Errors. — New Trial. — Contempt.—Independent assignments on appeal, which should be made grounds for a new trial, in a case of direct contempt, present no questions. p. 682.</p>

<p>1. Appeal. — Parties.—Successors.—Assignments of Errors. — A company succeeding to the rights and duties of the judgment defendant company, in order to appeal from the judgment, must allege in the assignment of errors the facts showing that it is the legal successor of defendant, p. 683.</p> <p>2. Pleading. — Complaint. — Railroads. — Fences. — Repairing. — A complaint, Tinder §5325 Burns 1901, Acts 1885, p. 224, §3, providing for the “repair” of a railroad right of way fence by the abutter, upon refusal to repair by the company,- does not need to negative any of the exempting provisions of §5323 Burns 1901, Acts 1885, p. 224, §1, providing for the building of a fence in the first instance. p. 684.</p>

<p>1. Pleading. — Complaint.—Mechanics’ Liens. — Demurrer.—Initial Attach on Appeal. — A complaiiit alleging that plaintiff furnished machinery to the defendant factory owner for use in his factory and that it was so used; that said defendant is insolvent; that said defendant is indebted to various persons, who claim an interest in the real estate involved, such persons being joined as defendants and required to answer as to their interests; that plaintiff duly filed notice of his intention to hold a lien, and praying a decree of foreclosure, together with the appointment of a receiver, is sufficient on demurrer as well as upon an initial attack on appeal, p. 685.</p> <p>2. Appeal. — Vacation.—Parties.—Persons who' are not parties to the judgment appealed from, though parties to the action, are not necessary parties in a vacation appeal, p. 687.</p> <p>3. Mechanics’ Liens. — Waiver.—Machinery.—Retaining Title.— The retention of. the title to machinery sold to defendant for use in a factory is not a waiver of the vendor's right to a mechanic’s lien therefor, p. 687.</p> <p>4. Teial. — Special Findings. — Mechanics’ Liens. — Waiver.—Retaining Title. — Sales.—It is not necessary, in a suit to foreclose a mechanic’s lien, for the special findings to show that the vendor who expressly retained his title to the machinery sold, elected to treat the sale as absolute, since the filing of the suit constitutes, of itself, such election, p. 688.</p>

Prom Bartholomew Circuit Court; Marshall Hacker, Judge. Action by Philip H. Reap, by his next friend, against the Columbus Street Railway & Light Company. Prom a judgment on a verdict for plaintiff for $200, defendant appeals.

Prom Ripley Circuit Court; Willard New, Judge. Action by William Wuest, by his next friend, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Prom a judgment on a'verdict for plaintiff for $2,000, defendant appeals. (Por decision on merits see — Ind. App. —.)

<p>1. Statutes. — Grammatical Construction. — Intent.—The courts in construing a statute will ascertain the legislative intent, though they have to disregard the grammatical construction of the language used. xi. 697.</p> <p>2. Same.— Uncertainty. — Railroads.—Flagmen at Highway Crossings. — Section 5260 Burns 1908, Acts 1891, p. 364, §1, providing that “all railroads owned or operated in the State having more than two tracks across any public highway or road and used for switching purposes exclusively, or regularly, or if only one track and used for switching purposes, said railroad corporation shall upon the order of the County Commissioners in which said railroad is located, place a flagman at said crossing and maintain the same at their expense,” is not void for uncertainty, p. 698.</p> <p>3. Same.- — Railroads.—Maintaining Flagmen at Highway Crossings. —Section 5260 Burns 1908, Acts 1891, p. 364, §1, providing that “all railroads owned or operated in the State having more than two tracks, * * * or if only one track * * * said railroad corporation shall * * * place a flagman” at certain highway crossings, applies to corporations owning and operating steam railroads. p. 698.</p> <p>4. Same. — Railroads.—Location.—Section one of the act of 1891 (Acts 1891, p. 364,'§5260 Burns 1908), providing that “said railroad corporation shall, upon the order of the County Commissioners in which said railroad is located, place a flagman” at certain highway crossings, refers to the board of commissioners having the power to make such order for the appointment and maintenance of a flagman, p. 698.</p> <p>5. Same. — Railroads.—Flagmen.-—Section 5260 Burns 1908, Acts 1891, p. 364, §1, providing that “said railroad corporation shall, upon the order of the County Commissioners in which said railroad is located, place a flagman” at certain highway crossings, empowers the board of commissioners of any county through which such railroad passes to make the requisite orders for flagmen within such county, p. 698.</p> <p>6. Same. — Railroads.—-Flagmen.—Expenses.—Section 5260 Burns 1908, Acts 1891, p. 364, §1, providing that “said railroad corporation shall, upon the order of the County Commissioners * * * place a flagman at said crossing and maintain the same at their expense,” imports that the expense should be borne by such railroad corporation, the plural “their” being evidently intended for the singular “its.” p. 699.</p> <p>7. Pleading. — Complaint.—Railroads.—Operation of. — A complaint filed May 15, 1905, incorporating an order of the board of commissioners stating that on March 7, 1905, the defendant railroad company owned and operated a certain described railroad, sufficiently shows that such road was built and complete on such earlier date. p. 699.</p> <p>8. Pleading. — Complaint.—Railroads.—Alternative Allegations. — A complaint alleging that the defendant’s line of railway consists of four parallel and adjacent tracks, and that “said tracks are used exclusively or regularly by said company for the switching of cars and trains,” is sufficient, under §5260 Burns 1908, Acts 1891, p. 364, §1, empowering boards of commissioners to require railroad companies to station flagmen at certain crossings, though apparently in the alternative, since, under either alternative, conditions are shown empowering the board to require the appointment of a flagman, p. 700.</p> <p>9. Same. — Complaint.—Uncertainty.—Motion to Make More Specific. — Where uncertainty appears upon the face of the complaint, a motion to make more specific is the proper remedy, p. 700.</p> <p>10. Evidence. — “Regular” Use of Track, for Switching. — Conclusions. — It is proper to sustain an objection to the question whether the defendant company’s track was “regularly” used for switching, the answer necessarily being a conclusion, p. 701.</p> <p>11. Teial.' — Instructions.—General W ords. — -Adaptation.—General words used in instructions will be adapted to the subject-matter in reference to which they are used. p. 701.</p> <p>12. Evidence. — Judicial Notice. — Switching.—Courts take judicial notice that railroad companies have no fixed time to do switching at the small stations along their routes, and that they do such switching whenever it becomes necessary in the conduct of their business, p. 701.</p> <p>13. Railboads. — Flagmen.—-Duty to Maintain. — Evidence.—Evi- ' deuce showing that defendant railroad company maintained four tracks, two passenger tracks, one passing track and one storage track, over a highway, supports a judgment that such company is liable to a penalty for failure to maintain a flagman at such crossing, the board of commissioners having ordered-the appointment of one for such crossing, under §5260 Burns 1908, Acts 1891, p. 364, §1. p. 701.</p>

<p>Prom Hendricks Circuit Court; Presley O. Colliver, Special Judge.</p> <p>Suit by Emma McHaffie and others against Laura P. Hume and another. Prom a, decree for plaintiffs, defendants: appeal.</p>

<p>1. Words and Phrases. — “Void.”—Insurance.—The word “void,” as used in insurance policies, means voidable at the election of the insurer, pp. 714, 716.</p> <p>2. Insurance. — Premiums.—Recovery of. — “Void” Clauses. — Contracts. — The insurer is liable for the premiums received upon a “void” policy, there being no consideration received by the insured and no liability thereon, p. 714.</p> <p>3. Pleading. — Answer.—Insurance.—“Void” Clauses. — Warranty.— Election.- — An answer, in an action on an insurance policy containing warranties and “void” clauses, which attempts to deny liability on account of the breach of such warranties must show an election by the company to avoid such policy and a return of the unearned premiums, pp. 715, 718.</p> <p>4. Insurance. — “Void” Clauses. — Election.—Waiver.—The avoidance of an insurance policy because of the breach of a warranty therein contained constitutes an election and not a waiver, p. 715.</p> <p>O. Contracts. — Warranty.—Breach.—Rescission.—Breach of a warranty contained in a contract gives no right of rescission unless such right is expressly reserved, p. 717.</p> <p>O. Same. — Rescission.—Warranty.—Breach.—A warranty, is a promise, usually collateral to a contract, and a rescission for a breach thereof can be upheld only where the rescinding party restores or offers to restore what he has received thereunder, p. 717.</p>

Prom Orange Circuit Court; Thomas B. Bushirh, Judge. Action by William Atkinson and another, against Aaron Maris, as administrator of the estate of John Maris, deceased. Prom a judgment for defendant, plaintiffs appeal.

<p>Prom Kosciusko Circuit Court; Lemuel W. Royse, Judge pro tern. ,</p> <p>Action by Lambert Rice against the Sandusky Portland Cement Company. Prom a judgment on a verdict for plaintiff for $460, defendant appeals.</p>

<p>From Delaware Circuit Court; Joseph G. Leffler, Judge.</p> <p>Action by Burdette M. Arthur against John A. Shroyer. From a judgment for defendant, plaintiff appeals.</p>

<p>From Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Action by Mina Jane Parker and another against the Lake Erie & Western Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

Prom Putnam Circuit Court; Presley O. Oolliver, Judge. Action by Vivian Hadley, by next friend, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company.' Prom a judgment for plaintiff, defendant appeals. (Por decision on merits see 170 Ind. • — .)

<p>From Posey Circuit Court: O. M. Wettorn, Judge.</p> <p>Action by Elmer Yeager against the Evansville & Terre Haute Railroad Company. From a judgment on a verdict for plaintiff for $250, defendant appeals.</p> <p>(See 109 Ind. —.)</p>